On Tuesday, April 18, 2017, President Donald Trump signed a new Executive Order, “Buy American and Hire American.” The new Order states that its first purposes is to focus on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the U.S. (“Buy American”).

The second stated purpose of the Order focuses on a review of current immigration policies and regulations, specifically at H-1B visa program, and non-immigrant visa categories (for skilled foreign national workers) (“Hire American”).

The Order also directs government agencies to tighten up on visa fraud and abuse in the particulate with the H-1B visa program. The Order also directs that the government will fully prioritize the use of American companies and goods in federal projects.

The government has reported that 199,000 H-1B applications were submitted for the 2018 fiscal year, according to data from the U.S. Citizenship and Immigration Services, compared with the 236,000 H-1B cap petitions filed during the prior year.

In an interview earlier today with Snap On’s CEO, Nicholas Pinchuk, who said in a statement “The upskilling of the American workforce is the seminal issue of our time. We must refocus on technical education, restore our respect for the dignity of work, and celebrate technical jobs not as the consolation prize of our society, but as what they really are — a national calling essential to our ongoing prosperity.”

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On April 17, 2017,  USCIS alerted stakeholders concerning a glitch on the Form I-9.  The glitch specifically relates to any Form I-9 downloaded between November 14, 2016 and November 17, 2016 and the employee’s Social Security number.  Employers who downloaded Form I-9 during this brief period should ensure the employee’s Social Security Number appears correctly in Section 1.  As explained by USCIS, numbers inserted in Section 1- Social Security number field were transposed when the Form I-9 was completed and printed.   Forms completed after November 17, 2016 are not of concern as USCIS repaired the technical error and reposted Form I-9 on November 17, 2016.

Employers who detect a mistake in their employee’s Social Security numbers as written in Section 1 should request the employee draw a strike through the transposed Social Security number, write the correct Social Security number, and write their initials/date in the margin next to the change in Section 1.  It is also recommended that employers attach a written explanation to affected Form I-9s as to the reason for the correction as a safeguard in the event of an audit.

Today, USCIS announced it has completed the H-1B cap FY 2018 random selection process (also known as the H-1B lottery).  This means USCIS has completed the lottery and has selected enough petitions to meet the 65,000 regular-general cap and the 20,000 cap under the advanced degree exemption.   USCIS will reject and return all unselected H-1B cap petitions.  The government reported receiving a total of 199,000 H-1B cap petitions during the H-1B cap FY 2018 filing period, which started on April 3, 2017. This is remarkably less when compared with the 236,000 H-1B cap petitions filed during the FY 2017 period, which started on April 1, 2016.

As a reminder, effective March 3, 2017, USCIS temporarily suspended premium processing for all H-1B petitions for up to six months.  As such, no H-1B cap FY 2018 petition will be processed using the expedited premium processing, commonly utilized in prior years.  We will report back once USCIS has reinstated premium processing for H-1B petitions.

In the last few days, there have been a number of government announcements concerning the popular H-1B Temporary Worker status. Of course, these announcements come after this year’s crop of new H-1B visa applications have been sent to USCIS. Some of the linked announcements are warnings and others are disquieting.

What does all of this mean?

The Department of Justice cautions that employers seeking H-1B visas may not discriminate against US workers. The focus is on H-1B workers whose employment intentionally displaces US workers.

USCIS announced that it will take measures to detect H-1B fraud and abuse. No one is in favor of fraud or abuse in the system. USCIS warns/advises that it will make site visits particularly where it can’t verify the employer’s business information, where the employer is H-1B dependent or where the H-1B will be working off-site at another firm’s location. The takeaway is that employers should have their I-9 Employment Verification records and Public Access files in order so that if someone wants to see them, they see that everything is in order and hopefully fines and other penalties are avoided.

In its March 31, 2017 Memo, USCIS announced that it rescinded a memo from 2000 that provided guidance on H-1B computer-related positions. Recognizing that the world of computer-related positions has changed dramatically in the last 17 or so years, the year 2000 guidance that recognizes most programmers are working in “specialty occupations” is declared obsolete. The memo raises the question of what will be required to secure H-1B visas for computer programmers and others in the computer field.

This memo restates the law that H-1B rules require that the beneficiary must be working in a position that is a “specialty occupation”; having a Bachelor’s degree and being a programmer just isn’t enough.

To quote: “…while the fact that some computer programming positions may only require an associate’s degree does not necessarily disqualify all positions in the computer programming occupation (viewed generally) from qualifying as positions in a specialty occupation, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of “specialty occupation” requires in part that the proffered position have a minimum entry requirement of a U. S. bachelor’s or higher degree in a specific specialty or its equivalent…”

The memo goes on to explain that to prove that a computer programmer is in a “specialty occupation”, the employer: ”must establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria at 8 CFR 214.2(h)(4)(iii)”.

These criteria are that a Bachelor’s or the equivalent is required to enter the field; that the degree requirement is common in the industry; that the employer normally requires the degree or that the duties are sufficiently complex that a Bachelor’s level education, at least, is required to perform them.

The American Immigration Lawyers Association (AILA) comments that the memo recites criteria that are the same for all H-1B applications, not just computer programmers. They also observe that : ” …the memo supports the proposition that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skill that are more complex and specialized.”

To make a long story short, petitioners may need to provide additional detail to satisfy the “specialty occupation’ requirement when seeking a computer programmer or computer-related H-1B worker. These memos also provide notice of what uses of H-1B workers will be scrutinized and not be tolerated.

During this time of increased unpredictability in US immigration law, it was good to see that the US Citizenship and Immigration Service had confirmed that the upcoming FY2018 H-1B random lottery will be conducted in the same manner as in past years.  Kudos to the American Immigration Lawyers Association (AILA) for publishing the following:

 USCIS confirmed that the process for receiving and receipting H-1B cap cases for Fiscal Year 2018 will be the same as with prior years, including a random lottery. Therefore, a lottery will be conducted if, during the period of April 3-7, 2017, enough petitions are received to reach the 65,000 statutory H-1B cap and the 20,000 cap for petitions filed under the advanced degree exemption, often referred to as the master’s cap. As in the past, a random computer selection will be run first for those petitions under the 20,000 master’s cap exemption. Any petitions not selected for the master’s cap will then be included in the random selection process for the 65,000 regular cap.

 

Words matter.  The words of President Trump as President of the United States and as candidate Trump have been heard by the Courts, not of public opinion, but of the US District Court of Hawaii.  In the Court Order enjoining the implementation of the Administration’s second travel ban Executive Order, the words  “Muslim Ban” used by Mr. Trump and his surrogates were found to be a true and impermissible purpose of the ban.  That provides some relief for the citizens of the 6 countries targeted by the ban as does a decision in the District Court of Maryland, HIAS v Trump.  The HIAS case focused on the Order suspending all refugee resettlement for 120 days.  The Court enjoined the application of that ban as well.   

 The President’s response to the Court Orders in the Hawaii and HIAS cases has been stinging, with a vow to fight on.  There is some relief in the immigrant and refugee communities, but that may be short-lived as a level of unpredictability will likely remain.  Among business immigration attorneys, the relief from the ban eliminates one of the pressing issues with which we are dealing…it’s H-1B season!

 This H-1B season is different than those of the past.  For now, natives of the 6 previously banned nations, Iran, Syria, Somalia, Sudan, Libya and Yemen, have a chance to be sponsored by US employers interested in employing them as cap-subject H-1B workers.  Of course, with the expected multitude of H-1B petitions, their prospective employers’ chances are no greater than any others racing to file on April 3, 2017.  Last year, in the “H-1B season” which lasts 5 business days, approximately 240,000 applications chased fewer than 85,000 visas.  Last year, the results began to trickle in by early May, then those lucky enough to be chosen would have their application adjudicated—many using Premium Processing which produced a result within 2 weeks.  Not this year.  Premium Processing has been suspended for all H-1B filings beginning April 3.   USCIS has said that the suspension may last up to 6 months.

Because the start date of a cap-subject petition cannot be earlier than October 1st regardless of whether Premium Processing is used or not, the lack of premium processing is of less concern to those filers whose cases are subject to the lottery than to those which are cap-exempt—filed by academic institutions, non-profit affiliated health care providers and others. The concern is that a professor or medical resident and others may not be start when the semester or residency program begins.  Aside from timing of adjudication, there is concern that applications from all employers will undergo greater scrutiny, which in turn further delays an approval. In addition, it is anticipated that personnel at the various government agencies will be reduced in number.  This includes agencies that process immigration and related applications—further reason for processing delays.  Fortunately, those waiting will include people from Iran, Iraq, Syria, Libya, Sudan, Somalia and Yemen who are eligible to be included among other highly skilled workers who have offers of professional employment that pay at least the prevailing wage.       

 

USCIS published the updated M-274, Handbook for Employers: Guidance for Completing Form I-9. The Handbook for Employers provides employers with detailed guidance for completing Form I-9, Employment Eligibility Verification. This version, published on Jan. 22, 2017, replaces the previous version which was published on April 30, 2013. It reflects revisions to Form I-9, which was revised on Nov. 14, 2016. You can review highlights of the changes in the Table of Changes for Revised M-274.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The Trump Administration issued a revised Executive Order on travel with an apparent desire to survive a court challenge by modifying some of the elements that judges found troubling in the January 27 travel ban.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

Issued March 6, the new ban, captioned “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” has an effective date of Thursday, March 16 — allowing a 10-day window for foreign nationals, federal agencies and others to prepare for the changes.

The Executive Order imposes a 90-day “temporary pause” on entry into the United States by nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen. Notably, Iraq has been removed from the list, but “additional scrutiny” measures in the new ban will apply to those from Iraq.

Subject to certain “categorical exceptions and case-by-case waivers,” the new travel ban is narrower than the previous broad-sweeping measure and applies only to those from the listed countries who:

  • are outside the United States on the effective date, Thursday March 16
  • did not have a valid visa by 5 p.m. (U.S. EST) on Jan. 27, 2017
  • do not have a valid visa on Thursday, March 16.

Exceptions Recognized

In contrast to the prior Executive Order on travel (Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry into the United States), which this new Order revokes as of March 16, the revised ban also recognizes six categories of individuals from the listed countries:

  • Lawful permanent U.S. residents
  • Any foreign national admitted to or paroled into the U.S. on or after the effective date, Thursday, March 16
  • Any foreign national who has a document (other than a visa) that is valid on or issued on any date after the effective date, that permits the holder to travel to, and seek entry or admission to, the US such as an advance parole travel document
  • Any dual national of one of the six countries when travelling on a passport issued by a non-designated country
  • Any foreign national travelling on a diplomatic-type visa, NATO visa, C-2 for UN travel, or G-1 – G-4 visa
  • Any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Presumably, these exceptions will reduce concern by the larger group of travelers, including nationals of countries not listed in the Executive Order. Yet, the new Executive Order leaves open the possibility that restrictions may be imposed on nationals of additional countries at some point in the future.

Additional highlights of the Order include:

  • A call for enhanced vetting procedures during the adjudications process
  • 120-day suspension of the US Refugee Admissions Program for FY 2017, subject to waivers, and with a call for enhanced vetting
  • Expedited completion of the biometric entry-exit tracking system
  • Suspension of the “visa interview waiver program”
  • A review of visa reciprocity agreements
  • Making certain data available to the public
  • Clarifications regarding visa revocations, and more

On March 3, The U.S. Citizenship and Immigration Service (USCIS) announced that it will temporarily suspend premium processing for all H-1B petitions starting on April 3, 2017 until further notice. This suspension is anticipated to last for a period of up to 6 months. During this suspension, Petitioners are unable to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. USCIS has indicated that it will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017, which is the date FY18 cap-subject H-1B petition filings begin.  Therefore, the suspension applies to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”) as well as to petitions that may be cap-exempt.

While premium processing is suspended, USCIS will reject any Form I-907 filed with an H-1B petition. If the one combined check for both the Form I-907 and Form I-129 H-1B fees is included, both forms (i.e. the entire filing) will be rejected.

USCIS will continue to premium process H-1B petitions properly filed before April 3, 2017, however, USCIS will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage.  It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request. USCIS will review all expedite requests on a case-by-case basis and requests will be granted at the discretion of USCIS leadership.

Why USCIS Is Temporarily Suspending Premium Processing for H-1B Petitions

According to USCIS, the temporary suspension will help it reduce overall H-1B processing times by enabling it to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

Statue of Liberty
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On our Emerging Companies Insider blog, Fox associate Alex Radus provided an update on the new International Entrepreneur Rule by the U.S. Citizenship and Immigration Services (USCIS). The rule, which would grant limited entrée to entrepreneurs establishing stateside startups, has undergone a public comment period. Slated to become effective July 17, 2017, the rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S. As a result of public comments, USCIS generally made it easier for foreign entrepreneurs to establish startup companies in the U.S. via the program.

Alex outlines the changes made in the final rule since his previous discussion, including the timeframe for startup formation, the definition of “entrepreneur,” the minimum investment amount and other aspects. He also notes that with the change to the Trump administration, the future of the role, which was spearheaded by former President Obama, is uncertain. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion.