H-1B Temporary Workers

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If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

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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.

 

On October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting premium processing requests for all categories of H-1B petitions.  In March 2017, USCIS had suspended the premium processing program for H-1B petitions, citing the need to reduce its overwhelming processing backlog. Over the past several months, USCIS phased in premium processing for certain limited categories of H-1B petitions.  USCIS’s latest announcement allows employers to file any type of H-1B petition, including those seeking extension of stay or change of status, under Premium Processing and also allows employers to convert any such pending petitions to premium processing.

Under USCIS’ premium processing service, petitions are adjudicated within a 15 day calendar days for an additional government filing fee of $1,225 instead of the current regular processing time of 4-5 months.

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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 US Citizenship and Immigration Service (USCIS) announced today, September 18, 2017, that it will again expand its resumption of premium processing for additional types of H-1B petitions.

Effective immediately, H-1B petitions subject to the Fiscal Year 2018 cap are eligible for premium processing.  This includes petitions under the 65,000 cap and the 20,000 additional petitions for beneficiaries with a US master’s or higher degree.  Readers may recall that the FY 2018 cap was reached in April 2017.  Those pending filings that were selected in the H-1B lottery, which generally have October 1, 2017 start dates, are the ones that are included under this expanded resumption of premium processing.  This is indeed welcome news for both the petitioning employers and beneficiaries who may now achieve decisions that could allow the H-1B employment to begin on or shortly after the anticipated start date.

Today’s expansion of premium processing is in addition to two prior resumptions of premium processing which included:

  • H-1B petitioners who are exempt from the H-1B cap as:
    • An institution of higher education,
    • A nonprofit related to or affiliated with an institution of higher education, or
    • A nonprofit research or governmental research organization.
  • H-1B  petitions that are exempt because the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.
  • H-1B petitions for physicians under the Conrad 30 or an IGA (interested government agency) waiver program, and

For now, USCIS continues its temporary suspension of premium processing for all other H-1B petitions including but not limited to extensions of stay.

The Agency stated that it will continue to expand eligibility for premium processing for other types of H‑1B petitions as workloads permit.  You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  This may yet be achieved.

In its announcement USCIS included a reminder that H-1B petitioners may request expedited processing based on specific criteria such as humanitarian need.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.

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Catherine Wadhwani is a partner in the immigration practice at Fox Rothschild LLP.

The US Citizenship and Immigration Service (USCIS) announced today, July 24, 2017, that it will again expand its resumption of premium processing for certain types of H-1B petitions.

Effective immediately, H-1B petitioners who are (or have a sound argument that they are) exempt from the H-1B cap, are eligible to request premium processing.  This includes petitioners that are:

  • An institution of higher education,
  • A nonprofit related to or affiliated with an institution of higher education, or
  • A nonprofit research or governmental research organization.

In addition, USCIS stated that it will resume premium processing for petitions that may be exempt “if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.”

This welcome news comes about a month after USCIS resumed premium processing of H-1B petitions for physicians under Interested Government Agency (IGA) J-1 waiver programs such as the Conrad 30 waiver program for shortage area physicians.  Employer’s petitioning for H-1B status for IGA-Waivered physicians became eligible for premium processing on Monday, June 26, 2017.

You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  In today’s announcement, USCIS indicated that it will further “resume premium processing of other H-1B petitions as workloads permit.”  So it appears that USCIS is on its way toward meeting the October time-frame.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.  Petitioners who aren’t eligible for premium processing, may of course, seek expedited processing based on such things as humanitarian reasons.

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.

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 U.S. 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.

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.