U.S. Citizenship and Immigration Services (USCIS)

The Department of Homeland Security (DHS) has issued its long-awaited Notice of Proposed Rulemaking (NPRM) to amend USCIS Regulations relating to cap-subject H-1B petitions filed under both the regular cap and advanced degree exemption. Comments from the public may be submitted to the agency within the next 30 days.  This does not affect cap-exempt H-1B petitions.

 While the proposed changes are subject to possible modification, be aware that the upcoming H-1B cap season will likely be dramatically different from past years.  Highlights of the proposed changes include:

Pre-Registration

Electronic Registration/Pre-Registration
There is a proposed requirement that all cap-subject H-1B employers first register each intended petition electronically with USCIS during a designated period rather than directly filing complete H-1B petition packets with USCIS.  Basic information relating to the petitioner and beneficiary would be required in order to register. An employer would be limited to one registration per beneficiary within the same fiscal year.  USCIS does not plan to impose a registration fee at this time.  Only those employers whose registrations are selected (selected registrants) would be eligible to file cap-subject H-1B petitions during the particular filing period. 

Initial Registration/Random Selection 
An initial, time-limited registration period would be created with a start date at least 14 days prior to April 1st, which is the first date when cap-subject petitions may be filed each year. During the initial registration period USCIS would determine whether sufficient employer registrations were received to reach the regular cap for the new fiscal year.

  • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.

    • On a rolling basis, USCIS would continue accepting and selecting electronic registrations until the regular H-1B cap is met, checking registration numbers at the end of each day to determine when there are enough to meet the cap.
    • A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and randomly select enough registrants to meet the regular cap.
  • USCIS would notify the selected registrants of the applicable H-1B petition filing period and where to file their H-1B cap-subject petitions.
  • After the selection process is completed for the regular cap, USCIS would determine whether there are enough remaining eligible registrants to meet the 20,000 advanced degree exemption.
    • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.
    • USCIS would continue accepting and selecting electronic registrations until the advanced degree exemption is met. A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and use a computer-generated random selection process to meet the advanced degree exemption.

Petition Filing for Selected Registrants Only
USCIS would notify the selected registrants when and where they may file their H-1B petitions on behalf of the named beneficiaries.  Only the selected registrants would be permitted to file cap-subject H-1B petitions.

  • An employer that registers to file multiple petitions (each on behalf of a different beneficiary) may be selected to file some of its petitions and not selected for others.

Unselected Registrations
Unselected registrations would remain on reserve for the fiscal year so that if USCIS determined that it must increase the number of registrations to meet the regular cap or advanced degree exemption (presumably in case some of the selected registrants fail to file or their H-1B petitions are denied), then USCIS would select from among the reserve registrants and if needed re-open the registration until the regular and advance degree exemptions are met. 

  • If the registration period is re-opened, USCIS would announce the re-opened registration period start date on its website and accept additional registrations sufficient to meet the new projected amount of registrations needed to meet the regular cap and/or advanced degree exemption. 

 Selection Process

Regular Cap Exhausted First
With the goal of maximizing approvals for the most-skilled or highest-paid petition beneficiaries, the proposed regulations would change the sequence for considering petitions filed for beneficiaries counted against the regular cap or beneficiaries counted under the advanced degree exemption.

  • USCIS would select registrants toward the regular cap first until that cap is reached.  This would include all registrants (that is, those seeking to employ beneficiaries with only bachelor degrees or equivalent as well as those with advanced degrees from US education institutions).
  • Only when the projected number of registrations needed to meet the regular cap is reached would USCIS select registrants who are eligible for the advanced degree exemption.

The proposed rule states that by changing the selection order, USCIS believes that the total number of petitions selected under the regular cap for H-1B beneficiaries possessing a master’s or higher degree from a U.S. institution of higher education will increase overall each fiscal year.


If you wish to discuss your plans for the upcoming H-1B cap season or the proposed rule, please contact your Fox Rothschild attorney or any of the firm’s Immigration Practice Group co-chairs.

On Saturday, September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule designed to redefine a status known as “public charge” — a category used to determine whether someone seeking permanent resident status is “likely to become primarily dependent on the government for subsistence” for those seeking to immigrate to the United States. This rule was signed by Department of Homeland Security Secretary Kirstjen Nielsen on September 21, 2018 and will open for comment on the date of the official version’s publication in the Federal Register. As per past practices, the comment period should last for 60 days from the date of publication.

The 400 page rule expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Specifically, under Section 212(a)(4) of the Immigration and Nationality Act, an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. (Note that there are many exceptions in which a public charge finding would not apply, including but not limited to: Refugees and Asylees, those who are victims of violence (VAWA), Special Immigrant Juveniles (SIJ), Temporary Protected Status (TPS) applicants, Amerasians, Afghan/Iraqi interpreters or U.S. Government employees, Cuban Adjustment Act applicants, NACARA applicants, etc.)

Currently, there is no formal definition of a public charge, but DHS states that “A number of factors must be considered when making a determination that a person is likely to become a public charge”. The proposed new rule would define a public charge as “an alien who receives one or more public benefits.” In the past, people have been at risk of being defined a “public charge” if they took cash welfare — known as Temporary Assistance for Needy Families, or Supplemental Security Income — or federal help paying for long-term care. (Immigrants must be in the country legally for five years before being eligible for TANF or SSI.) The new rule would expand the list to include some health insurance, food and housing programs. Specifically, it would penalize green-card applicants for using Medicaid under certain conditions, using food stamps, Section 8 rental assistance, federal housing vouchers and even enrollment in a Medicare Part D program subsidy.

Specifically, pages 95-96 of the proposed Rule lists the following that would be considered Public Benefits:
· Monetizable benefits: – Any Federal, State, local, or tribal cash assistance for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
– Benefits that can be monetized in accordance with proposed 8 CFR 212.24:
· Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”),
· Public housing defined as Section 8 Housing Choice Voucher Program;
· Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
· Non-cash benefits that cannot be monetized:
– Many Benefits paid for by Medicaid;
– Premium and Cost Sharing Subsidies for Medicare Part D; Benefits provided for institutionalization for long-term care at government expense;
– Subsidized Housing under the Housing Act of 1937.

While public charge is an old idea dating back to the 1990s, the proposed changes are unprecedented. Including programs like Medicaid and food stamps, which are much wider in scope, is a significant change.

In the past, DHS has been forgiving regarding the issuance of immigration benefits if someone had obtained government benefits in the past, so long the individual can prove that he or she is not likely to become a public charge in the future. Under the proposed rule as currently envisioned, it is clear that DHS will not be forgiving now looking at multiple factors including age, health, and past employment history, and, most importantly, receipt of past public benefits.

If implemented as contemplated, DHS will look back within a 36 month period of receipt of government benefits in making their decision on admissibility. Immigrants are encouraged to reexamine any currently public benefits that he/she is currently receiving to determine whether in the upcoming months it will be necessary to drop-out of these public benefit programs once the new public charge rule formally goes into effect.

DHS estimates that 2.5 percent of eligible immigrants would drop out of public benefits programs because of this change — which would tally about $1.5 billion worth of federal money per year, but others expect a much larger impact, including a chilling effect on the use of routine health benefits, particularly for children. In the proposed rule, DHS itself notes that the changes could result in “worse health outcomes,” “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty” and other concerns.

Fear of being deemed a public charge and being unable to attain lawful permanent residency, and ultimately U.S. Citizenship will necessarily result in a detriment to low-income immigrant populations and eventually, the separation of families.

This is an early step in the complex federal rule-making process and many things could still change. Once the proposed rule appears in the Federal Register, it opens a 60-day public comment period allowing members of the public to provide input. As such, a final rule is unlikely to take effect before 2019.

We recommend that any immigrant, regardless of immigration status, who has previously received a public assistance benefit in the past for themselves, or immediate family members, should contact an immigration attorney for evaluation of their case.

Fox Rothschild immigration attorney, Kristen Schneck will be speaking on this topic as a panelist on Oct 24th, at the DHS Advisory Committee meeting to be held in Pittsburgh hosted by the Allegheny Dept. of Human Services.

Fox Rothschild will continue to monitor and report on activity regarding these rule making efforts. Over the course of the next few weeks, we will publish a series of blog posts with more details and updated regarding the Public Charge proposed rule. As always, please refer to ImmigrationView for the latest information on topics of importance in the immigration law practice.
For questions or more information about this alert, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice

 

 

USCIS recently issued a reminder for F-1 students that transferring to another education institution or beginning studies at another educational level automatically terminates Optional Practical Training (OPT) as well as the corresponding employment authorization document (EAD).  The requirement to maintain status is important due to the proposed USCIS Policy Memorandum on the Accrual of Unlawful Presence for F, J. and M nonimmigrants whereby they will lose Duration of Status designation by engaging in an unauthorized activity.  F-1 students must make certain to not work with a terminated EAD and should be certain to work closely with their school’s International Student office.

On May 11, 2018, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum for Public Comment, with the comment period set to end on June 11, 2018.  The proposed change would affect those individuals and their dependents in the following statuses:  Student (F-1 Academic Student and F-2 Spouse or Child of F-1 nonimmigrant); Exchange Visitor (J-1 Exchange Visitor and J-2 Spouse or Child of J-1 nonimmigrant); and Vocational Student (M-1 Vocational Student or non-academic Student and M-2 Spouse or Child of M-1 nonimmigrant).  The new policy memorandum would change the way F, M, and J visa holders accrue unlawful presence.   A person is unlawfully present in the United States if he or she is present “after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security or is present in the United States without being admitted or paroled” according to INA §212(a)(9)(B)(ii).  If one is unlawfully present for greater than 180 days, a three year bar is placed upon the individual to return to the United States.  If the person is unlawfully present for greater than one year, a 10 year bar is placed upon the individual to return to the United States.

The current policy memorandum dated May 6, 2009, entitled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212 (a)(9)(C)(i)(I) of the Act”, USCIS recognized that a Customs and Border Protection (CBP) stamp of Duration of Status (D/S) meant that those individuals with this admittance into the United States did not accrue unlawful presence until the day after USCIS formally found a nonimmigrant status violation or on the day after an Immigration Judge ordered exclusion, deportation or removal.  Those who were admitted until a specific date as shown on their Form I-94 Entry Record would start accruing unlawful presence on the day after this form expired.

USCIS now proposes that effective August 9, 2018, those F, J. or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status before August 9, 2018 will start accruing unlawful presence at that time and will no longer be deemed to be in Duration of Status.  If a nonimmigrant in these statuses has been found in violation prior to this date or had their Form I-94 expire previously, they will start to accrue unlawful presence on the earlier date.  This is a significant change in policy and the understanding of duration of status and changes the requirement that only a finding by USCIS of being out of status when adjudicating a request for another immigration benefit or a finding by an immigration judge triggers unlawful presence.  Now simply being out of status as of August 9, 2018, would trigger the start of the calculation of unlawful presence.

As of August 9th if the policy becomes procedure, students will begin to accrue unlawful presence if they are not in lawful nonimmigrant status on or after August 9, 2018, defined by no longer pursuing the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.  Additionally, the day after completing the course of study or program (including any authorized practical training plus any authorized grace period (as outlined in 8 CFR 214.2)), they will begin to accrue unlawful presence.

8 CFR 214.2 allows an additional 60-day period to prepare for departure from the United States or to transfer.   An F-1 student authorized by the DSO to withdraw from classes will be allowed a 15-day period for departure from the United States. The Regulations also allow for what is commonly known as “Cap Gap” wherein an F-1 student who is the beneficiary of a Cap Subject H-1B petition with a change of status request is automatically extended until October 1st of the fiscal year in which the H-1b is filed.   As many immigration practitioners know, H-1b petitions often are not adjudicated by October 1st and this will put those F-1 students who would have been allowed to stay in the U.S. in reliance of Duration of Status after the Cap Gap period has ended at risk of accruing Unlawful Presence if they remain in the United States.  As such, this change in policy is fundamentally unfair because it was made after the filing of the fiscal year H-1B applications and will impact numerous students.

Furthermore, it is not clear how the government will allow for Re-instatement of Student status, as per the regulations at 8 CFR 214.2(f)(16), where a student who has been out of status for less than 5 months or shows an exceptional circumstance can be re-instated by USCIS and re-enrolled in school.  Re-instatement requires that the student does not have a record of repeated or willful violations of USCIS regulations.  However, if the Unlawful Presence has started to accrue, it is questionable whether USCIS will approve such requests.

As the Policy Memorandum proposes a material change in the accrual of Unlawful Presence for Students, Exchange Visitors and Vocational Students, it is sure to bring legal challenges.  The proposed change will essentially ensure that those who come here to study face additional challenges beyond their studies.

Please keep tuned in to this blog for further information as it becomes available.

 

Congressional negotiations on a federal spending bill remain very active. To avoid a federal government shutdown, a decision or a short-term continuing resolution (CR) to fund the government at current levels must be reached by Friday, January 19, 2017. Until a deal is made or a CR is passed, the threat of a shutdown remains a possibility. Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

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.

Asplundh Tree Expert Co., one of the largest privately owned corporations in the country, with 30,000 employees and 3.5 billion in annual sales, according to Forbes, has been ordered to pay $95 million in the largest fine against a company for hiring thousands of immigrants who did not have permission to work in the U.S., according to federal officials. Asplundh, a 90-year-old, family-owned company that employs 30,000 workers in the U.S., Canada, Australia, and New Zealand, clears brush and vegetation from electric and gas lines and holds many municipal, state, and federal contacts.

According to the U.S. attorney’s office in Philadelphia, Asplundh employed thousands of undocumented workers between the years of 2010 and 2014 with its top management remaining “willfully blind” while lower level managers hired and rehired employees they knew to be ineligible to work in the United States,” the office said. In addition to having to forfeit $80 million, Asplundh will pay a $15 million civil penalty for not complying with immigration law. Asplundh employed thousands of undocumented workers between 2010 and 2014 with its top management remaining “willfully blind” while lower-level supervisors hired people they knew were in the country illegally to maximize profit.

Homeland Security Investigations began auditing Asplundh Tree Experts on Nov. 19, 2009 to make sure the company complied with federal laws regarding the hiring of immigrants. After being given a list of names, Asplundh fired hundreds of its employees who were ineligible to work in the U.S. Others quit before they could be terminated. After acting like it was complying with HSI demands, Asplundh instead doubled down on its illegal practices, according to federal authorities. Many of the some employees Asplundh had just let go were re-hired under different names using fake or illegally obtained documents. One of its regional managers, Larry Gauger, even went so far as to tell supervisors who worked under him that they had “plausible deniability” because their illegally obtained social security numbers would be positive matches in the E-verify database, court papers state. Gauger has pleaded guilty and is scheduled to be sentenced next month.

“This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit,” prosecutors said in a statement. “With a motivated workforce, including unauthorized aliens willing to be relocated and respond to weather-related events around the nation, Asplundh had crews which were easily mobilized that enabled them to dominate the market.”

ICE issued a statement on 9/28/2017, “Today marks the end of a lengthy investigation by ICE Homeland Security Investigations into hiring violations committed by the highest levels of Asplundh’s organization,” said ICE Acting Director Thomas Homan. “Today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.”

In a statement on its website, Asplundh said company officials “accept responsibility for the charges as outlined, and we apologize to our customers, associates and all other stakeholders for what has occurred.” Asplundh went on to say that is reviewing the identification of every employee and is adding a photo ID card system which includes the same facial recognition software used by ICE. The company is also adding a compliance specialist trained in ID examination in each region it does business.

Employers should remain alert and vigilant in their I-9 compliance practices. The Asplundh investigation is a lesson in compliance, demonstrating that liability exists not only in the evidence apparent in the paperwork, but also in an employer’s procedures, policies, and practices. An ICE investigation can be triggered from any number of sources, from an enforcement initiative within Homeland Security Investigations to a tip from an individual to the exchange of data between government agencies (SSA, IRS, DOL, etc.). An ICE investigation can result in more than just financial losses due to monetary penalties. These types of investigations, which can often carry on for years, result in the loss of workers and damage to company reputations and image, affecting relationships with customers and the public in general. Our recommendation on best practices is for employers to be prepared by performing private internal audits before ICE comes knocking.

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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 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.

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.