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USCIS Issues Policy Memo on L-1 Employment Abroad Requirement

Thursday, November 29th, 2018 by W. Scott Railton

U.S. Citizenship and Immigration Services (USCIS) issued a policy memo this week to add clarification to the L-1 Intracompany Transfer status one year of employment abroad requirement. The memo states that:

  • The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure; and
  • The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, at the time the petitioner files the initial L-1 petition.

The agency says the memo is a clarification of policy.  The memo describes the issue as:

 INA section 101(a)(15)(L) and 8 CFR 214.2(l)(1)(ii)(A) require that the  beneficiary work abroad for one continuous year within the three years preceding the “application for admission into the United States.” The statute is silent about those beneficiaries who have already been admitted to the United States in a different classification. However, 8 CFR 214.2(l)(3)(iii) uses a different reference point and states that the one year of foreign employment must have occurred “within the three years preceding the filing of the petition.” The difference in phrasing has led to questions about which point in time should be the appropriate reference point in determining whether the one-year foreign employment requirement has been satisfied.

 The memo instructs officers to:

Always look back three years from the date the initial L-1 petition was filed and then:

 Step 1: Determine the dates the beneficiary worked for the qualifying organization abroad.

 Step 2: Determine the lengths of any breaks in the beneficiary’s qualifying employment during the three years before the petitioner filed the L-1 petition. If the beneficiary has lawfully worked for a qualifying organization in the United States as a principal beneficiary of an employment-based nonimmigrant petition or application, adjust the three-year period accordingly.

 Step 3: Subtract the total length of all the breaks identified in Step 2 from the relevant three-year period. If the result is a continuous one-year period within the relevant three-year period, then the petitioner has met the one-year foreign employment requirement.

 Note:  The memo says that brief trips to the United States as a visitor will not stop the continuous period, but each day must be subtracted from the one year calculation.  This guidance penalizes persons based in Canada who visit the U.S. and return the same day, which is actually quite common for Canadian business owners and managers.

Note:  The memo says persons working in the U.S. for the related company in another status, such as H-1B or E-2, will be able to look back to the three years prior to their original date of admission. However, persons in F-1 Optional Practical Training or in spousal work authorization categories (e.g. L-2, E-2) will not be able to do so. In these latter cases, the three year “look back” period will run from the date of the filing of the petition.  So, an employee who starts with a U.S. company in E status two years ago would actually look back five years to determine whether the continuous period requirement is met.

As with all things USCIS these days, the memo will probably lead to even more burdensome requirements of proofs for companies that have trans-national employees and operations. We’ll keep an eye on it all, and advise companies in accordance with agency practice. Aspects of the memo may need to be challenged in court at some point, as the L is one key step towards lawful permanent residence for valued executives and managers.

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Pre-Registration for 2019 Cap-Subject H-1B In The Works

Monday, November 19th, 2018 by W. Scott Railton

The Department of Homeland Security released its list of rules that it plans to update, and the H-1B program made the list.  Specifically, DHS is actively considering whether to implement a pre-registration requirement for cap-subject H-1Bs.  Here’s the language from the DHS Fall 2018 Unified Agenda:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

Time is getting tight for the U.S. Government to make this work for the April 1st, 2019 lottery.  A Notice of Rulemaking rule will first need to be published in the Federal Register, whereupon the public will be afforded a period of time to comment. The matter is currently pending review at the Office of Management and Budget.

I like the idea of pre-registration, but we’ll have to wait and see what this exactly looks like. Ideally, I think a system which allows employers to apply for a lottery spot before making an actual application can save businesses all sorts of money.  It is a waste of government and business expenditure to prepare full applications, only to have the government return about half of them due to not being selected in the lottery. The Government proposed a similar rule in 2011, but the rule was never implemented. Unfortunately, the Administration has consistently made the H-1B process harder for employers, without regard to cost or sometimes established precedent and law, and so any change to the H-1B program has to be anticipated with skepticism.

In any case, we are recommending that employers start the H-1B process earlier this year, to account for any changes the Administration may implement. We’ll stay up to date on this, and advise accordingly.

 

 

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L-1 Pilot Program Follow-Up Meeting With USCIS and USCBP

Friday, October 12th, 2018 by W. Scott Railton

I attended a follow-up engagement meeting today with USCIS and CBP at the Blaine Peace Arch, concerning the L-1 Pilot Program.  Here is a brief summary of the meeting.

The L-1 Intracompany Transfer visa/status is a work authorization granted to certain Executives, Managers, and employees with “Specialized Knowledge.” It is an immigration tool used for multi-national businesses, to move key personnel around. The L-1 status is a part of Chapter 16 of NAFTA and the new USMCA agreement, and is also authorized by the Immigration and Nationality Act.

The L-1 Pilot Program was commenced on April 30, 2018, and terminates at the end of October. The basic goal of the program is to promote uniformity of adjudication of petitions by first routing them to USCIS’s California Service Center. Canadians have the option of choosing to submit these applications in person at a port of entry, or by mail/courier to USCIS.

15 submissions in 6 months; 80 Percent RFE Rate

At the meeting, USCIS reported they have had 15 submissions over the past six months. Ordinarily, they were getting at least that many a week at the Blaine crossings, and I think many more. Conclusion: nobody is using the program. This must be a conscious decision by Canadian businesses and their attorneys. Indeed, attorney comments during the meeting said as much. “People are voting with their feet,” one said.

USCIS reported that they issued 12 Requests for Additional Evidence (RFE) on the 15 cases. So far, they’ve approved seven cases and denied three, with the other five pending. They “outright” approved three cases, without RFEs.

RFEs are very common for USCIS right now. Even so, an 80 percent RFE rate is very high, even for USCIS. RFEs mean substantial extra expense for employers (thousands of dollars sometimes), as well as lengthy delays (months), with no certainty of eventual approval. Such is immigration these days.

Pilot cases submitted to USCIS seem to be handled similarly to Premium Processing cases at the Service Center. Premium Processing is the program where employers pay $1410 for 15 day initial adjudication. In this case, petitioners did not have to pay this expense, but of course the process is automatically slower than the same day adjudication some Canadian companies are used to. Most of the cases have been receipted within days—the agency reported two or three days. When an RFE is issued, typically the Petitioner is given three months or so to respond.

Attorneys seemed universally opposed to the program. East Coast attorneys, calling in on the phone, expressly said they would not like to see this program move their way. Representatives of both agencies suggested they might try expanding the program to the Vancouver Airport or other ports of entry, but no decision has been made.

The meeting itself was well organized, with video and phone lines open for all, and both agencies seemed to genuinely want feedback, offering many opportunities for comment.

Concerns with Process, Concerns with Adjudication

From my point of view, there are two larger issues at play here: process and adjudication.

From a process standpoint, Canadian businesses receive no benefit from taking away the option of on-the-spot adjudication. There are times when this is very valuable, such as when an important employee of a Canadian company needs to work in the U.S. fast (e.g. this weekend). Also, there is a benefit to being able to make your case to a live officer, rather than have everything done on paper. Frankly, USCIS has gotten too far into the weeds with adjudications, abandoning the preponderance of evidence standard applicable to all nonimmigrant work authorization petitions.

On the adjudication side, the agencies are pushing for “uniformity of adjudication.” They say that USCIS has the expertise for adjudicating L-1 petitions, which is true at some level. However, border adjudications are nothing new, and they have worked for Canadian/U.S. businesses for decades. Uniformity is also a myth–USCIS adjudicators handle matters very differently, from cubicle to cubicle.

Perhaps the biggest concern for Canadian businesses in this niche is USCIS’s extensive use and abuse of the RFE. Their templates are many pages long, and employers can spend the same amount of time they might in preparing an environmental impact statement, just trying to explain the technical aspects of one of their experts and why they are “specialized” or how they qualify as a “manager”. The RFEs are bogging down USCIS too, which has record wait times on many very-ordinary types of cases.

What Next?

Speakers at the meeting said they will take the feedback from the meeting, confer, and make next decisions.  They could close the program, but I think I suspect the Pilot Program is not done yet. I think CBP would like to punt adjudications to USCIS, and will keep looking for ways to do so.  I would like to see the agency embrace this responsibility as part of their northern border mission, because its good for business and U.S.-Canadian relations.  That may be wishful thinking, I’m afraid. My concern over the next few years is that the U.S. government may try to move all immigration benefits adjudication to USCIS, including TNs.  We’ll keep an eye on it.

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USCIS Processing Times Are Getting Longer

Tuesday, September 25th, 2018 by W. Scott Railton

Longer waits, longer applications, and higher fees are the unfortunate reality for persons and businesses seeking immigration benefits with U.S. Citizenship and Immigration Services.  Here in Washington State, the USCIS Field Office in Seattle says it is taking 15 to 16.5 months to adjudicte a naturalization application.  The application itself costs $725, has 18 pages of instructions, and 20 pages of application to complete.  USCIS Field Offices appear to be swamped with additional vetting responsibilities, with no additional funding, despite the high application costs.

Similarly, the Service Centers have long waits for many important benefits.  Work authorization documents are taking 4.5 to 6.5 months to issue out of the National Benefits Center.  It used to be that the agency was required to issue a work authorization document within 90 days by regulation, but since that regulation was stricken, wait times have increased. This can be really hard on adjustment application couples, who need their significant other to be earning income to pay the bills.

H-1B applications have really slowed down too, now taking 5.5 to 7.5 months, according to the California Service Center.  We’ve heard of longer adjudications. The agency has noted the issue as well, and has suspended much of its premium processing program in order to try to get a handle on things.  It seems likely that the increase in Requests for Evidence and Denials has added to the agency’s workload.  H-1B applications include thousands of dollars in filing fees, but that doesn’t seem to be relevant.

Last week I participated in a teleconference with Congressional staffers and discussed the issue of delays.  It is a universal concern in immigration law right now, and hopefully something can be done. As part of that call, I put together the following list of published adjudication timeframes:

Timeframes for initial adjudications:

Local Field Offices:

I-485s

(Seattle):             10 to 19.5 months

(Yakima)              9.5 to 21.5 months

(Spokane)           9.5 to 21.5 months

Application fee:                $1225

Form length:                      18 pages; 42 pages of instructions, not including parole and work authorization applications

N-400s

(Seattle):                              15 to 16.5 months

(Yakima)                              3.5 to 5.5 months

(Spokane)                           11.5 to 18 months

Application Fee:               $725

Form length:                      20 pages; 18 pages of instructions.

 

National Benefits Center:

I-765                      4.5 to 6.5 months for adjustments;   5 to 7 months at NBC for all others

I-131                      4.5 to 6.5 months at NBC

 

California Service Center (I-129s)

H-1B:                     5.5 to 7.5 months

Ls:                           4 to 6 months

Rs:                          4 to 7 months

 

Nebraska Service Center (I-140s)

Extraordinary ability (E11)                                         5 Months to 7 Months

Outstanding professor or researcher (E12)                 5 Months to 7 Months

Multinational executive or manager (E13)                  9.5 Months to 12 Months

Advanced degree or exceptional ability (E21)           5 Months to 7 Months

Skilled worker or professional (E31; E32)                  5 Months to 7 Months

Unskilled worker (EW3)                                             7 Months to 9.5 Months

Advanced degree/ (NIW)                                           5 Months to 7 Months

Schedule A Nurses                                                     8 Months to 10 Months

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Premium Processing Price Hike, Suspension

Thursday, September 6th, 2018 by W. Scott Railton

USCIS will raise the price for Premium Processing on October 1st, from $1225 to the odd number of $1410. Premium processing allows petitioners for certain types of applications to be guaranteed initial adjudication within 15 days, by paying the additional fee. Employers often choose to pay this fee, since the agency often takes months upon months to adjudicate applications through regular processing. The process works a lot of the time, though sometimes attorneys feel that the Premium Processing Unit may adjudicate the petition differently than regular processing. Long-time immigration attorneys probably have seen a few Day 15 Requests for Additional Evidence, which seem issued just to comply with the 15 day adjudication window.

Many Petitioners won’t be able to pay this new, higher fee, because a few days earlier USCIS announced that it is extending and expanding the suspension of premium processing for most types of petitions, in order to get a better handle on the non-premium processing workload. This is an agency which is struggling to manage increasing vetting obligations while delivering adjudications in reasonable timeframes. Employers are best advised to be aware of these bureaucratic challenges, as they can have a real impact on noncitizen worker availability.

Here are the two press releases from USCIS announcing these changes to the Premium Processing service:

USCIS Adjusting Premium Processing Fee (8/31/18)

Fee Increase Consistent with the Consumer Price Index

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today it is adjusting the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers beginning on Oct. 1, 2018 to more effectively adjudicate petitions and maintain effective service to petitioners.

The premium processing fee will increase to $1,410, a 14.92 percent increase (after rounding) from the current fee of $1,225. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits. Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore. “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is an optional service that is currently authorized for certain petitioners filing Forms I-129 or I-140. The system allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.

USCIS intends to hire additional staff and make investments in information technology systems with the premium funds that are generated by the fee increase. This will allow the agency to provide premium processing service with less disruption while improving adjudications and operational processes.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), and Facebook (/uscis).

USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays (8/28/18)

USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.

While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.
Who Is Affected

The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).

The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if:

The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
We did not take adjudicative action on the case within the 15-calendar-day processing period.

Premium Processing Remains Available for Certain H-1B Petitions

The suspension does not apply to:

Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.
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. The petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.
Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times by allowing us to:

Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
Be responsive to petitions with time-sensitive start dates; and
Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

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USCIS Receives 190k H-1B Applications for 85k Spots

Thursday, April 12th, 2018 by W. Scott Railton

Demand continues to outpace supply for H-1B petitions. For this year’s cap lottery, U.S. Citizenship and Immigration Services received 190,098 applications for 85,000 spots. This is actually less applications than in some recent years. Of course, this is the full allocation of H-1B slots for the 2019 Fiscal Year, received in the first five days.

For those reading who do not know, H-1Bs are the United States’ professional temporary visa for high skilled workers. These include certain information technology workers, high skilled health care professionals, engineers, accountants, and the like. While there are other temporary and permanent work authorization categories, the H-1B is the typical work authorization category that foreign students might pursue upon completion of studies in the United States. Over half of the students in STEM graduate programs in the U.S. are foreign students.

We speak to many employers who want to hire these students, but run into issues with the H-1B cap. Increasingly, it seems that students who don’t get picked either look for other employers or go to other countries. In some cases, they can wait another year, and apply again, but eventually time runs out. There are other options, like continuing education, or finding employment with certain cap-exempt employers. Fundamentally, though, the current system has many flaws, based on our observations from working with employers and prospective employees.

Good luck to all who applied! Here is the excerpted announcement from USCIS:

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap.

USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

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L-1 Pilot Program Coming to Peace Arch and Pacific Highway Crossings

Thursday, March 29th, 2018 by W. Scott Railton

The Peace Arch and Pacific Highway Crossing in Blaine, Washington are implementing a “Pilot Program” for L-1 Intracompany Transfer petitions, beginning on or about April 30th. L-1 Intracompany transfers are employees who are Executives, Managers, or employees with specialized knowledge who are transferred from a commonly owned foreign company to a U.S. company. For decades, Canadian beneficiaries of L-1 petitions have been permitted to submit their applications at Class A Port of Entries, and receive immediate adjudication. The Pilot Program, while introduced with promises of efficiencies, threatens a long-standing benefit for Canadian businesses.

On Monday, I attended a briefing session on a Form I-129 Pilot Program for Canadian L Nonimmigrants Pilot Program, held at the Peace Arch. The briefing was hosted jointly by U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services, and was led principally by USCIS Director L. Francis Cissna. The meeting was attended by more than a dozen officials of CBP, USCIS, and about ten attorneys representing stakeholders. The meeting was open to phone participants as well.

Director Cissna said that the stated intention of the L Pilot Program is to try to move Port of Entry adjudications out of CBP’s hands and into USCIS’s hands. Director Cissna views this work as USCIS work, since it involves immigration benefits. CBP doesn’t seem happy with the function (my observation), as they consider themselves an enforcement agency first and foremost. There were indications that if the Pilot Program works, perhaps TN adjudications can be handled on the same process.

Under the Pilot Program, the petitioning company will send the petition to USCIS with a special cover sheet. USCIS will then try to adjudicate the applications with the cover sheet “super fast…faster than premium processing,” in an effort to provide adjudication service similar to what is now available at the Port of Entry for Canadians. Approvals and Requests for Evidence will be sent to employers directly. While USCIS says it would be best to wait for the approval, Applicants can go down to the Port of Entry with just a receipt notice, and granted admission if the matter is adjudicated favorably. This was all described as “good organizational management.”

The goal is to launch the program at the Peace Arch and the Pacific Highway by April 30th, and then test run the program for 6 months. If it works, they’ll look at expansion to other northern ports of entry, and may need to commence the public notice and comment processes required under the Administrative Procedures Act.

The Pilot Program is exclusive to Blaine, and so Canadian applicants who want immediate Port of Entry adjudication may still go to other Port of Entries. The process will be mandatory for Canadians at the Peace Arch and Pacific Highway. The process includes L blankets. The California Service Center is the designated USCIS service center for adjudication.

Some interesting statistics were mentioned during the meeting. We were told there are about 6200 Canadian L petitions submitted each year, which is about one-sixth of the overall total. The Blaine POEs are not handling too many per week now. One person said about half a dozen; another said about 50 per month. Issues raised by attorneys included the Request for Evidence rate at the USCIS Service Centers, which is very high; as well as the benefit from instant adjudication at the Port of Entry v. the issues in presenting a petition there sometimes.

This could end up being a step back for Canadian businesses who may clearly qualify and benefit from on-the-spot adjudication. There was a time when port of entry adjudication was a pretty quick process, and this method of application really helped Canadian businesses quickly get the people they need into the U.S. temporarily. USCIS has created a whole lot of red tape for legitimate businesses in recent years, and this presents another opportunity for government delays. A more favorable view of the program is that this allows pre-adjudication by USCIS of petitions, at a rate faster than Premium Processing’s fee based 15 day guarantee.

If its not obvious, I am skeptical about the Pilot Program. In the big picture, this Administration is taking every step it can to cut legal immigration, in addition to its focus on illegal immigration. There are some in the Administration who only want to “put a pause” on immigration, and seem to have decided that most if not all immigration is bad. The L visa is a poor target, as the visa is dedicated to executives and managers—people who typically create jobs, which leads to a healthier U.S. economy.

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The Heightened Vetting of Legal Immigration Applicants

Saturday, March 3rd, 2018 by W. Scott Railton

The Administration is moving forward with its goal to increase vetting of all applicants for immigration benefits. We’re seeing this play out in a number of immigration settings. The most immediate effects we are seeing are longer delays for applications. Higher request for evidence and denial rates are also being reported. Immigration processing is not business as usual.

This month, the National Vetting Center was created by the White House. The National Vetting Center will be run out of the Department of Homeland Security, and will coordinate with other agencies like the Department of State and Federal Bureau of Investigation.

The announcement states, in part:

The NVC, which will be led by the Department of Homeland Security, will help fulfill the President’s requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process.

The Federal Government’s current vetting efforts are ad hoc, which impedes our ability to keep up with today’s threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC’s operations will adhere to America’s strong protections for individuals’ privacy, civil rights, and civil liberties. The Administration’s top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfill that obligation.

Other immigration-related agencies have also instituting increased vetting measures.

U.S. Citizenship and Immigration Services announced that it will interview all or most applicants who apply to remove the conditions on their permanent residence. This will be after one or more interviews previously to get the immigration benefit initially. In the past, a couple could mail in their application, with proof of marriage (e.g. shared home ownership or lease; kids had together; shared bills), and usually the agency would mail the green card after several months. Now, in addition to sending in these materials, the agency is calling people in for a second interview, and also in some cases conducting family home visits, even at odd hours if fraud is suspected. While combating green card is a necessary and vital part of USCIS’s mission, there has been no additional funding for all these interviews, which probably means lots of delays moving forward for all sorts of applications, as the agency reassigns resources.

USCIS has also said that it will move forward with interviewing beneficiaries of employment based immigration cases. While the agency has always had this authority, the practice has been to only interview where fraud concerns were triggered. Now, the agency is calling people in, and in some cases revisiting earlier I-140 approval adjudications. These are complicated applications, and the concern among some practitioners is that the field office adjudicators are not typically trained in the legalities, as are Service Center employees. Also, the added interview creates the potential for additional bias to be introduced in to the process, and again more delays.

USCIS also indicated this past year that it will no longer apply deference to renewals of approved petitions. This longstanding practice led to somewhat predictable results for employers with employees on occupational visas. We haven’t seen a rash of readjudications, but the guidance is now in place for adjudicators.

At the Consulates, there is reportedly an increase in the use of “administrative processing,” which the Department of State will not typically provide reason for. While cases usually are resolved in due time, it’s not unheard of for nonimmigrant visa renewals to suddenly take much longer (e.g. weeks), as they go through this process. This can be a real headache for visa renewal applicants, as well as for their families and employers who want them back.

At the border, it seems like there has been an increase in the use of expedited removals in the past year.  On the northern border, we most commonly see this with cases of misrepresentation, which occur after a lengthy interview. It was recently reported that searches of digital media are up by about 60% from 2016.

A safer America is a better America. However, finding the right balance between safety and practicality is also at issue. Applicants need to be aware that processes are slowing down. Changes are on-going, and we will continue to publish updates as circumstances and practices change.

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H-1Bs Are Now In Season

Tuesday, February 6th, 2018 by W. Scott Railton

H-1B season is officially upon us.

H-1Bs are the nonimmigrant work authorization for persons in specialty occupations. Specialty occupations are meant to be professional positions, but in the past year U.S. Citizenship & Immigration Services has gone to great lengths to narrow the class of professionals eligible for H-1Bs. In particular, the agency has made obtaining an H-1B much more challenging for information technology professionals.

The H-1B category requires that the employer pay the greater of the prevailing or actual wage for the position. Prevailing and actual wage calculations can sometimes be complicated matters, depending on the position. Employers are required to obtain a certified labor condition application from the Department of Labor prior to filing. This process can take a few weeks in some cases, if the employer is not already registered to file.

On April 1st, the annual cap will be open, and for five days employers will submit applications. We have every reason to expect that the agency will receive more than the maximum number of applications under the H-1B quotas. In total, there are about nearly 85,000 spots. In recent years, the agency has received more than 200,000 applications.

H-1Bs are often used as a bridge status for employers who have initially hired foreign students to work for them based on pre-approved optional practical training.

Filing fees vary depending on the employer, but there is a $460 I-129 form fee, a $500 fraud fee, and a $750 or $1500 training fee.

In light of the recent challenges employers have faced with this category, careful evaluation and planning is best. Job descriptions with particularized duties need to be provided, in order to withstand up to agency scrutiny, This can be challenging for some employers, where they know they have a professional position, but have never had to precisely articulate professional duties.

We can help.

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USCIS Narrows Economist TN Category

Monday, December 18th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration and Services (USCIS) continues to finds to limit legal immigration to the U.S. Today’s announcement concerned NAFTA–specifically, the Economist category. The press release is posted below.

NAFTA’s schedule of TN professions is out of date. It was created in the early 1990s, before so many changes brought on by new technologies. The new guidance specifically excludes Financial Analysts, Marketing Analysts, and Market Research Analysts. Undoubtedly, many person filling these roles with companies are trained in economics, and are providing valuable advice to their employers related to economics. Nevertheless, this is the current state of immigration reform at USCIS. So many of these reforms will simply drive valuable professionals to Canada and Mexico. The Administration’s premise that American companies are looking abroad for employees first is fundamentally flawed.

We’ve been asked what to expect with NAFTA. This announcement is one of the clearest yet that the Administration is looking at individual TN categories. Employers should not wait until the last minute consider renewals of TNs.

Here’s the announcement:

WASHINGTON —U.S. Citizenship and Immigration Services (USCIS) announced today that it is clarifying policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist.

The North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the U.S. to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, resulting in inconsistent decisions on whether certain analysts and financial professionals qualify for TN status as economists.

TN nonimmigrant status is intended to allow a limited number of professionals and specialists to work temporarily in certain specifically identified occupations in the United States. This updated guidance provides USCIS officers with a specific definition of one such category – economists – allowing them to adjudicate applications in a way that complies with the intent of the agreement.

This policy update clarifies that professional economists requesting TN status must engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.

This policy update is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations.

Interim and final policy memos are official USCIS policy documents and go into effect on the date the memos are issued.

USCIS is committed to carrying out the directives of the President’s Buy American and Hire American Executive Order to better protect the interests of U.S. workers. Ensuring the integrity of guest worker programs is consistent with our Buy American, Hire American initiatives.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and Instagram (@USCIS).

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