Archive for the ‘General’ Category

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State Statutes Modifying Marijuana Convictions Not Working for Immigrants

Monday, May 20th, 2019 by W. Scott Railton

Increasingly, states and municipalities are adding post-conviction relief for marijuana offenders, as part of marijuana law reform efforts. The basic idea is that someone with a past marijuana conviction can obtain some sort of post-conviction relief, such as a pardon, expungement, or reclassification of the conviction. One immigration issue for the Courts to decide is whether the purpose of a post-conviction relief measure is rehabilitative benefit for the offender, or due to a substantive fault in the prior law. Should it matter? I don’t know, but it does.

Washington State passed such a law this year, SB 5605, which takes effect July 27, 2019.  The new law requires Washington State judges to grant requests to vacate misdemeanor marijuana possession convictions that happened before legalization, if the individual was 21 or older.

Here is the key language:

5)Every person convicted of a misdemeanor marijuana offense, who was twenty-one years of age or older at the time of the offense, may apply to the sentencing court for a vacation of the applicant’s record of conviction for the offense. A misdemeanor marijuana offense includes, but is not limited to: Any offense under RCW 69.50.4014,from July 1, 2004, onward, and its predecessor statutes, including RCW 69.50.401(e), from March 21, 1979, to July 1, 2004, and RCW 69.50.401(d), from May 21, 1971, to March 21, 1979, and any offense under an equivalent municipal ordinance. If an applicant qualifies under this subsection, the court shall vacate the record of conviction.

Other jurisdictions have taken similar approaches.  For example, California’s Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act, allows certain felony convictions to be “redesignated” as misdemeanors. Seattle, Washington, and Boulder, Colorado have taken affirmative steps to vacate old offenses. Canada is looking at instituting at a nation-wide pardon process.

Will these post-conviction relief measures help immigrants, facing deportation or in dealing with admissibility issues?

The law on post-conviction relief for non-citizens is complicated—really, really complicated sometimes—but a recent case from the Ninth Circuit Court of Appeals is not promising.

The case, Prado v Barr, No 17-72914 (9th Circ. 5/10/19), considered whether a felony conviction of possession of marijuana for sale still counts for immigration purposes, after being reclassified to a misdemeanor based on Proposition 64.

The Ninth said that “federal immigration law does not recognize a state’s policy decision to expunge (or recall or reclassify) a valid state conviction.” The Ninth said it will recognize the vacate of a conviction for a substantive or procedural defect, based on established law. However, rehabilitation, immigration hardship, and/or equitable relief are not suitable bases for vacating the immigration impacts of an original conviction.

The Court then determined that Proposition 64’s provisions were more rehabilitative than substantive in nature, and so not effective. The Court also held that reclassification—which happened in this case—was a limited expungement, rather than a full expungement, and therefore not a complete elimination of immigration impacts in any case.

The Ninth’s decision may still be appealed for en banc hearing, or to the Supreme Court.  The ruling is specific to Proposition 64, but I think it is indicative of how the question may be handled for other state statutes, such as with Washington State’s recently passed law.

Attorneys and their clients facing this circumstance should recognize first that they cannot rely on the state statute for later relief for non-citizens. Also, if seeking post-conviction relief before a state court, the request for relief needs to be carefully considered for it to meet the stringent standards required for relief under immigration law.

 

 

 

 

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Posted in General, Marijuana and Immigration, Scott Railton |

Social Security Administration Is Sending Employers Send “No-Match” Letters Once Again

Wednesday, April 24th, 2019 by W. Scott Railton

The Social Security Administration announced recently that is will recommence issuing “no-match” letters to employers and payroll companies.  No-match letters are issued when the agency receives payments or other information which is not associated with the correct social security number.

As the correspondence will indicate, the no-match could be indicative of a records issue:  perhaps the social security number was inputted incorrectly, or perhaps there is incorrect information on the individual for which there is not a match.  No-matches however also may be indication that an employee is not able to work lawfully in the country.

What is an employer to do?  It is usually not a good idea to ignore such information, as avoiding the issue may create issues if the government comes to audit I-9s or otherwise investigate unlawful employment issues.  In all likelihood, it may also be prudent to draft a letter to the employee, giving them opportunity to contact the Social Security Administration and correct the issue, followed up with periodic, documented inquiries on the status of such efforts.

It may be prudent to seek counsel on the matter, and we are happy to assist.  The Administration has ramped up efforts to enforce worksite compliance with immigration laws. The fines can be significant, and if an employer or even HR Representative has constructive knowledge that they are employing someone illegally, there is the possibility of criminal sanctions. Enforcement actions have hit a broad range of industries and regions.  An employer who is holding no-match letters may be deemed to have constructive knowledge of an issue, and so taking steps to address the issue is prudent.

 

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USCIS: Legalized Marijuana Use Will Disqualify Naturalization Applicants, for Lack of Good Moral Character

Friday, April 19th, 2019 by W. Scott Railton

U.S. Citizenship and Immigration Services announced today that it updated its Policy Manual to explicitly state that possession of marijuana, even in legalized states, will disqualify naturalization applicants. The Policy Manual is relied upon by adjudicator’s to make decisions on applications. The agency’s position is legal marijuana use violates the federal Controlled Substances Act, even though the U.S. government allows states to legalize. If an applicant admits to use, they will be found to not have “good moral character,” and their application will be denied.

The agency’s position seems to be that its hands are tied on this issue, in light of federal law. This strikes me as disingenuous, for several reasons.  First, marijuana use should not be tied to “good moral character” in any event.  Many people use marijuana for many different uses, and they don’t have bad moral character, whatever Washington D.C. is doing.  Second, federal agencies aren’t enforcing the Controlled Substance Act like this, and particularly the U.S. Department of Justice. Third, noncitizens, who are tested for basic English as part of the naturalization applications, are here expected to be experts on federal/state law distinctions. That is absurd. Marijuana stores are not hidden from sight.  They are common in states that have legalized, and by all appearances,  legitimate. Fourth, increasingly, there are CBD products on the market–even in grocery stores–that may have attributes of marijuana, and serve other purposes than getting high. Does the purchase of a CBD product, for medicinal purposes, have good moral implications?  Fifth, what if a doctor prescribes a marijuana product? Does a person have a good moral character issue for following a doctor’s orders?

We are also hearing periodically of naturalization applications which are denied because a person is working for a legalized marijuana related business. Such work can be working in the production of marijuana (farms, trimming, testing), working in a marijuana store, or holding an ownership interest in a marijuana-related business.

Naturalization applications cost $725 typically, and are taking the agency more than a year to adjudicate in most locations. A person typically applies for naturalization after residing in the United States for at least three years, if married to a U.S. citizen; or after five years of residence in most other cases. A denied application can be heart-breaking. Also, depending on the agency’s findings and the violations involved, the matter may be considered for a removal hearing.

The time is long past for federal legislators to step in, as policies like this will hurt U.S. families and businesses.

Here is what the announcement says:

USCIS Issues Policy Guidance Clarifying How Federal Controlled Substances Law Applies to Naturalization Determinations

USCIS is issuing policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.

Please see the Policy Manual Update (PDF, 211 KB) for more information.

 Last Reviewed/Updated:

And here is what the updated Policy Manual says:

2. Conditional GMC Bar Applies Regardless of State Law Decriminalizing Marijuana

A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical” [19] or “recreational” [20] use of marijuana. [21] Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. [22] Schedule I substances have no accepted medical use pursuant to the CSA. [23] Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law. [24]

Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. [25] For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. An admission must meet the long held requirements for a valid “admission” of an offense. [26] Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.

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CBP Halts L-1 Extensions and Renewals at Ports of Entry

Friday, April 12th, 2019 by W. Scott Railton

I doubt you’ll find this written on any government website, but U.S. Customs and Border Protection (CBP) has decided to stop adjudicating extensions and renewals of L-1 status for Canadians at Ports of Entry and Pre-Flight Inspection.  The agency’s position is these applications must be filed at U.S. Citizenship and Immigration Services (USCIS). “L-1 status” refers to intracompany work and stay authorization for executives, managers, and employees with specialized knowledge.

We first heard this news via attorney meetings with the agency. Specifically:

QUESTION:  How are Canadian L-1 extensions treated at the border? Must intermittent L-1 applicants also apply for an L-1 extension with USCIS?

 ANSWER: CBP officers shall not approve any requests for extension of stay or renew petitions for L-1 nonimmigrants; those requests will be reviewed and approved by USCIS exclusively for all nationalities.

This important policy change is nowhere to be found on the agency’s website, unsurprisingly. We hear though that the policy is being implemented. One officer is said to have told an individual, “Spread the word.” By all appearances, CBP wants to stop adjudicating immigration benefits, and U.S. Citizenship and Immigration Services wants to take this responsibility over.

This is bad news, even if it hasn’t actually made the news. For decades, Canadian businesses have been able to present applications at the border, and receive on-the-spot adjudications. A lot of Canadian executives and managers travel back and forth, and live in Canada.  USCIS is painfully slow in adjudicating applications, although it is possible to pay for “premium processing” and receive initial adjudication in 15 days, for $1410 USD.  Of course, that’s not as good as on-the-spot adjudication, for the base application fee, which Canadian businesses now can receive. L-1 extensions for Canadians will only be adjudicated so fast now, and USCIS has become justifiably notorious for issuing lengthy requests for evidence, which bury employers in paperwork.

The United States government seems committed to making immigration harder, when it should be going for smarter.  L-1 holders are typically job creators, adding value to the U.S. economy. By definition, an executive or manager is presiding over many more workers. The U.S. should be making it easier for Canadian businesses and their executive management teams to do business stateside.

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USCIS Changes Rules and Procedures for Certain Family Nonimmigrant Petitions

Friday, March 1st, 2019 by W. Scott Railton

U.S. Citizenship and Immigration Services (USCIS) recently announced significant processing changes for the I-539 nonimmigrant extension/change of status form. This is the form used to change or extend status for family members, in association with a primary nonimmigrant application.  For example, if one family member has H-1B status and an extension request is filed, this application is typically filed at the same time for family members.

USCIS is now going to charge more for this application, where biometrics are required of multiple family members.  They will also require each family member to fill out another form. Query:  when was the last time the agency lowered costs or made the paperwork burden less on applicants?

The change takes effec, as of now, on March 11th, 2019.  Less than a month of notice was provided.  Here’s the announcement:

We have revised Form I-539, Application to Extend/Change Nonimmigrant Status and will publish the revised form on our website on March 11, 2019. Starting on March 11, 2019, we will only accept the revised Form I-539 with an edition date of 02/04/19. We will reject any Form I-539 with an edition date of 12/23/16 or earlier. We will also be publishing a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, on the Form I-539 webpage on March 11. Form I-539A replaces the Supplement A provided in previous versions of Form I-539. Form I-539A can only be submitted with Form I-539; it cannot be filed as a standalone form.

The revised Form I-539 includes the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will be available on the Form I-539 webpage on March 11. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 Instructions to be published on March 11.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.

USCIS will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.

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Time To Determine H-1B Worker Needs

Friday, January 25th, 2019 by W. Scott Railton

Employers get a single bite at the apple each year to use the H-1B program.  On April 1st, U.S. Citizenship and Immigration Services will begin accepting applications for H-1B workers. The window for filing is only five business days.

After the window closes, the agency will hold its annual lottery of applications.  Twenty thousand slots are available for graduates with Master’s degrees or higher, from U.S. institutions. Another sixty-five thousand slots are reserved for persons with at least undergraduate degrees or the equivalent (e.g. equivalency through work experience).  Those selected will not be able to start any sooner than October 1st, 2019.  In practice, the agency has sometimes taken longer to adjudicate cases.

Last year, the agency also projected a 25% denial rate, based on increasingly stringent adjudication standards. Certain professions, particularly in the information technology sector, need to really focus on delivering evidence that the position indeed qualifies as a “specialty occupation.”

H-1B employers are required by law to pay at least the greater of the prevailing wage or actual wage for the position. These figures can be calculated a number of ways,  including through Department of Labor resources, collective bargaining agreements, or private wage studies.

H-1Bs are typically granted for three years, and renewable another three years.  In some cases, it is possible to renew them beyond six years, such as when someone has proceeded sufficiently  down the green card path.

Sometimes it makes sense for NAFTA TN workers to be switched to H-1B status, if possible. The Immigration and Nationality Act specifically permits H-1B holders to pursue permanent residence.  This is not the case with the TN status.

Some employers are not subject to the annual H-1B cap, and can petition for H-1B status any time during the year.  These include institutions of higher education, affiliated organizations, and non-profit research organizations. Determining whether an organization is cap-exempt can be a complicated affair in some cases, but this exemption is very valuable. We see many medical organizations that are cap exempt, based on their connection to institutions of higher education.

The H-1B application takes some lead time to prepare, due to the complexity, and particularly due to prerequisite Labor Condition Application that must be filed with the Department of Labor. The LCA usually takes at least a week to process. A pre-registration rule cleared the Office of Management and Budget on January 25th, and could end up adding an additional process, though a court challenge is also possible.

This post only touches the highlights of the process. The key point is April 1st is approaching quickly, and if there appears to be a need to file an H-1B, now is the time to take further steps to investigate and perhaps prepare the application.

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The Impact of the U.S. Federal Government Shutdown on Immigration

Wednesday, December 26th, 2018 by W. Scott Railton

The U.S. Federal Government is in shutdown mode, due to a budget fight over President Trump’s desire to build a wall on the southern border. Brinkmanship has become increasingly common in D.C., and the taxpayers usually pay the price. Shutdowns are expensive–agencies function like computers with malware installed, if at all; businesses and personnel are harmed; and there are inherent costs in shutting down and starting up anew agency work.  Thankfully, the term “shutdown” is a misnomer, as many “essential” services continue on.

Immigration involves several federal agencies and bureaus, and so impacts vary overall. Our clients are most concerned about applications for immigration benefits, which are principally handled by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State. Because these applications are supposed to be fee-supported, impacts of the shutdown tend to be collateral impacts. The government will continue to adjudicate most applications. Below, I’ve pasted a press release from USCIS on how they’ll handle things.

Due to a peculiarity in funding, the Department of Labor (DOL) will continue to adjudicate matters, including PERMs, prevailing wage requests, and labor condition applications.

The Immigration Courts were initially closed. The Executive Office of Immigration Review is moving forward with detained cases as scheduled, and are rescheduling non-detained cases.

The U.S. Customs and Border Protection, which runs the border, is considered “essential” business, and so they will carry on through the shutdown. However, the Nexus office is not processing new applications, to the misfortune of some.

Ironically, E-Verify and related programs are shut down, which unfortunately is causing headaches for some employers who are required by government contract to use E-Verify.

Department of Justice civil litigation is curtailed or postponed, to the extent possible. Litigation is deadline driven, and so as the shutdown continues, this creates issues for judges and private litigants.

Here’s a memo from USCIS on the shutdown:

Lapse in Federal Funding Does Not Impact Most USCIS Operations

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS’s fee-funded activities. Our offices will remain open, and all individuals should attend interviews and appointments as scheduled. USCIS will continue to accept petitions and applications for benefit requests, except as noted below.

Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

  • EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program). Regional centers are a public or private economic unit in the U.S. that promotes economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program. The EB-5 Program will continue to operate.
  • E-Verify. This free internet-based system allows businesses to determine the eligibility of their employees to work in the U.S.
  • Conrad 30 Waiver Program for J-1 medical doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
  • Non-minister religious workers. This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.

 

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CBP Encourages ESTA Applicants to Apply 72 Hours In Advance

Thursday, December 13th, 2018 by W. Scott Railton

U.S. Customs and Border Protection issued the following reminder to apply early for Visa Waiver authorization, via the Electronic System for Travel Authorization.  Presumably the reminder is prompted by the surge of travel during the holidays.  In our experience, most electronic systems for immigration at some point or another slow down for processing. It makes sense to plan ahead.

Here is the full advisory from CBP:

Visa Waiver Program users are encouraged to apply early

WASHINGTON D.C. – U.S. Customs and Border Protection (CBP), consistent with existing requirements, reminds international travelers using the Electronic System for Travel Authorization (ESTA) for travel to the United States to apply as soon as possible but not less than 72 hours before their international flight is scheduled to depart.

Visa Waiver Program users are encouraged to apply early.

Due to changes in ESTA application processing, real-time approvals will no longer be available. Citizens of participating Visa Waiver Program (VWP) countries traveling to the United States are strongly encouraged to apply for an ESTA at the time of booking their trip and no later than 72 hours prior to departure. Applicants who apply on the same day of their flight’s departure risk not having an approved ESTA prior to their scheduled departure.  International travelers without an approved ESTA will not be authorized to board their flight.

ESTA is an automated system that assists in determining eligibility to travel to the United States under the Visa Waiver Program and whether such travel poses any law enforcement or security risks.  Upon completion of an ESTA application, travelers are notified of their eligibility to travel to the United States under the VWP.

“Since its implementation in 2007, ESTA has counterbalanced vulnerabilities inherent in visa-free travel by adding a layer of advance scrutiny that enables our officers to focus on the small population of potentially dangerous travelers,” said Todd Owen, CBP Executive Assistant Commissioner of the Office of Field Operations.

Recent enhancements to the ESTA process make querying application status much smoother.  Upon successful submission, the applicant is provide an email containing their application number and a link taking them directly to the ESTA web page.

The Visa Waiver Program (VWP) allows citizens of participating countries to travel to the United States without a visa for stays of 90 days or less for business or pleasure when they meet all requirements.  Electronic System for Travel Authorization (ESTA) is an automated system that determines the eligibility of visitors to travel to the U.S. under the VWP and is required for all VWP applicants in the air and sea environment.

ESTA was one of the measures under the Implementing Recommendations of the 9/11 Commission Act of 2007. The electronic travel authorization system was designed to enhance the security of the Visa Waiver Program by evaluating a traveler’s eligibility prior to their boarding a U.S. bound flight.

For detailed information on VWP/ESTA, please visit the CBP site at: cbp.gov/esta, or, the U.S. State Department travel site. To avoid third-party fees, CBP encourages travelers to apply use the official ESTA website.

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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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