News from the Alliance of Business Immigration Lawyers Vol. 13, No 4B • April 15, 2017
Headlines:
1. USCIS Reaches FY 2018 H-1B Cap -On April 7, 2017, USCIS reached the H-1B cap for FY 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption.
2. USCIS Changes H-1B Specialty Occupation Guidance for Computer Programmers -Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.
3. USCIS Announces Multiple Measures To ‘Deter and Detect’ H-1B Visa Fraud, Abuse -Among other things, USCIS said it “will take a more targeted approach” when making site visits across the country to H-1B petitioners and the worksites of H-1B employees.
4. Visa Processing Delays Expected in Busy Summer Season Due to Increased Screening -Visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond.
5. DHS Asks DC Circuit Court for 6 Months To Reconsider H-4 Employment Authorization Rule -DHS said it wanted time to reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.
6. ‘Stalking’ the Undocumented Immigrant: California Objects to Immigration Enforcement Tactics at Courthouses -California’s chief justice said that “enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.” Among other things, she said that such actions “undermine the judiciary’s ability to provide equal access to justice.”
7. New Publications and Items of Interest -New Publications and Items of Interest
8. ABIL Member/Firm News -ABIL Member/Firm News
9. Government Agency Links -Government Agency Links
Details:
1. USCIS Reaches FY 2018 H-1B Cap
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2017, that it has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the master’s cap.
The agency said it will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. The agency noted that it suspended premium processing as of April 3 for up to six months for all H-1B petitions, including cap-exempt petitions.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, will not be counted toward the congressionally mandated FY 2018 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.
USCIS said it encourages H-1B applicants to subscribe to the H-1B cap season email updates.
ANNOUNCEMENT that the cap has been reached for FY 2018.
2. USCIS Changes H-1B Specialty Occupation Guidance for Computer Programmers
On April 3, 2017, the first filing day for fiscal year 2018 H-1B petitions, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum changing guidance on the H-1B specialty occupation designation for computer programmers. The memo, “Guidance Memo on H-1B Computer Related Positions,” supersedes and rescinds a memo with the same title issued December 22, 2000.
The new memo states that petitioners may not rely solely on the Occupational Outlook Handbook (OOH) to prove that an entry-level computer programmer position is a specialty occupation: “[I]t is improper to conclude based on this information that USCIS would ‘generally consider the position of programmer to qualify as a specialty occupation.’ ” Among other things, the new memo states that the earlier memo “does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique.” The fact that a computer programmer may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job “is not sufficient to establish the position as a specialty occupation,” the memo states. Thus, “a petitioner may not rely solely on the [OOH] to meet its burden” and must provide other evidence.
Many such H-1B applications presumably have already been filed, along with fees of several thousand dollars per application that the agency can keep whether it approves or denies the application. Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.
3. USCIS Announces Multiple Measures To ‘Deter and Detect’ H-1B Visa Fraud, Abuse
On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures “to further deter and detect H-1B visa fraud and abuse.” USCIS explained that the
H-1B visa program “should help U.S. companies recruit highly skilled foreign nationals when there is a shortage of qualified workers in the country,” but that “too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.” USCIS stated that it is prioritizing “combating fraud in our employment-based immigration programs.”
Among other things, USCIS said it “will take a more targeted approach” when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The agency said it will focus on:
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
- Employers petitioning for H-1B workers who work off site at another company or organization’s location.
Targeted site visits will allow USCIS to focus resources “where fraud and abuse of the H-1B program may be more likely to occur,” the agency said, and to “determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.” USCIS said it will continue random and unannounced visits nationwide. “These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system,” USCIS said.
USCIS also has established an email address, [email protected], “to allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse.” Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution, USCIS said.
4. Visa Processing Delays Expected in Busy Summer Season Due to Increased Screening
According to reports, visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond. The Department of State issued several related cables to diplomatic and consular posts that were publicly leaked, such as one issued on March 17, 2017, calling for increased scrutiny and consideration of security advisory opinions (SAOs) when additional checks may be warranted, along with generally limiting visa interviews to 120 per consular officer per day.
To support an SAO request, consular officers may ask visa applicants probing questions. It was also reported that those coming to the United States may be required to disclose their mobile phone contacts, social media passwords, financial records, and ideology. The March 17 cable’s leaked text says that if a consular post determines that an applicant “may have ties to ISIS or other terrorist organizations or has ever been present in an ISIS-controlled territory, post must/must refer the applicant to the Fraud Prevention Unit for a mandatory social media review.” The cable states that the post should scan the results of this review into the nonimmigrant visa case for consideration during the SAO process.
5. DHS Asks DC Circuit Court for 6 Months To Reconsider H-4 Employment Authorization Rule
The Department of Homeland Security (DHS) has filed a motion asking the U.S. Court of Appeals for the District of Columbia Circuit to delay proceedings in Save Jobs USA v. DHS for up to 6 months so the agency may reconsider a February 2015 rule, “Employment Authorization for Certain H-4 Dependent Spouses,” that allows certain people maintaining H-4 nonimmigrant status to apply for and receive employment authorization. DHS said it wanted time to actively reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.
MOTION, filed April 3, 2017
6. ‘Stalking’ the Undocumented Immigrant: California Objects to Immigration Enforcement Tactics at Courthouses
California Chief Justice Tani G. Cantil-Sakauye recently sent a letter to U.S. Attorney General Jeff Sessions and Department of Homeland Security Secretary John Kelly expressing concerns about reports that immigration agents “appear to be stalking undocumented immigrants in our courthouses to make arrests.”
In the letter, Chief Justice Cantil-Sakauye said that courthouses “should not be used as bait in the necessary enforcement of our country’s immigration laws.” She noted that courts are the main point of contact for crime victims and witnesses. “As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice,” she noted.
Chief Justice Cantil-Sakauye said she is concerned about “the impact on public trust and confidence in our state court system” if the public feels that state institutions are being used to facilitate goals and objectives other than their primary purpose. She said that “enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.” Among other things, she said that such actions “undermine the judiciary’s ability to provide equal access to justice,” and requested that this type of enforcement not be pursued.
7. New Publications and Items of Interest
How to safeguard your data from searches at the border is the topic of several recent articles and blogs. EXAMPLE
Airport Lawyer is a free Web app that is intended to help ensure that immigrants are treated fairly at airports. Arrivals information can be securely passed along to large groups of volunteer attorneys who have been organized to monitor arrivals.
Listings and links to cases challenging executive orders, and related available pleadings, are available HERE.
What 60 Minutes got wrong about outsourcing, published by the Daily Caller.
An updated E-Verify handbook for employers is now available. The handbook gives employers detailed guidance for completing the Form I-9, Employment Eligibility Verification, and reflects revisions to the latest I-9 edition dated 11/14/2016. LAST HANDBOOK. TABLE OF CHANGES TO THE HANDBOOK
The latest E-Verify webinar schedule from USCIS is available HERE.
The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.
The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
This comprehensive guide is for:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
An excerpt of the book is on the ABIL website.
Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is on Twitter: @ABILImmigration. Recent ABIL member blogs.
8. ABIL Member/Firm News
Robert F. Loughran, as a member of the State Bar Committee on Laws Relating to Immigration and Nationality, recently met with the Federal Magistrate in Waco, Texas, to discuss the policies and procedures surrounding the detained immigration docket where undocumented aliens are charged under federal criminal law with criminal entry or criminal re-entry. Later he discussed recent developments in field operations and arrest policies with the Field Office Director of U.S. Immigration and Customs Enforcement. Officials confirmed that local-office policies and operations continue to target the apprehension of those deemed to be public safety threats, such as felons, and not to target individuals through random encounters. Mr. Loughran learned that training has been implemented to teach ICE agents how to utilize their newly granted discretion responsibly rather than opportunistically.
Cyrus Mehta has published several new blog entries. “H-1B Cap Filing Aftermath: Evaluating the Fate of the Computer Programmer and the H-1B Dependent Employer” “Filing Under the FY 2018 H-1B Cap; New Developments in H-1B Cap Exemption”
Mr. Mehta was quoted or cited in the following media regarding recent H-1B-related developments:
Greg Siskind of Siskind Susser PC, and William Stock of Klasko Immigration Law Partners, LLP, were quoted in “U.S. Immigration Agency Will Lose Millions Because It Can’t Process Visas Fast Enough,” published in ProPublica on April 7, 2017.
Wolfsdorf Rosenthal LLP has published several new blog entries. “7 Important Changes in the New EB-5 Form I-526” “Five Things to Know About Senator Rand Paul’s Proposed New EB-5 Bill” “EB-5 Extension—Five Things We Will Likely See” “H-1B Targeted Approach: USCIS Announces Further Measures to Detect H-1B Abuses” “USCIS Announces New Policy Memo on H-1B Computer Programmers” “New Standard for EB-5 Regional Center Terminations?”
Bernard Wolfsdorf will speak on a panel on strategic planning in an era of increasing backlogs at the IIUSA conference in Washington, DC, on April 27, 2017. Stephen Yale-Loehr will also moderate a panel on hot topics in the EB-5 reform debate at the IIUSA conference. MORE INFORMATION OR TO REGISTER
Mr. Yale-Loehr will moderate a panel at Cornell Law School’s Berger Current Events Colloquium: “The Hidden Migrant Workforce: Comparing the Canadian and U.S. Temporary Foreign Worker Visa Programs.” Mr. Yale-Loehr’s panel, “Techies, Teachers, Nurses, and More: Guestworker Programs for Professionals,” will take place from 9:30 to 10:30 am. The entire morning session (9 am to noon) is open to the public and includes two panel discussions. If you are unable to attend the event in person, it will be streamed live. Register by Monday, April 17 HERE. If you have any questions, email Beth Lyon at [email protected]
Mr. Yale-Loehr was quoted in the following media regarding recent immigration-related developments:
- Desert Sun
- Inside Higher Ed
- Miami Herald
- New America Media
- Mansion Global
- Montreal Journal
- Agence France Presse
9. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin