News from the Alliance of Business Immigration Lawyers Vol. 15, No. 3A • March 01, 2019
1. Trump Administration Moves Ahead on Reversing H-4 EADs -On February 20, 2019, the Trump administration sent a proposed rule to the Office of Management and Budget (OMB) for review that would halt work authorization for H-4 spouses of H-1B visa holders in the United States.
2. Premium Processing Resumes for H-1B Petitions Filed by December 21 -USCIS has resumed premium processing for all H-1B petitions filed on or before December 21, 2018.
3. Trump Administration Increases Scrutiny, RFEs for H-1B Petitions -According to statistics released by USCIS, the percentage of H-1B cases with requests for evidence has greatly increased.
4. USCIS to Issue New Version of Form I-539 and New I-539A on March 8 -USCIS has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.
5. House Representatives Send USCIS Inquiry re “Alarming Growth in Processing Delays” -Eighty-six Democratic members of the House of Representatives sent a letter to the USCIS Director expressing their “grave concerns about the alarming growth in processing delays” and requesting “prompt and detailed” responses to a series of related questions.
6. March Visa Bulletin Shows Progress -The Department of State’s Visa Bulletin for March 2019 shows modest progress for EB-1 for all chargeability areas as well as EB-2 for China and India; EB-3 and Other Workers China, India, and the Philippines; and EB-5 China and Vietnam, with the remainder of the priority dates remaining Current.
7. H-2B Cap Reached for FY 2019 -February 19, 2019, was the final receipt date for new cap-subject H-2B temporary nonagricultural worker petitions requesting an employment start date before October 1, 2019.
8. USCIS Closing Moscow Field Office; U.S. Embassy in Moscow Moves Visa Unit -Due to “a significant decrease in workload,” USCIS will permanently close its field office in Moscow, Russia, on March 29, 2019. The last day the office was open to the public and accepting applications was February 28, 2019. Also, the Visa Unit of the U.S. Embassy in Moscow has moved to a new location.
9. ABIL Global: Peru -This article provides an update on eased requirements for approval of employment contracts of foreign workers in Peru.
10. New Publications and Items of Interest -New Publications and Items of Interest
11. ABIL Member / Firm News -ABIL Member / Firm News
12. Government Agency Links -Government Agency Links
1. Trump Administration Moves Ahead on Reversing H-4 EADs
On February 20, 2019, the Trump administration sent a proposed rule to the Office of Management and Budget (OMB) for review that would halt work authorization for H-4 spouses of H-1B visa holders in the United States. If OMB approves, the administration is expected to move forward with the regulatory process, including publication of the proposed rule in the Federal Register and requesting public comments. Publication of a final rule could take months, and new legislation or lawsuits could have an impact. It is also unclear whether the more than 90,000 current H-4 spouses with work authorization, mostly women from India, will be exempted from the final rule. Historically, in similar situations, the Department of Homeland Security (DHS) has allowed current EADs to expire. As of now, H-4 visa holders can still apply for and work under H-4 EADs.
According to information DHS filed with OMB, “DHS anticipates that there would be two primary impacts [of the rule] that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs [employment authorization documents] are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”
The Trump administration has long vowed to rescind the H-4 work authorization program, which has allowed certain H-4 spouses to apply for EADs since 2015. It is unclear what prompted the sudden move forward with the rule, after a long delay. In December, the D.C. Circuit Court of Appeals allowed a lawsuit against the H-4 program to proceed. That case was filed by “Save Jobs USA,” a group of technology workers who say the H-4 program takes away jobs from U.S. workers. Natalie Tynan, a former DHS employee, said, “In general from an agency’s perspective, the agency prefers to issue its regulations rather than have the courts opine on what the regulations should say. So any opportunity to moot out litigation is a positive one for the agency.”
2. Premium Processing Resumes for H-1B Petitions Filed by December 21
U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing for all H-1B petitions filed on or before December 21, 2018.
Those who received a transfer notice for a pending H-1B petition and are requesting premium processing service must submit the premium processing request to the USCIS service center now handling the petition. They should also include a copy of the transfer notice with the premium processing request to avoid possible delays, USCIS said. Additionally, those who received a request for evidence (RFE) for a pending petition should also include the RFE response with the premium processing request. If the petition was transferred and the premium processing request is sent to the wrong center, USCIS said it will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.
USCIS noted that when an H-1B petitioner properly requests the agency’s premium processing service, the agency guarantees a 15-day processing time. “If we do not take certain adjudicative action within the 15?calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition,” USCIS said.
A previously announced temporary suspension of premium processing remains in effect for H-1B petitions to which it applied that were filed on or after December 22, 2018. On January 28, 2019, USCIS resumed premium processing for FY 2019 cap-subject petitions, including those eligible for the advanced degree exemption. USCIS said it plans to resume premium processing for the remaining categories of H?1B petitions “as agency workloads permit.”
The USCIS announcement, which includes instructions on where to send a premium processing request if USCIS has transferred the petition
3. Trump Administration Increases Scrutiny, RFEs for H-1B Petitions
According to statistics released by U.S. Citizenship and Immigration Services, the percentage of H-1B cases with requests for evidence (RFEs) has greatly increased. In the first quarter of fiscal year (FY) 2017, the rate of H-1B RFEs was less than 30%. In the first quarter of FY 2019, that rate skyrocketed to 60%. At the same time, the percentage of H-1B completions with an RFE that were approved has fallen, from almost 80% in the first quarter of FY 2017 to about 60% in the first quarter of FY 2019.
Approval rates were much higher for certain large companies; Apple, Facebook, Google, Intel, and Microsoft reportedly all had 99% approval rates; Amazon and Cisco had a 98% approval rate.
According to reports, a frequent reason for the RFEs was asking companies to prove that the offered job was in a “specialty occupation.” Other questions related to valid employer-employee relationships and specific assignments. Numerous lawsuits have been filed in federal court challenging recent H-1B denials.
An article about several lawsuits is available
4. USCIS to Issue New Version of Form I-539 and New I-539A on March 8
U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.
Form I-539 is used for a variety of application types, including:
- Certain nonimmigrant applications for an extension of stay
- Certain nonimmigrant applications for a change of status
- Reinstatement for F-1 and M-1 students
USCIS has expanded the scope of information to be gathered and will change the filing and adjudication requirements. 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. 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.
- 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 said it will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.
5. House Representatives Send USCIS Inquiry re “Alarming Growth in Processing Delays”
Eighty-six Democratic members of the House of Representatives sent a letter on February 12, 2019, to U.S. Citizenship and Immigration Services (USCIS) Director Lee Francis Cissna, expressing their “grave concerns about the alarming growth in processing delays” at USCIS and requesting “prompt and detailed” responses to a series of related questions. “Clearly, policy changes implemented by the current administration in 2017 and 2018 have increasingly shifted the agency away from its service-oriented mission,” the letter states. “Rather than continuing to seek ways to simplify and streamline its benefit-delivery systems, USCIS now appears more focused on erecting barriers to the benefits it administers, including by significantly delaying adjudications.”
The letter notes that as of the end of fiscal year (FY) 2017, the Department of Homeland Security reported a net backlog of more than 2.3 million USCIS cases, which was more than double the backlog reported after FY 2016.
The letter asks for responses to questions about, among other things, the causes of the backlog; the use of “extreme vetting”; USCIS’s reversal of longstanding guidance on deference toward prior determinations regarding nonimmigrant employment extension petitions; and USCIS’s proposed FY 2019 budget, which requested the transfer of over $200 million from USCIS to U.S. Immigration and Customs Enforcement.
The letter, which notes that USCIS was created by congressional mandate, asks USCIS how it intends to reduce and eliminate processing delays while ensuring fairness and quality and not passing costs for “the agency’s inefficiencies” on to the applicants and petitioners “experiencing hardship due to USCIS’s crisis-level delays.”
6. March Visa Bulletin Shows Progress
The Department of State (DOS) has released the Visa Bulletin for March 2019, showing modest progress for EB-1 for all chargeability areas as well as EB-2 for China and India; EB-3 and Other Workers China, India, and the Philippines; and EB-5 China and Vietnam, with the remainder of the priority dates remaining Current.
The specific changes in the Final Action Cut-Off Dates, or priority dates, from the February to the March Visa Bulletin are:
- EB-1: China and India—forward progress of two weeks for China and India to February 22, 2017; Mexico—forward progress of three weeks to February 22, 2017; All Other Chargeability Areas—forward progress of one month to January 1, 2018.
- EB-2: China—forward progress of three months to January 1, 2016; India—forward progress of three days to April 9, 2009.
- EB-3: China—forward progress of one week to July 8, 2015; India—forward progress of one month to May 22, 2009; Philippines—forward progress of four months to December 1, 2017.
- Other Workers: China—forward progress of two weeks to August 15, 2007; India—forward progress of one month to May 22, 2009; Philippines—forward progress of four months to December 1, 2017.
- EB-5: China (Non-Regional Center)—forward progress of one week to September 8, 2014; Vietnam—forward progress of one month to July 15, 2016.
Applicants whose priority dates are currently backlogged are recommended to review the dates to determine if they may be eligible to file during the month of March. U.S. Citizenship and Immigration Services (USCIS) noted that beneficiaries of approved employment-based immigrant petitions whose priority dates become current in March 2019 should use the “Final Action Cut-Off Dates” when filing during the month of March 2019. USCIS in the recent past had accepted applications filed during certain months based on the typically earlier “Dates for Filing.”
7. H-2B Cap Reached for FY 2019
U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2019. February 19, 2019, was the final receipt date for new cap-subject H-2B temporary nonagricultural worker petitions requesting an employment start date before October 1, 2019. USCIS will reject new cap-subject H-2B petitions received after February 19 that request an employment start date before October 1, 2019.
On February 19, the number of beneficiaries USCIS received petitions for surpassed the total number of remaining H-2B visas available for the H-2B cap for the second half of FY 2019. In accordance with regulations, USCIS said it determined that it was necessary to use a computer-generated process, commonly known as a lottery, to ensure the fair and orderly allocation of
H-2B visa numbers to meet, but not exceed, the remainder of the FY 2019 cap. On February 21, USCIS conducted a lottery to randomly select petitions from those received on February 19. As a result, USCIS assigned all petitions selected in the lottery the receipt date of February 22. Premium processing service for petitions selected in the lottery also began on that date.
USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:
- Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
- Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
- Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.
Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year and 33,000 for workers who begin employment in the second half of the fiscal year plus any unused numbers from the first half of the fiscal year, if any. However, unused H-2B numbers from one fiscal year do not carry over into the next, USCIS explained.
Also, a new letter sent on February 22, 2019, from the H-2B Workforce Coalition urges the Department of Homeland Security to add H-2B numbers as authorized by the Fiscal 2019 Consolidated Appropriations Act. The 40-page letter, endorsed by hundreds of employers and organizations, notes:
Without immediate action, many employers across the country will be without the critical workforce they need to operate this spring and summer. These businesses will not be able to fulfill contracts. They will be forced to turn away customers and may need to lay off American workers whose jobs are supported by H-2B workers. In some cases, they will be compelled to shut down their operations entirely. … The H-2B program is essential to employers who cannot find local temporary workers to fill jobs in seafood processing, horse training, hospitality and amusement parks, forestry, landscaping, circuses, carnivals, food concessionaires, swimming pool maintenance, golf courses, stone quarries and other seasonal industries. These seasonal businesses need H-2B workers to supplement their American workforce. The H-2B program relies on well-vetted returning workers who come to the U.S. for seasonal employment and then go home. These workers are not immigrants. They provide an opportunity for U.S. businesses to operate at a greater capacity, retain their full-time workers and contribute to their local economy.
The letter from the H-2B Workforce Coalition
8. USCIS Closing Moscow Field Office; U.S. Embassy in Moscow Moves Visa Unit
Due to “a significant decrease in workload,” U.S. Citizenship and Immigration Services (USCIS) will permanently close its field office in Moscow, Russia, on March 29, 2019. The last day the office was open to the public and accepting applications was February 28, 2019. Also, the Visa Unit of the U.S. Embassy in Moscow has moved to a new location.
The USCIS field office in Athens, Greece, will assume jurisdiction over immigration matters in the Russian Federation, Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. The U.S. Embassy in Moscow will assume responsibility for certain limited services previously provided by USCIS to individuals residing in Russia. The USCIS Refugee Affairs Division will assume primary responsibility for adjudicating refugee cases presented for interview in the region.
The new location for the Visa Unit of the U.S. Embassy in Moscow is 8 Bolshoy Deviatinsky Pereulok, 121099, Moscow, Russia.
The USCIS notice, which includes details on filing instructions
Information on the USCIS Athens office
The website for the U.S. Embassy in Moscow
The U.S. Embassy announcement about the Visa Unit move
9. ABIL Global: Peru
This article provides an update on eased requirements for approval of employment contracts of foreign workers in Peru.
On September 13, 2018, Peru’s Official Gazette, “El Peruano,” published Supreme Decree No. 008-2018-TR, which amends the regulations of the Law of Hiring of Foreign Workers, approved by Supreme Decree No. 014-92-TR. It has been in force since October 13, 2018.
One of the main changes established by the modified regulations is automatic approval of the employment contracts of foreign employees/workers by the Ministry of Labor in Peru. In the past, the contracts were to be approved within five business days following their filing at the Ministry of Labor and Employment Promotion (MTPE). In practice, approvals took up to three weeks due to the MTPE’s workload, taking into consideration a massive inflow of Venezuelans requesting approval of their employment contracts in Peru. Now, an employment contract of any foreign individual will be considered approved from its filing before the labor authority.
Other important changes that ease the process of submission of dossiers before the MTPE to obtain the approval of an employment contract include administrative simplification provisions, by means of Legislative Decree No. 1246 (October 2016), which no longer require the presentation of professional/technical degree diplomas and apostille work experience certificates, and lower accompanying documentation requirements for applications for the approval of employment contracts for foreign personnel, by means of Supreme Decree No. 008-2018-TR, which now include:
- Employment contract in writing;
- Affidavit stating that the hiring of foreigners complies with the conditions established by law and includes the training or work experience required by it; and
- Payment receipt of the corresponding right issued by the National Peruvian Bank. The receipt does not have to be presented initially but will be subject to a subsequent audit by the Labor Inspection Authority.
Logically, the Administrative Labor Authority in charge of the approval process of the employment contracts will be in charge of the subsequent inspection, without prejudice to the inspective actions carried out by the competent Labor Inspection Authority in the local companies to verify if they are in compliance with the cited Law of Hiring of Foreign Workers under (1) compliance of limiting percentages, (2) exonerations of them, or (3) exemptions, if applicable. Therefore, diplomas of foreign employees showing their professional titles or degrees and specializations, and work certificates, must be kept in the local company in its files to be shown to the authorities in case of audits.
The issuance of complementary regulations for the presentation, approval, extension, or modification of the employment contracts of foreign personnel, through the “Virtual System of Contracts for Foreigners—SIVICE,” has been established by Ministerial Resolution N° 291-2018-TR (November 14, 2018). It is in the process of implementation.
With this modifying regulatory labor standard, an administrative procedure regulated by labor norms that has been valid for 26 years in Peru has been updated and simplified, to ease the approval of employment contracts of foreign personnel, improving the right to labor migration, and taking into account that an employment contract duly approved and registered is the main document that supports the visa process to obtain a temporary or resident worker immigration status in Peru for foreign nationals working under a subordinated labor relationship with a local company.
With the implementation of the SIVICE virtual system, the Foreign Personnel Employment Contract approval procedure has been upgraded and simplified, as well as its consequent extensions and/or modifications, for foreign personnel both exempted and not exempt from the limiting percentages. These developments make the labor-immigration administrative process faster and more effective in support of labor migration to Peru.
10. New Publications and Items of Interest
E-Verify webinars. Free E-Verify webinars are available by registering here. Upcoming topics include an E-Verify overview, E-Verify for existing users, Form I-9, myE-Verify, and information for federal contractors.
Alliance of Business Immigration Lawyers:
- The latest immigration news is at https://www.abil.com/news.cfm.
- The latest published media releases include:
- ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs
- New Data Show Increase in H-1B Denials and RFEs
- ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
- ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
- ABIL Members Note Immigration Threats for Employers in 2018
- ABIL is available on Twitter: @ABILImmigration.
- Recent ABIL member blogs are at http://www.abilblog.com/.
Organizations seeking non-lawyer and lawyer volunteers. Cornell Law School has compiled a list of organizations seeking non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is here.
Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division will present a series of webinars for employers and employees. For more information, see justice.gov.
Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:
- Statutes of Liberty: (new episode: A Prescription for Success: EB-1 for Physicians)
- Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants‘?
- Hidden Brain: The Huddled Masses and the Myth of America
- American Pendulum I
E-Verify free webinar listings are here.
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory is here.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, NYTimes and ACLU.
- Listings and links to cases challenging executive orders, and related available pleadings, are available at lawfareblog.com.
11. ABIL Member / Firm News
The Alliance of Business Immigration Lawyers (ABIL) was named the top immigration legal network by Chambers Global. Chambers noted, “[ABIL] is an association of legal providers based in over 20 countries, including 24 U.S. cities, providing a single contact point for management of global immigration needs. It assists with processing, filing, invoicing and online client case tracking. Members share information on important legislation, take part in joint training and collaborate on projects to provide a unified service offering. The network also maintains an up-to-date blog collating information on multiple jurisdictions.” In addition, ABIL members and firms were disproportionately top-rated in almost all of their jurisdictions relative to other immigration firms. ABIL encompasses two-thirds of Chambers USA’s top band (ranking tier) in California out of thousands of California immigration law firms.Below are ABIL firms and individual members and associates who were honored in Chambers Global and Chambers USA:
Cyrus D Mehta & Associates PLLC
Fredrikson & Byron
Klasko Rulon Stock & Seltzer
Maggio & Kattar
Parker, Butte Lane
Pearl Law Group
Siskind Susser, PC
Wolfsdorf Rosenthal LLP
Corporate Immigration Law Firm
Alliance of Business Immigration Lawyers
Laura Devine Solicitors
Bener Law Office (Europe, Global – for Corporate/M&A)
Dorda (Europe, Global, High Net Worth)
Kingsley Napley (UK, US, Global, High Net Worth)
Laura Devine Solicitors (UK, US, Global, High Net Worth)
Sagardoy Abogados (Europe – for Employment)
Raczkowski Paruch (Europe – for Employment)
Tannus & Asociados (Latin America)
Robert Aronson (US and Global)
H. Ronald Klasko (US and Global)
Charles Kuck (US and Global)
Cyrus Mehta (US and Global)
Gregory Siskind (US and Global)
Jennifer Stevens (US and Global)
Stephen Yale-Loehr (US and Global)
Barbara Jo Caruso
Global (see also individual listings above under United States)
Ilda de Sousa
More information on rankings and areas of specialty
Bios of ABIL members are available at https://www.abil.com/
Klasko Immigration Law Partners, LLP, has released “Avoiding Status Violations in the Side Gig Economy,” which is Episode 12 of the podcast series, “Statutes of Liberty.”
Cyrus Mehta has authored a new blog entry, “Don’t Always Suck Up to Buy American Hire American.”
Angelo Paparelli and William Stock will speak at the 2019 American Immigration Lawyers Association’s Spring Federal Court Litigation Conference in Chicago, Illinois, on March 12, 2019. More information
Stephen Yale-Loehr was quoted by CNN in “Trump Says Alabama Woman Who Joined ISIS Should Not Return to U.S.” Mr. Yale-Loehr said Hoda Muthana’s situation was “not clear-cut. It would depend on the facts, if the State Department argues that her father’s diplomatic status was still in effect. The family argues it expired. So ultimately, it may be up to a court to sort this out.” Ms. Muthana’s family has filed a lawsuit challenging the U.S. government’s assertion that she is not a U.S. citizen, the article notes.
Mr. Yale-Loehr was quoted by Bisnow South Florida in “Inside the Wild Legal Battle Over EB-5 Fraud, Defamation and a $2.5B Times Square Project.” Mr. Yale-Loehr noted that the EB-5 program was established as a part of a bigger overhaul of legal immigration in the early 1990s, “in part because Australia and Canada had similar programs.” Noting that it was enacted as a pilot program and still needs to be reauthorized periodically, he said redeployment has become contentious as processing times for visas have grown. Contracts can be structured various ways, he said, with all the money from a group being moved together at one time or in tranches.
12. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and 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 State Visa Bulletin
Visa application wait times for any post