Immigration Briefs

Summary of President Biden’s Immigration Reform Bill

While President Biden submitted his legislation to overhaul the US Immigration system to Congress on his first day in office, the actual text of the bill was not released initially primarily because Congress has not actually introduced the bill in Congress as of yet. At this time, even thought the bill has still not been introduced, there is some more information about what some of the provisions will contain, and I will try to summarize those for you. However please do remember that, while the bill may contain certain provisions, that does not mean that the final bill approved by Congress and signed by the president will contain the same provisions.

First, the bill will provide a method for those in the Country without documentation to become permanent residents and, eventually, citizens of the US. This will apply to all person in the US without Documentation as of January 1, 2021. Under the process, most immigrations would gain temporary status for 5 years, then they would be able to file for Permanent Resident (green card) status after that. An exception for those in the DACA, TPS and Agricultural Worker programs exists so that they can apply for Permanent Residence immediately.

Second, the bill would overhaul the family and employment based immigrant programs. In terms of the family program, it would increase the per country limits (but not get rid of them) and would allow those with approved I–130’s to get a temporary visa to be in the US while awaiting the opportunity to file for permanent residence. It would tighten protections for LGTBQ+ families as well as families of those who fought along with the US military in WW II. In addition it would re-instate the Central American Minors Program, allowing family reunification for those with approved I–130s. It would also eliminate the 3 and 10 year bars for those who were in the US without documentation for over 6 months or over 1 year.

For employment based green cards, the bill seeks to grow the U.S. economy by “clear[ing] employment-based visa backlogs, recapture[ing] unused visas, reduc[ing] lengthy wait times, and eliminate[ing] per-country visa caps.” The legislation would create a program to “stimulate regional economic development, give[] the [U.S. Department of Homeland Security] the authority to adjust green cards based on macroeconomic conditions, and incentivize[] higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.” It would also prevent children from “aging out” of the system. Currently, children who turn 21 years old may no longer qualify for immigration benefits as a dependent of their parents’ permanent residency applications. The Child Status Protection Act currently provides some exceptions to permit children who turn 21 years old to continue to qualify for immigration benefits. The proposed bill would expand upon these protections. We do not know the specifics of these proposals as of yet.

In addition, the proposed bill would increase the opportunities for dependents of H–1B visa holders to obtain work authorization. This is an expansion of the current H–4 Employment Authorization Document (EAD) guidelines, which do not allow dependent children to obtain work authorization.

The above is a rough summary of what the bill contains. Once the bill is introduced into Congress and we have a better idea of what Congress will do with the bill and how they will amend it, we will update you with more details.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

How Trump Officials Tried to end the H-1B Visa Program

For those interested in the difficulties that companies and individuals went through over the past 4 years in terms of getting and renewing H-1Bs, a good article has come out on Forbes Magazine and on its website (link here).

First, why are H-1Bs important and how do they help the US. According to the article:

Research has concluded high-skilled foreign nationals on H-1B temporary visas contribute to America in many ways, including by increasing productivity, which is essential to improving the standard of living. “When we aggregate at the national level, inflows of foreign STEM [science, technology, engineering and math] workers explain between 30% and 50% of the aggregate productivity growth that took place in the United States between 1990 and 2010,” according to economists Giovanni Peri (UC, Davis), Kevin Shih (RPI) and Chad Sparber (Colgate University). Research by economist Britta Glennon found rather than saving jobs, H-1B restrictions “have the unintended consequence of encouraging firms to offshore jobs abroad.”
Stuart Anderson, Forbes Magazine

The article then turns to the “memos” released by USCIS purportedly just “clarifying” existing standards. This includes the memo released on March 31, 2017 that rescinded the previous memo on Computer related positions, the memo on March 23, 2017 changing the standards and when and when not to issue RFE’s for H-1Bs and the July 17, 2017 memo revising the denial standards for H-1bs. According to the article:

“What the documents do not say is more important than what they say,” Jonathan Wasden, a partner with Wasden Banias LLC, said in an interview when the USCIS material became public in September 2019. “You see that the noncontroversial matters are all supported by citation to statute and regulation. However, their most controversial policies lack any such support. It appears that the agency made dramatic changes to H-1B policy without grounding those changes in any law. Attorneys have known this is happening in practice, but to see they don’t even attempt to create a facade of statutory support is shocking.
Stuart Anderson, Forbes Magazine

After these memos, another memo was released that basically stated that USCIS would no longer give deference to previously approved applications when adjudicating extensions or status. These changes lead to increased RFEs – the rate climbed from 17% in August of 2017 to 38% in September to 56% in December to 66% by November 2018. That is a huge increase and leads to delays for companies to get people here, delays for those seeking to renew applications and continue working, and hurts our economy.

In terms of the denial rates the article also discusses how those skyrocketed during the last administration – and how their argument that they were weeding out fraud does not hold water. All the above, in addition to other policies they pushed forward such as trying to reduce approvals for some cases to just one year, etc. were all aimed not at weeding out fraud (which does exist and should be weeded out, but is actually not as rampant as claimed) but at halting the use of the H-1B program and halting those immigrants from being able to work and live in the US. The whole idea was that it would open up more jobs for US workers, which, as shown via much research, is exactly the opposite of what happens when you close off immigration. It should be noted that many of these policies were ultimately overturned by the Courts because of the way they were pushed through without proper rule-making. However, there is still a lot of work that needs to be done to fix these systems and ensure that they are serving the purpose they were intended to serve – to help US employers and to spur the creation of more jobs for US workers.

Any one interested in what happened with a part of the immigration process during the last administration should read this whole article – it is very interesting.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

New Administration Halts Implementation of Pending Regulations, Withdraws Travel Ban

The incoming administration has issued an order halting the implementation of all proposed rules that are not yet final for 60 days (so until March 20, 2021). This includes the DOL wage change rules as well as the USCIS changes to the H-1B process (see a description of these rule changes here). Hopefully, the rule changes will be withdrawn, but we will keep you updated on that.

Another USCIS change in terms of H-1B’s is now withdrawn. USCIS had a proposed amendment that had not yet been published in the Federal Register, which would have changed the rules in terms of the employer-employee relationship and third party placements (a description of the rule can be found here). However, the executive action by the Biden administration has automatically withdrawn all rules not yet published. Hence, this rule will not be implemented.

Additionally, through an executive order, the Biden administration has withdrawn the executive order and Proclamations that banned the entry of people from certain countries (mostly Muslim) and allowed for heightened scrutiny in many cases. In addition, the order has also included a provision requiring the Embassies to re-open cases denied because of these Executive orders and re-adjudicate them as well as ordering the Embassies to clear out their backlogs quickly. However, as of yet, the ban on issuance of immigrant visas and some temporary visas because of the Covid pandemic is still in place, as are the travel restrictions from Europe and other countries with high infection rates. If you have any specific questions about whether a particular order affecting your immigration or a family member is still in effect please contact me and I am happy to help.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS and DOL re-issue new H-1B selection process and new Prevailing Wage calculations as Final Rules

Just this week, USICS and DOL issued new final rules that will take effect in 60 days. Before getting into the details of the rules, it is important to note that the new Biden administration has stated that it will halt implementation of new rules for at least 60 days (we do not know if this is added onto the already established start date or is from the date of the order – we will have to see) and may or may not revoke or revise the rules during that period. Also, the rules will probably face lawsuits as well so whether they are actually implemented or not remains to be seen.

A post describing the new laws in detail is here (for DOL Rule) and here (for USCIS rule) if you are interested in a more in-depth explanation. As a summary:

(1) the New H-1B registration policy would allow USICS to select cases based upon the salary being offered (favoring those with higher salaries) instead of purely a random lottery.

(2) the new DOL Prevailing Wage Regulations would raise the salaries at all levels of prevailing wage. However, DOL did amend the regulation a little so the current level 1 (which is at the 17th percentile of the wages) would be raised to the 35th percentile, level 2 (currently at 34th percentile) would be raised to the 53rd percentile, level 3, currently at the 50th percentile) would be raised to the 72nd percentile, and level 4, currently at the 67th percentile) would be raised to the 90th percentile. This means, basically, the new level 1 is almost equal to the old level 2 – that is going to be how much higher wages required under this new scheme will be across the board.

As soon as hear anything in terms of lawsuits or the new administration putting these new rules on hold, we will certainly let you know.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Executive Orders relating to Limiting the entry of Immigrants and Non-immigrants Extended through March 31, 2021

Yesterday, on the last day that the executive orders limiting the entry of Immigrants and Non-immigrants were in force, the President extended both orders through March 31, 2021.

The orders limited US Consulates and Embassies’ ability to issue immigrant visas and certain non-immigrant visas, including H-1Bs, some J-1s, and other visa types (See this article for a full discussion).

Those who were waiting for the orders to expire so that Parents and others could get immigrant visa interviews or so that they could enter the US on an H-1B or another non-immigrant visa will have to wait a little longer. The hope is that the Biden administration will revoke the executive order upon getting sworn in, but we will have to see. Hopefully, the orders will be rescinded by the end of the month. We will keep you posted.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

F-1 Students – Be Careful.

There are many pitfalls for those in F-1 status. Some of which I have talked about before. I want to discuss two potential pitfalls that have been in the news recently: The creation of a fake University by ICE to ensnare F-1 violators; and, Day 1 CPT.

First, several years ago (it actually started under the Obama administration), ICE began setting up fake Universities. Because they were a Government Organization, they were able to get fake certifications and able to have them added to the SEVIS database and began enrolling students. Students who enrolled quickly realized there were no real classes, no real campus, no teacher, etc. While it was impossible to realize this before enrolling, ICE moved to deport all students who attended the University, even those who, after realizing that it was fake, transferred out within a short period of time. While it is hard to defend those who did not look into the university’s workings or question the fact that there were no courses, etc., and who were subsequently deported for violating student status, it is different for those who transferred out in a relatively short period of time. Some students contacted the administration multiple times trying to get answers about when and where classes would meet, etc. Then, they took the time to transfer elsewhere, at great expense to themselves. Yet, ICE did not care if you were diligent and tried to figure it out, they tried to deport ALL students who attended the fake school, no matter what. ICE argues that they should have known that it was fraudulent. Clearly, it would be best if you made sure to look into any University you are going to attend – make sure there is a full curriculum listed on the website, with courses and teachers listed. Make sure all accreditations are accurate and legitimate. Do not attend a University that is being heavily promoted by recruiters (this is how ICE could get most students to attend). In closing, be careful. For more information on this, see this article.

The second issue is schools that offer Day 1 Curricular Practical Training. Curricular Practical Training is a way for students to get experience for a legitimate school program that requires such work as an integral part of the Curriculum. There are plenty of such specialized schools. However, many schools also allow students to use CPT from Day 1, even though it is not really an integral part of the program. Instead, it is a way for the schools to make money because there are so many F-1 students who applied for H-1Bs and were not selected but still want to work for their employers. These schools allow students to enroll in programs related to their employment and past degree and then work in CPT part-time for their previous employer from Day 1. Such use of CPT is NOT what it is meant for. The problem is that USCIS has not been clear in its rules. While it clearly states that CPT must be an integral part of the program, that is not really defined. In addition, USCIS does not attach such cases by saying that the CPT was not an integral part of the F-1’s program. Instead, USCIS tries to re-write its rules. Currently, the way the CPT and OPT rules are written is that an F-1 is allowed up to 1 year of Practical Training. The rules then go on to say that if you work 12 months of full-time CPT, then you are not eligible for OPT, which clearly implies that as long as your CPT is part-time OR you work less than 12 months of full-time CPT, then you will get your OPT time, and that is how USCIS usually reads the rule. However, in select cases, USCIS will revise this rule and look at the 1 year of Practical Training and say that this covers both CPT and OPT, and therefore the student violated their status. While this can be challenged in Court, that is a time consuming and expensive process. So for most students caught up in this crusade of USCIS’, they are left with having a change of status or adjustment of status application denied for violating their status.

F-1 students need to be vigilant in deciding what school and what programs to use to ensure that they are not, rightly or wrongly, determined to be violating their status by USCIS or ICE. Be careful.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

New USCIS H-1B Regulation Changing the H-1B Registration Policy

Recently USCIS issued a new proposed regulation seeking to change how the H-1B registration and selection process is carried out for H-1B Cap Cases. Currently, USCIS accepts registrations through a certain date and performs a random selection process to determine which applications will be selected and not accepted.

The proposed regulation would change this selection process. Instead of a random process, USCIS would make the selection process based upon the wages offered to the foreigners. Before explaining the system, it is important to understand the Prevailing Wage system. The DOL (and USCIS) has an occupation classification system (SOC (Specific Occupational Classifications) Codes). Each code has four wages assigned to it – Level 1, Level 2, Level 3, and Level 4. The wage levels are based upon the skill level needed to carry out the position. So Level 1 would be entry-level, etc. This is the wage system that USCIS is proposing to use to select which H-1Bs will be accepted towards the 85,000 cap.

USCIS’s proposal is that first, it will select those applications that qualify for the Master’s cap in which the persons are being paid at a Level 4 wage or higher. If all 20,000 Master’s cap cases are filled, the selection process will stop there. If there are still spots open, then it would take those being paid at a Level 3 wage level or higher. And so on. The same would then be done for the regular 65,000 cap.

There are several issues with this proposal. First, USCIS’s stated goal here is to ensure that US Workers are being protected. The “hope” of USCIS is that employers will use the H-1B process to fill high paid positions instead of lower-paid positions. What is the logical outcome of this? That there will be more low paying positions for US Workers and less higher-paying positions. I am not quite sure how this is actually helping US Workers. This is a major issue.

The second issue is that nowhere in the statute does it allow USCIS to set up a selection process based upon ANY factors. In other words, the Statute demands a randomized process. USCIS actually took this position just last year (2019) when it implemented the current selection process. Specifically USCIS Stated in response to a comment: “DHS believes, however, that prioritization of selection on other bases such as those suggested by the commenters would require statutory changes. DHS believes that implementing a quota would be inconsistent with the existing statute, as Congress has implemented quotas in other contexts when it has intended to do so.” 4 Fed. Reg. 888 at 913 (January 31, 2019).

At this point, the new regulation is still in the proposal stage (comment stage). We will update you as to what happens to this regulation – if it is withdrawn when the new administration comes in, if it is amended, or finalized and published.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Big Win: Court Overturns latest USCIS and DOL rules regarding H-1Bs

Recently both the DOL and USCIS adopted new rules regarding H-1bs. We reported on them here. Just this week a US District Court in California found that USCIS and DOL violated the Administrative Procedures Act in promulgating these rules without allowing time for the public to comment on the rules before they went into effect.

In general, under the APA, government agencies must give the public a reasonable period of time to review, and comment on proposed rules. Once that period has elapsed, the agency then needs to consider the responses and only then can they issue the final rule and put it into effect (although it is usually only in effect 30 days after the final rule has been published. There are exceptions to this rule that allow agencies to publish final rules and then conduct the comment period, where the agency can show that emergency circumstances would require such an act. In the case at bar, both USCIS and DOL claimed that, because of the Corona Virus pandemic and its effects on the Economy, that it created the need for the rules to be implements as soon as possible and that this justified forging the usual rules. The District Court disagreed.

In a strongly worded opinion, the Court stated that, without even considering other factors, the fact that the President issued the Executive order telling the agencies to review such provisions over six months ago, and the fact that the agency has stated that they have been considering such provisions for well over 1 year, clearly shows that, in fact, the agencies do not consider such things “emergencies”. The court granted the Plaintiff’s motion for Summary Judgement and found that USCIS and the DOL violated the APA and the rules were unenforceable. The Court applied this ruling nationwide and to all persons, even those not a direct party to the action.

For those unfamiliar with the rules that were overturned, the DOL rule changed the way in which the DOL was calculating prevailing wages. It use to look at the average range of salaries for a position, and set 4 levels corresponding to approximately the 19th percentile, the 34th percentile the 45th percentile and the 68th percentile. The new rule had the level one wage starting at the 50th percentile, and the other 3 levels went up from there. This significantly raised the wages that companies would have to pay for foreign workers. The USCIS rules changed the definition of what a “specialty occupation” was, making it harder for employers to show that certain positions, especially computer based ones, actually qualified for an H-1B visa. It also limited agencies that contract out their employees to one year H-1Bs (and placed certain other requirements on them). The Court overturned these rules and they are no longer in effect (assuming that there is no appeal, and the Appeals court does not stay the decision). The DOL is in the process of changing back its database to the previous levels.

If you have any questions about this important ruling, please do not hesitate in contacting our office.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Citizenship Backlogs at USCIS

Many of you may be wondering why it is taking so long to get your Citizenship approved. Many people who filed a year ago, or more, were not naturalized prior to this year’s election, so were unable to vote. What happened? If you thought it was due to the Covid pandemic, you are only partially correct.

In 2016, when the current President came into office, a typical naturalization case took only about 5 months from the time it was filed to the time the person became a US Citizen. That swelled to nine months or, in some areas, a year or more by 2019 (prior to the pandemic). Not only did the timelines increase, but there was a backlog of approximately 300,000 cases prior to the pandemic. While USCIS was able to reschedule most of the 100,000 or so cases that were unable to be interviewed due to the pandemic, that did little to alleviate the backlog of cases that were there previously or the new cases filed since the pandemic started. That case backlog has steadily grown and continues to grow.

One of the main reasons for the increase in the backlog is the requirement that all cases be interviewed. While naturalization cases always required an interview, the fact that a large number of new case types (I-485 cases based upon I-140s, etc.) now required an interview without any corresponding increase in officers conducting such interviews created an instant logjam. In addition, USCIS is fully funded by user fees (the fees that immigrants pay for their applications) so there was also no corresponding increase in funding to help hire new officers to conduct more interviews.

While we are hopeful that the new, incoming President will eventually rescind this new interview requirement, there is no guarantee that this will happen, or that it will happen quickly. Only time will tell. However unless it is changed the backlog in Citizenship cases will, most likely, just continue to grow.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

New H-1B and Prevailing Wage Regulations

As you may know, USCIS implemented new regulations on the H-1B process, and the DOL implemented new regulations on the Prevailing Wage process. While there is at least one Court Case pending seeking an injunction on both of these regulations, it is still worthwhile going through the major changed made by both these regulations

Prevailing Wage Regulations

First, in terms of the Prevailing Wage regulations, the simple result is that the prevailing wage will be going up quite a bit. The old system used the 17th percentile for level one. The new one uses the 45th percentile – quite a difference and resulting in higher wages for low-level workers. It should be noted that private wage surveys can still be used to show that the DOL Prevailing Wage is incorrect.

It is interesting to note that in justifying this increase, USCIS cites only one report – and that one report sites to only one instance where the current prevailing wage model MAY provide a wage lower than that actually prevailing in a given geographic area (and I say may because the example is not very clear nor does it seem to actually provide the correct information).

H-1B Regulations

For the H-1B regulations, there are several major changes.

There will now have to be a direct relationship between the field of the degrees and the duties: While this may not sound restrictive, it is. This is USCIS’s way of trying to require sub-specialization. In other words, for example, you cannot say that a position would require an engineering degree – you would need to specify the specific engineering degree (mechanical, electrical, etc.) and show how that relates to the duties – same if you say that more than one such specialization would be ok – you need to show how each degree relates to the duties. General degrees are no longer acceptable as well
Bachelor’s degree is always required: No longer can just show that it is usually required for the occupation/position, but you must show that it is always required for entry into the occupation or position. So positions that are listed as “usually” or “normally” requiring a bachelor’s will no longer be sufficient. Likewise,
Provides a new definition of US Employer: This definition, among other things, will define the employer-employee relationship. It will allow USCIS to weigh the various factors as they will actually be in the position – in other words, the question is not whether the employer has the “right” to control the employee or the “right” to provide the instruments or tools for the employee to work, but whether the employer does or will actually do such things in the real world. It also lists additional factors they will look at to show that the person is actually being supervised by the sponsor and not another party.
Contracts: Third-party placement will require contracts and will only be good for 1 year or the length of the contract – whichever is shorter. Also, the contract needs to list the requirements of the position as imposed by the third-party.
Site Visits: If the third party refuses to allow a site visit, USICS can (and most likely will) deny or revoke the H-1B.

The above are the major, but by no means all, the changes made by the regulations. Many of the above changes were attempted by USCIS through various policy memorandum. However the Courts clearly stated that they could not make such changes via memo, so now USCIS is seeking to make those changes via regulations.

Lastly, it should be noted that both these regulations are currently in effect. USCIS and the DOL felt that they were of such importance that they required immediate implementation, forgoing the usual comment and revision period.

If you are affected by any of these changes, please set up a time to talk with me via the links on this webpage. We are happy to discuss how these regulations may impact you and ways to prevent such impacts.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.