USCIS Changes Adjudication Standard for I-129 Renewals

B61D08D2-1849-4FCD-9897-F0AC03874CFFMany of you may know that USCIS has had a policy in place that allowed those filing an application to renew their status (H-1B, L-1, E-1, etc.) to file a ‘bare bones’ application – an application with just new information and none of the initial documentation sent in with the first application to show that the person qualified for the status.  This policy stated that, assuming the underlying conditions were the same for the renewal (i.e. same employer, same position, etc.) then there was no real reason to totally re-adjudicate a case unless the officer felt that the initial approval was done in error.  Just this week, USCIS changed this policy.

Before going into the new policy, you maybe asking yourself “But when I filed a renewal, I filed it with substantial documentation, did I not need to do that?”.  The answer is technically no, but realistically yes.  While the above policy was in place, especially over the last year (but even before that) most officers did not follow this policy to the letter.  In most cases, we found that if we did not include substantial documentation, even for an H-1B renewal, showing that ALL the requirements were met, USCIS would issue a Request for Evidence.  So in practice, the above policy was more of a slight leaning in favor of approving the renewal rather than the intent of the policy, which was to lighten the load of officers and those filing the cases.

So what does the new policy say?  It rescinds the old policy and states that each application should be adjudicated according to its own merits regardless if it is an initial application or a renewal.  In practice, it simply means that there is no longer a slight bias in favor of approving a renewal, and, instead, you will need to be more careful and ensure that you provide documentation with the renewal to show that ALL qualifications are met, even if the documentation was given with the original application.  It also means that the fact that a case was approved in the past, does not mean that, if you file the same documentation, the case will be approved in the future, or that USCIS will not request additional evidence the second time around.

So while this may not change the rules as much as one may have thought on first glance, it still does change them to a certain degree.  That degree will depend on the strength of the underlying case.

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.

30/60 Day Rule is Removed from FAM, Replaced with 90 Day Rule

images.jpegMany of you may not be aware of the 30/60 day rule.  The Department of State in its Foreign Affairs Manual (FAM) has a section on willful misrepresentations.  Part of this section describes how to determine willful misrepresentations in the case of people who enter the US on a non-immigrant visa but then undertake activities which contradict that status.  A good example is if someone enters the US on a tourist visa and then marries a US Citizen or begins to work without authorization.  Under its old rule, the Department of State would consider such activities as prima facie evidence of a willful misrepresentation if the activities occurred within 30 days of entry on the non-immigrant visa.  If the events occurred within 60 days of entry, they would not constitute prima facie evidence of a willful misrepresentation, however, if the facts of the case give the officer a reasonable belief that a misrepresentation was made they should ask for countervailing evidence from the foreigner.  If the activity took place more than 60 days after entry, then actual evidence of a misrepresentation would be needed.  DOS has now amended this section, and, instead, instituted a 90 day rule

The new rule states that if someone enters the US on a non-immigrant visa and undertakes certain types of activities (working without permission, undertaking a course of study (if not authorized to do so), marrying a US Citizen (only visas that require non-immigrant intent – including B and F visas), undertaking any other activity for which a change of status or adjustment of status would be required (and no such change of status or adjustment has been made) within 90 days, there will be a presumption that the person made a willful misrepresentation.

It is important to remember a few points here:

  1. This is a Department of State Rule, and, USCIS has not yet adopted it.  While USCIS has followed the 30/60 rule in the past, they did not consider it a bright line rule, rather one factor to look at.  In addition, they were much less likely to apply to marriage based cases based upon the date of marriage (they more looked at the date the I-130 was filed).  This is not to say individual officers did not apply the previous rules more strictly, but overall, USCIS did not use it a bright line test.
  2. The 90 day rule applies to when the activity occurred.  For example, in terms of a marriage based case, even waiting until 91 days has passed and then filing the I-130 does not matter if the marriage took place at day 34 – DOS would look at the date of the marriage and there would be a presumption of a willful misrepresentation.
  3. It is a presumption, not a definite finding.  In other words, you can still try to rebut the presumption if you have convincing evidence to show that you did not intend to undertake the activity when you applied for the Visa and entered the US.
  4. In terms of the marriage piece, this does not apply to those on H-1Bs, E visas, L Visas. K visas, O visas, and any other nonimmigrant visa that allows dual intent to one degree or another.

We will certainly be watching both USCIS and DOS and let you know any additional information about how this new rule is implemented.

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 Finishes Data Entry for ALL 2018 Cap Subject H-1Bs

USCIS announced on Wednesday that it has finished data entry for all cap subject applications it has accepted for the 2018 fiscal year.  USCIS will now begin sending back those applications not selected and will be transferring cases from Vermont to California to even the H-1B case load between the service centers.  While not all receipts have been received by everyone as of yet, if your check has not yet been cashed, or you do not receive the receipt in the next several days, most likely your case was not accepted into the Cap.

Hopefully USCIS will be able to update us within 1-2 months on how quickly they are getting through the H-1B cap cases and current backlog to give everyone a better idea of how long it will take for them to get through all the cap cases (i.e. will they complete this before October 1, 2017 or not).  We will update you as soon as we receive any additional information.

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 Presidential Executive Order “Buy American, Hire American”

Many of you know that yesterday President Trump signed a new executive order.  The idea of this order was to ensure that Federal grants and procurements go, first and foremost, to American companies and that the government focuses on ensuring that qualified Americans are hired prior to foreigners.  In terms of Immigration consequences, the executive order says the following:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most- skilled or highest-paid petition beneficiaries.

In other words, at this time there is no effect on the H-1B program.  However, in the future, after the proposed suggested changes are given to the President, there is the possibility that some changes could be made.

It is important to keep in mind, however, that most changes would require congressional approval, meaning that it could take a while, if they are approved at all.  Changed that do not require congressional approval would need to go through the rule making process, meaning that they would take several months  for those to be sent out and to go through the rule making process.  We will keep you updated on any proposed changes.

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.

H-1Bs: What is a Specialty Occupation? (Part 1)

Unknown.jpegFor those seeking an H-1B, the most important criteria that must be met, is that the occupation that they are applying for be a “specialty occupation”.  USCIS has listed four methods of determining if a position is a specialty occupation:

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

We will look at each method individually.  We will discuss the first method in this article and each additional method in a new article.

A Bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position

The first method of showing that a position is a specialty occupation is that the position is one for which a bachelor’s degree or higher degree in a particular field or fields, or its equivalent, is normally the minimum requirement for the particular position.   How would one prove this?  Generally, USCIS will look at the Occupation Outlook Handbook (OOH) put out by the Department of Labor each year.  That book lists a number of position as well as the normal entry level requirements for the position, including what degree is normally required for entry into the field.  If the position in question is covered squarely by a position in the OOH, then that is what USCIS will generally go with.  However, there are a number of positions that do not necessarily fit squarely (or at all) in the positions listed within the OOH. These cases are much trickier to try and use this method.

The primary reason it is harder to use this method with such position is because USCIS often confuses the SOC code used in the application process with the actual position in question.  In other words, USCIS will ASSUME that the SOC code used in the application correctly correlates to the position when this is not always the case.  For example, let’s say a person is an accountant intern – someone who has an accountant degree but is still required to complete a certain amount of accountant experience under the guidance of another certified accountant.  While it is clear that this position requires attainment of a bachelor’s degree in a particular area as the minimum qualification, many times employers or the DOL will issue a SOC code of “bookkeeper”, because the title of the position usually does not include the word “accountant”, as the person cannot use that title until they complete the requisite experience requirements.

If the SOC code of bookkeeper is used, USCIS will assume that a bachelor’s degree is NOT required and could deny the H-1B.  While it may be possible to convince USCIS that the position qualifies under another method, many officers will just ignore any evidence submitted trying to show that the position is one other than the one described by the SOC code.  It is just as important to accurately describe the position and all requirements as it is to ensure that the correct SOC code is used in ALL paperwork.  So for the above example, when filing the LCA, determining the Prevailing Wage, and filing the I-129, if n SOC code of accountant is used, the case is more likely to be approved.

Another issue that can come up using this method is if the position is so general that many different degrees could qualify someone in the position, or a general degree is sufficient.  This can come into play if USCIS feels that the position is too general OR if you are trying to hire someone into the position who has a degree that is less connected to the position.  A good example is trying to hire a computer person with an English degree.  They may have taken computer courses, learned on their own and received all the required certificates, but the degree just does not match the position.  Another example is a manager at a store.  In most cases, such positions do not even require a bachelor’s degree.  However, even a particular store did require such a degree, there are a number of degrees that could qualify someone for such a position – which means that it is not a specialty occupation.

We will discuss the other methods in subsequent emails.  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.

H-1B/PERM Update – Who Can Pay Fees?

punitive-damagesRecently, an Administrative Law Judge ruled against the Department of Labor (DOL) in a very interesting case allowing the employer to recoup fees from an employee for the H-1B visa process.  Before going into the specifics of the case, it is important to understand what the DOL regulations are in this area.

The DOL, in its regulations governing both the PERM and H-1B process, has stated that the employer must pay the employee the higher of the actual wage for the position at the employer OR the prevailing wage.  The DOL has gone further stating that certain deductions from an employee’s paycheck, while allowable under the law, are not permissible under the prevailing wage laws.  Therefore, if those deductions bring the employee’s salary below the higher of the actual wage or the prevailing wage, then the employer is violating the regulations.  These impermissible deductions include the filing fees and attorney fees (in fact all fees) for the H-1B and PERM processes, as the DOL sees all those fees as the employer’s responsibility.

One other issue in this area is what exactly is the “actual wage”.  It would seem to make sense that it is the wage that the employer is actually paying the employee.  However, the Department of Labor has not interpreted it this way.  Instead, the Department of Labor makes the employer average the wages of all employees in the same OR substantially similar positions (positions that require the same education and skills).  The Department of Labor reasoning is that they do not want the employer to impose a lower wage on a foreigner that a US worker, even if that lower wage is higher than the Prevailing Wage.   This is the formula the DOL mandates for determining what the minimum wage that can be paid to an employee would be.

Now we can discuss the actual case.  The case was Administrator v. Woodmen of the World Insurance Society (10/26/2016).   In the case, the Woodmen of the World Insurance Society (employer) hired an H-1B non-immigrant had them sign a repayment agreement for the attorney and other fees.  This particular employee was let go prior to the end of the H-1B, and the employer deducted the fees from the employee’s final paycheck, which included unused vacation time.  It is important to note that the unused vacation time more than covered the H-1B fees that the employer recouped.  The DOL audited the case (it is unclear if the employee complained (most probable) or it was a random audit) and determined that the money that the employer deducted was an impermissible deduction from the employee’s paycheck.

The DOL made two important findings.  First, the DOL stated that, despite the fact that the employee was paid higher than the prevailing wage and the actual wage (as determined using the formula above), the employer was still liable.  The DOL stated that in such cases the actual wage is actually just the wage paid to the employee.  Therefore ANY impermissible deduction would bring the wage below the actual wage.  The DOL further stated that the payments made to the employee for his unused vacation time in his last paycheck also could not be used to make payments as doing so would put the employee in a worse position than similarly situated US Citizen employees who do have these fees deducted from their paycheck.   However, it is important to note that the DOL said that the fees for premium processing where NOT an impermissible deduction and therefore the employer could deduct those.

The Administrative Law Judge looking at this case only looked at the second argument relating to the vacation time and did NOT rule on what the actual wage was as it was not necessary for the case.  In his ruling, the Judge stated that it IS permissible to make such deductions from unused vacation time as long as the employer makes similar deductions from US Citizen paychecks.  For example, the Judge stated that the employer in the case at bar also deducted tuition that the employer had paid for an employee from such paychecks if the employee did not meet the terms of the repayment plan agreement.  Therefore, according to the Administrative Law Judge, such deduction do NOT affect wages and, since US Citizens are treated similarly, does not put non-immigrants in a worse position than US Citizens.  Once again, it is important to note that the unused vacation time payment more than covered the fees in question (the employee was due about $9000 in unused vacation and the attorney and filing fees were only about $4000).

This is the first time I am aware of, that an employer has been allowed to recoup such costs from an employee and sets out clear parameters for employers who would like to have such repayment agreements to follow.

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.

Is USCIS going to request your Social Media IDs?

social media.jpgUSCIS published a proposed regulation that would allow them to ask for social media ids (Facebook, Twitter, etc.) for certain nonimmigrants seeking entry into the US.  It would affect those filing the online application for a visa waiver entry.  The “optional” question would be placed in the application so that USCIS could look at people’s social media pages to determine if there is a ground’s of inadmissibility that they did not report – most importantly, if they are involved in terrorist activities or in supporting terrorist groups.

This is an attempt by USCIS to ensure that those coming in through the visa waiver program, who are not required to go through the sometimes lengthy background checks that other non-immigrants are required to go through, are vetted in someway prior to entry.  In this way, USCIS is attempting to show that it is trying to secure our borders from undesirable foreigners.

While I certainly applaud USCIS for trying, I think that this is not really the way to go.  Why do I say this?  First, this is optional.  While many people may give the information as they feel that it could prejudice them if they did not, it is still not required and USCIS, therefore, cannot deny an application simply because someone failed to give the information.  In addition, at this point, terrorist organizations can simply make sure that those that will be entering the US do not put anything on their social media feeds.  Lastly, it also opens the door for USCIS to start requiring such information.  If they require this, maybe next they will want to “require” access to your cell phone, or access to private messages, etc.  Where will it stop in terms of what they can and cannot request from you whether or not you are accused of doing something or even suspected of doing something illegal?  It is a slippery slope and it would seem to only make sense to open up this Pandora’s box if the benefit outweighed the risks.  As I do not think that this is the case, I would not be in favor of this measure.

Apparently most of the 800 people who sent in comments on the proposed rule were of the same mind and castigated USCIS for even thinking of such a rule.  What do you think?  Leave a comment with your views below.