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.

Final Rule Published by USCIS – Clarifies H-1B Cap Exemptions, Grace Periods for Non-Immigrant Visas, Retention of Priority Dates, and More

USCIS has just issued its final rule to  amend and add to its regulations regarding highly skilled worker.  These are the same changes I discussed about 1 year ago when USCIS issued a draft rule on these issues.  They have now been adopted.  Below is a summary of the provisions of this new rule.  Please note the effective date of the new rules is January 17, 2017.

I have divided the summary into two parts: those provisions that I feel make major changes to current law and those provisions that, while they do make changes, the changes are not as major.

First, lets look at the major revisions, the ones that will make major changes to current practices:

H-1B Cap Exemptions: USCIS clarified and codified its definition for two cap-exemptions. First, it defined who qualifies for a cap-exemption when they are working “at” a cap exempt location even though the employer for who they work is not cap-exempt. The new regulation states that the H-1B is cap exempt if the employee is performing a majority of their duties at the cap-exempt location and such job duties directly and predominately further an essential purpose, mission, objectives or functions of the cap-exempt organization.

Second, USCIS clarified its definition of “related or affiliated nonprofit entity” plus added one additional ground (currently only institutions that are connected or affiliated with an institute of higher education through shared ownership, that are operated by an institute of higher education, or that are attached to an institute of higher education as a member, branch, cooperative or subsidiary). The new definition also includes entities that have entered into a formal written affiliation agreements with institutes of higher education. The agreement must establish an active working relationship with the institution of higher education for the purposes of research or education, and it must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education.

Revocation of Approved I-140s: USCIS amended its regulations so that I-140 applications that have been approved for 180 days or more will no longer be subject to automatic revocation because the employer requests it, or because the employer goes out of business. Those I-140s will remain valid for priority date retention and for extending H-1Bs past the six year maximum. However, unless the I-485 was filed and remained pending for at least 180 days before the withdrawal request or the employer went out of business, the I-140 cannot be used to file an I-485 or have it approved as the underlying offer of employment is no longer valid. If the I-485 had already been filed and remained pending for 180 days prior to the withdrawal request or the company going out of business, the applicant can still use the I-140 for 204(j) portability purposes (showing an offer of employment that is in the same or similar category). If that is not possible, a new I-140 would have to be filed in order to obtain an adjustment of status.

Retention of Priority Dates: As stated above, USCIS changed its regulations relating to retaining the priority date of an I-140. For those applications that require a labor certification, the filing date of the labor certification (or the I-140 in the case of Schedule A case) is the priority date for those I-140s. USCIS would clarify that the priority date for all other I-140s is the date it is properly filed with USCIS. Furthermore, USCIS would clarify that the priority date could be retained on any I-140 except if the I-140 is denied (or otherwise not approved), or if the approval is revoked based upon fraud/misrepresentation. If the employer subsequently withdraws the application or if the employer goes out of business, the priority date will be retained. This is true regardless of how long ago the I-140 was approved (i.e. it applies if it was approved yesterday or 2 years ago). In other words, the 180 day rule above does NOT apply to priority date retention.

Non-Immigrant Grace Periods: USCIS already has in place a provision that allows for a person entering the US on an H-1B to come up to 10 days before the start date, and to get an additional 10 days after the expiration of their H-1B (it is important to remember that currently, these extra 10 day periods MUST be included on the I-94 when you enter, they are not automatic). This will be extended to L-1, E-1, E-2, E-3 and TN visa statuses as well. In addition, these statuses would also receive a one-time, up to 60 day grace period if the employment is terminated prior to the end date on the I-94. The actual grace period time would be the SHORTER of 60 days, or the amount of time left until the expiration of the current I-94. During this period the person would still be considered in status and could file a new H-1B, L, E or TN applications (as listed above) or an application to change status. The above grace periods are also extended to dependent family members.

Eligibility for EAD in Compelling Circumstances: USCIS amended its regulations to allow EAD issuance to certain non-immigrants (those who have an approved I-140 and are in the US in E-3, H-1B, H-1B1, O-1 or L-1 status) if there exists compelling circumstances. The EAD would be valid for 1 year, and could be renewed as long as the compelling circumstances remained, and the priority date is within 1 year of the current cut-off date. In addition, if the person has a priority date that has already passed (so there is an immigrant visa available) and is more than 1 year beyond the posted date, they would be ineligible for either an initial or renewed EAD. In terms of defining compelling circumstances, USCIS will not do so. They do give certain examples, however. The four examples give are: Serious illness or disability that significantly changes employment circumstances (has to move to a new area for treatment, etc.), employer retaliation, other material harm to worker (such as on an H-1B in a industry specific job, company goes out of business, industry does not exist in home country, so lack of job would cause hardship), or Significant Disruption to Employer.

H-1B licensing Requirements: USCIS amended the regulation to reflect that, those applying for an H-1B in an occupation that requires licensing will be able to get the H-1B approved (for up to 1 year) prior to receiving the license if they can show that they have the application pending, or the application has been denied because they do not have a social security number or employment authorization and that the ONLY reason they cannot get the license is because they cannot get a social security number and/or they do not have employment authorization. USCIS will also allow approval in cases where the applicant does not have a license if the state in which they are practicing allows such persons to work under the supervision of a licensed practitioner. However, USCIS will review these cases to ensure that the duties will still be specialty in nature.

EAD Processing: USCIS is making two changes here. First, they will allow automatic extension of EADs (up to 180 days) and work authorization incident to status in cases where the applicant is seeking renewal of their EAD, files the application prior to the expiration of the old EAD, files the application in the same category in which it was initially granted AND either they continue to be employment authorized incident to status beyond the expiration period or they are applying for renewal in a category that does not first require adjudication of an underlying application. In addition, for I-9 purposes, they would amend the regulations to show that an expired EAD and an I-797 receipt notice would be sufficient to show employment eligibility. USCIS states that this would apply to those seeking to renew their EAD based upon: refugee or asylum status; a grant TPS; a pending I-485, as well as additional categories. It specifically does NOT apply to H-4s applying for work authorization – as their grant depends upon the maintenance of H-1B status of the underlying H-1B Principal. The second proposal would eliminate the 90 day processing period for EADs now required in the regulations for I-485 applicants.

Next are the provisions that, while important, do not represent as much of a change to existing policy.

3 and 1 year extensions of H-1B:  First, USCIS codified a couple of long standing USCIS policies in relation to AC21 and the granting of additional H-1B time past the six year maximum. For the three year renewals (allowed to those with an approved I-140 who are unable to file an I-485 based upon visa backlogs) USCIS is codifying that the three year extension can be renewed in three year increments for as long as the visa backlog exists. They are also codifying that the extension is available to those both in the US and outside the US, and to those currently in H-1B status and those not in H-1B status but who previously held H-1B status.

They are also codifying that any employer (not just the one who filed the I-140) can request the extension and that the extension is ONLY available to the principle beneficiary of the I-140, not dependents.  For the 1 year renewals, available to those whose green card process has been ongoing for 1 year or more, they are codifying similar provisions (available to those currently in the US and those outside the US and those in and not in H-1B status at the time the renewal is filed and it is only available to principle beneficiary).  In addition, they would codify that the denial or revocation of an underlying petition is not considered a final action (thus stopping the ability to get the 1 year renewals) until the time for appeal has elapsed, or, if an appeal is filed, the appeal is finalized – but an expired PERM would not be grounds to get an extension.

Lastly, a beneficiary must seek to get their permanent residence within 1 year of the visa becoming available or the extension is not longer available to them.

Job Portability:  USCIS codified that, once the I-140 is approved and the I-485 has been pending for at least six months, the adjustment of status can be approved if the underlying employer continues their sponsorship OR if you provide a new letter of employment from a new employer (or through self-employment) in a same or similar occupation.

In addition they are extending this to cases where the old employer has gone out of business.  USCIS will also define “same” and “similar” in a manner consistent with their latest memo on this issue.

H-1B Portability:  USCIS codified that those in H-1B status can begin working for a new employer upon the filing of the new H-1B application, that such ability is ONLY available to those in the US in H-1B status, and that you can file subsequent H-1B portability applications and begin working for those employers prior to approval of  the other underlying H-1B application.

Counting H-1B time:  USCIS codified the ability to recapture time outside the US. Anytime spent outside the US, regardless of the reason or the amount of time, can be recaptured at the end of the six year H-1B period. The burden of proof is on the applicant to show that they were out of the US during that period (passport stamps, etc.).

Whistleblower Protections: USCIS instituted certain protections for whistleblowers (those who alert the government to certain to illegal activities of their employers).

 

Please do let me know if you have any specific questions.

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.

USCIS and Workload Transfers: What you Need to Know

images.jpegUSCIS frequently is juggling around case types between various service centers to try and assure that all case types are adjudicated as quickly as possible.  Fairly recently they started transferring EB-1A Extraordinary Ability cases to Nebraska from the Texas Service Center.    Even more recent certain H-1Bs were sent from Vermont to California and Nebraska.

Recently, USCIS started a new webpage on their site devoted to such transfers.  This webpage lists all recent transfers and gives some information on what the transfer means to your case and how you can check the status of your case online.  In reality, once USCIS transfers files to a new service center, that service center usually slows down slightly for a little while before they are able to catch up on all the new cases they have received.  In some cases, the new service center slows down so much, that it actually takes longer than it appeared to be taking at the old service center.  This is an unfortunate consequence, however there is no way to request that your file be sent back to the old center.  Following the timelines where your case is and filing requests for information once your date has been reached is the best bet to ensure smooth processing in your case.

If you have any questions leave a comment below or send me an email.  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.

Etsy? Ebay? Am I violating my Immigration Status by using these sites?

Unknown.jpegWe get this, and similar questions, from our clients frequently.  This is a very complex issue and every situation is different.  However, there are some key considerations you should think about.  The key questions are:

  • Are you carrying out the activity for profit?
  • Are you just trying to get rid of excess goods you have in your possession?
  • Are you deriving an income from the activity?
  • Looking at your activities “objectively” would you say you are conducting business or not?

I think that the last point is the most important to keep in mind.  If it feels like you are starting a business, and you are intending to make a profit from your activities and you are consistently selling goods then the chances are USCIS will see it as a business.  As the saying goes – “if it walks like a duck and talks like a duck, it most likely is a duck.”  It is also important to remember that USCIS takes a very liberal view in terms of what constitutes doing business.  This means that they would be more likely to find something is a business than not.  Going back to the saying, all USCIS would need is to see that it walks like a duck, and they would say “it is most likely a duck, unless you can prove to us it is not.”  That being said, selling some goods on eBay – just once or twice probably is not going to run afoul of any of these rules.  A good resource to look at for some of these issues is the IRS website and publications where they define for tax purposes (and I emphasize, this is NOT necessarily how USCIS will rule) what is a business and what is a hobby.

Why should you be concerned about whether what you are doing is considered a “business” or not?  If USICS feels that you have started a business and you do not have the appropriate visa to work for that particular business, then you could be found to have worked without permission and this could jeopardize your immigration status and your ability to get permanent residence in the United States.  Therefore, this issue is extremely important and something you should look into BEFORE beginning any such activity.  Remember, USCIS can look into may business activities  – anything that is your tax returns or reported to the IRS, they could decide to review.  They can, and do, troll through the internet in some cases as well to see what they can find about a person – and if they see an Etsy store or something similar, this could raise questions in their mind.

If you have any questions leave a comment below or send me an email.  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.

What Type of Questions Can an Employer Ask At A Job Interview?

For immigrants, it can sometimes be tough looking for a job, as there are employers who are simply not interested in hiring people on temporary visas.  For employer, it can be difficult to know what you can and cannot ask about someones immigration status without running afoul of discrimination laws.   Recently the Office of Special Council for Immigration Related Unfair Employment Practices (OSC), which is part of the Office of Civil Rights at the Department of Justice, was asked about several different types of questions that an employer might ask, and if those types of questions were allowable under the anti-discrimination laws.  Here are the exact employer questions that were posed:

 A. Do you now, or will you in the future, require sponsorship (e.g., H-lB visa status, etc.) to work legally for THE COMPANY in the United States?

B. If you will require sponsorship, do you currently hold Optical Practical Training (OPT)?

C. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying US institution in Science, Technology, Engineering, or . Mathematics (STEM), as defined by Immigration & Customs Enforcement (and as outlined in the following government website: https://www.ice.gov/sites/default/files/ documents/Document/2016/ stem-list.pdf?

As can be seen, these were fairly specific questions aimed at either determining if the person would require sponsorship, and/or if they had their own source of employment authorization for a good period of time.  Here is the response from the OSC:

As you know, the statute prohibits denying protected individuals employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination in hiring under the INA. Accordingly, an employer that asks all of its job applicants whether they will require sponsorship now or in the future and refuses to hire those who require sponsorship would likely not violate 8 U.S.C. 1324b. Similarly, an employer that asks questions designed to prefer certain classes of nonimmigrant visa holders (e.g., STEM OPT students) over other classes of nonimmigrant visa holders is unlikely to violate the INA’s prohibition against citizenship status discrimination.

So, interestingly, as long as you ask ALL job applicants these questions, there should be little danger of running afoul of the discrimination laws.  However, the OSC went on to say:

However, asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position. Therefore, we caution employers against asking detailed questions pertaining to status that may lead to such confusion.

The above should give some pause to employers who want to go beyond simple questions made to ALL applicants.  Even if you follow the above, that is no guarantee that you will not be referred to the OSC, as an applicant can still allege that they felt discriminated against, or that the questions made them feel as though they were not welcome to apply (for those in a protected class).    It is also important to remember that the above is ONLY in relation to discrimination based upon immigration status.

There are other forms of discrimination including national origin discrimination that does extend to those with work authorization cards.  Here is what the OSC says about this type of discrimination:

In addition, all work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, individuals who believe that they were not hired based on national origin-for example, their country of origin, accent or appearance-may allege discrimination on this basis.

So  even though not hiring someone based upon their need for sponsorship would not violate one provision, it may violate this provision if the applicant can show that they were discriminated upon because of their national origin, accent or appearance.  This is something else to keep in mind, especially for the HR personal carrying out the interviews.

If you have any questions leave a comment below or send me an email.  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.