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.

So your EB-1 was denied, should you appeal?

imagesWe have had clients contact us wanting to appeal the denial of their case by USCIS to the Administrative Appeals Office (AAO).  Generally, our response to people is that appeals are extremely difficult to get approved, and usually not worth the money.  However many people still want to appeal and there are certainly many attorneys out there who will appeal cases telling people that they have a “good chance” at winning the appeal.  The question is, what are the actual chances of winning on appeal?

Well, we can now answer this as the AAO released a detailed list of their adjudications over the past several years.  So lets look at some of those numbers now:

EB1A: Extraordinary Ability

This is probably the type of case we most often see people wanting to appeal denials.  The EB-1A category is hard enough to  begin with, with only about a 50% approval rating.  How is it on appeals?  Well, in 2011 there were a total of 146 cases decided by the AAO.  Of those, 137, or 93.9%, were dismissed.   Only 8, or 5.4%, were sustained (i.e. the EA was approved by the AAO), and only 1 (or 00.7%) were remanded to USCIS for further decision.  In 2012 93.6% (204 out of 218) cases were dismissed and only 6.4% (14) cases were sustained.  In 2013 92.4% of cases were dismissed (122 out of 132). 8 cases were sustained (6%) and 2 were remanded (1.6%).  And in 2014 88 cases (91.7%) of cases were dismissed and 5 cases were sustained (5.2%) and 3 cases were remanded (3.1%).

EB-2 National Interest Waiver

Unfortunately USCIS has not released approval statistics for this category, but we know it is much higher than 50%, probably around 70% or so.  However, for the appeals, the rates are very similar to the EB-1A (but much fewer cases were decided).  IN 2011 96.5% of cases appealed in this category were dismissed.  In 2012 94.8% of cases were dismissed.  In 2013 94.3% of cases were dismissed and 92.7% of cases were dismissed in 2014.

EB-1B:  Outstanding Researcher

The EB-1B category generally has a very high approval rating overall, but except for one year, this did not carry over to the appeals area.  In 2011 only 68.8% of cases were dismissed which is actually not bad.  This means that almost 30% of the appeals were sustained, which is much higher than the EA and NIW.  This changed rapidly in 2012 and 2013, when the rate of dismissal increased to  97% and 95% respectively.  This peaked in 2014 when 100% of cases decided were dismissed.

CONCLUSION

What the above shows is that, for scientists, appealing a case is usually not a good idea as it is extremely difficult to get it approved.  In most cases, refilling the case, either right away or a little while down the road, is usually the best course.  Of course every case is different, and there are certain cases for which an appeal actually makes sense.  Generally however, if the only response on appeal is that USCIS made the wrong decision, it will not work.  There generally has to be something else – either USCIS mis-stated the law in some way, did not actually consider certain evidence at all (i.e. it was not discussed at all), or stated that certain evidence was not probative when, in actuality, it was obviously very probative  (i.e. your work had been cited 1000 times, but the officer says that citations are not probative of the importance or impact you work has had).  Not even every case with this type of problem will get approved on appeal, it simply increases the likelihood of success.

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.

October Visa Bulletin and Check in With the Dept. of State

Because of the new format of the Visa Bulletin, it will be easier for me to break these updates into two sections:  Section 1 will discuss the Final Action Date; and, Section 2 will discuss movements in the Dates for Filing section.

Final Action Date Movements:

Family Based:  Most categories moved forward somewhere between 1-2 months.  Some of the categories for the Philippines, etc. moved forward a little more than that (up to six months) but that was only in a couple of categories.

Employment Based:

EB-1:  Still current for everyone

EB-2:  Big move in China (which we had indicated could happen as early as October) from 2006 to January 1, 2012.  Unfortunately, India went the opposite way – from January 1, 20016 to May 1, 2005.

EB-3:  Most of the world stayed at August 15, 2015, however there was movement for certain countries.  China, once again, moved forward rapidly to October 15, 2011 (from 2004) and the Philippines moved from December 22, 2004 to January 1, 2007.  Unfortunately, once again, India retrogressed somewhat, going from December 22, 2004 to March 8, 2004.

Other Workers:  Again, most of the world stayed at August 15, 2015, the Philippines and India saw the exact same movement in this category as was stated above for the EB-3 category.  China progressed from January 1, 2004 to January 1, 2006

Dates for Filing

As this is the first month for this new section, we will just look at what the dates are.  Also, every month at the beginning of this section I will indicate whether USCIS is accepting Adjustment of Status Applications based upon this date (they are going to make this decision on a monthly basis).  It is also important to remember that the dates in this category are based upon the Department of State’s prediction of where the Final Action Dates will move within the next year.

For the Month of October USCIS will accept I-485 application based upon this date.

Family Based:  Most categories have a Date for Filing about 1 year or so ahead of the Final Action date.  A good example is the F2A (Spouses and Children of Permanent Residents).  The Final Action Date is April 15, 2014 and the Date for Filing is March 1, 2015.

Employment Based:

EB1:  As with the Final Action Date this is current for all countries

EB2:  This is more interesting.  While most countries are current, India and China are backlogged in this category.  China, for the final action date, is in 2012, but the Date for filing is at May 1, 2014.  So anyone from China with an approved or pending I-140 in the Eb-2 category with a priority date on or before May 1, 2014 (and in the US legally) can file their I-485 come October 1, 2015.

More interestingly, India, which saw their Final Action Date actual go backwards to 2005, has a Date for Filing of July 1, 2011.  As stated above, this means that the DOS feels that they will be getting close to this date in the next year or so.

EB3 and Other Workers:  This is at September 15, 2015 (about 1 month ahead of the Final Action Date) for most of the world.  Exception are India, which is at July 1, 2005 (meaning there will not be much movement in this category for India over the next year), China, which is at October 1, 2013 for the EB3 category and January 1, 2007 for the Other Worker Category, and the Philippines, which is at January 2, 2015 for both categories (again, foreshadowing that there will be good movement in the Final Action date in these categories for the Philippines in the next year).

Check in With Charlie Oppenheim

The American Immigration Lawyers Association had its monthly check in with Mr. Oppenheim, the person at the DOS who is in charge of setting the above dates.  Basically, they just reviewed the new format of the Visa Bulletin with him.  However there was one item worth mentioning. When discussing what, if any impact, the Dates for Filing would have on the Final Action Dates, Mr. Oppenheim felt there would be little change except that By having USCIS allowing the filing of the I-485 based upon the Dates for Filing will give the DOS a better grasp of the actual numbers of applicants out there waiting for immigrant visas.  This will result in less wild swings in the dates and more steady movements forward (hopefully).

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.

I-140 Premium Processing: Good or Bad?

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Premium Processing is a service offered by USCIS for which anyone filing an I-140 (or with an I-140) can pay USCIS an extra $1225 and they will guarantee processing your case within 2 weeks or they will refund your money (and, according to USCIS, continue processing the case in an expedited manner).  While it would certainly be nice if USCIS could just adjudicate I-140’s in a timely manner to begin with, considering it is now taking in excess of 6 months for most applications, more and more people are looking at using Premium Processing to get their cases decided quicker.  Before you decide whether or not to turn over more money to USCIS, there are a coupe of things to consider:
1.  What Type of Case do you have?
 
While Premium Processing is able to be used with most employment based cases, there are some that it cannot be used with.  Actually, there is only ONE case type it cannot be used with:  The National Interest Waiver.  Why it cannot be used with this case type is not explained by USCIS, but we can hypothesize.  My belief is that it would seem contrary to the whole spirit of the national interest waiver to adjudicate the cases quickly as it would appear that the national interest was not taken into account.  Another possibility is that they feel that the extra burden it would create, even with the extra fees, would overwhelm the Premium Processing Unit.  Perhaps, some day, USCIS will make this case type eligible.  Until then, just remember, if you have a NIW case, you CANNOT use Premium Processing.  If you have any other type of I-140 case, you can.
2.  What is the current USCIS Processing Timelines?
 
While it does not happen frequently, there are times when certain I-140’s are being adjudicated fairly quickly (i.e 1-2 months).  If you are filing such a case during a time in which USCIS is adjudicating that case type quickly, using premium processing may not really be worth the money.  It is important to check the USCIS Processing times on the website (Click here for the link).  (Click here to read my blog post on how to read the USCIS processing time reports).
 
3. How strong is your case?
 
Many times, our clients who have filed an EB-1A Extraordinary Ability case (EA) want to use premium processing.  While we certainly understand wanting to know the outcome of the case sooner rather than later, we also feel it is important to look at the strength of the case to determine if and when to use premium processing in a particular case.
Primarily, what the strength of your case shows is the likelihood of getting a Request for Evidence (RFE).  If your case is not so strong, there is more of a likelihood that USCIS will send you an RFE and if your case is strong, there is less of a likelihood.  This is important because, lets say, you compile all your documents but still have just an ok case that is on the week side.  If you use Premium Processing right away and USCIS issues an RFE asking for more evidence of your extraordinary ability what are you going to give them?  After all, you just sent in all your documents less than 2 weeks ago.  Will people who just gave you support letters give you new letters?  Will you have more citations, or more papers?   In cases like these we usually suggest that the client wait at least 1-2 months before using premium to ensure that there will be something we can use in the response should a response to an RFE be needed.
Stronger cases do not have to worry about this as much for two reasons.  First, there is much less likelihood of getting an RFE.  Second, since their cases are stronger, usually that means that their citation history increases at a faster rate, and there is usually more documentation out there that we did not get for the first application that we could still use in a response to an RFE.
4.  What is USCIS track record at the time you want to use Premium Process?
 
Having many clients allows us to see trends at USCIS.  And with Premium Processing, there definitely are trends.  Sometimes it seems as though every application filed using premium received an RFE.  Sometimes, a majority receive RFE’s but not a vast majority. And sometime, Premium Processing works as it should and applications are adjudicated equally through both Premium Processing and Regular Processing.  Which trend is active is something you should investigate before deciding to use premium.  If USCIS is sending an RFE on most or all cases filed using Premium Processing, it may be a good idea to hold off and wait until that trend turns around.
Conclusion
 
I hope the above shows you what we feel the main considerations are in terms of whether to use premium processing or not.  If you have an attorney, checking with them can get you answers to all the above questions and make your choice easier.  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.