Update on the new 90 Day Rule and USCIS

Immigration Lawyer in Houston New State Department 90-Day RuleBack in.    we wrote an article about the Department of State adopting a new rule on inadmissibility called the 90-day rule.  This replaced their previous 30/60 rule.  For a full rundown on the change in the regulation and what it means, see the article we wrote here.  Basically, the 90-day rule means that any activity contrary to non-immigrant intent done within 90 days of entry on any visa that requires such intent will be evidence of fraud (i.e. that you did not have non-immigrant intent when you were admitted to the United States).  At the time, we were not certain what USCIS’ stance on the new rule would be.  Now, we know.

Just recently USCIS amended it’s Adjudicator’s Handbook to include the following:

3. The U.S Department of State’s 90-Day Rule

The U.S. Department of State (DOS) developed ​a​ 90-day rule ​to​ assist consular officers in evaluating misrepresentation in cases involving ​a person who ​​violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her​ intentions at the time of the visa application or to the immigration officer at the port of entry​.​

The 90-day rule is not a “rule” in the sense of being a binding principle or decision​. ​The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Securityaccording to existing procedures.

While at first blush this may look like they are not adopting this rule, closer examination shows us that this is not necessarily the case.  The language used above is the SAME language that USCIS used to explain the previous 30/60 day rule.  So it seems that USCIS will now use the 90-day rule (albeit as a guiding principle more than as a rule).  However, as decisions by USCIS can be appealed to both the Administrative as well as the Civil Courts, it is important to remember that the rule is more nuanced if you are in the US rather than outside the US (where the DOS can make any decision they feel fit and there is no appeal).

While there have been no cases yet on the 90-day rule, there have been many on the 30/60-day rule.  Thos cases may help demonstrate what the Administrative Courts (at least) are going to do.  First, the Administrative Courts have fairly consistently found that the application of such a rule, although not required, CAN be done because they were persuaded by the Department of State’s reasoning in developing the rule.  They have found in many cases that the application of the rule does create the presumption of a misrepresentation, but have also found in certain cases, that the evidence submitted by the petitioner has overcome that presumption.  The Courts have also found (fairly consistently) that the marriage to a US Citizen and subsequent filing of a green card application, even if done within the 30/60 day time period, in and of itself, is not enough to find a misrepresentation or fraud.  In other words, the positives of being married to a US Citizen outweigh any negatives in this type of case – so unless there are other negatives, such cases should not be denied solely based upon the activities related to the marriage and immigration process that were conducted within 30 or 60 days of entry.

While we cannot know what will happen until cases are actually decided by the Administrative Courts specifically on the application of the 90-day rule, I think it is prudent to continue to follow past rulings in this area and to assume that the Courts will allow USCIS to use this rule as a guideline.

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.

 

 

Do Workers Hired on the H-1B Visa Displace US Workers?

OUTSOURCE2When looking specifically at the H-1B visa, there have been many news stories over the last two years – some claiming that the H-1B is primarily used to displace US workers (especially in the IT area), and that it is used to artificially keep wages lower.  Others claim the exact opposite, that the H-1B compliments US workers, and does not depress wages (and may even help expand the number of jobs available to US workers).  So who is right?  What is accurate?

While not an easy question, the evidence clearly shows that, in most cases, the H-1B is not used to displace US workers.  A study by the Kellogg School of Management at Northwestern University looked at this issue and found that, in the majority of cases, H-1B workers are taking jobs that US workers do NOT want.  In addition, because of the increased costs associated with getting an H-1B visa, most employers only use the H-1B route when they are unable to find US workers to fill the jobs.  However, there are a subset of H-1Bs that are harder to explain.  Specifically companies such as Walt Disney, etc. who have outsourced their IT work to companies that primarily hire H-1B workers and, in general, pay them less than US Workers would make working at these companies directly.

While we certainly cannot dispute that this is happening, I think the flaw in the argument that this is displacing US workers is that these companies could have just as easily outsourced these jobs overseas, so no one in the US is getting these jobs, and no US taxes are being paid.  Would that be a better outcome?  Is it really the H-1B that is displacing the US workers, or is it the desire of these companies to pay as little as possible?  I can guarantee that Disney is NOT hiring new IT workers in droves and is mostly outsourcing those jobs overseas at this time.

An article in “Daily Caller” discusses this and talks with industry experts.  Basically, those companies in the US who hire H-1B tech workers are NOT the end source of outsourcing. Usually they are hired and brought in as an intermediary step – have those companies take over parts of the IT business, then send it ALL overseas.  In fact, most experts agree that if you got rid of the H-1B program today, that would not slow down or affect outsourcing overseas.  For most companies, the push to outsource is to stop doing things in-house that have nothing to do with the core competency of the company.  If they company is producing media, do you really need to hire people to maintain your website in-house?  Most companies answer that as a no – and outsource to save time and money.

As can be seen above, the H-1B visa program mostly helps US companies fill jobs that would otherwise remain unfilled.  It does not displace US workers, nor does it depress wages.  While those issues do exist, it is because companies are outsourcing overseas, not because they are outsourcing using the H-1B visa program.  In fact, the increased visa scrutiny, according to this article, is actually leading MORE companies to outsource overseas, not less.  Hopefully Congress and the current administration will see this and act accordingly.

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.

Case Processing Times are Rising as Number of Cases being Processed Drops

Arrows-Up-Down-2Many of you have probably noticed the increase in processing times at USCIS lately – I-140s are taking a long time, H-1Bs and other changes of status applications are talking almost a year to process, and I-485s are now well over a year to process as well. Well, the American Immigration Lawyer’s Association has reviewed the processing statistics released by USCIS and come up with some startling conclusions.

First, in terms of how long it is taking USCIS to adjudicate applications, it appears that, overall, processing times have increased 19% in fiscal 2018 alone (that is October 1, 2017 through September 30, 2018). This does not include the tremendous growth in processing times throughout 2017 either. Since this time, USCIS has released further statistics showing that, in the first quarter of 2019 alone, processing times have grown another 11-25% depending on the application type. This is affecting individuals and businesses alike.

Now, one would think that such increases would be matched by increases in the number of cases filed with USCIS. However, if one made that assumption they would be wrong. In fiscal year 2018 the number of cases filed actually dropped almost 13%, from 8,530,722 in fiscal year 2017 to 7,527,851 in fiscal year 2018.

So, to summarize, the number of cases USCIS is dealing with dropped almost 13% BUT processing times increased an average of 11%. It appears that agency policies such as requiring interviews on all employment based adjustment of status applications and the removal of the policy allowing deference to certain prior case determinations have adversely affected the ability of USCIS to adjudicate cases in a timely manner. Imagine if USCIS had to deal with the same volume of cases it had received in 2017, or more. Case processing times would probably have risen at an even steeper level than they have.

If the above practices actually made us safer, that would be one thing. However the reality is that they are just window dressing, things that can be used politically to show the administration is cracking down, when, in reality they do little to actually combat fraud or help catch immigration violators or criminals. Hopefully thinks will change and these delays will start reversing.

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.

March 2019 Visa Bulletin Released

UnknownRecently, the Department of State and Charlie Oppenheim released the new March 2019 Visa Bulletin.  Below is a summary of the movement in each category.

Family-Based cases:

 

F1: Final Action dates moved forward to about a month for most countries – October 22, 2011 for All Other Areas, China and India.  Mexico had no movement and stayed at August 1, 1997.  The Philippines moved forward about two weeks to April 1, 2007. Dates for Filing move to April 22, 2012 for All Areas, China and India, and stayed at September 22, 1999 for Mexico and moved to April 1, 2008 for the Philippines.

F2A: Final Action dates moved forward to a little over a month for most countries – January 8, 2017 for All Areas except Mexico, which moved to December 15, 2016. Dates for Filing moved forward slightly to December 8, 2017 for All Areas.

F2B: Final Action dates for most areas moved forward about three months – All Other Areas, China and India all moved to August 1, 2012. Mexico moved forward two months to September 22, 1997 and the Philippines only moved forward 3 weeks to July 22, 2007. Dates For Filing stayed at June 22, 2014 for All Other Areas, China and India.  Mexico moved forward about 4 months to February 8, 1998, and the Philippines moved forward about one week to January 22, 2008.

F3: Final Action dates moved forward only about 2 weeks for All Other Areas, India and China to September 8, 2006. Mexico moved forward about 3 weeks to January 15, 1996 and the Philippines moved forward almost 4.5 months to January 1, 1996. Dates for Filing moved forward about 1 month for All Other Areas, China and India to March 1, 2007. For Mexico, it stayed at June 8, 2000, and the Philippines moved forward 1 month to September 1, 1997.

F4: Final Action Dates moved forward 3 months to September 22, 2005 for All Other Areas and China. It moved forward about 2 weeks to July 8, 2004 for India. Mexico had no movement and stayed at February 8, 1998. The Philippines moved forward about 3 months to January 1, 1996. Dates for Filing mostly moved forward about 1 week (to June 22, 2006 for All Other Areas and China, to February 8, 2005 for India and to November 8, 1998 for Mexico). The Philippines moved forward about 1 month to January 8, 1997.

Employment-Based Categories

(Please note, because USCIS has consitently stated that employment-based categories will use Final Action Dates we will not discuss the Dates for Filing)

EB1: Moved forward about 1 month – to January 1, 2018 for most countries except India and China which moved to February 22, 2017.

EB2: Stayed Current for most countries except China (moved 3 months to January 1, 2016) and India (moved 3 days to April 9, 2009).

EB3: Stayed Current for most countries except China (moved about 1 week to July 8, 2015) and India (moved forward 1 month to May 22, 2009 – remaining ahead of the EB-2 date for India).  The Philippines moved forward 4 months to December 1, 2017.

Next month there should be another update from Charlie Oppenheim on future movement in all categories.  Please do contact me with any questions.

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

 

ALERT: USCIS has submitted H-4 EAD Recission Regulation to OMB

color-me-happy-game-over-red_a-G-15238156-0USCIS has submitted its proposed regulation to rescind the H-4 EAD regulations that have been in place since February 25, 2015.  While this is not a huge surprise, as USCIS has had this on their agenda since the new Administration has been in power, it is still somewhat of a surprise as it has taken them a long time to actually put this together and submit it.

From what we know, the rule was sent to the Office of Management and Budget (OMB) on February 20, 2019, and is currently pending review. Once OMB completes its review, a notice of proposed rulemaking will be published in the Federal Register and will be open to the public for notice and comment. The proposed regulation will not take effect until finalized by DHS, a process that typically takes several months.

Please note that the text of the proposed rule has not yet been made available to the public. We will update you as soon as we have more 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.

February Visa Bulletin and Update from Charlie Oppenheim

UnknownThe February 2019 visa bulletin was recently released. Below is a summary of current dates as well as projections from Charlie Oppenheim on how various categories will move in the coming months. As a note, USCIS has stated that, for filing the I-485, you can use the Dates for Filing for Family based case, but must use the Final Action Dates for Employment based cases.

Family Based cases:

 

F1: Final Action dates moved forward to about a month for most countries – September 22, 2011 for All Other Areas, China and India and August 1, 1997 for Mexico and March 15, 2007 for the Philippines. Dates for Filing move similarly to April 8, 2012 for All Areas, China and India, and to September 22, 1999 for Mexico and March 15, 2008 for the Philippines. Update from Charlie: According to Charlie this category will move up to 5 weeks through May.

F2A: Final Action dates moved forward to about a month for most countries – December 1, 2016 for All Areas except Mexico, which moved to November 15, 2016. Dates for Filing stayed at December 1, 2017 for All Areas. Update from Charlie: According to Charlie this category will move up to 1 month through May.

F2B: Final Action dates for most areas only moved forward about two weeks – All Other Areas, China and India all moved to May 1, 2012. Mexico moved forward a little over 1 month to July 22, 1997 and the Philippines only moved forward a little more than 1 week to July 1, 2007. Dates For Filing all moved forward about 1 month – to June 22, 2014 for All Other Areas, China and India, to October 8, 1997 for Mexico and to January 15, 2008 for the Philippines. Update from Charlie: According to Charlie, this category will move forward about 2 months through May.

F3: Final Action dates moved forward only about 1 week for All Other Areas, India and China to August 22, 2006. Mexico stayed at December 22, 1995 and the Philippines moved forward about 1 month to August 22, 1995. Dates for Filing moved forward almost 1 month for All Other Areas, China and India to February 1m 2007. For Mexico, it moved forward about 1 month to June 8, 2000, and the Philippines moved forward 2 months to August 1, 1997. Update from Charlie: According to Charlie, this category will only move forward about 2 weeks through May of this year.

F4: Final Action Dates moved forward 1 month to June 22, 2005 for All Other Areas and China. It moved forward about 1 week to June 22, 2004 for India. Mexico had no movement and stayed at February 8, 1998. The Philippines moved forward about 1 month to October 1, 1995. Dates for Filing mostly moved forward about 1 month (to June 15, 2006 for All Other Areas and China, to February 1, 2005 for India and to November 1, 1998 for Mexico). The Philippines moved forward almost 6 months to December 8, 1997. Update from Charlie: According to Charlie, this category will move forward about 6 weeks through May of this year.

Employment Based Categories

(Please note, because USCIS has stated that employment based categories will use Final Action Dates we will not discuss the Dates for Filing)

EB1: Moved forward about 2 months – to December 1, 2017 for most countries except India and China which moved to February 8, 2017. Update from Charlie: Most countries will move forward about 2 months through May of this year. China and India will only move about 1 month forward during that period.

EB2: Stayed Current for most countries except China (moved 2 months to October 1, 2015) and India (moved 1 week to April 6, 2009). Update from Charlie: Most Countries will stay current for the foreseeable future. China will move forward about 3 months through May of this year and India will move forward only about 2 weeks during that period.

EB3: Stayed Current for most countries except China (moved about 1 month to July 1, 2015) and India (moved forward almost 2 months to April 22, 2009 – passing the EB-2 date for India). Update from Charlie: Most countries will stay current. China will move forward only about 3 weeks through May of this year and India will move forward about 3 months during that period. NOTE: India EB3 will most likely be ahead of EB-2 India for several months, depending on demand.

Please contact me with any questions.

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

Potential Government Shutdown and What it Means for Immigration

imgresWhile it is not the first time that there has been a potential, or actual, shutdown of the US Government, it still does raise many questions about what, if any, immigration services will continue during any potential shutdown.  Below is a list of agencies and what they will be able to do, and what they will not do, during a shutdown:

Department of Labor (DOL):  Would not be impacted by a government shutdown. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

USCIS: USCIS is a funded via user fees (application fees),  so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds.  This includes E­Verify (including myEVerify and customer service), the EB­5 Immigrant Investor Regional Center Program, Conrad 30 J­1 doctors, and non­minister religious workers. As announced by USCIS on January 20, 2018, those programs may be suspended or otherwise impacted.  In terms of the programs and cases that USCIS cannot work on during the shutdown, while USCIS has not stated how it will handle such cases, in 2013, USCIS accepted late I­129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.

NOTE: USCIS confirmed that DACA renewal processing will continue during any

DOS: Visa and passport operations are fee­funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.

 

CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.

ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

EOIR: Immigration court cases on the detained docket will proceed during the lapse in congressional appropriations while non­detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non­detained dockets will not be open and will not accept filings.

CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.

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

USCIS Proposes a New H-1B Employer Registration System

imagesUSCIS released a copy of a proposed rule that will be published on December 3, 2018. This proposed Rule, which will have a 30 day comment period, will set up a system that requires employers to pre-register in order to file an H-1B against the H-1B cap and would also change the way that USCIS carries out the lottery for H-1Bs. We will examine the varying aspects of this proposed rule below.

H-1B Registration System

The registration system would require employers to complete a registration PRIOR to the filing of any H-1B applications towards the H-1B cap. The registration period will open up 14 days prior the first day that H-1Bs can be filed (April 1).  It will remain open for a period of at least 14 calendar days at which time, if sufficient registrations have been received, USCIS will begin the lottery system (which we will talk about below).  What we do not know at this time is:

1) What information will be required in the registration;

2) Will each employer just list the number of H-1Bs they will be filing or is a registration needed for each application you intend to file;

3) Will the system be in effect starting this year, or will they wait until the following fiscal year to begin using the system (there is a provision that allows them to not use the system if there are technical issues).

Lottery System

Under the previous system, USCIS would first select sufficient applications to meet the H-1B Master’s Cap (20,000).  USCIS would then take the remaining applications submitted under the Master’s Cap and put those together with applications filed under the regular cap, and then, USCIS would select the regular cap cases (64,0000).   While this system gave those with a Master’s two lottery chances, in some ways it also increased the odds for those without a Master’s degree to be selected in the regular cap lottery by automatically ensuring at least 20,000 Masters cases were removed from that lottery.

Under the new system, the Regular Cap lottery will be conducted FIRST.  After this lottery is conducted, USCIS will see if there are still sufficient numbers of H-1B Master’s Cap Cases left to fill that cap.  If there are, it will conduct that lottery.  If not, it will re-open registration just for Master’s Cap Cases and will wait until it has sufficient registrations, then close registration and conduct the lottery.  In this way, the administration is hoping that it increases the number of cases selected in which the beneficiary has a higher level degree.

To understand why this change was made, USCIS did indicate that it was to comply with the Buy America initiative signed into law via an executive order by the President.   Part of that order required H-1B visas to be made available to those with more education and who are receiving higher salaries.  While USCIS cannot change the statutory requirements, this is one easy way for them to comply with this mandate.

Conclusion

At this point, we do not know if USCIS will change the process at all once it receives the comments, or if it will implement it as written.  We also do not know if there is sufficient time, or if the system is sufficiently far along, that USCIS will be able to implement the system this fiscal year, or if they will have to wait until the next fiscal year.  We will certainly update you once these issues become clear and we know what the final process and timelines will be.  In the meantime, please do let us know if you have any 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.

USCIS Denials up 37% under the Trump Administration

UnknownA new study from the CATO Institute, a think tank in Washington DC, shows that the denials are up about 37% under the new administration. The CATO institute did NOT include naturalization applications, TPS and Deferred Action for Childhood Arrivals applications in its statistics, as these are programs under fire right now by the administration.

Looking at some individual applications:

– I-129 denials went up from 16.8 percent to 22.6 percent
– Not surprisingly because of the previously discussed rule to deny I-131s if foreigners travel on their H-1B before it is approved, I-131 denials went up from 7.2% to 18.1%
– I-765 employment authorization denials increased from 6% to 9.6%
– Employment-based I-485s saw an increase in denials from 5.9% to 7.9%
– Fiance petitions were rejected at a more than a 50% higher rate, rising from a 13.6% denial rate to a 21% denial rate

To see the full article, please click here.

Personally, we have seen USCIS adjudicates cases in a more strict manner, which is tied to their changing how they interpret regulations, especially in the H-1B context. They are more stringent regarding what a specialty occupation is, over what constitutes the correct employer-employee relationship, as well as other critical issues in the H-1B context.  While our office has not seen a rise in the denial rates of applications we submit, we definitely do see the increased scrutiny that USCIS is paying to particular applications.   It certainly pays to be extra careful in drafting and filing these applications to ensure a smooth process with USCIS and to avoid getting caught up in their increased scrutiny.

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.

 

Want an appointment at a local office? Soon you may not be able to make one.

USCIS announced that it is phasing out InfoPass appointments at local offices (self-scheduled appointments) except on a limited basis. Basically they will allow appointments on an emergency basis and to deliver documents to the local office only. USCIS stated that their research showed that for the vast majority of people who make appointments at local offices, the questions they asked could be answered using the on-line resources at USCIS.com or calling the 1-800 number. In addition to the limited on-line appointments, if you call the 1-800 number and they determine that an appointment at the local office is needed, they will schedule it directly for you. There are certainly pluses and minuses to this new policy.

In the plus category, this should allow officers to spend more time interviewing people and adjudicating cases, thus bringing timelines for family and employment based green cards down.

In the minus category, it will make it much harder to find out exactly what is going on with a case once it is at the local office. Most local offices use to have special emails that immigration attorney’s could contact if there were issues. In addition, attorney’s (as well as immigrants themselves) could make appointments with the local office to find out what was happening with a case. Now, all that is available is calling the 1-800 number to try and find out what is going on. The only result of this is that it will be much harder to actually get the status of a case.

Currently the new policy is only in place in a limited number of states. However it should be rolled out nationwide by the new year. We will keep you updated as more information becomes available.

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.