President Trump to Sign Executive Order Directly Targeting the H-1B Program

By Michelle Shepard[1]

On Tuesday, April 18, 2017, President Trump is expected to sign an Executive Order (“EO”) titled “Buy American, Hire American.”[2]  The “Hire American” aspect of the EO will directly address fraud and abuse prevention under the H-1B program, as well as the H-1B quota. According to Senior White House Officials, when:

…he [President Trump] campaigned, talked a lot about abuses in our guest worker programs and in particular about abuses in our H1B visa programs, and even brought on the stage at a few campaign events individuals who had been displaced by abuses in our guest worker programs. Now, this executive order will call for the strict enforcement of all laws governing entry into the United States of labor from abroad for the stated purpose of creating higher wages and higher employment rates for workers in the United States.  And the executive order will further call on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse — which should both be understood as separate problems — in our immigration system in order to protect workers in the United States and their economic conditions.

In particular, the EO requests the Department of Homeland Security to review the wage system currently in place for the H-1B program.  According to the White House:

80 percent of H1B workers are paid less than the median wage in their fields.  Only about 5 to 6 percent, depending on the year, of H1B workers command the highest wage tier recognized by the Department of Labor, there being four wage tiers.  And the highest wage tier, for instance, in 2015, was only 5 percent of H1B workers.

The wage tiers referred to by the White House are the prevailing wage levels (Levels I, II, III, and IV) in place by the Department of Labor.  By selecting a Level I, an individual is considered in the lowest tier. This, according to the White House, approx. 5% of  H-1B workers are categorized in the upper tier, or Level IV.

This EO will directly target use of the H-1B program by consulting companies. The White House further suggests some of the changes may be administrative in nature.  For instance, they suggest:

…looking at things on the administrative side, like increasing fees for H1B visas… adjust[ing] the wage scale — … enforcing gross and egregious violations of the H1B program.  [Reviewing the] lottery system disadvantages master’s degree holders.  There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders.  There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

 At this time, it is unclear what actions USCIS will take based on this EO. Although, the White House makes some recommendations as to possible administrative or legislative changes, no changes have been made to the H-1B program. The EO is anticipated to request changes “as soon as practicable,” however the White House alludes a 220 day time-frame would be appropriate. The White House closed their press release by indicating “…there’s great enthusiasm for H1B reform in Congress.”

Our office is closely monitoring the Executive Order, and its impact on the H-1B program. We will continue to provide updates as they become available. Please continue to monitor our website.

 

[1] Michelle Shepard, Esq. is the Non-immigrant Visa Department Managing Attorney at Ramineni Law Associates, LLC.  She can be reached at (617) 500-9983 or mshepard@raminenilaw.com.   She has been with Ramineni Law Associates, LLC since 2010, and Managing the NIV Dept. since the Fall of 2012. She is a licensed to practice in the State of Massachusetts, and a 2012 graduate of New England Law | Boston.

[2] https://www.whitehouse.gov/the-press-office/2017/04/17/background-briefing-buy-american-hire-american-executive-order (last visited April 18, 2017)

G-28 Non-Acceptance Notice

By Samantha Marie Gallardo[1]

On March 7, 2017, USCIS announced it will begin notifying petitioners when their Form G-28 is not accepted.[2] A Form G-28 is a Notice of Entry of Appearance as Attorney or Accredited Representative and must be on record to enable a legal representative to receive information about a petition or application filed with USCIS.[3] USCIS will not accept a Form G-28 without the proper signatures of both the petitioner and the legal representative.[4]

USCIS has begun including language on the receipt notice if a G-28 was not accepted for an application filed with a lockbox facility.[5] However, USCIS will not notify non-acceptance of Form G-28s filed with local offices on the receipt notice.[6]

Please be sure to review your receipt notices for any language indicating that “[a] valid G-28 was NOT received with your case…” to ensure USCIS communication is properly received.[7] If you receive a non-acceptance notice, please immediately notify our office for assistance in resubmitting the G-28.[8]

 

[1] Ms. Gallardo is a Law Clerk working in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC. Ms. Gallardo is pursuing a Juris Doctor (J.D.) degree from Suffolk University law School and expects to graduate in May 2018.  Please note that Ms. Gallardo is not a licensed attorney.

[2] See AILA Doc. No. 17041136 (April 11, 2017).

[3] See AILA Doc. No. 17030860 (March 7, 2017)

[4] See AILA Doc. No. 17030860 (March 7, 2017).

[5] See AILA Doc. No. 17041136 (April 11, 2017) (“A valid G-28 was NOT received with your case. If you wish to be represented, please contact your attorney or accredited representative to submit follow-up G-28 to the USCIS location where your case is pending. For more information on filing G-28, please visit https://www.uscis.gov/forms/filing-your-form-g-28.”)

[6] See AILA Doc. No. 17041136 (April 11, 2017)

[7] See AILA Doc. No. 17041136 (April 11, 2017).

[8] See AILA Doc. No. 17041136 (April 11, 2017); AILA Doc. No. 08090469 (June 3, 2015) (practice pointers for having USCIS recognize From G-28).

DOL Announces measures to combat H-1B visa fraud

By Srinivas Ramineni, Esq. [1]

On April 5, 2017, DOL announced measures in support of USCIS’ April 3, 2017 announcement.[2]  USCIS previously announced that it will focus its attention on three types of employers using the H-1B program.[3] The targeted employers are as follows:

  • Employer’s whose information cannot be readily validated through commercially available data;
  • H-1B Dependent Employers; and
  • Employer’s petitioning for H-1B workers for work to be performed at a third party site.

The measures DOL intends to take is as follows:

  • Initiate investigation of H-1B program violators;
  • Possibly change application process for LCAs; and
  • Engage stakeholders on how to improve the process to protect the integrity of H-1B program.

Employers should consider conducting their own internal audits to make sure they remain compliant with the regulations governing H-1B program. Additionally, employers should prepare their employees for an increase in ASVVP site visits, this includes immediately filing Amendments prior to moving locations to ensure compliance. RLA can help employers get ready for DOL investigations. Please contact our team of Attorneys at RLA. We would welcome the opportunity to consult with you and analyze your options. Contact us today at (617) 830-4545 or ramineni@raminenilaw.com

[1] About the author: Attorney Srinivas Ramineni is the Managing attorney of the greater Boston law firm of Ramineni Law Associates. He assists employers with Business Immigration and Labor and Employment Law compliance. He can be reached at ramineni@raminenilaw.com or (617) 830 4545.

[2] https://www.dol.gov/newsroom/releases/eta/eta20170404-0 (last visited April 5, 2017).

[3] https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse (last visited April 5, 2017).

USCIS announces targeted site visits to H-1B Petitioners

By Srinivas Ramineni, Esq. [1]

On April 3, 2017, USCIS announced that it will focus its attention on three (3) types of employers using the H-1B program.[2] The targeted employers are as follows:

  • Employer’s whose information cannot be readily validated through commercially available data;
  • H-1B Dependent Employers; and
  • Employer’s petitioning for H-1B workers for work to be performed at a third party site.

First, there are various ways in which Employers can make sure that their information is current in all commercially available databases. Second, while Employers who are H-1B dependent cannot do anything to avoid site visits except for becoming not dependent, Employers should consider conducting their own internal audits to make sure they remain compliant with the regulations governing H-1B program. Third and finally, Employers who petition for H-1B workers to work at third party worksites should make sure to file amendment petitions prior to a change in location so that USCIS has the most current information regarding the worksite of the sponsored employee. RLA can help employers get ready for site visits. Please contact our team of Attorneys at RLA. We would welcome the opportunity to consult with you and analyze your options. Contact us today at (617) 830-4545 or ramineni@raminenilaw.com.

[1] About the author: Attorney Srinivas Ramineni is the Managing attorney of the greater Boston law firm of Ramineni Law Associates. He assists employers with Business Immigration and Labor and Employment Law compliance. He can be reached at ramineni@raminenilaw.com or (617) 830 4545.

[2] https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse (last visited April 5, 2017).

Entry level Computer Programmers may no longer be eligible for H-1Bs

By Srinivas Ramineni, Esq. [1]

On March 31, 2017, USCIS announced that Computers Programmers may no longer be automatically eligible for H-1B Specialty Occupation visas[2] (“Rescission Memo”). Via this Policy Memorandum, USCIS rescinded the existence guidance issued on December 22, 2000 by Terry Way, former NSC (“Terry Way Memo”). According to the Rescission Memo, Terry Way Memo was based on obsolete information and is no longer valid. In the Terry Way Memo, the position of programmer was determined to be a specialty occupation position where it involved customized analysis and problem resolution. (See Page 1 of the Terry Way Memo).

While not providing much guidance on how USCIS would now determine whether or not an H-1B petition filed by a Petitioner for a Computer Programmer is eligible for approval, the Memo directs Petitioners to “provide other evidence to establish that a particular position is one in a specialty occupation….” (See Page 3 of the Rescission Memo). The Rescission Memo is silent as to what would constitute satisfactory “other evidence” making an H-1B petition eligible for approval. However, a closer look at footnote 6 in the Rescission Memo seems to suggest if petitioner chooses Level 1, then the position may not be as complex and specialized to qualify as a specialty occupation position. (See Page 3 of the Rescission Memo).

Therefore, it appears, for now, that USCIS will rely on the Level chosen by the petitioner to determine if a position is qualified as specialty occupation position or not. And, this may apply to all computer related positions.

[1] About the author: Attorney Srinivas Ramineni is the Managing attorney of the greater Boston law firm of Ramineni Law Associates. He assists employers with Business Immigration and Labor and Employment Law compliance. He can be reached at ramineni@raminenilaw.com or (617) 830 4545.

[2] https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf (last visited April 5, 2017)

USCIS Suspends Premium Processing for H-1B Cases Indefinitely

By: Srinivas Ramineni, Esq.[1]

On March 3, 2017, USCIS announced that all H-1B Petitions filed on or after April 3, 2017 will not be eligible for premium processing.  According to USCIS, this suspension may last up to six (6) months. However, as USCIS did not commit to a definite date as to when the suspension would be lifted, RLA considers this an indefinite suspension.

USCIS justifies its suspension on the following grounds:

  1. Suspension will all USCIS to process petitions which have been pending for a significant amount time; and
  2. Prioritizing extension petitions which are nearing the 240 days mark

The immediate impact will be on all FY2018 cap cases. Since cap cases cannot be filed prior to April 3, 2017[2], all cap petitions have to be filed in regular processing. Here is the exact statement made by USCIS:

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.[3]

Therefore, all cap H-1B petitions, whether bachelors or masters cap, will now have to be filed in regular processing. Our office is closely monitoring the above suspension, and we will work to provide any updates as they become available.

[1] About the author: Attorney Srinivas Ramineni is the Managing attorney of the greater Boston law firm of Ramineni Law Associates. He assists employers with Business Immigration and Labor and Employment Law compliance. He can be reached at ramineni@raminenilaw.com or (617) 830 4545

[2] April 1, 2017 is a Saturday and April 2, 2017 is a Sunday, therefore cap petitions cannot be filed on these days

[3] https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions

Filing a H-1B CAP Petition While A Prior Petition Is Pending

By Samantha Marie Gallardo[1]

USCIS will begin accepting H-1B CAP petitions for fiscal year 2018 on April 1, 2017. Over the past several years, the number of first time H-1B applicants have exceeded the number of available visas and has required USCIS to use a lottery system to select applications.[2] This overflow in applications has resulted in numerous petitions being unselected each fiscal year. An employer may file H-1B CAP petition on behalf of any employee subject to the H-1B visa limitation. This includes any employee whose H-1B CAP petitions were unselected in previous fiscal years. However, employers are not permitted to file multiple H-1B CAP petitions on behalf of an employee within the same fiscal year.[3]

Duplicative petitions filed by an employer for an employee in the same fiscal year will be denied or revoked.[4] If duplicative petitions by the same employer are discovered, USCIS will locate all duplicative petitions, retain all fees, and either revoke or deny the petitions.[5]  The petitions will not be returned to the petitioner.[6] Unless a “legitimate business need to file an H-1B on behalf of the same alien” can be demonstrated, such regulations extend to related entities.[7]  This rule was enacted “[t]o ensure a fair and orderly distribution of available H-1B visas.”[8]

This regulation does not prohibit employers from filing H-1B CAP petitions for employees whose H-1B CAP petitions were selected but were either denied or are pending adjudication.[9] An employer may file subsequent petitions on behalf of that employee in multiple fiscal years as long as the employee is still subject to the H-1B CAP. For example, if an H-1B CAP petition was selected in fiscal year 2017 but is still currently pending with USCIS, the regulations do not specifically prohibit employers from filing duplicate petitions in fiscal year 2018.[10]

 

[1] Ms. Gallardo is a Law Clerk working in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC. Ms. Gallardo is pursuing a Juris Doctor (J.D.) degree from Suffolk University Law School and expects to graduate in May 2018. Please note that Ms. Gallardo is not a licensed attorney.

[2] See e.g., https://www.uscis.gov/news/news-releases/uscis-reaches-fy-2017-h-1b-cap; https://www.uscis.gov/news/news-releases/uscis-reaches-fy-2016-h-1b-cap; and https://www.uscis.gov/news/uscis-reaches-fy-2015-h-1b-cap-0

[3] See 8 C.F.R. 214.2(h)(2)(ii)(G)

[4] See 8 C.F.R. 214.2(h)(2)(ii)(G)

[5] See https://www.uscis.gov/archive/archive-news/questions-and-answers-uscis-announces-interim-rule-h-1b-visas

[6] See https://www.uscis.gov/archive/archive-news/questions-and-answers-uscis-announces-interim-rule-h-1b-visas

[7] See 8 C.F.R. 214.2(h)(2)(ii)(G)

[8] See https://www.uscis.gov/sites/default/files/files/article/H-1B_multi_filing_19Mar08.pdf

[9] See 8 C.F.R. 214.2(h)(2)(ii)(G) (“If an H-1B petition is denied, on a basis other than fraud or misrepresentation, the employer may file a subsequent H-1B petition on behalf of the same alien in the same fiscal year, provided that the numerical limitation has not been reached or if the filing qualifies as exempt from the numerical limitation.”).  See also, Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, and Ronald Y. Wade, Immigration Law and Procedure, §20.04(3) (Matthew Bender, Rev. Ed.) (“If a petition is ultimately denied, the number is purportedly ‘returned to the system.’”).

[10] See 8 C.F.R. 214.2(h)(2)(ii)(G) (“An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations…”)

1B1 Classification on I-797 Receipt and Approval Notices is Clerical Error

Over the past week, USCIS has issued I-797 Receipt and Approval Notices with the class listed as “1B1”, where it should state “H-1B.” On February 28th, the American Immigration Lawyers Association (“AILA”) issued a statement that indicates the USCIS California Service Center (“CSC”) has confirmed this was a “technical error,” and that they will reprint and resend all the incorrect Approval Notices within ten (10) to fourteen (14) days. It is likely the other service centers will follow suit, however, they have not issued any official statements. Our office will keep you updated if there are any further changes.

Client Alert: Tax Identity Theft Awareness

By Samantha Marie Gallardo[1]

On February 3, 2017, USCIS released an alert cautioning the public to be aware of scams targeting immigrants during tax season. Tax preparers may claim to be immigration experts, and offer to help prepare immigration forms.  However, if they are not authorized to help with immigration forms and they can severely hurt your business or attempt to steal you, or your employee’s identities. The only individuals authorized to give advice on immigration law are attorneys and authorized representatives accredited by the U.S. Department of Justice Executive Office for Immigration. If someone attempts to scam you, or your employees, please notify the Federal Trade Commission online through FTC Complaint Assistant or call (877) 382-4357.  Additionally, you may contact our office at MShepard@raminenilaw.com or (617) 500-9983.

For information regarding other potential scams, please visit https://www.uscis.gov/avoid-scams.

[1] Ms. Gallardo is a Law Clerk working in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC. Ms. Gallardo is pursuing a Juris Doctor (J.D.) degree from Suffolk University Law School and expects to graduate in May 2018. Please note that Ms. Gallardo is not a licensed attorney. Please direct all legal inquiries to Attorney Shepard at (617) 500-9983 or mshepard@raminenilaw.com.

H-1B Lottery System Likely to Remain in Place in 2017, Challenge to H-1B Quota System in Tenrec, Inc. vs. USCIS dismissed

By Michelle Shepard, Esq.[1]

In June 2016, a class action lawsuit was filed against USCIS in Tenrec, Inc. vs. USCIS.[2]  Employers and Employees argued that the current H-1B lottery system was unfair, and unintended by Congress.  Their argument claimed that the USCIS should follow a priority date system which would allow Petitioners to resubmit unselected petitions, which would then receive a priority date for consideration under the next year’s quota. After nearly a year of consideration, the case was dismissed. On February 13, 2017, the Court granted Plaintiff’s Unopposed Motion for Voluntary Dismissal of Plaintiff’s Complaint. At this time, it is unclear why both Plaintiff and Defendant’s agreed to dismissal of the action against USCIS.  However, this provides some relief that the H-1B lottery system is likely to remain intact through April 2017 and have no effect on the current lottery system.

Currently, there are also a number of legislative changes being considered which may still have severe effects on the H-1B program in the future, including the lottery system.  Currently, the following bills were introduced in January 2017:

  • Protect and Grow American Jobs Act;
  • High Skilled Integrity and Fairness Act of 2017; and
  • H-1B and L-1 Visa Reform Act.

At this time, these Acts are merely proposed legislation. As of January 2017, no changes have been made to the current H-1B program and/or requirements.  Our office is closely monitoring the above proposals, as well as any future proposals. We will continue to monitor and provide updates as they become available.

 

[1] Michelle Shepard, Esq. is the Non-immigrant Visa Department Managing Attorney at Ramineni Law Associates, LLC.  She can be reached at (617) 500-9983 or mshepard@raminenilaw.com.   She has been with Ramineni Law Associates, LLC since 2010, and Managing the NIV Dept. since the Fall of 2012. She is a licensed to practice in the State of Massachusetts, and a 2012 graduate of New England Law | Boston.

[2] Tenrec, Inc. vs. USCIS, Pls’ Unop. Mot. for Vol. Diss. of Pls’ Comp., ECF No. 42 (February 13, 2017).