President Trump Endorses The Reforming American Immigration for a Strong Economy (RAISE) Act

By: Crystal Conway[1]

On August 2, 2017, President Trump endorsed a new bill, The Reforming American Immigration for a Strong Economy (RAISE) Act.[2] The RAISE Act is in line with President Trump’s previously stated agenda to protect American Workers.  The RAISE Act is set to overhaul the immigration process, specifically regarding the Permanent Residency or green card. The current employment-based Permanent Residency system is broken down into categories based off of their skill set (EB-1, EB-2, EB-3, etc.). The proposed RAISE Act will change the Permanent Residency into a merit based point system. The merit based point system is currently being used in many other countries such as Canada and Australia.[3] To be qualified under the merit based system, Applicants would need reach at least 30 points based upon the below topics: Age, Education, English Language Proficiency, Extraordinary Achievement, Job Offer, and Investment in and Active Management of a New Commercial Enterprise (NCE). The points would have to be earned as of the date the application was placed into the Eligible Applicant Pool.

Age: Determined as of the date the application was placed in the Eligible Applicant Pool:

  • 0 – 17: May not submit an application
  • 18 – 21: 6 points
  • 22 – 25: 8 points
  • 26 – 30: 10 points
  • 31 – 35: 8 points
  • 36 – 40: 6 points
  • 41 – 45: 4 points
  • 46 – 50: 2 points
  • 51+: 0

Education: These points would be accrued only for the highest degree obtained as of the date the was placed in the Eligible Applicant Pool.

  • S. or Foreign High School Degree: 1 point
  • Foreign Bachelor’s Degree: 5 points
  • S. Bachelor’s Degree: 6 points
  • Foreign STEM Master’s Degree: 7 points
  • S. STEM Master’s Degree: 8 points
  • Foreign Professional Degree or Doctoral STEM: 10 points
  • S. Professional Degree or Doctoral STEM: 13 points

English Language Proficiency: Applicants would be granted points for this category based off of the highest test ranking.

  • 1st – 5th Deciles: 0 points
  • 6th and 7th Deciles: 6 points
  • 8th Decile: 10 points 6
  • 9th Decile: 11 points
  • 10th Decile: 12 points

Extraordinary Achievement: Points can be accrued for the following:

  • Nobel Laureate or comparable recognition in a scientific or social scientific study = 25 points.
  • Individual Olympic medal or first place in an international sporting event in which the majority of the best athletes in an Olympic sport were represented, within 8 years prior to submitting application = 15 points.

Job Offer: Points for “highly compensated employment” can be accrued for the following:

  • Annual salary offered is 150% but less than 200% of the median household income in the state of employment = 5 points.
  • Annual salary offered is 200% but less than 300% of the median household income in the state of employment = 8 points.
  • Annual salary offered is at least 300% of the median household income in the state of employment = 13 points.

Investment in and Active Management of a New Commercial Enterprise (NCE): Points for investments can be accrued for the following:

  • Investment of $1.35 million in a U.S. NCE, maintain the investment for 3 years and play active role in managing the NCE as their primary occupation = 6 points.
  • Investment of $1.8 million in a U.S. NCE, maintain the investment for 3 years and play active role in managing the NCE as their primary occupation = 12 points[4]

It is important to note; an Applicant may not be placed in the Eligible Pool if they have a bachelor’s degree or less and does not earn any points for “highly compensated employment.” The application would be submitted online with a fee is $160 to be placed in the visa pool. There would be a total of 140,000 Green Cards available per year.

The RAISE Act also looks to reduce family Permanent Residency Applications. The preference categories for extended family members and adult children would be eliminated.[5] These are the categories: F1, F2A-B, F3, and F4. The RAISE Act would Amend INA §203(a) “to recognize only spouses and minor children of LPRs as eligible for family-based sponsorship, outside of immediate relatives.”[6] Children under the age of 21 and spouses of United States Citizens and Permanent Residences would remain untouched and giving priority. Temporary visas would be available for elderly parents requiring care from their United States Citizen Children. This would be done by creating a new non-immigrant category (W) for parents of U.S. citizens who are at least 21 years old.

Lastly, the RAISE Act would eliminate the Diversity Visa lottery system and would also put a limit of Permanent Resident Status for refugees to 50,000 a year.

It is important to note that the RAISE Act has not been signed into law, it is proposed legislation. At RLA, we are continuing to monitor not only the RAISE Act but any future proposed immigration legislation. We will continue to provide updates as they become available.

[1] Ms. Crystal Conway is the Managing Paralegal of the I-140/AOS Department at Ramineni Law Associates, LLC. She has been with Ramineni Law Associates, LLC since September 2012. Please note that Ms. Conway is not a licensed attorney.

[2] https://www.congress.gov/bill/115th-congress/senate-bill/354/text                                                            

[3] https://www.whitehouse.gov/the-press-office/2017/08/02/president-donald-j-trump-backs-raise-act

[4] AILA Doc. No. 17080732

[5] https://www.whitehouse.gov/the-press-office/2017/08/02/president-donald-j-trump-backs-raise-act

[6] AILA Doc. No. 17080732

Level 1 Prevailing Wage Request for Evidence for Computer Programmers

By Taimoor Choudhry[1]

Just recently, the USCIS has begun issuing what we label “Level I Specialty Occupation Request for Evidence” (“RFE”) for petitions that were filed under Wage Level I. These RFEs are issued pursuant to the March 31, 2017 USCIS Policy Memorandum which held that an entry-level computer programmer position would not generally quality as a position in a specialty occupation. “Instead, a petitioner must provide other evidence to establish [emphasis added] that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria a 8 CFR 214.2(h)(4)(iii).[2] Although the March policy memorandum specifically targeted the occupation category of Computer Programmers, the USCIS is issuing these RFEs for other occupational categories filed at Wage Level I, including 15-1121, 19-2041 and 15-2041. The USCIS has also begun issuing Notice of Intent to Revoke (NOIRs) for petitions which were already approved but filed under Wage Level I.

Level I Specialty Occupation RFEs are particularly difficult because they essentially put the Petitioner between a rock and a hard place. The USCIS first requests Petitioner to prove that the Proffered position qualifies as a Specialty Occupation. It argues that the proffered position does not qualify as a specialty occupation because some of the entry-level positions within the occupational category do not normally require a bachelor’s or higher degree. The USCIS then requests Petitioner to prove that the Wage Level I designation corresponds to the proffered position. It argues that the job duties for the proffered position do not correspond to the Level I wage description because they do not encompass a basic understanding of the occupation and appear to contain more than routine tasks that require limited, if any, exercise of judgment.

As a result, the Petitioner is placed in a difficult position of proving that the entry-level position is advanced enough to require a bachelor’s degree, but not advanced enough to make the Wage Level I designation unwarranted. Given the difficulty of the Level I Specialty Occupation RFEs, we advise our clients to not file their H-1B petitions under Wage Level I. For Petitioners who are already in this conundrum, we have crafted a specific response to help Petitioner’s get out of the tight squeeze. If you have received a Level I Specialty Occupation RFE, please contact our office for a consultation.  We can be reached at (617) 500-9981, or Taimoor@raminenilaw.com.

[1] Taimoor J. Choudhry, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He has been with Ramineni Law Associates, LLC since July of 2016. He graduated from Penn State Law and is licensed to practice in the State of New York and Massachusetts. He can be reached at Taimoor@raminenilaw.com or (617) 300-8134

[2]https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)

As of January 17, 2017, USCIS now requires the I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (“Supplement J”) Form to be submitted with any I-485, Application to Register Permanent Residence or Adjust Status (“I-485”) being filed for the Principal Applicant.[1] It is important to note, if the I-485 is being filed concurrently with the Form I-140, it is not required to submit the Supplement J Form. The Supplement J Form is being utilized by USCIS as confirmation that the job offered in the Form I-140 remains a bona fide job offer and the Principal Applicant will begin working in this position once the I-485 is approved. The new Supplement J Form is taking the place of the previous Employment Offer Letter that was required during the I-485 filing.

USCIS has begun issuing Request for Evidence (“RFE”) for I-485s filed prior to the new rule and without the Supplement J Form. A Principal Applicant may begin to prepare the Supplement J in anticipation to the RFE, however in response to the RFE, the Supplement J will need to be signed and dated recently.

Furthermore, the Supplement J Form is also being used to request job portability under INA section 204(j) to a new, full-time, permanent job offer that is similar to that of the job offered in the Form I-140. A Principal Applicant may qualify for job portability if the following criteria are met:

  • The I-485 has been pending for more than 180 days; and
  • There is a new, permanent job offer that is in the same or similar occupational classification as the job offered in the Form I-140.

To determine if a Principal Applicants, meets the above requirements, the I-485 must be pending for more than 180 days from the date of the receipt. USCIS has provided guidance on how they determine if the new job offer is in the same or similar occupational classification as the previous job offered. “USCIS will look to whether the jobs share essential qualities or have a ‘marked resemblance or likeness’.”[2] To establish the similar nature, the Principal Applicant may submit additional evidence with the Supplement J Form which can include the job duties for each position, the wages being offered, and the skills/experience/education/training/licenses or certifications specifically required to perform each job. USCIS will rely heavily upon the SOC Code for each position to determine if the job is in the same or similar occupational classification code. If the SOC code for the previous position and new position have all six digits of the code match, the jobs generally will be found to be in the same occupational classification for portability purposes. If the SOC Codes do not match all six digits, but are found to be under the same broad occupational code, this too would generally be found to be in the same occupational classification for portability purposes.  For questions relating to the Supplement J, please contact our office at (617) 600-7195.[3]

 

[1] See https://www.uscis.gov/i-485supj

[2]See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/Final_Same_or_Similar_Policy_Final_Memorandum_3-18-16.pdf

[3] Please note, Consultation Fees may apply of $175.00 for up to 30 minutes via phone or e-mail.

BALCA Finds that Employers May Lawfully Reject Candidates During PERM Recruitment Based on Face of Resume

By Dayna Lally[i]

In the Matter of Sunnyvale School District, 2014-PER-00620, June 22, 2017, the Board of Alien Labor Certification Appeals (“BALCA”) reversed the denial of a PERM labor certification application, finding that a U.S. applicant may be found not qualified on the face of their resume.

In Sunnyvale, the Employer filed an Application for Permanent Employment Certification (“PERM”) for the proffered position of “Special Education Teacher.”[ii] The position required a Master’s degree in “Special Education or related field” and “valid California teaching credential authorizing the holder to provide educational services to children from birth through pre-kindergarten who are eligible for early intervention special education and related services …” Id.

The Certifying Officer (“CO”) audited the PERM application and directed the Employer to conduct supervised recruitment in accordance with 20 C.F.R. § 656.21. Supervised recruitment typically arises when the CO determines “the employer substantially failed to produce required documentation, or the documentation was inadequate or determines a material misrepresentation was made with respect to the application.”[iii] The CO instructed Employer to further investigate the credentials of applicants whose resumes raised a reasonable possibility that they met all of the position’s minimum requirements.

Sunnyvale turns on Applicant JR- whose resume indicated that she had a Bachelor’s degree in “Elementary Education, Special Education” and “teaching interest[s] and skills” centered on special education “ranging in all ages grades K-12.” JR’s resume did not mention the attainment of a Master’s degree or a California teaching credential.

BALCA noted that “… JR’s failure to list such a major requirement on her resume meant that she did not possess it.”[iv] Furthermore, BALCA found it unlikely that any “… amount of on-the-job training could substitute for a specialized professional license issued by the state of California.”[v]

Therefore, BALCA held that the CO’s denial was an abuse of discretion, in that the Employer was penalized for violating a rule it had no obligation to follow. The Employer had no duty to contact JR for an interview, and thus lawfully rejected her based on the face of her resume.

Per Sunnyvale, Employers may now lawfully reject U.S. applicants who fail to list a major requirement on their resume. Thus, if an Employer files a PERM for the proffered position of “Computer Science Engineer” and lists the major requirements as a Bachelor’s Degree in “Computer Science, Engineering (any), or Technology,” a U.S. worker may lawfully be disqualified if their resume lists the attainment of a Bachelor’s in Business Administration.

If you have questions regarding the PERM recruitment process and the criteria by which you may lawfully disqualify applicants, please contact our office.

 

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  Ms. Lally earned her J.D. from New England Law | Boston and is admitted to practice law in the Commonwealth of Massachusetts and the state of Michigan. Ms. Lally can be reached at 617-600-7201 or dayna@raminenilaw.com.

 

[ii] Department of Homeland Security, “BALCA Overturns Denial, Accepts that U.S. Applicant May Be Found Not Qualified on Face of Resume” (June 22, 2017), AILA Doc. No. 17070333.

[iii] FAQs on Supervised Recruitment, DOL, AILA Doc. No. 09011470.

[iv] Department of Homeland Security, “BALCA Overturns Denial, Accepts that U.S. Applicant May Be Found Not Qualified on Face of Resume” (June 22, 2017), AILA Doc. No. 17070333.

[v] Id.

I-94 Card Issues: Incorrect Information or Reduction/Extension of the Period of Stay on the I-94 Card and How to Correct these Errors

By Daniel Carpenter

 More recently U.S. Customs and Border Protection (“CBP”) has been issuing I-94 Cards with incorrect or reduced validity periods. These incorrect or reduced periods have lead to maintenance of status issues for foreign nationals. The I-94 Card is used by CBP to track arrivals and departures of foreign nationals.

Prior to April 30, 2013, CBP would issue a paper copy of an I-94 Card to a foreign national after they were inspected by a CBP officer upon entering the U.S. However, after April 30, 2013, CBP started using an electronic format of the I-94 Card.[3] The I-94 Card can be accessed through the CBP website.[4] It is important that the a foreign national obtain a copy of their I-94 Card as soon as possible after entering the U.S.

It is the foreign national’s duty to review their I-94 Card ensuring it does not contain any errors. Information that should be reviewed includes:

  • Ensuring the name on the I-94 Card matches the passport name of the passport used to enter the U.S.;
  • The correct Visa Classification is listed and;
  • The “Admit Unit Date” matches the validity date on your Form I-797 Approval Notice.

Please note, there may be a 10-day extension indicated on the I-94 Card that is beyond the approved period on a I-797 Approval Notice. An I-94 Card may indicate a period of stay within the U.S. that is inconsistent with the Form I-797 Approval Notice. CBP, in their discretion or in error, may have either reduced the length of stay or granted an extension in the length of stay to foreign national upon arrival to the US.

A reduction in the length of stay may occur when a foreign national enters the U.S. It is common with a passport that expires before the validity date of an approved I-797. When this occurs, a few options may be available to obtain a longer period of stay. Option 1: The foreign national can go to their nearest CBP Deferred Inspection Site and bring documents to support their request to obtain a new I-94 card with the correct period of stay.[5] Option Two: The foreign national can depart the U.S. and re-enter. Upon re-entry to the U.S. the foreign national can request that the CBP officer correct their I-94 Card. Option Three: The foreign national can request an extension of stay in their current non-immigrant status USCIS.

An extension of the length of stay may occur when CBP, in their discretion, grants a 10-day grace period beyond the I-797 validity period.[6] This 10-day grace period is not considered work authorization, but rather a grace period to depart the U.S. or seek alternative status.

If you or your employer believe that in incorrect I-94 Card has been issue or if you have questions or concerns about an I-94 Card, please contact our team of Attorneys at RLA. We welcome the opportunity to consult with you and discuss your options. Contact us today at (617) 500-9981 or daniel@raminenilaw.com.

 

[1] Daniel Carpenter, Esq. is an Associate Attorney of the greater Boston law firm of Ramineni Law Associates. He assists employers, nonimmigrants, and their dependents, with business immigration and related matters. He can be reached at daniel@raminenilaw.com or (617) 500-9981. He has been with Ramineni Law Associates, LLC since 2016. He is licensed to practice in the State of Massachusetts, and a 2016 graduate of Suffolk University Law School.

[2] Please note, this article focuses mainly in I-94 cards issued upon arrival to the U.S. and limits its discussion on I-94 Cards issued by United States Citizenship and Immigration Services.

[3] There are certain circumstances for which a paper I-94 Card is not issued and is not addressed within the scope of this article.

[4] See https://i94.cbp.dhs.gov/I94/#/home

[5] It is important that the foreign national speak with a qualified immigration attorney prior to contacting CBP.

[6] See 8 CFR 214.2(h)(13)(i)(A)

FOIA Compels USCIS to Release H-1B Cap Lottery Processing Details

By Paul Reifler Messenger, Esq.[1]

Last month, USCIS released documents regarding the H-1B Cap lottery process after the American Immigration Lawyers Association (AILA) filed a Freedom of Information Act (FOIA) Request. Each year under the fiscal quota, USCIS will only adjudicate 65,000 H-1B cap subject petitions and an additional 20,000 petitions for beneficiaries with an advanced degree received at a U.S. College or University.  The actual mechanics of this lottery has remained a mystery until now.

USCIS initially resisted the FOIA request but the U.S. Federal Court in the District of Columbia compelled  USCIS to release approximately 3,600 records. While the documents are still being analyzed in their entirety, there are some facts that have been revealed that shed light on the lottery process. In addition to describing the detail of the lottery process, the documents show the top reasons that petitions were rejected.   Since the H-1B Cap process can be a source of stress for employers and their employees, it is helpful for petitioners to have a definitive answer explain how the 85,000 H-1B Petitions are selected.

The documents released were from FY 2015, FY 2014, FY 2013 and FY2008.

  • USCIS hires federal contractors specifically for the lottery process. Contractors are hired for both the Vermont Service Center and California Service Center.
  • H-1B petitions were sorted based on Regular Cap Filings (i.e., those without a U.S. based advanced degree), Advanced Degree filings and Premium Processing filings.
  • Each petition was than given a unique number identifier and bar code. Once this was completed, a computer-generated lottery was held to select the petitions that USCIS would adjudicate.
  • The Service Centers also shared data to ensure duplicate filings were not counted in the lottery.
  • Accepted petitions were reviewed to ensure that the minimum requirements for filing were met and then they were delivered to USCIS adjudicators.

Another set of documents released gives guidance from USCIS on how they review petitions to ensure the minimum requirements are met.  The final set of documents are e-mail correspondence from USCIS personnel. One of the more relevant emails sheds light on the top reasons that petitions are rejected which include:

  • Listing a start date before October 1.
  • Incorrect filing fees or no filing fees.
  • Unsigned labor condition application and/or missing pages from the form I-129.

One thing that stands out from the released documents is that USCIS has spent a great deal of time analyzing all of the data possible about Cap petitions and does seem committed to a fair process.  Duplicate filings are taken as a serious offense, as this is an attempt to get a better chance at success in the lottery.  It is clear from the emails that the service centers communicate with each other to check for duplicates before the lottery is conducted.  At this point, no changes have been made to the CAP filing process, but we believe a better understanding of the lottery process will help employers explain to their employees why some petitions are selected and why others are not.  We will provide updates as more relevant information is discovered through analyzing the released documents.  If you have any questions about how the lottery process works, please contact our office at (617) 500-9981, or Paul@Raminenilaw.com.

 

[1] Paul Reifler Messenger, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He can be reached at 617-500-9978 or at Paul@raminenilaw.com.  He has been with Ramineni Law Associates since November of 2016.  He is licensed to practice in Massachusetts and is a 2010 graduate of Hofstra University School of Law.

Master’s Cap Exemption: University must be Pre-Accredited or Accredited when Degree is Conferred

By Taimoor Choudhry[1]

On May 23, 2017, the Administrative Appeals Office (“AAO”) confirmed that, in order to qualify for an H-1B Master’s Cap exemption, the University must have been pre-accredited or accredited at the time the degree was conferred (emphasis added).[2] In this case, the Beneficiary had earned his degree from the International Technological University (ITU) on December 31, 2010. Degree conferral was prior to ITU obtaining its pre-accreditation or accreditation status. Accordingly, the AAO concluded that Beneficiary did not earn his degree from an “institution of higher education”[3] and is thus ineligible for the Master’s Cap exemption.

In reaching its decision, the AAO emphasized the quality of education considerations underpinning the Master’s Cap exemption. “Requiring beneficiaries to earn their degree from institutions that, at minimum, are [pre-accredited] at the time the degree is earned helps ensure the quality of education necessary to merit a Master’s Cap exemption.”[4] Whereas, assessing an institution’s qualification at a later time—such as when an immigrant benefit is conferred—does not advance those quality considerations. The AAO also emphasized creating certainty for graduates seeking immigration benefits over time. For example, an individual who earns a degree from an accredited or pre-accredited institution will continue to be eligible for the Master’s Cap exemption even if the institution later loses its pre-accreditation or accreditation status.[5] Were this determination made at the time of adjudication, then a beneficiary who earned a qualifying Master’s degree from an institute of higher education could then become ineligible for the exemption if the institution lost its accreditation, which in some cases could occur long after the beneficiary earned a qualifying degree. This would lead to “imprudent and unintended results.”[6]

This decision has significant implications for H-1B Petitioners. H-1B Beneficiaries whose alma mater was not accredited or pre-accredited at the time the degree was earned are ineligible for the Master’s Cap exemption. Furthermore, since H-1B Petitioners are not permitted to claim eligibility under alternative grounds, “. . . Petitions indicating that they are exempt from the numerical limitation but that are determined by USCIS after the final receipt date to be subject to the numerical limit will be denied.”[7] If you, or your Employer believe a petition may have been improperly filed and/or have received a USCIS’ inquiry on this matter, please contact our office for a consultation.  We can be reached at (617) 500-9981, or Taimoor@raminenilaw.com.[8]

[1] Taimoor J. Choudhry, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He has been with Ramineni Law Associates, LLC since July of 2016. He graduated from Penn State Law and is licensed to practice in the State of New York and Massachusetts. He can be reached at Taimoor@raminenilaw.com or (617) 300-8134

[2]See https://www.uscis.gov/sites/default/files/files/nativedocuments/APPROVED_PM-602-0145_Matter_of_A-T-_Inc_Adopted_Decision.pdf (last visited July 7, 2017).

[3] An institute of higher education is defined as a public or nonprofit educational intuition that is accredited by a nationally recognized accrediting agency or association or has been granted pre-accreditation status by such an agency or association and “the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Please note, a consultation fee of $175.00/30 minutes may apply.

Emails from clientverification@state.gov are Legitimate

Over the past few months, our clients have received phone calls and/or emails from parties claiming to be from a U.S. government agency. Due to the vague nature of the messages, there was general concern as to the veracity of these parties and whether they were legitimate or a scam. More recently, a number of employers received emails from clientverification@state.gov requesting confirmation that a foreign national would be providing services at their company, as well as further details about the employment.

The U.S. Department of State (“DOS”) Visa Office has confirmed via the American Immigration Lawyers Association (“AILA”) that emails sent from this particular email address are legitimate and employers should respond accordingly. If your office receives one of these emails and requires assistance with responding, please contact our office at 617-500-9981 or mshepard@raminenilaw.com.

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).