USCIS Acknowledges Legitimacy of Third Party Placements, Clarifies Itinerary Requirements, Restricts Validity Periods and Requirements for Approval of Extension Requests

By Srinivas Ramineni, Esq. [1]

On February 22, 2018, USCIS published a Policy Memorandum, PM-602-0157 (“PM”), acknowledging the legitimacy of third placements by IT Consulting companies. In the same PM, USCIS clarified when an itinerary was required, and authorized USCIS adjudicating officers to limit H-1B approval periods to the period established in the itinerary. Further, USCIS authenticated the current practice of forcing the employer to establish that the Beneficiary worked in a specialty occupation and maintained valid status (no benching and timely filing of amendments) in order for the extension to be approved.

Third Party placements are legitimate: The goal of the PM, according to USCIS is “to protect the wages and working conditions of both U.S. and H-1B nonimmigrant workers and prevent fraud or abuse…”[2] The PM lists the following factors that IT Consulting Companies would have to establish for a successful H-1B Petition:

  • The petitioner has a specific work assignment in place for the beneficiary;
  • The petition is properly supported by a Labor Condition Application (LCA) that corresponds to such work; and
  • The actual work to be performed by the H-1B beneficiary will be in a specialty occupation based on the work requirements imposed by the end-client who uses the beneficiary’s services.

In order to establish the above, USCIS will accept the all or a combination of the following types of corroborating evidence, without which, the petition will be denied:

  • Technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents;
  • Copies of signed contractual agreements between the petitioner and the vendor or end-client. If there is a vendor, a copy of the contract and purchase order vendor and/or all the vendors and end-client;
  • Copies of signed and detailed SOWs. The SOW should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked; or
  • A letter issued by end-client with a detailed description of the specialized duties qualifications, duration of the job, salary or wages paid, hours worked, benefits, who will supervise the beneficiary and any other related evidence.

Itinerary required when placing an employee at a third party site: USCIS clarified that an Itinerary is required when a beneficiary will be placed at one or more third-party worksites.

The Itinerary should contain the following information:

  • The dates of each project/contract;
  • The names and addresses of end-client(s); and
  • Detailed worksite address and telephone numbers.

Evidence required to establish eligibility for extensions: Whenever an extension is filed, employer is now required to establish the following:

  • Beneficiary worked in the specialty occupation;
  • Beneficiary was paid the required wage;
  • Employer maintained the right to control the beneficiary’s employment; and
  • Timely filed amendments.

At Ramineni Law, we believe that while the PM is beneficial in that it acknowledges that third-placements are legitimate, the PM goes too far. The evidence required by this memo falls beyond the scope of “preponderance of evidence” standard. That said, USCIS has already, for a few years now, implemented most of what the PM clarifies. We have successfully represented many employers in difficult RFEs that request all the above information/documents. If you have received an RFE or want to file an H-1B Petition, we can assist you. You may contact me or any one of our experienced team 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] See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf.

U.S. GOVERNMENT SHUTS DOWN – HOW THIS WILL AFFECT IMMIGRATION RELATED PROCESSING

By Michelle Shepard, Esq.[1]

At midnight on Friday, January 19, 2018, the U.S. Government officially shut down.  While, negotiations on federal spending remained active throughout the weekend, by this morning neither side was able to reach an agreement. The primary contended issue appears to be border security, and finding a permanent solution for DACA. Another vote is set to occur at 12:00 p.m. EST today in the Senate.

In the meantime, essential service positions are set to continue work.  Below is a breakdown of how it may affect immigration-related agencies:

  • USCIS: USCIS is fee funded.  Fortunately, this means they will continue to operate, accept applications, and issue decisions. There are few exceptions, including  E-Verify  which will shut down.
  • DOL: DOL has ceased processing applications such as LCAs and/or PERMS. They will resume processing only upon the government re-opening. Importantly, they will not expedite any applications due to the shut down upon re-opening. The iCert portal will remain closed, and inaccessible.
  • CBP: CBP officer’s are considered essential. Port of entries will remain open, but processing of applications filed at a border may be impacted.  Individuals traveling should expect delays.
  • DOS: Visa and passport operations, primarily fee funded, should not be impacted.
  • ICE: Enforcement operations will continue. SEVP is fee funded and should not be affected.
  • EOIR: The detained docket is considered essential, and would continue to operate.

Based on previous government shutdowns, individuals should expect delays upon resuming services.  Our office will continue to monitor this situation.  Please continue to check our website for any important updates.

 

[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.

USCIS ISSUES CLARIFICATIONS; NO INTENTION OF TERMINATING H-1B EXTENSIONS BEYOND SIX YEAR PERIOD

January 12, 2018:

USCIS ISSUES CLARIFICATIONS; NO INTENTION OF TERMINATING H-1B EXTENSIONS BEYOND SIX YEAR PERIOD

By Michelle Shepard, Esq.[1]

On January 2, 2018, a number of media outlets reported that the Department of Homeland Security (“DHS”) was considering a new regulation which would prevent H-1B extensions beyond six (6) years pursuant to the American Competitiveness in the Twenty First Century Act (“AC 21”). This purported change was pursuant to a Executive Order (“EO”), signed on April 18, 2017, President Trump signed the Buy American and Hire American Executive Order (“EO”). According to USCIS, the EO sought to “create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws.”[2]

In a sign of great relief, USCIS announced that they were not intending a regulatory change.   The report first surfaced on December 30, 2017 by McClatchy DC.  USCIS clarified by stating:

…such a change would not likely result in these H-1B holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.” USCIS did, however, indicate that the agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American” executive order, including conducting a “thorough review” of employment-based visa programs.[3]

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.

January 2, 2018:

DHS CONSIDERING TERMINATION OF H-1B EXTENSIONS BEYOND SIX YEAR PERIOD

The Department of Homeland Security (“DHS”) is considering a new regulation which would prevent H-1B extensions beyond six (6) years pursuant to the American Competitiveness in the Twenty First Century Act (“AC 21”). On April 18, 2017, President Trump signed the Buy American and Hire American Executive Order (“EO”). According to USCIS, the EO sought to “create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws.”[4]

Now, according to sources close to DHS, the Trump administration is reviewing the language in AC 21 to determine whether it mandates that extensions be provided while an application for adjustment of status is pending.  DHS seeks to prevent extensions for foreign nationals whose green card application has been accepted.  Specifically, DHS is reviewing the language of the AC 21 which states:

… may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.[5]

As currently written a non-immigrant extension “may [be] grant[ed]” while an application for AOS is pending. It seems that this proposed action is a direct target on Indian and Chinese foreign nationals, with sources close to DHS reporting:

The idea is to create a sort of ‘self- deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans….[6]

However, it is wholly unclear how any changes to the above provision would protect U.S. workers.  Sources close to the DHS argue that this will open the job market for U.S. workers. Yet, the individuals being prevented from applying have already held these positions for six (6) years, and presumably the employer tested the labor market at that time.  At this time, the proposal is merely proposed legislation. As of January 2018, 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] See https://www.uscis.gov/laws/buy-american-hire-american-putting-american-workers-first (last visited January 2, 2018)

[3] See AILA Doc No. 18010437 (last updated 1/9/18).

[4] See https://www.uscis.gov/laws/buy-american-hire-american-putting-american-workers-first (last visited January 2, 2018)

[5] AC21, PL 106-313, §104(c)(2)

[6] See http://www.firstpost.com/world/h1b-extensions-on-the-chopping-block-4282721.html (last visited January 2, 2018)

Indian National First to Lose U.S. Citizenship Under “Operation Janus”

By Dayna Lally[1]

On January 5, 2018, Judge Stanley R. Chesler of the U.S. District Court for the District of New Jersey entered an order revoking the naturalized U.S. citizenship of Baljinder Singh and canceling his Certificate of Naturalization.[2]

Baljinder Singh aka Davinder Singh, 43, a native of India, arrived at San Francisco International Airport on Sept. 25, 1991, without any travel documents or proof of identity. He claimed his name was Davinder Singh. He was placed in exclusion proceedings, but failed to appear for his immigration court hearing and was ordered excluded and deported on Jan. 7, 1992. Four weeks later, on Feb. 6, 1992, he filed an asylum application under the name Baljinder Singh. He claimed to be an Indian who entered the United States without inspection. Singh abandoned that application after he married a U.S. citizen, who filed a visa petition on his behalf. Singh naturalized under the name Baljinder Singh on July 28, 2006. Singh has been residing in Carteret, New Jersey.[3]

Singh’s denaturalization is the first arising out of a growing body of cases referred to the Department of Justice (“DOJ”) by United States Citizenship and Immigration Services (“USCIS”) as part of “Operation Janus.”[4]

Operation Janus, formerly referred to as Operation Targeting Groups of Inadmissible Subjects, was created in response to the 2008 research of a U.S. Customs and Border Protection (“CBP”) employee who identified 206 aliens who had received final deportation orders and subsequently used a different biographic identity, such as a name and date of birth, to obtain an immigration benefit.[5] By 2014, DHS’ Office of Operations Coordination (“OPS”) reported that the number of individuals who had final deportation orders under another identity and had become naturalized U.S. citizens was 1,029; 858 of which did not have a digital fingerprint record available in the DHS fingerprint repository at the time USCIS was reviewing and adjudicating their applications for U.S. citizenship.[6]

Title 8 of the Code of Federal Regulations § 1451(a) authorizes Federal courts to revoke naturalization through a civil or criminal proceeding if citizenship was obtained through fraud of misrepresentation.[7] Accordingly, DHS has established a team to review the records of the 858 aliens with final orders who were naturalized under a different identify.[8] During these reviews, DHS will determine which individuals appear to have been ineligible for naturalization, and coordinate with the DOJ for possible prosecution and denaturalization.[9]

Ramineni Law Associates, LLC is closely monitoring prosecutions and denaturalization proceedings, and will provide updates as they are available.

 

[1] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  She can be reached at 617-600-7201 or dayna@raminenilaw.com. 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.

[2] https://www.uscis.gov/news/news-releases/uscis-partners-justice-department-and-secures-first-denaturalization-result-operation-janus

[3] Id.

[4] Id.

[5] Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records. OIG-16-130 (September 8, 2016).

[6] Id.

[7] 8 USC § 1451(a)

[8] Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records. OIG-16-130 (September 8, 2016).

[9] Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records. OIG-16-130 (September 8, 2016).

USCIS INCREASES EVIDENCE STANDARD REQUIRED TO FILE H-1B EXTENSIONS

By Paul Reifler Messenger, Esq.[1]

On October 23, 2017, USCIS released a memorandum in which the agency instructs adjudicators to immediately stop giving deference to visa extensions (including H-1B) filings.  By no longer giving deference to prior petitions, USCIS will now review every petition as if it were the first time it has viewed the specific facts and circumstances of employment, regardless if no information has changed for a petitioner or Beneficiary.  The memo instructs USCIS to take this action by rescinding two other memos which had instructed the agency to force petitioners to prove information that had already been established in a prior filing.[2]

What this all means for companies filing H-1Bs for their employees is that every petition will be reviewed as if it is the first time the agency is reviewing the data.  The USCIS reasoning behind this change is that is the petitioner’s duty to provide evidence to make a decision on the visa case.  By giving a Petitioner the benefit of the doubt, adjudicators can make faster decisions and focus on elements of the case that have changed.  USCIS believes that requiring a full examination of documents, even if it is for an extension, would take away any perceived burden to furnish evidence for the case.[3]

It is difficult to understand why USCIS would make this change in policy.  By making this change, USCIS has increased its workload by requiring a closer review of every single document in a petition, even if it has not changed.  What seems more likely, is this the policy will give USCIS a rationale to examine former approved petitions and see if there is a way to deny a petition that had been previously approved.  Many practitioners have noticed an increase in the issuance of Notice of Intent to Revoke (NOIR) for approved petitions and perhaps this may cause USCIS to issue more NOIRs while examining an extension petition.

Based on this policy change, Petitioners in an H-1B extensions need to include all relevant documentation to make a decision on a case, even if they believe an element has already been established in a prior filing.  Petitioners should attempt to file extensions as soon as it is possible, and include all relevant contracts or documents that were used to achieve the first approval.  It is very likely that there will be an increased issuance of Requests for Further Evidence (RFE), leading to longer processing times, as USCIS seeks to add more levels of scrutiny to their review process.

If you have any questions about how the proposed change and how it may effect your company, please contact our office at (617) 500-9981, or at 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.

[2] [2] http://www.aila.org/infonet/uscis-will-no-longer-provide-deference-to-prior?utm_source=AILA+Mailing&utm_campaign=fb7d9fde4a

[3] Id.

AC-21 Beneficiaries Now Have Standing to Sue in Federal Court

By Dayna Lally[i]

On November 11, 2017, USCIS adopted as a matter of policy the AAO’s decision in Matter of V-S-G- Inc., which held that I-140 beneficiaries who are eligible, and have properly requested, to port under section 204(j) of the Immigration and National Act, 8 U.S.C. Sec. 1154(j), are “affected parties” under DHS regulations and must be afforded an opportunity to participate in proceedings related to the revocation of their visas.[ii]

Up until recently, the regulations precluded beneficiaries from participating in employment-based immigrant visa adjudication proceedings, including during post-adjudication motions and appeals.[iii] The Code of Federal Regulations specifically states, “[a] beneficiary of a petition is not a recognized party in such a proceeding.”[iv] Similarly, the regulations state, “[r]evocation of the approval of a petition [or] self-petition … will be made only on notice to the petitioner or self-petitioner.”[v]

In Matter of V-S-G- Inc., Vision Systems Group Inc. (“VSG”), an information technology services company, filed a second preference employment-based (EB-2) petition in 2006 on behalf of an Indian national for the permanent position of Software Engineer.[vi] USCIS approved the I-140 petition, and the beneficiary thereafter filed a Form I-485, Application to Register Permanent Residence or Adjust Status, in 2007 when his priority date became current. Visa retrogression caused USCIS to place the beneficiary’s adjustment application on hold until his priority date became current again.

While his adjustment application was pending, the beneficiary ported his employment twice pursuant to the American Competitiveness in the Twenty-first Century Act of 2001 (“AC21”); once in 2010 and again in 2011. Meanwhile, the president of VSG pled guilty to, and was convicted on, charges related to mail fraud in connection with another USCIS petition. As a result, USCIS sent a notice of intent to revoke (“NOIR”) to VSG’s counsel (who also happened to represent the beneficiary). VSG did not respond and the counsel for the beneficiary contested the NOIR. USCIS revoked the petition’s approval due to the Petitioner’s failure to respond. The beneficiary appealed the revocation, and the appeal was dismissed.

On motion to reopen and reconsider, the Administrative Appeals Office (“AAO”) considered Congress’ intent for enacting the AC21 statute and the court’s finding in Mantena v. Johnson, a similar case involving the same Petitioner, that AC21 beneficiaries have standing to sue in federal court.[vii]

The AAO held that the AC21 beneficiary and the original petitioner-employer are “affected parties” under DHS regulations and must be afforded an opportunity to participate in proceedings related to the revocation the revocation of underlying immigrant visa petitions.[viii] Subsequent employer(s), whose interests are marginally related to, and inconsistent with, the purposes implicit in the AC21 statue, are not considered affected parties.[ix] The AAO also held that neither the statutory language in AC21 nor its legislative history suggest that DHS regulations should be expanded to afford standing in revocation proceedings beyond the specific class of AC21, employment-based beneficiaries.[x]

Now, when USCIS sends a NOIR or Notice of Revocation (“NOR”) to the petitioner of an approved I-140 petition, it will also send the NOIR or NOR to the beneficiary of that petition if: (1) the beneficiary has filed a Form I-485 with USCIS that has been pending for 180 days or more; and (2) the beneficiary is otherwise eligible to port and has properly requested to port. The USCIS may issue separate and different versions of the NOIR or NOR to the affected parties when necessary to protect personal and/or proprietary information.

If you are an AC21 beneficiary whose underlying I-140 petition is in revocation proceedings, please contact our office.

 

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  She can be reached at 617-600-7201 or dayna@raminenilaw.com. 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.

[ii] Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017)

[iii] 8 C.F.R. § 103.2(a)(3)

[iv] Id.

[v] 8 C.F.R. § 103(a)(1)(iiii)(B)

[vi] Matter of V-S-G- Inc. at 2

[vii] 809 F.3d 221, 734 (2d Cir. 2015)

[viii] Matter of V-S-G- Inc. at 11

[ix] Id. at 13

[x] Id. at 11-12

The Protect and Grow American Jobs Act Approved by the House Judiciary Committee: Effect on H-1B Dependent Employers:

By. Daniel Carpenter, Esq.[1]

Definition of an H-1B Dependent Employer Under the Proposed Amendment:

Under the proposed amendment, an H-1B dependent employer would be defined as an employer with:

  • Less than 25 employees with at least 7 H-1B workers;
  • 26-50 employees with at least 12 H-1B workers; or
  • Greater than 51 employees with at least 20% H-1B workers.

The newly proposed amendment changes the 15% threshold to 20% of H-1B workers for H-1B employers with greater than 51 employees. The amendment overall may reduce the number of H-1B dependent employers with greater than 51 employees, as it allows for a 5% increase in number of H-1B employees that large companies hire to be considered H-1B dependent.

H-1B Exempt Employees Under the Proposed Amendment

Under current regulations, an H-1B employer is exempt from certain attestations (i.e. the recruitment attestation) made while filing a Labor Condition Application (“LCA”), if the H-1B employee (beneficiary) is paid over $60,000 a year and has obtained a Master’s Degree or Higher (or equivalent). However, under the newly proposed amendment, to be considered an H-1B exempt employee, the H-1B employee must be paid at a minimum of $90,000 a year and the mean wage for the occupational classification in the area of employment for the first year after enactment of the legislation. Then after the first year of enactment of the legislation, the H-1B employee must be paid the lesser of $135,000 or the mean (average) wage level for the area of employment, however it may not be less than $90,000. Then after the third year, the amounts may be adjusted every three years based off the Computer Price Index. Additionally, the proposed amendment removes the Master’s Degree or Higher requirement in order for an employee to be considered H-1B exempt.

Additional Fee for Department of Labor Investigations:

Under the newly proposed amendment, H-1B dependent employers may be required to pay an additional $495 fee for every H-1B filing. The purpose of such fee would be to fund periodic investigations by The Department of Labor (“DOL”). Additionally, under the proposed amendment, DOL would be required to conduct periodic investigations of H-1B dependent employers. The regulation would impose that the DOL audit at a minimum 5% of H-1B dependent employers. Furthermore, as indicated during the marking session by Representative Issa, the DOL must investigate all complaints even without establishing reasonable cause prior to the investigation.[4]

Conclusion

It should be made clear that the above-mentioned legislation is merely a proposal and has not been enacted. Regardless of the outcome of the proposed legislation, there is a recognizable movement towards immigration reform, one such step is in the way of imposing more scrutiny on the H-1B visa program. Our office continues to closely monitor developments in proposed legislation affecting our clients and provide updates as they are available.

 

[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] Amendment in the Nature of a Substitute to H.R. 170 Offered by Mr. Issa of California, available at https://judiciary.house.gov/wp-content/uploads/2017/11/ANS-HR-170_TG_001_xml.pdf. See Summary of the Protect and Grow American Jobs Act As Passed by Judiciary, https://issa.house.gov/sites/issa.house.gov/files/Summary%20of%20Protect%20and%20Grow%20American%20Jobs%20Act%20Provisions%20As%20Passed%20by%20the%20Judiciary%20Committee.pdf (last visited Nov. 19, 2017) (providing a brief summary of the proposed Amendment).

[3]  See Michelle Shepard, Esq., Highly Skilled Integrity and Fairness Act of 2017 vs. Protect and Grow American Jobs Act: Proposed Regulations to Alter H-1B, Among Other Visa Classifications, http://www.raminenilaw.com/?p=1557 (last visited Nov. 19, 2017) (discussing the initial proposed legislation and implications to the H-1B program).

[4] See Markup of H.R. 170, House of Representatives Judiciary Committee https://judiciary.house.gov/markup/markup-h-r-170/ (last visited Nov. 19, 2017) (providing a recording of the markup session with Mr. Issa’s comments).

DHS is Assessing the Executive’s Legal Authority to Issue Employment Authorization Documents (“EAD”) to H-4 Dependent Spouses of H-1B Workers

By Dayna Lally[i]

In light of the President’s Executive Order 13,788, Buy American and Hire American, the Department of Homeland Security (“DHS”) is reviewing its immigration policies to ensure that the interests of U.S. workers are being protected. Namely, DHS is reviewing whether permitting employment authorization for certain H-4 dependent spouses complies with the Administration’s goal “to create higher wages and employment rates for workers in the United States, and to protect their interest.”[ii]

On May 12, 2014, DHS published a notice of proposed rulemaking, which proposed to amend DHS regulations at 8 CFR 214.2(h)(9)(iv) and 274a.12(c) to extend eligibility for employment authorization to H-4 dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants either: (1) are the principal beneficiaries of an approved Form I-140; or (2) have been granted H-1B status pursuant to sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”).[iii] According to DHS, the H-4 Rule would add as many as 179,600 new foreign workers in the first year and 55,000 annually in subsequent years.[iv]

The final rule became effective on May 26, 2015.

On April 23, 2015, a group of tech workers filed a complaint for declaratory and injunctive relief and a motion for preliminary injunction staying the implementation of USCIS’ final rule on employment authorization for certain H-4 dependent spouses.[v] The plaintiffs argued that the H-4 Rule was in excess of DHS’ authority and directly contradicted several provisions of the Immigration and Nationality Act (“INA”) of 1952, as amended, including, 8 U.S.C. §§ 1101(a)(15)(H), 1182(a)(5)(A), 1182(n), 1184(g).[vi] The plaintiffs failed to show that they would suffer irreparable harm absent preliminary relief, and the motion was denied.

On November 17, 2017, the court denied a request to extend the deadline and directed both parties to file their motions by January 2, 2018.[vii]

The ongoing litigation does NOT impact the current rule regarding H-4 EADs. Existing H-4 EADs remain valid, and USCIS will adjudicate new applications for H-4 EAD, if eligible.

Ramineni Law Associates, LLC is closely monitoring this situation and will provide updates as they become available.

 

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  She can be reached at 617-600-7201 or dayna@raminenilaw.com.  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.

[ii] Exec. Order No. 13,788, Sec. 2(b)

[iii] Employment Authorization for Certain H-4 Dependent Spouses, 79 FR 26886 (May 12, 2014).

[iv] 80 Fed. Reg. 10,285

[v] AILA Doc. No. 15052675 (October 27, 2017)

[vi] Id.

[vii] Save Jobs USA v. United States Department of Homeland Security, Case No. 16-5287 (D.C. Circuit)

Received a Level 1 Denial: What to Do Next?

By Taimoor Choudhry[1]

Let us suppose you just received a denial for a Petition that was filed at Wage Level I (“Level 1 Petition”) and are wondering what to do next? Careful consideration is required to help you make the right decision at this juncture and plan ahead. This requires the eye of a highly trained and experienced attorney. For example, did you know that after receiving a denial, your circumstances may permit you to reside inside the U.S. instead of having to uproot? Or that re-filling a Petition is better under the right circumstances than filing a Motion to Reopen and/or Reconsider (“Motion to Reconsider”).[2] These minute, but critical details may go missed by an untrained eye. At Ramineni Law Associates (“RLA”) training and experience are combined to provide our clients the best solutions to their immigration needs.[3]

During the last twenty years or so, we have discovered that not every Petition presented before USCIS is adjudicated to its merit. A contemporary example of this is the Level 1 Petition. After reviewing decisions for some of the Level 1 Petitions; the evidence suggests that Approval and Denial decisions do not adequately reflect the supporting evidence that is provided either at the date of Filing or at the RFE stage.  This may be alluded to the complexity associated with the Wage Level 1 issue. It may be the case where the adjudicating Officer misinterpreted a rule, leading to a denial.  For example, the Officer erroneously focuses on the job duties rather than the Employer’s job requirements to the occupational requirements.[4] In this situation, if the circumstances permit, it may be wise to re-file the Petition with a carefully crafted argument under nunc pro tunc.

Or, it may be the case where the wrong evidentiary standard was applied or the correct one misapplied. For example, the Officer adjudicating the case is required to apply the “preponderance of the evidence” standard when analyzing evidence. This standard requires Petitioner to prove more likely than not — greater than 50% probability — that Petitioner and Beneficiary have satisfied the H-1B requirements. It is very difficult to gauge when the greater than 50 percent threshold has been met. The difficulty increases with the complexity of the issue and the nature of the test being applied. Level 1 issue receives the four-factor test.[5] Each factor requires a careful analysis of the facts with the evidence presented. As such, there may be times when the Officer has failed to appreciate a piece of evidence or appreciates evidence in a manner different than what Petitioner intended. In this situation, a Motion to Reopen and/or Reconsider with a carefully crafted brief may be needed. These are the type of decisions that only an experienced attorney can help you make.

At RLA, we also provide our clients long-term legal strategies to help them plan ahead. Considering today’s political climate surrounding immigration, including the inconsistencies in adjudication, careful thought needs to be given to you and your family’s long term stay in the United States. At RLA, we place importance on our client’s goals for the future and craft immigration strategies to help them meet their goals. So, if you have received a denial on a Level 1 Petition, or require other type of immigration advice, contact us. We are here to help.

Join us next time, as we take a closer look at recent Level I decisions. We also consider and discuss expert sources, including ALIA’s outlook on the Level I issue.

 

[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] Please note, it is not possible to refile immediately if a Petition that was submitted to the CAP is denied. Please further note, a careful review of your factual record is required to determine if you qualify for a refiling.

[3] Attorney Ramineni and Attorney Shepard lead a group of skilled Attorneys and combine to share more than 20 years of experience between them. This experience enables RLA to formulate precise solutions to complex issues, while planning.

[4] The Prevailing Wage Determination Policy Guidance (“Policy Guidance”) issued by the Department of Labor, makes clear that a prevailing wage determination is made by “selecting one of the four wage levels for an occupation based on a comparison of the employer’s job requirements to the occupational requirements …”  The Policy Guidance also specifies that “All employer applications for a prevailing wage determination shall initially be considered an entry level or Level I wage. [emphasis added]. The employer’s requirements for experience, education, training, and special skills shall be compared to those generally required for an occupation … and shall be used as indicators that the job opportunity is for an experienced (Level II, qualified (Level III), or fully competent (Level IV) worker and warrants a prevailing wage determination at a higher wage level. See Employment and Training Administration, Prevailing Wage Determination Policy Guidance, Revised Nov. 2009., “Prevailing Wage Determination Policy Guidance” http://www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf (last visited Mar. 31, 2017).

[5]Under the Four Factor Test, Petitioner is required to prove that (1) that the proffered position and the job duties require only a basic understanding of the occupation; (2) the job duties require routine tasks that require limited exercise of judgment; (3) the Beneficiary is closely supervised and receives specific instructions; and (4) the Beneficiary’s work is closely monitored and reviewed for accuracy.

DHS CONSIDERING TERMINATION OF H-1B EXTENSIONS BEYOND SIX YEAR PERIOD

By Michelle Shepard, Esq.[1]

The Department of Homeland Security (“DHS”) is considering a new regulation which would prevent H-1B extensions beyond six (6) years pursuant to the American Competitiveness in the Twenty First Century Act (“AC 21”). On April 18, 2017, President Trump signed the Buy American and Hire American Executive Order (“EO”). According to USCIS, the EO sought to “create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws.”[2]

Now, according to sources close to DHS, the Trump administration is reviewing the language in AC 21 to determine whether it mandates that extensions be provided while an application for adjustment of status is pending.  DHS seeks to prevent extensions for foreign nationals whose green card application has been accepted.  Specifically, DHS is reviewing the language of the AC 21 which states:

… may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.[3]

As currently written a non-immigrant extension “may [be] grant[ed]” while an application for AOS is pending. It seems that this proposed action is a direct target on Indian and Chinese foreign nationals, with sources close to DHS reporting:

The idea is to create a sort of ‘self- deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans….[4]

However, it is wholly unclear how any changes to the above provision would protect U.S. workers.  Sources close to the DHS argue that this will open the job market for U.S. workers. Yet, the individuals being prevented from applying have already held these positions for six (6) years, and presumably the employer tested the labor market at that time.  At this time, the proposal is merely proposed legislation. As of January 2018, 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] See https://www.uscis.gov/laws/buy-american-hire-american-putting-american-workers-first (last visited January 2, 2018)

[3] AC21, PL 106-313, §104(c)(2)

[4] See http://www.firstpost.com/world/h1b-extensions-on-the-chopping-block-4282721.html (last visited January 2, 2018)