H-1B Premium Processing is back

USCIS announced on October 3, 2017 it will resume accepting Premium Processing requests for all H-1B petitions. Premium Processing is an optional service available for certain non-immigrant and immigrant visa categories that guarantees initial adjudication of a petition within 15 calendar days for an additional $1,225 fee. In April 2017, USCIS suspended Premium Processing for all H-1B petitions, citing major delays in regular processing times and the agency's desire to catch up on backlogs of H-1B petitions. The suspension has had a significant impact on employers seeking change of status requests for foreign national employees and for foreign nationals needing approval notices in order to apply for new visas when returning to the U.S. after temporary travel abroad.

As the impact of the suspension acutely impacted hospitals, colleges, universities, and affiliated non-profits, USCIS resumed Premium Processing for medical doctors under the Conrad 30 Waiver Program in late June and for cap-exempt institutions such as colleges, universities, affiliated non-profits, and non-profit research organizations in late July. On September 18, 2017 USCIS announced it would accept Premium Processing upgrade requests for H-1B petitions filed the first week of April for the FY2018 cap. According to the agency's press release dated October 3, 2017, "Premium processing is now available for all types of H-1B petitions," so now all employers may take advantage of Premium Processing if needed. If you have a question about Premium Processing requests or upgrades, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

USCIS provides details on its new policy to interview employment-based green card applicants

As we described in a prior update, USCIS announced it will begin to phase in interviews for employed-based adjustment of status ("green card") applicants effective October 1, 2017.  The USCIS press release left a lot of questions unanswered, including whether every applicant for a green card based on an employer's petition would be interviewed, whether this would apply for only applicants who file after October 1, 2017, and how USCIS would be managing these interviews in a timely manner based on current staffing levels.  Last week the Office of the Citizenship and Immigration Services Ombudsman hosted a stakeholder call and answered some questions about these new interview requirements.

The CIS Ombudsman's office clarified that cases filed before March 6, 2017 will be adjudicated by USCIS Service Centers under prior procedures, so while it is possible for those cases to receive interviews, applicants who filed before that date only have a 5-10% chance of being called for an interview, as was customary before the new interview policy took effect. For applicants who filed on or after March 6, 2017, USCIS notes it is taking an "incremental approach" to maximize the number of visas allocated this fiscal year. USCIS Field Operations Directorate Dan Renaud did not state each and every case would receive an interview, nor are any categorically exempt, as he noted both principals and derivatives will be required to appear, though USCIS will consider waiving interviews in cases where applicants are under age 14.

In the stakeholder call, the CIS Ombudsman's office described how it is undertaking training for field officers on Supplement J and how to coordinate with Department of State to manage visa numbers. The agency has instructed and trained officers not to adjudicate I-140 petitions but will assess validity of supporting documentation to ensure it was accurate, bona fide and credible. Applicants should expect to answer questions regarding admissibility and eligibility for a green card, including details about where they work, what they do, and educational background to ensure it matches information previously disclosed to USCIS. Dependents should expect questions regarding their relationship to the principal and should plan to bring evidence of the bona fide nature of their relationship to the interview, as USCIS states the purpose of these interviews is to ensure integrity of the immigration system.

Finally, the CIS Ombudsman's office touched on processing times, noting it expects employment-based adjudications to comprise approximately 17% of Field Operations workloads. In the short-term, USCIS stated it expects processing times will be affected with the greatest impact felt among family-based petitions and applications for naturalization, particularly for cases filed in the top ten busiest field offices: Atlanta, Chicago, Dallas, Houston, Los Angeles, New York, Newark, San Jose, San Francisco, and Seattle. 

New Form I-9 is now in effect

As of September 18, 2017, all employers must ensure they are using the most up-to-date version of Form I-9, Employment Eligibility Verification to verify the identity and work eligibility of new employees, or for reverification of expiring employment authorization of current employees (if applicable).  The updated version of the form notes a revision date of 07/17/17 in the lower left corner of the form. Failure to use the proper Form I-9 opens the employer up to all applicable penalties in the event of an audit by the U.S. Immigration and Customs Enforcement ("ICE"), a division of the U.S. Department of Homeland Security.

Many employers are unaware of the changes to the Form I-9 and the risk for penalties for non-compliance. If you have questions about I-9 compliance or about conducting an internal audit in order to ensure your company engages in best practices for I-9, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com for more details. 

Termination of DACA

On September 5, 2017, Attorney General Jefferson Beauregard Sessions III announced the President's plan to terminate the Deferred Action for Childhood Arrivals ("DACA") program. Originally introduced in 2012, DACA provided relief from deportation and the ability to apply for work authorization for as many as 800,000 individuals who arrived in the U.S. before 2007, were children (under age 16) at the time they arrived, were 30 years or younger when the policy was enacted in 2012, and did not have criminal records. The President's order terminating DACA stated that, effective immediately, USCIS would no longer accept initial requests for DACA and would no longer approve advance parole (travel authorization) requests associated with DACA. The President directed USCIS to only accept DACA renewal requests and EAD requests until October 5, 2017, and only for individuals whose DACA benefits expire on or before March 5, 2018.

Accordingly, DACA beneficiaries with upcoming expirations have been scrambling to file their extension requests, a process that has been particularly onerous for DACA recipients in Florida and Texas impacted by Hurricanes Harvey and Irma. Although the Dream Act legislation has been introduced to protect these DACA recipients on a more permanent basis, to date Congress has not brought these bills up for debate or vote. We will continue to bring updates on DACA and any Dream Act legislation in our newsletters.

Trump Travel Ban 3.0

On the eve of the expiration of the second version of the Trump Administration's travel ban, the White House introduced an updated travel ban on September 24, 2017, which added certain foreign nationals from Chad, North Korea, and Venezuela to the list of countries singled out by the Administration as a threat to the security and interests of the U.S.  The country impacts of the latest travel ban are:

  • Chad - suspends entry of immigrants and temporary visitors on B-1/B-2 visas;
  • Iran - suspends entry of immigrants and all non-immigrants, except F, M, and J visas, though they will be subject to enhanced screening;
  • Libya - suspends entry of all immigrants and temporary visitors on B-1/B-2 visas;
  • North Korea - suspends entry of all immigrants and nonimmigrants;
  • Somalia - suspends the entry of immigrants, and requires enhanced screening of all non-immigrants;
  • Syria - suspends the entry of all immigrants and non-immigrants;
  • Venezuela - suspends the entry of certain government officials and their family members on B-1/B-2 visas; and.
  • Yemen - suspends the entry of immigrants and temporary visitors on B-1/B-2 visas.

Travel restrictions for nationals of Sudan (who were impacted by the two earlier versions of the travel ban) have been lifted, and nationals of Iraq will not be subject to an outright ban but will be subject to additional screening measures.

The effective date of Travel Ban 3.0 is varied. The new restrictions are effective immediately for nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona-fide relationship with a U.S. person or entity. On October 18, 2017, the new restrictions will become effective for all persons subject to the proclamation, including the nationals of the aforementioned countries who do have bona-fide relationships with U.S. persons or entities, as well as the nationals of Chad, North Korea, and Venezuela as described above. There are also a number of notable exceptions to this latest travel ban, including:

  • Lawful permanent residents;
  • Foreign nationals admitted to the U.S. or paroled into the U.S. on or after the applicable effective dates, or in possession of a document other than a visa (such as a boarding foil, transportation letter, or advance parole document) valid on the applicable date or issued thereafter;
  • Dual nationals traveling on a passport issued by a non-designated country;
  • Foreign nationals traveling on a variety of diplomatic visas; and,
  • Foreign nationals granted asylum in the U.S., refugees admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers may be available if foreign nationals can demonstrate to consular officers or to Customs and Border Protection officials that denying entry would cause the foreign national undue hardship, entry would not pose a threat to national security or public safety and entry would be in the national interest.  The exact form of application for such a waiver is still to be determined. We will continue to bring you updates on this continuing travel ban saga, including federal litigation seeking to overturn this latest proclamation.

New cooperation between USCIS and the SSA: Form I-765 update

Earlier this week, USCIS announced the agency was engaging in a new information-sharing partnership with the Social Security Administration ("SSA"). As a result of this collaboration, foreign nationals in certain non-immigrant statuses may request issuance of a social security number ("SSN") as part of their applications for work authorization via Form I-765.  Previously, applicants needed to submit documentation and their Form I-765 for USCIS to produce an Employment Authorization Document ("EAD"), and then they would separately have to provide documentation in-person at their local SSA office to obtain an SSN.

The new version of the Form I-765, bearing an edition date of 07/17/17, includes the question "Do you want the SSA to issue you a Social Security Card?" and an additional box to check for consent to disclosure of information to the SSA for assigning an SSN and issuing a card.  Between now and December 3, 2017, USCIS is accepting this new version of the form and will also continue to accept the prior version of the form with the edition date 01/17/17.  On December 4, 2017, USCIS will only accept the most up-to-date version.

Alert: USCIS reverses decades-old policy of waiving interviews for employment-based green card applicants.

U.S. Citizenship and Immigration Services ("USCIS") has announced a major change of policy that will impact employment-based green card applicants. According to its announcement dated August 28, 2017, USCIS will phase-in interviews for adjustment of status applications based on employment. Adjustment of status is the final step in green card sponsorship for individuals already in the U.S. in some form of non-immigrant status. Typically these individuals are on valid work visas when they are sponsored by their employers for green cards. During this final step, USCIS reviews the individual's personal and immigration history, conducts background checks and ensures the applicant is eligible for permanent residence in the U.S.

While it has been standard agency practice for marriage-based applicants and several other types of applicants to be called for interviews, for more than two decades USCIS has waived interviews for individuals applying for permanent residence in employment-based categories. Per this recent shift in policy, effective October 1, 2017, applicants for adjustment of status based on employment may receive notices from USCIS requesting them to appear for in-person interviews. Immigration officers conducting these interviews will likely seek to verify information provided by the applicants during the process to ensure they continue to be eligible for a green card.

It is unclear from the USCIS announcement whether this change will impact applicants who have already submitted their Forms I-485 based on employment for processing, or whether only future applicants in those categories may expect interview notices. Also, the wording of the announcement that USCIS "will begin to phase-in interviews" does not clearly indicate all applicants will be called for interviews. We will provide future updates when USCIS provides additional details on this significant change in policy. Without question, however, applicants in all green card categories (both employment and family-based) should prepare for delays in adjudication, as the local USCIS offices will see a significant increase to caseloads without an accompanying increase in staffing.

Revised Form I-9 now available

On July 17, 2017, USCIS released a revised version of Form I-9, Employment Eligibility Verification. Employers may continue to use the previous version (the one with a revision date of 11/14/16) until September 17, 2017, but must ensure they begin using the revised form with a revision date of 07/17/17 on September 18, 2017. Employers must also continue following existing storage and retention rules for any previously completed Form I-9. The latest revisions to Form I-9 primarily impact the form instructions and the List of Acceptable Documents, which now includes Consular Report of Birth Abroad in List C, improvements to the drop-down list of documents reporting birth issued by the Department of State, and renumbering List C documents.  These changes are also reflected in the M-274 Handbook for Employers: Guidance for Completing Form I-9, which USCIS describes as "easier for users to navigate." 

Employers should be aware that under Department of Homeland Security ("DHS") rules, if non immigrant's employment authorization is due to expire, employers must re-verify their Form I-9 no later than the date of expiration of their current employment authorization to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment.  Form I-9 is notoriously a difficult form to execute correctly yet can result in hefty penalties when completed improperly.  Iandoli Desai & Cronin offers internal I-9 Audits and training sessions to ensure your company is compliant.  If you would like more information and/or have questions concerning I-9 procedures and enforcement actions, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

USCIS to resume H-1B Premium Processing for certain cap-exempt petitions

On July 24, 2017, U.S. Citizenship and Immigration Services ("USCIS") announced it will resume premium processing for certain cap-exempt H-1B petitions effective immediately. Premium Processing Service is offered by USCIS for certain types of petitions, allowing employers or foreign nationals the option to pay an additional $1225 for an adjudication on the petition within 15 calendar days of filing.  USCIS suspended this service in April, citing the need to address current workloads for cases filed via regular processing and clear backlogs.

The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual "master's cap" of 20,000 petitions filed for beneficiaries with a U.S. master's degree or higher. Certain petitioning employers are exempt from the annual cap, including institutions of higher education and certain nonprofits.  Specifically, USCIS announced - effective immediately -  that Premium Processing Service for H-1B petitions may resume if: 

  • the Petitioner is an institution of higher education; 
  • the Petitioner is a nonprofit related to or affiliated with an institution of higher education; 
  • the Petitioner is a nonprofit research or governmental research organization; or,
  • if the Beneficiary of the H-1B petition will be employed at a qualifying cap-exempt institution, organization or entity.

USCIS had previously announced that premium processing had resumed for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.  In this most recent announcement, USCIS indicated it will resume premium processing of other H-1B petitions as workloads permit and to watch for further announcements.

New trend in H-1B requests for evidence: Level 1 wages

Many attorneys who are members of the American Immigration Lawyers Association ("AILA") are reporting a significant increase in Requests for Evidence ("RFEs") related wage issues in H-1B petitions. USCIS Vermont and California Service Centers recently began issuing a large number of RFEs where the agency is questioning whether an H-1B position qualifies as a specialty occupation because it is entry level, or questioning whether the Level 1 prevailing wage is too low for the offered H-1B position, based upon the duties described in the H-1B petition.

H-1B occupations are those that meet one of four basic criteria to be considered a specialty occupation: 

  1. a Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position; 
  2. the degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree; 
  3. the employer normally requires a degree or its equivalent for the position; or
  4. the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

According to the U.S. Department of Labor ("DOL")'s prevailing wage policy guidance from 2009, a Level 1 (so called "entry-level" wage) is appropriate when a position requires a basic understanding of the occupation where an employee performs routine tasks that require limited, if any, exercise in judgment, working under close supervision. Attorneys report the RFEs they are receiving from USCIS quote this language from DOL and then state the positions described in the H-1B petitions are more complex than roles that would be assigned Level 1 wages, and therefore states employers have not sufficiently established the H-1B petitions are supported by certified Labor Condition Applications ("LCAs") that corresponds to the petitions.

Many employers file H-1B petitions for entry-level petitions and appropriately select Level 1 wages where the minimum requirement is a bachelor's degree or higher. For example, doctors, lawyers, engineers, architects and software developers, even at the beginning of their careers, must still possess a bachelor's degree, master's degree, or other professional degree as a minimum to do their job. Even the DOL worksheet included in the 2009 wage guidance indicates that if an occupation requires a bachelor's degree and up to two years of experience (for a Job Zone 4 occupation), it would appropriately be assigned a Level 1 wage.  Accordingly, employers and their immigration counsel should work to respond to these RFEs, consider citing DOL's own guidance, referencing typical O*Net taks work activities, knowledge, and Job Zone examples for the selected occupation and why that position is still clearly in Level 1 for wage purposes, while ensuring that the response still incorporates why the position qualifies as a specialty occupation.

We believe this increase in RFEs may be related to the USCIS policy memorandum, issued on March 31, 2017, that rescinded a prior USCIS memo that had acknowledged computer programmer positions are specialty occupations for H-1B purposes, and keeping in line with the current administration's "Buy American Hire American" agenda. It should be noted, however, that the March 31 policy memo was specific to entry level computer programmer positions and not a broader Level 1 wage policy for H-1B visas.  Indeed, there is nothing in the Immigration and Nationality Act or in implementing regulations that states a Level 1 wage is ineligible for H-1B petition approval.

If your company has received one of these Level 1 RFEs and need to devise a strategy for response, you can contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to see if they may be able to assist.  Please keep in mind that USCIS provides a firm deadline for RFE responses and failure to respond in a timely manner may result in denial of the petition and the foreign national losing work authorization in the U.S.