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 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.

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. 

Revised Form I-485 - now 18 pages in length with expanded inadmissibility questions - becomes mandatory on August 25, 2017

On June 26, 2017 USCIS released an updated version of Form I-485, Application to Register Permanent Residence or Adjust Status. This form is commonly referred to as the "green card" application, whereby an applicant requests USCIS adjust his or her non-immigrant status to that of permanent resident or "green card" holder based on meeting certain criteria. USCIS will continue to accept current version of I-485 (revision date of 1/17/2017), totaling 6 pages, until August 24, 2017. The new version of Form I-485 (revision date of 6/26/2017) is now 18 pages long, and USCIS described as "substantially updated to reduce complexity after collecting comments from the public and stakeholders."  In addition USCIS notes the revised form has "better flow and organization of questions to make it user-friendly for both applicants and USCIS" and that "readability has significantly improved due to new spacing columns, flow, white space, and formatting."

In a teleconference on August 3, 2017, USCIS representatives specifically noted that applicants using the new version of the form no longer need to complete and submit a separate Form G-325A, as that data regarding address and employment history and family biographical information is now incorporated into Form I-485. USCIS also revised Supplement A and Supplement J to Form I-485, so applicants must ensure they are using the correct supplements (if applicable) when filing their green card applications on or after August 25, 2017.

One of the most significant differences between the current and revised Form I-485 is the length of the section regarding inadmissibility questions. The updated Form I-485 contains 80 questions, many with sub-questions, covering issues of general eligibility and inadmissibility. Applicants should review these questions carefully and consider whether working with a qualified immigration attorney may help them proceed with confidence during this important process.

USCIS announces H-1B cap reached for 5th year in a row but sharp decline signals possible frustrations with the H-1B program

U.S. Citizenship and Immigration Services ("USCIS") announced on April ­7, 2017 that it had reached the H-1B cap for fiscal year 2018 ("FY2018"). The congressionally mandated cap is set at 65,000 H-1B visas plus an additional 20,000 H-1B visas available to foreign nationals with a U.S. Master's degree or other advanced degree obtained in the U.S.  

As a result of reaching the annual cap within the first five business days of April, USCIS ran a computed-generated lottery system. Per its usual procedure, USCIS first ran the U.S. Master's cap; those not selected in the first run were then placed in the regular H-1B cap for the second random lottery. USCIS then announced on May 3, 2017 that it had completed data entry for all FY2018 H-1B petitions. This means employers and attorneys can expect to see the agency cash filing fee checks and send receipt notices for petitions that were selected in the lottery. Once all the receipt notices are issued, USCIS will begin the process of returning petitions not selected in the lottery (including the uncashed filing fee checks). In its most recent announcement, USCIS indicated it is unable to provide a definite time frame for returning those petitions but typically employers can expect them to be returned in late May or early June. 

The total number of H-1B petitions received for FY2018 was 199,000 which is down 15% from the previous two years.  By comparison, USCIS has over the past five years received 124,000 in FY2014, 172,500 in FY2015, 233,000 in FY2016 and 236,000 in FY2017.  It is difficult to state with certainty why the decline occurred this year. Are employers frustrated with the high cost but low chances? Are foreign students accepting offers of employment abroad or not enrolling in U.S. universities as they did previously because securing work authorization after school is so difficult? Is it because the new STEM extension now allows for up to 2 additional years of OPT work authorization for certain graduates and employers are forcing foreign nationals to utilize this more cost effective yet short-sighted solution?  Or is the U.S. slipping in global competitiveness to more immigration-friendly countries?  The reason remains to be seen but Iandoli Desai & Cronin will be watching closely next year to see if the numbers decline again or if FY2018 was just a fluke. 

For updates on all H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Reminder: USCIS has temporarily suspended Premium Processing for all H-1B petitions

As noted in one of our previous updates, USCIS announced that it will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times for H-1B petitions have increased significantly over the past 18 months -- from 2-4 months to upwards of 9-12 months -- many petitioners have used Premium Processing to facilitate quicker start dates for H-1B employees and for obtaining approval notices they may need for international travel. USCIS has not announced a firm end date for the premium processing suspension but did indicate it could last for up to 6 months. This suspension has a major impact not only on the annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates for foreign national employees.

As a reminder, USCIS accepts expedite requests on a case-by-case basis if a foreign national or an employer can demonstrate that one or more of the expedite criteria has been met. USCIS lists the following as criteria they will consider for reviewing expedite requests: severe financial loss to company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (note these requests must come from an official U.S. government entity and state the delay will be detrimental to the government); USCIS error; or compelling interest of USCIS. If you have a question about the premium processing suspension or need assistance with assessing an expedite request, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Reminder: USCIS filing fee increase and new regulations affecting high-skilled workers are now in effect

U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register on October 24, 2016 announcing the new fee schedule for applications.  The new rule increases fees for most applications and petitions by a weighted average of 21%. Please refer to our update from November 2016 with examples of the fee increases for some of the most common types of applications and petitions.

In addition, the U.S. Department of Homeland Security ("DHS") published a final rule in the Federal Register on November 18, 2016 announcing a number of important changes and codifying existing agency policy regarding high-skilled non-immigrant workers, EB-1, EB-2 and EB-3 immigrant workers and their employers. A detailed summary of this new rule, which went into effect on January 17, 2017, can be found in the News and Updates section of our firm's website.

Reminder: new fee schedule from USCIS goes into effect on 12/23

U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register on October 24, 2016 announcing the new fee schedule for applications.  The new rule increases fees for most applications and petitions by a weighted average of 21%. Please refer to our update from last month with examples of the fee increases for some of the most common types of applications and petitions. Applicants looking to take advantage of the lower, current fees should ensure any relevant applications to USCIS are filed or postmarked before December 23, 2016. 

USCIS Policy Manual update reflects new HHS rulemaking

On November 2, 2016, U.S. Citizenship and Immigration Services ("USCIS") issued a policy alert on updates the agency is making to its Policy Manual regarding health-related grounds of inadmissibility. These changes are in direct response to the U.S. Department of Health and Human Services ("HHS") rulemaking. This new guidance is retroactive, effective March 28, 2016, and includes several important updates. Most notably, the definition of a Class A condition now includes the failure to present documentation of having received vaccinations against vaccine preventable diseases, the definition of a Class B condition now reflects "health conditions, diseases, or disability serious in degree or permanent in nature," and updates to the definition of physical and mental disorders associated with harmful behavior and the definition of drug abuse and drug addiction. In addition to these updates, the new policy removes 3 medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for adjustment of status or an immigrant visa inadmissible on health-related grounds of inadmissibility. 

Avoid payment scams: USCIS does not accept payment by phone or email

U.S. Citizenship and Immigration Services ("USCIS") has alerted the public about new scams targeting immigrants and their families in the U.S. The immigrant or the petitioning family members may receive a phone call from someone pretending to be a government official and indicating there is a problem with an application or additional information is required to continue the immigration process. The criminals perpetrating these scams then ask for personal and sensitive information, and demand payment to fix any problems. Please remember USCIS officials will never request payment over the phone or in an email. If USCIS requires a payment, the agency will mail a letter on official stationery requesting payment be sent in the form of a check or money order to an official USCIS address. Applicants can always call USCIS customer service to verify payment receipt information. If you receive a scam email or phone call, please report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you receive an email related to your petition and you are not sure if it is a legitimate request, please forward the suspicious email to the USCIS Webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate.