New Legislation Offered to Extend and Expand Conrad 30 Waiver Program

By Otieno B. Ombok and Forrest G. Read IV on April 23, 2019

Since at least 2013, there have been efforts to make the Conrad 30 J-1 visa waiver program for physicians permanent. But that has not happened and it continues to be necessary to reauthorize the program every year. This year, Senators Amy Klobuchar (D-MN), Susan Collins (R-ME), Jacky Rosen (D-NV), Angus King (I-ME) and Charles Grassley (R-IA) have introduced a bill to improve and extend the program until 2021 – the Conrad State 30 and Physician Access Reauthorization Act. Without this extension, or some other extension, the program will end later this year.

The Conrad waiver program was first enacted in 1994 to permit states to recommend “J-1 waivers” for foreign physicians who have trained in J-1 visa status in the U.S. if those physicians were willing to remain in the U.S. and work in rural and/or underserved areas. The standard requirement that J-1 physicians must return to their home countries for a period of two years prior to obtaining H-1B visas or green cards could be waived in exchange for a three-year commitment to provide medical care in such areas. The waiver has thus allowed these physicians to apply for and obtain H-1B visas (or change of status to H-1B) as well as green cards without satisfying the home residence requirement. The waiver has been the quid pro quo for encouraging more physicians to serve in areas where medical care was lacking. The program currently allows for 30 waivers per state per year.

The physician shortage in the U.S. continues to grow and the Association of American Medical Colleges (AAMC) predicts that by 2030 there will be a shortage of up to 121,000 physicians. In a news release, Senator Collins said that the bipartisan reauthorization bill will promote “healthier lives” and that providing opportunities for American-trained and educated physicians is an imperative in areas where there is an unmet need.

The Conrad State 30 and Physician Access Reauthorization Act would:

Create additional waivers per state based upon various thresholds;
Add three waivers per state for academic medical centers;
Allow “dual intent” for physicians who come to the U.S. in J-1 status;
Allow spouses of doctors to work;
Create new employment protections for the physicians in the program; and
Streamline the green card process of participating physicians.

The legislation is endorsed by the American Medical Association (AMA), the American Hospital Association (AHA) and the AAMC. The AMA has indicated that it would also like to see legislation that would exempt foreign physicians who work in underserved areas or for the Veterans’ Administration for at least five years from the per country green card caps. Others would like to make all foreign physicians exempt from the annual H-1B cap. Currently, physicians who work for an institution of higher education, a non-profit entity affiliated with such an institution, a nonprofit research organization or governmental research organization, or a private employer but at a cap-exempt entity are exempt from the H-1B cap, but this does not cover all physicians.

As the physician shortage continues to grow in the U.S., employers, public officials, and those living in impacted areas may continue to call for facilitating an influx of foreign national, U.S.-trained physicians to meet community and patient needs and demands.

Jackson Lewis attorneys are available to assist in navigating J-1 waiver issues including applying for Conrad 30 waivers.

Link to Marijuana Industry as Basis for Denial of Naturalization Application?

By John Quinn on April 22, 2019

DHS is apparently citing federal cannabis laws as grounds for denying citizenship. Further, USCIS announced on April 19 that the USCIS Policy Manual now clarifies that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law.

As a majority of states legalize marijuana in full or in part, conflicting state and federal law is creating problems for immigrants. Despite state law, the sale, possession, production, and distribution of marijuana or the facilitation of such is illegal under federal law. The federal government regulates drugs through the Controlled Substances Act (21 U.S.C. § 811) (CSA), which does not recognize the difference between medical and recreational use of cannabis. Immigration law is governed by federal statute and regulation and, therefore, is subject to the CSA.

DHS reportedly is questioning non-U.S. citizens at the border about their use of marijuana or investments in the marijuana industry in states (or countries such as Canada) where it is legal. The “wrong” answers, in some cases, have led to entry bans. It now appears the federal government is using a person’s involvement in the legal marijuana industry as a reason to deny naturalization applications. In addition, federal agencies are now coordinating. Historically, the Department of Justice has largely followed a policy of not meddling in state marijuana laws. Meanwhile, DHS is apparently taking a very different approach, as it did in Denver, citing federal cannabis laws as grounds for denying citizenship.

In Colorado, a fully legalized marijuana state, USCIS denied two immigrants citizenship because of a determination that they lacked “good moral character” simply because they work in the marijuana industry. A USCIS spokesperson defended the denials, stating “the agency is required to apply federal law.” There have been calls for formal guidance on this subject. The Mayor of Denver has written to Attorney General William Barr, “Denver believes hardworking and law-abiding immigrants should be allowed to participate in the legal cannabis industry without fear that such participation will disqualify them for lawful residence . . . or prevent the opportunity to obtain permanent citizenship.”

Advocacy groups are warning immigrants about the problem and that “serious consequences can follow including being barred from the United States for life . . . .” An attorney for one of those denied citizenship in Denver believes the federal law regarding marijuana is being used to target immigrants as part of the Administration’s general crackdown on immigration:

“If the executive branch is so intent on upholding federal law, you would see the U.S. attorney’s office prosecuting every marijuana business owner, everybody who worked in the industry . . . . But they’re not. Instead, they’re merely targeting immigrants.”

The USCIS decision to deny citizenship in these cases is being appealed. Please contact Jackson Lewis with any questions.

USCIS: Rise in H-1B Petitions for Master’s Degree Holders Selected in FY 2020 Lottery

By Amy L. Peck on April 18, 2019

USCIS has announced on Twitter that there was an 11% increase from FY 2019 in H-1B advanced degree petitions selected in the FY 2020 lottery.

This year, USCIS reversed the lottery selection process. Master’s cap petitions were first entered into the regular lottery and then those left over were entered into a master’s-cap-only lottery. USCIS had originally forecast a 16% increase.

USCIS spokesperson Jessica Collins said, “Our efforts to improve the H-1B program are working and increasing the number of U.S. advanced degree holders who are selected for the limited number of visas subject to the annual H-1B cap.”

Last year, according to reports, 56% of the master’s cap petitions were selected. This year, 63% were selected. The 11% increase may be due in part to the fact that the absolute number of petitions increased from 190,098 to 201,011 and the percentage of petitions filed on behalf of holders of advanced degree also increased. For those who filed regular H-1B cap cases, last year, 44% of the “regular” cap cases were accepted, but this year, that percentage is down to 37%.

Being selected in this year’s lottery is just the first hurdle. With request-for-evidence (RFE) rates rising to 60% during the first quarter of FY 2019, simply “winning” the lottery does not mean the case will be approved.

Please contact Jackson Lewis with any questions.

E-2 Treaty Investor Visa Open to Israeli Citizens

By Kristen Heckman on April 16, 2019

The U.S. Embassy in Israel has announced that the necessary agreement has been signed and Israeli citizens will be able to apply for an E-2 Visa as of May 1, 2019. This is an important announcement for the Israeli high-tech sector and the U.S. economy because it opens new possibilities for Israelis wishing to create start-ups in the U.S. or open subsidiaries in the U.S.

President Barack Obama had signed legislation in 2012 allowing nationals of Israel to apply for E-2 treaty investor status, with the caveat that the benefit would not be available until Israel provided similar status to U.S. nationals. In 2014, the Israeli government passed such a bill, but the necessary regulations were not enacted until June 2018. The U.S. Department of State has determined the Israeli legislation (the B-5 Visa) was reciprocal.

Israelis have been eligible for E-1 Treaty Trader status since 1949; however, that status requires the Israeli company to have been engaged in substantial trade. It also requires such trade to be principally between the U.S. and the treaty country. Neither of these requirements could be easily met by a start-up or even a more mature company that is planning on growing in the U.S.

Israel has long been known as “Start-Up Nation” (based on a book by the same name published in 2009). Israel has the largest per capita number of start-ups of any country – by a margin. In Israel, there is one start-up for every 1,400 people. In France, 0.112, and in Germany, 0.056. The area between Tel Aviv and Haifa, known as “Silicon Wadi,” is one of the world’s best start-up environments, second only to Silicon Valley in the U.S.

To qualify for an E-2 visa, an individual must, among other things:

Be a national of a treaty country;
Invest a “substantial” amount of capital; and
Have at least a 50-percent ownership interest in the enterprise or have operational control.

Further, the investment must be at risk and the funds must not directly or indirectly result from criminal activity.

The U.S. Embassy in Israel has directed Israelis who wish to apply for E-2 visas to submit all application materials by mail to the Embassy’s Branch Office in Tel Aviv. Jackson Lewis attorneys are available to assist in this process.

Full Enforcement of REAL ID Act Set for October 1, 2020

By Brian E. Schield on April 12, 2019

Because some of the 9/11 terrorists used fraudulent driver’s licenses to travel, Congress passed the REAL ID Act in 2005 to comply with the 9/11 Commission’s recommendation that the federal government establish minimum standards for the issuance of forms of identification, such as state driver’s licenses. After many starts, stops, and delays, the deadline set by the government for full enforcement of the Act is October 1, 2020. By that date, individuals must have compliant IDs in order to access certain federal facilities, enter nuclear power plants, and, importantly, board any commercial aircraft – even for in-country flights.

Acceptable identification would include passports, border ID cards, trusted traveler cards, permanent resident cards, and REAL ID-compliant driver’s licenses, among others. For a state driver’s license to be REAL ID-compliant, states must verify that the individual applying for the license is legally in the U.S. and biometrics were used for identification purposes. This was easier said than done. It required setting up new databases and new technologies. Not only is that an expensive proposition for states, many have expressed privacy concerns and some state legislatures blocked compliance.

While most individuals have been able to board aircrafts with state-issued driver’s licenses if the state was compliant with REAL ID or if the state was granted an extension to become compliant, by October 1, 2020, individuals must have identification compliant with REAL ID standards to even pass through security. Minors under 18, travelling with an adult with REAL ID-compliant identification, will not need such documentation.

Most, but not all, REAL ID-compliant driver’s licenses have a black or gold star on the front. States will not automatically send individuals compliant driver’s licenses. Individuals must apply in person and bring identifying documentation, such as a birth certificate or a passport. Individuals with a passport, or one of the other designated documents, may not need a REAL ID-compliant driver’s license. Although DHS has not recommended which form of identification is “best,” the State Department has been encouraging all U.S. citizens to apply for passports. Currently, about 40 percent of Americans have passports. Of course, passports are more expensive than REAL ID-compliant driver’s licenses, but they serve other purposes, such as for international travel.

TSA has launched a public-awareness campaign, including new signs that will be popping up at airports around the country.

Please contact Jackson Lewis with any questions.

USCIS Received More than 200K Cap-Subject H-1B Petitions for FY 2020

By Amy L. Peck on April 12, 2019

USCIS announced that as of April 10, 2019, it received 201,011 H-1B petitions for the FY 2020 cap season — more than enough to meet both the regular (65,000) and the advanced degree exemption (20,000) caps.

At the same time, the denial rate for H-1B petitions reportedly hit 32 percent in the first quarter of 2019.

Since the “cap” was established, FY 2017 was the high point, with 236,000 petitions filed. By FY 2019, the numbers decreased to 190,098. This year marks a change in direction with approximately 10,000 more petitions filed.

USCIS allowed petitioners who were filing cap cases requesting a change of status to concurrently file premium processing requests. Premium processing receipt notices are starting to come in. At least some of those receipts note that the service center will adjudicate the cases within 15 calendar days of the “received date” in the notice. But USCIS previously announced that in order “to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS will begin premium processing for these petitions no later than May 20, 2019, and will notify the public before premium processing begins for these petitions.” The notices and the announcement appear contradictory.

We will follow this matter and provide updates as they become available.

USCIS to Begin Premium Processing for H-1B Petitions on May 20

By Forrest G. Read IV on April 3, 2019

On May 20, 2019, USCIS will begin premium processing for cap-subject H-1B cases that were filed concurrently with Form I-907 premium processing requests. Under the Premium Processing Service, USCIS guarantees 15-calendar-day processing. That means the first premium processing adjudications should start coming out by the end of May or beginning of June.

This is the first stage in USCIS’ “two-phased approach.” During the first phase, USCIS will premium process only cap-subject cases that are requesting a change of status. Any change of status petitions that were filed without requests for premium processing may request premium processing with an interfiling beginning May 20, 2019. The second phase, premium processing for all other cap-subject H-1B petitions, will not begin before June 2019.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.

Between May 20 and June 3, 2019, USCIS will not use pre-paid mailers to send out final notices regarding cases that are premium processed. Instead, regular mail will be used. USCIS states that this method will be faster and more efficient, given the surge of applications, since the use of regular mail is automated, whereas using pre-paid mailers requires a manual process. How long this will continue is not known, although USCIS plans to start using pre-paid mailers after June 3^rd, if operationally feasible.

Please contact Jackson Lewis if you have any questions.

Liberians in U.S. in Deferred Enforced Departure Status Get One More Year

By Forrest G. Read IV on April 3, 2019

President Donald Trump has extended the wind-down period for termination of Deferred Enforced Departure (DED) status for beneficiaries from Liberia from March 31, 2019, to March 30, 2020.

DED, like Temporary Protected Status (TPS), allows individuals from certain nations to remain in the United States, despite being otherwise removable, because of civil or political strife or conflict in their native countries. Liberia is currently the only country covered under DED and the Administration had decided to terminate Liberia’s DED as of March 31, 2019.

In response to this termination decision, a lawsuit was filed in Massachusetts federal court challenging the government’s actions, claiming the decision was discriminatory and violated the beneficiaries’ rights to due process. The plaintiffs sought emergency injunctive relief. On March 25, 2019, the government filed a brief opposing that request. Then, on March 28, 2019, President Trump issued a Presidential Memorandum reversing course. “Upon further reflection and review, I have decided that it is in the foreign policy interest of the United States to extend the wind-down period for an additional 12 months, through March 30, 2020 . . . .”

Liberian DED beneficiaries, if they meet all eligibility requirements, will be able to remain in the United States until March 30, 2020, and will be able to maintain work authorization. The President also noted that the extension will give the Congress time to pursue remedial legislation.

The plaintiffs reportedly plan to continue to pursue their lawsuit, but not their motion for emergency relief.

According to USCIS, Secretary Kirstjen Nielsen will publish a notice in the Federal Register with information regarding the extension of DED status and the extension of work authorization.

For additional guidance, please contact Jackson Lewis.

File H-1B Petition; Watch for Requests for Evidence

By Jessica Feinstein on April 1, 2019

The FY 2020 H-1B cap cases have been filed and 85,000 will be selected for adjudication. “Winning the lottery” is no longer considered the biggest hurdle, however.

Back in FY 2005, about 95% of all selected cases were approved and only about 22.3% received Requests for Evidence (RFEs). Recent USCIS statistics show that by FY 2018, only 84.5% of the cases were approved and 38% received RFEs, of which 62.3% were approved. By FY 2019, the chances of approval were even lower — 75.4% of cases were approved and 60% received RFEs, of which 61.5% were approved. In other words, about 40% of cases that received RFEs were withdrawn or denied.

The increase in RFEs and denials is one of the consequences of the Administration’s focus on protecting U.S. workers and the implementation of President Donald Trump’s “Buy American, Hire American” Executive Order (BAHA). Policies stemming from BAHA have included, among other things:

A crackdown on employees working at third-party worksites;
The rescission of guidance regarding deference to prior determinations of eligibility;
A revised definition of what constitutes “specialty occupation” for H-1B purposes;
New guidance on “bona fide employer-employee relationship” especially with regard to STEM OPT; and
New definition of unlawful presence for students.

The “top ten” most popular RFEs (in order) from FY 2018 raised the following questions:

Is the position a specialty occupation?
Is there a proper employer-employee relationship?
Is there sufficient work for the employee at an off-site location?
Is the beneficiary qualified to perform the duties of the position?
Has the beneficiary properly maintained status?
Is there sufficient work for the employee in-house?
Does the LCA correspond properly to the position’s duties?
Is the beneficiary eligible for the extension based upon AC21?
Has the employer met the itinerary requirement for third-party locations?
Were the required fees filed?

Since 2014, USCIS has had to conduct a lottery every year. In the first year, 124,000 petitions were received. The numbers subsequently peaked at 236,000, but the numbers have decreased since then. Last year, about 190,000 cap petitions were filed. The recent decrease can be attributed in part to the growing uncertainty that employers face if they choose to petition USCIS for an H-1B worker.

Soon we will know how many cap cases have been filed for FY 2020, see the new crop of RFEs, and learn USCIS’ latest challenges. The public will also have a chance to see which companies are filing H-1B cases, how many they are filing, and what their approval rates are. This, along with recent changes to the LCA process, is part of the Administration’s focus on transparency.

Please contact Jackson Lewis with any questions.