Government Forced to Release H-1B Delaying and Denying Tactics

Since 2017, USCIS under the Trump Administration has essentially directed its adjudicators to find ways to deny H-1B petitions. The most recent statistics on Requests for Evidence (RFEs) and denials certainly support this, but evidence has been made available for analysis.

Through a FOIA request, instructional documents for USCIS adjudicators issued after President Donald Trump’s “Buy American, Hire American” Executive Order (BAHA) provide guidance on denying benefits to foreign nationals and the companies that want to hire them. BAHA has become the new “catch-all” for enacting immigration policies without legislative or public comment or support. This “non-transparent” process has been partially revealed.

Denials of H-1B petitions used to be rare occurrences. In 2015, the denial rate was 6% — now, it is 32%. RFEs were hardly an everyday occurrence – now, 60% of H-1B petitions receive RFEs. Two USCIS memos issued in 2017 and 2018 have boosted the RFE and denial rates and particularly affect computer programmers and IT professionals working at third-party locations.

In one released document, adjudicators are given close to 100 pages with step-by-step boilerplate for issuing RFEs — but the Administration’s discussion of the statutory support for these RFEs is redacted, perhaps because the new “rules” are not supported by the law. In another, USCIS makes clear that adjudicators should not defer to prior approvals and should remember the petitioners bear the burden of proof. The documents show that:

  • Adjudicators are directed to particularly analyze whether Level I and Level II wages are appropriate and issue RFEs asking for further information to justify the wage level.
  • USCIS instructs its adjudicators that even when a bachelor’s degree would appear to be the “normal” requirement for a position, if the Department of Labor’s Occupational Outlook Handbook (OOH) indicates that some individuals in the position might have only an Associate’s degree, the position may not be a specialty occupation. The petition should receive an RFE and the petitioner must supply more information to prove that a bachelor’s degree in a specific field is definitively required.
  • Most important, this instruction about the OOH is meant to apply to all kinds of positions — not just those that are computer-related. This explains why so many RFEs are challenging whether a job is indeed a specialty occupation.

Not only are these new “rules” leading to denials and more work for petitioners, they are creating more work for the USCIS and adding to crisis-level processing delays. USCIS used to think of itself as a “service oriented” organization, but now its mission focuses on enforcement and security.

If you have questions about how to strategize to deal with the “new normal” at USCIS, Jackson Lewis attorneys are available to assist you.

 

 

Ready for REAL ID?

October 1, 2020, is the REAL ID deadline, and most people will not be able to board even a domestic air flight in the U.S. without either a REAL ID-compliant driver’s license or a passport.

Congress passed the REAL ID Act in 2005 based on recommendations from the 9/11 Commission. The Transportation Safety Administration (TSA) appears ready for the roll out — signs are showing up in airports, TSA officials are telling travelers personally about the upcoming deadline, and TSA press secretary, Jenny Burke, said “You’ll see a lot more in the future from us.”

While most states offer REAL ID-compliant driver’s licenses or will soon, not everyone with a driver’s license has one that is REAL ID-compliant, even in compliant states. To determine whether a driver’s license is a “REAL ID,” look for a star in the upper right-hand corner.

States are preparing for a “rush” – some hiring more DMV staffers and extending their hours of operation. The best way to avoid the expected lines and delays is to act sooner rather than later to get a compliant driver’s licenses, especially if you do not have a passport. As of 2018, about 42% of U.S. citizens held passports – a 15% growth rate since 2007.

In addition to REAL ID-compliant driver’s licenses, other forms of acceptable identification include: passport cards, permanent resident cards, border crossing cards, DHS Trusted Traveler cards, federally recognized tribal-issued photo IDs, Canadian provincial driver’s licenses, and USCIS-issued Employment Authorization Cards (EADs). Children under 18 will not need to present identification as long as they are travelling with a companion who has acceptable identification. TSA agents will receive training to deal with special circumstances as necessary, but failure to provide one of the required identification documents could lead to more inspections, delays, and, possibly, the inability to board.

While some question whether TSA will really implement and possibly create chaotic scenes at airports just one month before the November 2020 presidential election, TSA said it is “moving forward as if implementation will occur.”

Jackson Lewis will continue to follow these developments. Travelers should be on the lookout for public service announcements and a publicity splash from TSA.

 

China’s ‘Sea Turtles’

According to Chinese government data, the number of Chinese students studying in the United States rose from fewer than 1 million in 2000 to more than 6 million in 2017. The number of these students who are returning home to China has grown at close to the same rate. In 2000, hardly any returned, but, by 2017, 4.8 million were returning.

Approximately 360,000 Chinese nationals are currently studying in the U.S., with many planning to stay in the U.S., if they can. More Chinese nationals, however, are shunning that route, choosing to return home after studying in the U.S. The “brain drain” for China is starting to reverse. Most of these students are in STEM fields and are known jokingly as “sea turtles.”

Why is this happening? Xinhua, the official Chinese news agency, says that the return flow is because of “the ‘magnetic effect’ of China’s rise as a global power.” Signs of this magnetic effect include:

  • R&D expenditures in China are growing, reflecting financing trends in the U.S. China has become more prosperous with higher living standards.
  • China offers incentives to its nationals to return to China — housing allowances and health care benefits.
  • Despite current conditions, large tech companies are still expanding in China.
  • There is no longer a big caliber gap between the top scientific institutions in China and the U.S. Sea turtles staff many of China’s universities.
  • Sea turtles also staff the financial sector and most Chinese venture capitalists studied in the U.S.

Chinese students also report:

  • They no longer feel welcome in the United States because of immigration restrictions and the long wait times for green cards.
  • They want to be “home” and be better able to maintain family ties.
  • They perceive a “bamboo ceiling” in the U.S. – Chinese graduates are not making it into the C suites. While they represent 27 percent of professions in large tech companies, they are only about 14 percent of executives.
  • It is becoming harder for Chinese nationals to receive U.S. government funding because of increased scrutiny.
  • They fear that OPT may be eliminated and that this “would restrict the smooth flow of students from American schools to American companies. . . .”

Chinese students are not the only ones feeling unwelcome in the U.S. these days. International student enrollment is down at U.S. universities. That threatens not only some U.S. universities, particularly those in the Midwest, but also threatens the U.S. economy in general, which relies on immigrants as a driver of innovation. Despite the Administration’s desires, the “best and brightest” may be choosing to stay home, return home, or take their skills to other, currently more welcoming countries.

Goal of Establishing Merit-Based Immigration System Undermined by Visa Hurdles

The Trump Administration has indicated it wants to establish a merit-based immigration system focusing on bringing more high-skilled workers to the United States. According to one Administration official, the aim is to attract “individuals who provide a cure for cancer or build that first subdivision on Mars.” Yet, it is becoming harder to obtain visas for high-skilled workers, including individuals of “extraordinary ability” who are applying for green cards in the EB-1A category. These days, even the most “extraordinary” of cases are resulting in Requests for Evidence and denials.

In one example, after an RFE, USCIS denied an EB-1 immigrant visa to a premier big-game hunter and guide, Roy Dirk Ludick. Ludick had been working for MRC Energy Company, a.k.a., Matador Resources Company, on a temporary O visa, which, itself, requires “extraordinary ability.” Matador is an oil and gas exploration company that has access to hunting properties in the United States. According to the company, Ludick’s important role involves providing hunting experiences for its “high valued partners, shareholders and stakeholders,” and it caters to non-hunting guests who also participate in excursions, whether to photograph wildlife, fish, or simply to enjoy an authentic outdoor experience. The properties require year-round habitat management, including conservation efforts. Matador hired Ludick on a full-time basis and sponsored him for a green card.

Matador presented evidence that Ludick met at least seven of the 10 regulatory criteria (only three are required) and that Ludick was at the very top of his field and had received national and international acclaim. An RFE was subsequently issued and Matador responded with proof, including:

  • Evidence of Ludick’s 19 years of experience in the field;
  • Proof that Ludick served as Chairman of the Zimbabwe Professional Hunters & Guides Association (ZPHGA), an internationally recognized organization;
  • Evidence that Ludick had been recognized for “Most Outstanding Contribution to the Association and Industry” more than once;
  • Evidence that Ludick had been featured in publications;
  • Evidence that Ludick was selected as Chief Examiner of ZPHGA;
  • Proof of Ludick’s original contributions to the field – raising evaluation standards for game hunters worldwide; and
  • Proof that Ludick’s offered salary was more than twice that offered to most highly experienced hunting guides.

In denying the case, USCIS refuted the evidence and, according to Matador, “‘unilaterally impose[d] novel substantive or evidentiary requirements beyond those set forth’ in the regulations.”

After the denial, Matador took the case to court. The company filed a complaint under the Administrative Procedures Act (APA) in the U.S. District Court for the Northern District of Texas, MRC Energy Company v. USCIS and Ken Cuccinelli, Acting Director, USCIS. Matador is asking the court “to vacate the denial . . . and remand this matter to [the USCIS] with instructions that, within ten days . . . they approve the Form I-140 petition.” The company contends that USCIS was arbitrary and capricious in its denial and, therefore, violated the APA and the INA.

More companies facing what seem to be arbitrary or erroneous denials of nonimmigrant and immigrant visa petitions are seeking redress and winning (or settling) in the U.S. District Courts. The specific circumstances of the case, the employer’s and the employee’s situations all must be assessed in developing a post-denial plan. Jackson Lewis attorneys are available to litigate and to assist in assessing whether litigation is the best strategy.

We will continue to follow the Matador case and provide updates.

 

Update: No TPS for Bahamian Nationals

The Trump Administration has announced that it will not request Temporary Protected Status (TPS) for Bahamian victims of Hurricane Dorian. TPS allows foreign nationals to live and work in the U.S. as conditions in their home countries do not allow them to return safely, or in situations where their home countries simply cannot manage their return. Among the possible reasons set forth by USCIS to support TPS designation is “[a]n environmental disaster (such as earthquake or hurricane), or an epidemic.” The Administration, which has been seeking to restrict or terminate TPS for citizens of other countries, opted not to request TPS in the Dorian aftermath. Bahamians who have the proper documentation will still be able to come to the U.S. temporarily, but without work authorization.

Rescue Efforts, Immigration Implications in Dorian Aftermath

Customs and Border Protection (CBP) is directly involved in Hurricane Dorian rescue efforts.  So far the agency’s Air and Marine Operations (AMO) has airlifted over 80 people, including citizens of the Bahamas and citizens of the U.S., from the ravaged Abaco Island and Grand Bahama to Nassau for medical treatment and shelter.  CBP is also processing evacuees arriving by ship in West Palm Beach, Florida.  On September 7, 2019, they processed the first arrivals — over 1,400 passengers who sailed on the Bahamas Paradise Cruise Line’s Grand Celebration ship.  The ship arrived in the Islands with emergency supplies and returned with passengers – 539 were U.S. citizens or Green Card holders.  CBP quickly processed the evacuees. However, their arrival was slowed because the cruise line had to spend close to a day vetting documentation before leaving for the U.S.

Senators Marko Rubio (R-FL) and Rick Scott (R-FL) have asked President Donald Trump to waive visa requirements for Bahamians seeking shelter in the U.S. – many of whom have close ties to the United States – especially Florida.

Bahamians generally can enter the United States for short term tourism or business without visas if they are travelling on a flight that departs from a U.S. Pre-clearance station in Nassau or Freeport and:

  • Possess a valid passport or Bahamian Travel Document;
  • Have no criminal record nor other legal ineligibility; and
  • Possess a police certificate issued within the prior six months.

In the aftermath of Dorian, many Bahamians no longer have and cannot access the needed documentation.

Then there are Bahamians who are currently in the United States. Senator Scott, who advocated for TPS for Venezuelans, said at a news conference that TPS was not the instant solution but that it was something he would look at once the immediate humanitarian disaster is resolved. The Administration does not tend to favor TPS and has recently been eliminating that protected status for many countries.

The Bahamian community in Florida, which has been in the Miami area since before Miami was incorporated in 1896, is rallying to provide aid and relief to their friends and family on the Islands including working with its representatives to influence the Trump Administration to waive requirements for Bahamians who want to shelter with family in the United States.

There will likely be additional requests for waivers regarding student visas.  Hampton University, an HBCU in Virginia, has invited students from the University of Bahamas to attend classes this fall – tuition free.

DHS Proposes Fee of $10 to File H-1B Petition

DHS has proposed a fee of $10 per H-1B petition. The agency considers this to be an “appropriate, nominal fee” to recover some costs involved.

In January 2019, DHS published the rule establishing an H-1B electronic registration system. At that time, no fee was proposed, but the “door was left open.” In mid-August, DHS announced that there would be fee.

As to what information will be required, that is still a bit up in the air – again, the door is left open by DHS. The agency wants enough information to be able to check for fraud, duplicate registrations filed by the same company, and to ensure that those selected during the registration period ultimately file H-1B petitions. In addition to company identification, each registration would include the beneficiary’s:

  • Full name
  • Date of birth
  • Country of birth
  • Gender
  • Passport number

Each registration also will require the petitioner to complete an attestation about the “bona fides” of the registration. Frivolous registrations, DHS warns, “may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate.” Under a “catch-all,” DHS could require: “any additional basic information requested by the registration system to promote certainty.”

Some concerned about frivolous registrations suggested that information include job title, worksite address, salary offers, SOC code, LCA wage level, and specific educational qualifications. Others suggested including disclosure of any recent labor violations or disputes and EEOC complaints and whether the petitioner is H-1B dependent. DHS rejected these ideas (for now), noting that much of that information would be used to review eligibility once an H-1B petition is filed.

Questions remain about what DHS does with the information it gathers during the electronic registration. In accordance with the Administration’s “Buy American, Hire American” Executive Order,  DHS is already gathering and sharing much information on its H-1B Data Hub. The public can search the number of H-1B approvals and denials by company and by year. The public also can see, by employer, the number of approved H-1B petitions by salary and degree type. In addition to making the information public, DHS has stated in a description of the H-1B registration tool that it “may share the information with other Federal, State, local and foreign government agencies” and “may also share [the] information, as appropriate, for law enforcement purposes or in the interest of national security.” The full scope of this statement is not yet known.

It is unclear whether the electronic registration will be ready in 2020 or when the promised trial period for stakeholders will occur.

Jackson Lewis attorneys will follow these developments and provide updates as they become available.

Denials, Delays for Foreign Students, Scholars

Customs and Border Protection (CBP) cancelled an incoming Harvard freshman’s visa and deported him back to Lebanon eight hours after arriving at Boston’s Logan International Airport to start his college career. CBP detained the incoming student along with several other international students who were ultimately admitted to the U.S. According to reports, CBP deemed Ismail Ajjawi inadmissible to the U.S. after examining his cell phone and computer. CBP officers allegedly discovered “people posting political points of view that oppose the U.S. on [Ajjawi’s] friend list.” Ajjawi responded that none of the posts were made by him and that he “didn’t like, [s]hare or comment on them . . . and shouldn’t be held responsible for what others post.”

Earlier in the summer, Harvard President Lawrence Bacow wrote an open letter to Secretary of State Michael Pompeo and Acting Secretary of Homeland Security Kevin McAleenan expressing concerns about the problems international students and scholars have encountered and the effect on Harvard’s academic programs. “Students report difficulties getting initial visas — from delays to denials,” Bacow wrote in July. International students and scholars, he wrote at the time, “are not just participants in the life of the university; they are essential to it.” Bacow also has advocated for undocumented immigrants, including Harvard’s “Dreamer” population, and for staff members who are TPS recipients. Since the introduction of President Donald Trump’s original Travel Ban, many universities have challenged and expressed their concern about the “impediments put in the path of our international students, faculty, and staff.” The universities believe that these impediments have led to a decline in applications from international students and that this will weaken the institutions and, “by extension, our country’s competitiveness.”

Since 2017, the Administration has focused on realigning immigration policies that affect students particularly. Its activities include the following:

As for Ismail Ajjawi, in a statement to CNN, CBP said it “can confirm that on Monday, September 2, Ismail Ajjawi overcame all grounds of inadmissibility and was admitted into the United States as a student on a F1 visa.” The agency did not provide details on how the case was resolved.

 

 

Facial Recognition Technology in Use for Air Travelers

On your next international trip, you may see facial recognition technology in use.  The Transportation Security Administration (TSA) started piloting this technology in late 2018.  Now, in conjunction with various airlines, the use of facial recognition technology is growing and at some airports it is being used  for everything from identifying passengers at gates to full “biometric terminals” where you only need your face to check in, check baggage, traverse security and board the plane.  Even if they see the cameras in use, however, U.S. citizens may opt out because these programs are currently voluntary for them.

Airlines believe that facial recognition technology will make life simpler for passengers who will not have to juggle identification documents along with carry-on bags and other travel accoutrements as they move through the airport.  It will also make boarding airplanes up to 10% faster, not to mention that the use of this technology will be cost effective for the airlines.  One photo taken at the gate will be matched against a Customs and Border Protection (CBP) gallery of photos of others on the same flight.  According to CBP, the system is more accurate than a human can be and works 97% of the time – although some suggest that the accuracy rate is a bit lower than that.  The photos in the “gallery” come only from public sources such as passport and visa photographs and the photos taken at the gate are apparently only stored for 12 to 24 hours.

Raising privacy concerns, the U.S. House of Representatives has questioned TSA and FBI use of facial recognition technology.  At hearings, lawmakers have criticized the FBI for not meeting the standards set by the Government Accountability Office (GAO) for testing and auditing privacy protocols and for the  accuracy of the data.  Critics also have concerns about TSA’s standards.  Representative Mark Meadows (R-N.C.) called for TSA to pause its pilot program.  Representative Elijah Cummings (D-MD) stated:  “American citizens are being placed in jeopardy as a result of a system that is not ready for prime time.”  Despite some expressions of skepticism, there has been no official request to stop the TSA program.

Biometric technology has been used for checking foreign nationals who enter the U.S. for some time.  In a 2017 Executive Order, President Trump sought to expedite the process of completing a biometric entry and exit system including the use of facial recognition technology.

It may still take some time before facial recognition cameras appear at your local airport, but get ready to smile for the camera (if you like)!

North Carolina Governor Vetoes Sanctuary Jurisdiction Bill, Draws Ire from Trump

North Carolina Governor Roy Cooper (D) has joined the “sanctuary city” debate.  He vetoed House Bill 370, “An Act to Require Compliance with Immigration Detainers and Administrative Warrants,” on August 21, 2019.

Some county sheriffs in North Carolina have been refusing to uphold ICE detainers or coordinate with ICE regarding individuals in custody.  They argue that it is their job to enforce and comply with applicable state and federal laws, not to enforce immigration laws.  This led ICE spokesman, Bryan Cox, to remark that “as a direct result of this policy, persons [in the affected counties] will see an increased presence of ICE.”  In other words, without the sheriffs’ cooperation, ICE will conduct more enforcement actions in local neighborhoods and at work sites.  This is not an empty threat.  Since 2017, sanctuary jurisdictions have been targeted for ICE raids, “shame and blame” report listings and threats of withholding federal DOJ grants.

In response to the sheriffs’ actions, North Carolina lawmakers passed House Bill 370.  Under the bill:

  • Confinement facilities would have to comply with all federal detainers and administrative warrants;
  • Sheriffs could be removed from office for non-compliance;
  • Confinement facilities would have to submit annual reports regarding compliance with ICE detainers; and
  • Those in charge of confinement facilities would need to investigate the legal status of any person in their custody charged with a criminal offense and query ICE if they are unable to determine the individual’s legal status.

Governor Cooper, in his veto message, stated:

“This legislation is simply about scoring political points and using fear to divide North Carolina.  As the former top law enforcement of our state (Cooper is the former four-term Attorney General of the state), I know that current law allows the state to jail and prosecute dangerous criminals regardless of immigration status.  This bill, in addition to being unconstitutional, weakens law enforcement in North Carolina by mandating sheriffs to do the job of federal agents, using local resources that could hurt their ability to protect counties.”

President Donald Trump reacted to the veto in a tweet:

“North Carolina Governor Cooper Vetoed a Bill that would have required Sheriffs to cooperate with ICE.  This is a terrible decision for the great people of North Carolina.  He should reverse his decision and get back to the basics of fighting crime!”

To date, at least seven states including California, Illinois, Massachusetts, New York, Pennsylvania, Washington and Texas have been involved in legislation and litigation over sanctuary policies.  With House Bill 370 and Governor Cooper’s veto, North Carolina now joins that company.  Both Governor Cooper and President Trump will be on the ballot seeking re-election to their respective offices in 2020.

 

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