U.S. Citizenship and Immigration Services (USCIS) has announced that it is strongly encouraging applicants for adjustment of status (Form I-485) in the employment-based third preference category, if they are eligible to do so, to transfer the underlying basis of their applications to the first or second employment-based preference categories. This is because there are an “exceptionally high number” of visas available in those categories for the current fiscal year (October 2021 to September 2022) – twice as high as usual. USCIS’ encouraging announcement is in line with the Biden Administration’s mission to eliminate barriers and not let immigrant visas go to waste.

This surplus is the result of approximately 140,000 family-based visas (along with some first and fifth preference employment-based visas) going unused last year and, due to statutory limitations, they cannot be used for those in the third preference employment-based category.

To be eligible to transfer the underlying basis of their Form I-485, applicants must meet the following criteria:

  • Continuously have maintained eligibility for adjustment of status;
  • Have already filed a Form I-485 that is pending based on a different I-140 in a classification that is not current, e.g., EB-3;
  • Be eligible for the first or second preference category; and
  • Have a current priority date current in the new category.

Those who are requesting a transfer of the underlying basis of the I-485 to a previously filed and approved Form I-140 must also file a completed Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under Section 204(j), along with the written transfer request. If the previously filed petition is pending, the Form I-485 Supplement J is not required.

There is a complex web of requirements that must be followed in terms of evidence, and filing locations vary depending on the circumstances of the application. There can also be pitfalls. For instance, the position that will form the basis for the transfer must be the same position the applicant will assume when the adjustment is approved or a position to which the applicant is portable.

Please reach out to your Jackson Lewis attorneys who are available to assist in strategizing, preparing, and filing these transfers, also known as “interfilings.”

For the first time, USCIS has advised people with a pending green card application of its documentary requirements for transfers between employment-based classifications and issued an alert regarding the process.

The “exceptionally high number of employment-based [immigrant] visas available this fiscal year” has prompted USCIS to encourage U.S. employers petitioning for employees to utilize either the first or second employment-based preference categories. This is a big change from one-and-a-half years ago.

In October 2020, the government inverted the availability of immigrant visas, making several hundred thousand, mainly Indian, employees in the U.S. eligible to apply for a green card based on the employment-based third preference category. For this blog, the focus is on the second and third employment-based visa classifications. The second employment-based preference category (EB-2) is for employees with an advanced degree or a bachelor’s degree and at least five years of progressive experience in their profession, or those with “exceptional ability.” The third employment-based preference category (EB-3) is for employees with at least a bachelor’s degree (as well as certain skilled or unskilled workers).

USCIS also strongly encourages people with a pending green card application in the EB-3 category to transfer the underlying basis of their pending green card (adjustment of status) application to the EB-2 category if they are eligible to do so — meaning they have an approved or pending Immigrant Petition for Alien Worker in the EB-2 classification (USCIS Form I-140). This process of transferring the underlying basis of a green card application, also called “interfiling,” has been misunderstood. Although USCIS lays out guidelines for an interfile request in its Policy Manual, the agency has not previously provided specific documentary requirements for transfers between employment-based classifications. Now, USCIS clearly declares that an interfile request must be made in writing and must include USCIS Form I-485 Supplement J.

Form I-485 Supplement J has two uses: one is for “Confirmation of Bona Fide Job Offer,” the other is “Request for Job Portability Under INA Section 204(j).” When an applicant files an I-485 J to change the underlying basis of a green card application or interfile, they are using the I-485 J as a Confirmation of Bona Fide Job Offer. What is the job offered? That is the one in the PERM labor certification that was the basis of the employer’s petition for an immigrant worker, Form I-140.

This means that if someone has changed employers after applying for their green card (and followed regulations regarding portability of the permanent job offer), their new employer cannot file an I-485 J to change the underlying basis to a prior employer’s I-140 petition in EB-2 classification. Interfiling is not an option for this employee, as their new employer did not file their EB-2 petition; a prior employer did. There are other circumstances when interfiling is not an option, and other cases when an I-485 J may be required for a different purpose.

Jackson Lewis attorneys are available to discuss the situation of your employees with pending green card applications and help to determine if interfiling is appropriate and prepare the correct documentation for that request.

 

Approximately 27,000 additional Cap H-1B cases were selected in a second-round lottery for fiscal year 2022. The selected petitions must be filed by November 3, 2021. In the meantime, litigation challenging the validity of the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions Rule (Modification Rule), for next year’s petitions, are moving forward.

The Modification Rule was published during the previous administration. It prioritizes H-1B Cap selection based on wage level. Instead of the current and historical process of random selection, USCIS would choose cases based on a hierarchy – starting with Level IV wages and working down. The Rule as written will increase the selection rate for Level III and Level IV cases. However, it would all but eliminate the likelihood that petitions with Level I entry-level wages will be selected. Concerns about this and the resulting effects on the economy have been raised since the Rule was first introduced, and business groups, institutions of higher education, and companies have been challenging the Modification Rule in court. Recently, though, a non-profit organization that represents technology workers, and that generally opposes the H-1B program, filed an amicus brief supporting the Modification Rule.

Unlike some other Trump Administration immigration rules, the Modification Rule was not withdrawn by the Biden Administration. Its implementation, however, was delayed due to technical challenges until the end of 2021. This means it could go into effect for next year’s Cap H-1B lottery if it is upheld.

In Chamber of Commerce of the United States et al. v. USCIS et al., opponents to the new rule argue that the proposed changes are unlawful in that the Rule conflicts with the Immigration and Nationality Act; is void because it was implemented by Chad Wolf who was unlawfully serving as Acting Secretary of Homeland Security; and is arbitrary and capricious because DHS failed to respond adequately to comments on the effects of the Rule. They argued that American employers have developed a “reliance interest” in the way the H-1B program historically has operated.  The plaintiffs particularly noted that the Modification Rule “is likely to exclude many of the bright, ambitious, early-career professional who often drive innovations” and that DHS itself has estimated that “zero percent” of wage Level I petitions will be selected.

We will continue to follow the litigations regarding the Modification Rule. If you have questions about strategies to deal with its possible implementation, Jackson Lewis attorneys are available to assist.

 

 

The Department of State (DOS) has provided more details to the Consulates on the national interest exemption under President Donald Trump’s June 22, 2020, executive order.

The “Presidential Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” bars holders of certain visas from entering the U.S. not due to concerns about contagion, but ostensibly as a way to preserve jobs for Americans. The order restricts the entry of certain H-1B, H-2B, L-1, and J-1 nonimmigrants, along with their dependents until the end of 2020.

Unemployment has increased dramatically in the United States, from a low of 3.2% in February 2020, to a high of over 14% two months later. Unemployment has continued to decline in the following months as companies bring back employees to get their businesses moving again. Many businesses have been hampered in their efforts to return to full operations by the inability of critical employees, many with very specialized skills and training who are not citizens of the U.S., to enter the country for work.

Several exceptions were listed in the proclamation, but interpretations as to how to qualify varied. DOS has provided the Consulates details on the national interest exceptions for H and L visas. The details are focused on healthcare and medical research needs (both COVID-19 and non-COVID-19), including whether the applicant was facilitating continued economic recovery and doing essential work in critical infrastructure. Longevity with the employer and whether denial of the visa would cause economic hardship for the company also will be considered.

DOS also has provided a non-exclusive list of examples, leaving open more possibilities. Following are some examples of exceptions for H-1B employees (comparable examples apply to H-2B and L-1 visas):

  • Healthcare professionals working on COVID-19 or in other important medical areas, such as cancer or communicable diseases.
  • Healthcare professionals working in areas that have been adversely affected by COVID-19 – perhaps providing medical services that have had to be curtailed due to COVID-19, such as providing rehabilitation services or other services deemed “non-essential” due to COVID-19.
  • Applicants seeking to resume ongoing employment in the same position, in the same visa classification, with the same employer because having to replace such an individual might cause the company financial hardship.
  • Travel by technical specialists, senior level managers, and others whose travel is necessary to the economic recovery of the U.S. by showing two of five factors:
    • The continuing need for the employee, including a showing that the essential functions cannot be accomplished remotely
    • The employee will provide unique contributions in critical infrastructure sectors: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems
    • The employees’ wage exceeds the prevailing wage by at least 15%
    • The employee has unusual expertise demonstrated by their background
    • Denial of the visa will cause financial hardship to the company, as shown by:
      • Employer will not be able to meet financial or contractual obligations
      • Employer will not be able to continue its business
      • Employer will not be able to return to pre-COVID-19 level of operation

As to J-1 visas, there are exceptions for au pairs for children with special needs or whose parents do COVID-19-related work.

The initial hurdle to convincing a Consulate to grant a waiver is getting an appointment, which may itself require proving national interest.

Jackson Lewis attorneys are available to assist employers navigate this process. We are helping U.S. businesses get back to full operation by evaluating and developing arguments for employees in H, L, and J status who may qualify for an exception to the employment-based visa restrictions, as well as the Schengen and other COVID-19-related travel restrictions.

 

The North American Free Trade Agreement (NAFTA), signed into law in 1993, eliminated trade barriers and increased investment opportunities between the three signatory countries, the United States, Mexico, and Canada. After more than 25 years, the agreement was seen to require revisions, particularly as to labor, digital trade, and data flows. A revision to NAFTA, called the United States, Mexico, Canada Agreement (USMCA), has passed both the House of Representatives and the Senate with broad bipartisan support.

The new treaty is expected to become effective in the spring of 2020, after ratification in Canada. A proposal to the USMCA would have changed the Treaty NAFTA visa (TN visa), but it did not materialize.

During the negotiations, in accord with the President’s “Buy American, Hire American” Executive Order, the Trump Administration reportedly wanted to reduce the scope of TN visa status by limiting the number of eligible professions and, possibly, capping the number of visas available. Canada and Mexico wanted the opposite – to expand the number of eligible professions and update the listed professions to bring them more in line with current technological demands. None of these changes were incorporated into the USMCA.

However, the Department of Homeland Security is applying a higher level of scrutiny to the TN visa category. New guidelines were issued regarding the economist category. Now, a broad range of other professions related to economists, such as financial analysts, market research analysts, and marketing specialists, will no longer qualify for TN visas. Credentials are being questioned and even those who already hold TN status may have renewals denied.

Canadians are seeing additional restrictions at Ports of Entry. Previously, it was possible for a Canadian citizen to obtain L-1 visa status, either for an initial approval or a renewal, at the border, without having to file an application with USCIS. However, in 2019, without issuing any policy memo, Customs and Border Protection (CBP) began refusing to adjudicate anything other than an initial L petition or applications for intermittent or commuter Ls at the border. All other categories of Canadian L visas now require costly filings by petitioning employers with USCIS. Employers can expect long processing times, or having to pay an additional $1,440 fee for expedited “premium processing,” not to mention dealing with the costs and delays of Requests for Evidence this type of visa has drawn lately.

In the meantime, Canada is taking advantage of stricter scrutiny of all U.S. work visas by “inviting” frustrated companies to move their offices, or just their employees, to Canada. Even during the USMCA negotiations, Canadian Prime Minister Justin Trudeau was encouraging companies to consider their new two-week fast track employment visa process. Whether this will affect U.S. policies, remains to be seen.

If you have any questions about TN or Canadian L visa statuses, or the USMCA, please reach out to a Jackson Lewis attorney.

According to the DHS Fall Regulatory Agenda, the Administration is planning further restrictions to immigration regulations that, if enacted, will affect employers.

Over the past few years, DHS has changed the way it reviews H and L visa petitions from employers, which has resulted in significant increases in Requests for Evidence (RFEs) and denials. The rate of RFEs for H-1B visas has gone from 6% in FY 2015, to 24% in the third quarter of 2019. Denial of L visas has increased from 24% in FY 2016 to a current rate of 34%. The Administration’s proposed rules, if approved, would codify the review processes that produce these higher denial rates. Further, by going through the regulatory process, DHS will neutralize one of the arguments petitioners challenging denials are making in U.S. District Courts: that the denial was a violation of the Administrative Procedures Act (APA).

December 2019: “Strengthening the H-1B Nonimmigrant Visa Classification Program”

This new rule will revise some definitions (e.g., “specialty occupation” and “employer-employee relationship”) and ensure H-1B employees are paid wages that do not depress pay for American workers. This likely will be consistent with the RFEs many petitioners have been receiving. These question whether certain occupations really require a bachelor’s degree in a specific field, whether there is a bona fide employer-employee relationship when employees are working at third-party worksites, and whether a Level I job can qualify as a “specialty occupation.”

March 2020: “Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization”

Continuing its three-year campaign to rescind the policy that allowed dependent spouses of workers in H visa status to obtain Employment Authorization Documents (EADs), the Administration is predicting that the new regulation will be out of the Office of Management and Budget (OMB) and ready for final publication in spring 2020. A case challenging the legality of the H-4 EAD rule has been pending in federal court since before President Donald Trump’s inauguration. In early-November 2019, over the Administration’s objection, the Circuit Court of Appeals for the D.C. Circuit sent the case back to the District Court for a review on the merits. The case had been “paused” for close to three years because, the Administration argued, the case was about to become moot since the DHS intended to rescind the H-4 EAD rule. Eventually, the court grew tired of waiting. Perhaps the new rule will be published before the court acts.

September 2020: “Strengthening the L Nonimmigrant Classification”

This new rule would increase the requirements for L visas by redefining “specialized knowledge” and the employer-employee relationship. The regulations will also address appropriate wages for L-1 beneficiaries, even though there is no statutory wage requirement for this type of visa. The Department of State may have launched a “test balloon” on Ls. It had heightened the standard for evaluating Blanket L applications at Consulates from a “preponderance of the evidence” standard to a “clear and convincing” standard in an October 2019 Foreign Affairs Manual (FAM) change that was later withdrawn.

September 2020: “Enhancing the Integrity of Unlawful Presence Inadmissibility Provisions”

This rule makes it more likely for students and others in F, M, or J status to become out of status and subject to bars to U.S. re-admission for prior unlawful presence. USCIS’s attempt to do this with a policy change has been enjoined.

Presidential proclamations, policy announcements, and changes in the standard of review by administrative agencies can contradict the regulations those agencies implement. When that occurs, the government may be sued to enjoin implementation of the policy. By carefully wording responses to RFEs, and filing appeals for denials, employers can increase the chances their petitions will be approved. Policies that end up codified as regulations, however, make law suits against the government for violations of the APA less likely to prevail, and could make approvals for some employer petitions more challenging.

Jackson Lewis attorneys will continue to monitor this rulemaking and provide updates as they become available.