Search results for: rfes

U.S. Citizenship and Immigration Services (USCIS) is trying to approve as many employment-based green card applications as it can before the annual deadline of September 30, 2022 (the end of the fiscal year).

Primarily due to COVID-19 restrictions, approximately 140,000 family-based visa numbers went unused last fiscal year. As a result, these unused visa numbers were rolled over to this year’s employment-based visa number allocation; meaning, twice as many employment-based green cards are available this year.

USCIS and the Department of State (DOS) are primarily dealing with processing challenges and backlogs due to restraints imposed by the COVID-19 pandemic, as well as other issues.

What are USCIS and DOS doing in order to appropriately issue all available employment-based visas and hit the 280,000 limit this year? Among other things, the agencies are:

  • Prioritizing processing and adjudication of employment-based adjustment applications at all locations;
  • Prioritizing adjudication of immigrant visa petitions (I-140s) to focus on beneficiaries who are or will be current this year;
  • Providing overtime and supplemental USCIS staff to support the employment-based applications;
  • Initiating an aggressive hiring and training plan for new staff;
  • Waiving interviews and reusing biometrics, where possible;
  • Redistributing cases to match workloads with resources;
  • Establishing a dedicated mailing address for requests from those who wish to transfer their pending cases to a different employment-based category;
  • Encouraging applicants who know their Form I-693, Report of Medical Examination and Vaccination Records, are no longer valid to be prepared to submit a new medical as soon as they receive a Request for Evidence (RFE) (but not submit their I-693 before the RFE is issued);
  • Proactively identifying applications that lack valid medicals and issuing early RFEs; and
  • Temporarily waiving (until September 30, 2022) the requirement that the civil surgeon sign the Form I-693 no more than 60 days before the applicant files for adjustment of status.

DOS issued 19,799 immigrant visas and USCIS used 175,728 immigrant visas (through adjustment of status applications) for a total of 195,507 out of the available total of 262,288. Accordingly, 66,781 employment-based visas went unused. In comparison to this year, these respective agencies noted that, as of mid-June, they had used many more employment-based immigrant visas than they did at the same point in time last year, and they are continuing to adjudicate these respective applications at a higher rate than last year. According to USCIS, they are “well-positioned to use all the available employment-based immigrant visas in FY 2022 ….”

If you have any questions about pending green card matters, please reach out to your Jackson Lewis attorney.

Secretary of the Department of Homeland Security Alejandro N. Mayorkas has announced several new USCIS policies meant to improve the legal immigration system, eliminate barriers, and reduce burdens on applicants.

He issued the following new policies:

  1. Expedite Criteria

USCIS generally does not consider expedite requests for petitions and applications where Premium Processing Service is available. However, a petitioner that is designated as a nonprofit organization by the IRS acting in furtherance of the cultural and social interests of the United States may now request that the benefit it seeks be expedited without a fee, even if premium processing is available for that benefit. Of course, USCIS retains discretion to deny that request.

  1. Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

In 2018, during the Trump Administration, USCIS issued a policy that permitted agency officers to deny certain immigration benefit requests without first issuing an RFE or a NOID. This meant that some petitioners or beneficiaries would not have an opportunity to fix minor errors or provide more documentation. Instead, they would have to file motions to reopen, appeals, or simply reapply. The updated policy restores those opportunities by noting that RFEs or NOIDs should be issued (before a denial) if there is a possibility the petitioner or applicant can overcome ineligibility by submitting additional evidence. The policy also emphasizes that unnecessary RFEs or NOIDs should not be issued.

  1. Employment Authorization Documents

The new policy increases current one-year validity period to two years for certain adjustment of status applicants. This should reduce the number of EAD applications that must be filed – helping USCIS – and mean that applicants will less frequently become subject to gaps in employment authorization due to USCIS backlogs.

These three changes will help reduce backlogs at USCIS and give some petitioners and applicants ways to avoid those backlogs.

Jackson Lewis attorneys are available to assist you in understanding how these changes will affect your immigration matters.

Deference is back! USCIS announced that, effective immediately, it will reinstate its 2004 policy of deferring to prior determinations of eligibility.

Rescinded by the Trump administration, this policy directed officers to “generally defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition.” This means that prior determinations made by USCIS will receive deference unless “there was a material error, material change in circumstances or in eligibility, or new material information” that would have an adverse impact on eligibility.

This change is a result of President Joe Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The order was meant to break down barriers to fair and efficient USCIS adjudications, among other things.

The Trump administration’s rescission of USCIS deference policy has been identified as one of the factors that created processing delays and substantial backlogs at USCIS. Officers have been forced to unnecessarily re-adjudicate cases that previously would have been approved quickly and efficiently. Beyond processing delays, the rescission of the deference policy led to uncertainty for both foreign national employees and their employers. Even when circumstances were unchanged, employees and employers who may have worked together for years were suddenly confronted with the possibility that the rug might be pulled out from under their feet. Requests for evidence (RFEs) and even denials loomed. The return of the deference policy, though not a complete safeguard against a denial, would restore a degree of predictability and consistency that is necessary for family security, the smooth flow of business, and continuing economic growth.

Under the reinstated policy, if an officer does not defer to a prior approval, the officer must:

  • Acknowledge the previous approval in the denial, RFE, or NOID (Notice of Intent to Deny);
  • Articulate the reason for the lack of deference;
  • Provide the petitioner or applicant an opportunity to respond to any new information; and;
  • Importantly, obtain supervisory approval before deviating from a prior approval.

If the problem is one of inadmissibility or of failure to maintain status, a “split decision” may be rendered – approving the petition classification, but not the extension. In such a case, it will be up to a consulate to make the final determination.

For any questions about the reinstated policy, please reach out to your Jackson Lewis attorney.

With the H-1B cap season about to begin, there is good news for computer programmers and those who employ them. USCIS announced the immediate rescission of a 2017 guidance memo that had raised questions about whether computer programmers qualified for H-1B specialty occupation visas. The 2017 guidance, issued in the wake of the Buy American, Hire American Executive Order, led to a slew of Requests for Evidence (RFEs) and denials.

USCIS’s rescission of the 2017 guidance follows a December 2020 decision of the Ninth Circuit of Appeals in Innova Solutions v. Baran. In Innova Solutions, the Ninth Circuit reversed the District Court decision and concluded that USCIS’s denial of an H-1B petition for a computer programmer was arbitrary and capricious. The court stated that there was “no daylight” between the OOH’s description of the degree requirement for a computer programmer position (“most . . . have a bachelor’s degree in computer science or a related subject”) and the statutory requirement (“a baccalaureate or higher degree . . . is normally the minimum requirement for entry”).

Because the 2017 guidance resulted from then-President Donald Trump’s Buy American, Hire American Executive Order, it is also possible that its rescission is related to President Joe Biden’s subsequent rescission of that Order. Since numerous limitations on legal immigration resulted from Buy American, Hire American, it is conceivable that the rescission of the 2017 guidance is a harbinger of other changes to come. Indeed, Biden has set up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment-based immigration.

If you have any questions about how computer programmers in your organization may be affected by the recent guidance, please reach out to the Jackson Lewis attorney with whom you regularly work.

On the same day his nominee for Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, was confirmed, President Joe Biden signed several Executive Orders regarding immigration, including one that directs complete review of policies.

The first, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” is of particular interest to the business community.  It sets up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment based. This will include a review of the public charge rule, fee increases, and streamlining of the naturalization process, among others. Recognizing the difficulties created over the past four years by the many unpublicized rule, policy, and guidance changes, this Executive Order directs a comprehensive agency review of all immigration-related regulations, orders, guidance documents, policies, and other similar agency actions that impede access to fair and efficient adjudications. It likely will include a review of the policies that led to a 21% denial rate and a 47% Request for Evidence (RFE) rate for H-1B petitions in FY 2020.

The second looks to roll back damaging asylum policies and develop an effective strategy to manage asylum cases across the region.

The third creates a task force to reunify families that were separated at the border.

These latest Executive Orders build on changes already made since January 20, 2021, including:

These Executive Orders and policy announcements are consistent with the administration’s stated goal of creating an immigration system that is more welcoming to immigrants and to the employers who rely on them. President Biden recognizes that “new Americans fuel our economy, as innovators and job creators, working in every American industry and contributing to our arts, culture, and government.”

Jackson Lewis attorneys will provide updates as they become available. Our attorneys are ready to assist with questions regarding changes and strategies.

 

 

 

 

 

The Department of Homeland Security (DHS) has released yet another rule that will make it harder and more costly for U.S. companies to employ highly skilled workers.

As a companion regulation to the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule, DHS has released the “Strengthening of the H-1B Nonimmigrant Visa Classification” rule. Like its companion, it is being published as an Interim Final Rule (IFR), but will go into effect after 60 days. DHS expects about one-third of petitions for H-1B visa classification will be denied under the new rule.

The H-1B Rule codifies policies USCIS has been pursuing over the past several years that made it more difficult to obtain H-1B approvals and resulted in more Requests for Evidence (RFEs) and petition denials — all without transparent legislative or regulatory changes. Employers sued the administration in federal court arguing that a number of these policies were “arbitrary and capricious” in violation the Administrative Procedures Act (APA). In response, USCIS settled the cases and agreed to withdraw a number of the most contentious agency policies. In response, DHS is now intending to reimplement many of those policies through the truncated Interim Final rulemaking process. DHS contends that this is necessary in order to protect U.S. jobs during the current COVID-19-related economic downturn. Companies that employ H-1B workers maintain that access to these skilled workers is essential to ongoing operations and benefits the U.S. economy.

Key takeaways of the new rule for employers:

  • The definition of a “specialty occupation” is revised to focus more specifically on the relationship between the degree requirements and the duties of the position. This will make it more difficult for those in new, innovative fields, where specific specialty degrees are not yet even available.
  • Petitioners will bear the burden of showing a specific bachelor’s degree is always a requirement, not just “normally” a requirement for the position, a near impossible task.
  • Contractors will no longer be specifically listed among those who qualify as U.S. employers, although they can still qualify as U.S. employers by proving a bona fide employer-employee relationship.
  • The definition of a bona fide employer-employee relationship will focus more heavily on a totality of circumstances standard, rather than any one factor, such as the right to control.
  • H-1B workers at third-party locations will be limited to one year, rather than the currently available three years, renewable annually. Petitioning employers intending to place H-1B workers at third-party worksites will have to provide corroborating evidence to prove that specialty occupation work will be available throughout the requested time period. These changes will greatly increase the costs and documentary requirements for certain petitioners who rely on third-party placements.
  • The H-1B Rule codifies the scope and potential consequences of USCIS Fraud Detection and National Security Officers (FDNS) worksite inspections. If the FDNS is not able to verify facts related to an H-1B petition or compliance with H-1B requirements due to the failure or refusal of the petitioner or third party to cooperate, such failure may be grounds for denial or revocation of a petition.

Because this far reaching rule is being issued as an Interim Final regulation without opportunity for full notice and comment, litigation seeking to enjoin implementation is likely.  In addition, the rule is likely to be challenged while the validity of Chad Wolf’s appointment as Acting Director of DHS is still being contested.

If you have any questions about how the H-1B Rule will affect your company, please reach out to your Jackson Lewis attorney.

 

Reportedly, USCIS will soon announce the temporary furlough of the majority of its employees – 15,000 employees, or three-fourths of its workforce.

The furloughs will begin in August 2020 if the agency does not receive additional fiscal support.

While being called temporary, the head of the American Federation of Government Employees is concerned the reduction-in-force may become permanent and result in a USCIS “brain drain.” In recent months, USCIS has experienced a dramatic decline in revenue because fewer immigrant and non-immigrant petitions are being filed due to the COVID-19 pandemic, related travel restrictions, the uptick in Requests for Evidence (RFEs) on filed petitions, and recent Administration restrictions on legal immigration.

The agency has asked the Administration and Congress for relief: a $1.2 billion loan and an average 21% increase in fees to shore up their budget shortfall. [

As of now, neither has been instituted. USCIS had partly re-instituted premium processing, which collects an additional $1,440 fee per case. However, this apparently will not help enough.

Because USCIS is self-funded, any decrease in filed petitions and applications directly reduces its revenues. In FY 2018, there was a 17% decrease in petitions filed. Despite this, delays and backlogs continue to grow. Much of this is attributed to the same “extreme vetting” that may be continuing to reduce the number of cases filed, including more focus on small technical errors, the complex new public charge rule, and more RFEs. Beyond that, a hiring freeze has been in effect since February 2020 on most positions other than asylum staff, who are there to push cases through the process.

Jackson Lewis attorneys will continue to provide updates as the negotiations continue.

 

USCIS has announced that, due to the COVID-19 pandemic, it has suffered a steep decrease in revenue and, without assistance, might run out of funding this summer. The agency has asked Congress for $1.2 billion in emergency relief (as a loan) along with a 10% COVID-19 surcharge (to repay the loan) on top of a proposed, but not yet implemented, fee increase.

USCIS is 96% fee funded. Its last major fee increase was in FY 2017. By late-2019, USCIS proposed another fee increase, stating that without it, the agency would be underfunded by approximately $1.3 billion per year.

The 2019 proposal called for a 21% weighted average increase. Some petitions or applications would see a fee decrease, but others (such as Form I-129 petitions and naturalization petitions) would see substantial increases. For instance, the filing fee alone for an H-1B petition would go from $460 to $560 (a 22% increase). An O petition would increase by 55%, to $715, and an L petition would increase by 77%, to $815. Naturalization application fees would increase by 83%, to $1,170, and, for the first time, DACA renewals and asylum application fees would be imposed. Due to the comments and objections USCIS has received, the proposed increase has remained pending – perhaps until now.

In addition, all of the Trump Administration’s policies enacted to increase the scrutiny given to immigration applications and, ultimately, reduce the level of immigration and naturalization appear to be working. It is reported that there has been a “precipitous drop in applications for green cards, citizenship and other programs ….” Everything from the skyrocketing number of Requests for Evidence (RFEs) and denials, to the furor over the changes in the Public Charge rule, to a 45% rise in processing delays may have convinced some individuals and employers the new uncertainties make it pointless to apply at this time. On top of that, the heightened scrutiny and additional requirements (such as more in-person green card interviews) have forced USCIS to hire more employees that it now is having trouble supporting. In addition, USCIS temporarily suspended all premium processing, thus eliminating a $1,440 fee per petition that must usually provide a good revenue stream.

Jackson Lewis will continue to follow Congress’ reaction and provide updates as they become available. Please contact a Jackson Lewis attorney with any questions.

 

 

International companies rely on L visas to transfer managers, executives, and specialized knowledge employees to the United States. But the Department of State is changing the standards it uses to adjudicate those visas, making transfers more difficult.

L-1 visas are available to a company with a parent/subsidiary, affiliate, or branch office overseas that wishes to transfer an employee to a parent/subsidiary, affiliate, or branch office in the United States. The L-1A is for qualified executives and managers. The L-1B is for transfers of individuals with “specialized knowledge.”

Generally, applying for an L-1 is a two-step process involving filing a petition with USCIS and then, upon approval, an application for the L-1 visa at a U.S. Embassy or Consulate abroad.

With current USCIS processing times, ranging from two to nine months, and the suspension of premium processing, transferring an employee from abroad can take some time. Steadily climbing Requests for Information (RFEs) and denial rates constitute further hurdles.

Qualifying multinational organizations have been able to skip the preliminary petition process with USCIS under the Blanket L visa procedure. Those organizations must establish to USCIS’ satisfaction that they have the required intracompany relationship in advance. To do that, the organizations must prove that they:

  • Are engaged in commercial trade or services;
  • Have an office in the U.S. that has been doing business for at least one year;
  • Have at least three domestic and foreign branches, subsidiaries, and/or affiliates; and
  • Have transferred at least 10 individuals in L-1 status during the 12 months before filing or have subsidiaries or affiliates with combined annual sales of at least $25 million or have a U.S. workforce of at least 1,000 employees.

Blanket L beneficiaries apply for L-1 visas directly at a consulate abroad without any prior filing or approval from USCIS. Companies use the blanket process, if they qualify, because it is more efficient, less expensive, and the beneficiaries have a brief opportunity to argue their case if the Consular Officer has questions. The approval rates have tended, anecdotally, to be higher than the approval rates at USCIS.

But that has changed. In October 2019, the Department of State (DOS) launched a “test balloon” by heightening the adjudication standard for L visas. DOS changed the standard of review in the Foreign Affairs Manual (FAM) from “the preponderance of the evidence” to a “clear and convincing” standard. But that apparently hit a glitch and the change was removed, without any fanfare, the next month. Nevertheless, the standard appears to be getting tougher. Denials from the Consulates are more frequent – especially in India.

Finally, on March 30, 2020, the FAM was updated again. This time, it sets out an even more stringent standard for Blanket L petitions – if the Consular Officer has “any doubt,” the application must be denied.

The FAM advises officers, among other things, that they must:

  • Be particularly careful because the Blanket L interview “is the only time in the petition and visa process during which a U.S. government representative will interact with the applicant”;
  • Watch out for exaggerations and misrepresentations regarding qualifications; and
  • Be aware that if questions cannot be quickly resolved at the interview, denial is proper.

During the current COVID-19 crisis, U.S. Consulates abroad are not open for routine visa processing. But this may be a time to prepare by gathering documentation necessary to meet the new standards and to possibly apply for Blanket L certification. Jackson Lewis attorneys are available to assist you in developing strategies to deal with the new level of scrutiny.

Between March 1 and March 20, 2020, 275,000 individuals were entered into USCIS’ new electronic pre-registration system to obtain an H-1B for the 2020-2021 fiscal year. This is a nearly 25% increase over last year’s filings.

While it is hard to judge what led to the apparent increase in demand, the change may be a reflection of the ease of entering into the lottery, and low unemployment during the first quarter. Employers no longer are required to complete and submit full H-1B filings, but rather simply enter the individuals they wish to sponsor into the system and pay a $10.00 fee per worker. This is an enormous benefit since filing full H petitions has become much more complex under the current Administration’s focus on enforcement. More documentation is needed to try to avoid the now ubiquitous Requests for Evidence (RFEs). Last year more than 60% of H-1B cases received RFEs.

USCIS required very little information about each applicant, but it collected such information as whether the individuals hold U.S. advanced degrees and the citizenship of each applicant. USCIS has announced that about 43% of this year’s pre-registrations were for individuals holding U.S. advanced degrees (Master’s Cap cases). Eighty-one percent of the pre-registrations were for Indian (68%) and Chinese (13%) nationals. The companion figures for the cases that “won” the lottery have not been released. But the lottery system generally favors those with advanced degrees. Last year, 63% of the selected petitions were for beneficiaries with U.S. Master’s degrees.

Many petitioners have been notified which of their cases were selected in the pre-registration lottery. Those cases must be filed over the next 90 days. USCIS explained that all submitted cases will remain in the system for possible selection until the end of the fiscal year (September 30, 2020). From now until then, more cases may be selected in the lottery. Whether or not this happens may depend upon the appetite of the employers whose cases have already been selected for filing. Will COVID-19 play a role in determining how many employers will move forward and file full Cap H-1B petitions?

Jackson Lewis attorneys will continue to follow and report on developments.