After receiving several H-1B approvals for periods shorter than requested, IT consulting services company Flexera Global has sued USCIS in the federal court for the Southern District of Texas requesting an order directing USCIS to approve H-1B petitions for the periods requested.

The Trump Administration has made it harder to onboard workers requiring an H-1B visa. RFE and denial rates for H-1B petitions have skyrocketed, and delays in processing are expected. The Administration has particularly targeted H-1B petitions from IT staffing and consulting firms. First, it has questioned whether computer programmers were working in “specialty occupations.” Then, it has demanded that these same companies prove they will be in a bona fide employer-employee relationship with the visa beneficiary, and work is available for the beneficiary throughout the H-1B period. This required documentation includes items such as detailed itineraries and letters from “end-users.”

Staffing companies have seen a 34% to 80% denial rate, and they have been receiving approvals that might as well be denials. Seeking three-year visas, some approvals are valid for very short periods of time – weeks or months. In addition, given the processing delays, some companies are receiving approvals that are valid retroactively for a period that has already elapsed before the approval arrives. Companies often must reapply almost immediately, producing an unending cycle of filings and associated costs. Filing fees for some heavy users of H-1Bs already include a $4,000 surcharge, and USCIS has proposed additional fee increases for 2020.

Several suits have been filed arguing that USCIS violates the Administrative Procedure Act (APA) by reducing H-1B validity periods. In Flexera’s suit, USCIS has filed a Motion to Dismiss arguing that, as a matter of law, the Agency has the right and ability to grant short-term approvals – with or without explanation. The court ruling could go either way and could be favorable to H-1B petitioners.

Jackson Lewis attorneys will provide updates on this issue. IT staffing and consulting firms should continue to monitor developments.

The federal government’s practice of designating individuals born in American Samoa as “noncitizen nationals” is unconstitutional, U.S. District Judge Clark Waddoups has ruled. Fitisemanu et al. v. U.S., No. 1:18-cv-00036-CW (D. Utah Dec. 12, 2019). Judge Waddoups has directed the government to recognize the citizenship of individuals born in American Samoa.

U.S. Citizenship can be either acquired at birth or after birth.

It is acquired at birth if a person is:

  • Born in the U.S. or certain territories within the jurisdiction of the U.S.; or
  • Born abroad to a parent or parents who were citizens at the time of the person’s birth.

After birth, citizenship is either:

  • Derived or acquired through U.S. citizen parents by simply applying for citizenship; or
  • Acquired through the naturalization process.

Often the terms “citizen” and “national” are used interchangeably – but they are not synonymous. While all U.S. citizens are U.S. nationals, a U.S. national is not necessarily a U.S. citizen. A person who is only a U.S. national:

  • Has the irrevocable right to remain in the United States or its territories;
  • Is entitled to a U.S. passport, but the passport will identify the individual as a national, not a citizen;
  • Is entitled to consular protection abroad;
  • May apply for naturalization after three months of residency;
  • May not vote in federal elections;
  • May not hold a federal elected office; and
  • May not be eligible for certain jobs that require U.S. citizenship.

This differs from legal permanent residence (“green card” status), because U.S.-national status is irrevocable while green card status is revocable. Another difference is that permanent residents generally must wait three to five years before they can apply for citizenship through the naturalization process while U.S. nationals only have to wait three months.

Currently, there are not many groups of people who are U.S. nationals. Puerto Rico, the U.S. Virgin Islands, and Guam started granting birthright citizenship in 1917, 1927, and 1952, respectively. Individuals born in American Samoa, however, are U.S. nationals and are not entitled to birthright citizenship. In Fitisemanu, Judge Waddoups ruled that three residents of Utah who were born in American Samoa were birthright American citizens.

Judge Waddoups ruled that individuals born in American Samoa were “subject to the jurisdiction” of the U.S. and should be entitled to birthright citizenship. He held that the section of the Immigration and Nationality Act (INA) declaring these residents to be only U.S. nationals was unconstitutional under the 14th Amendment.

This is not the first time that this issue has come to the federal courts. In 2015, the D.C. Circuit came to the opposite conclusion and the Supreme Court refused to review the case. If the 10th Circuit (which has jurisdiction over Utah) upholds Judge Waddoups opinion, that will set up a split in the circuits that might well lead to review by the U.S. Supreme Court. Judge Waddoups has stayed his ruling until the case can be appealed.

The government of American Samoa opposed the grant of birthright citizenship in court, arguing it threatens their traditional culture and deprives Samoans the ability to decide about their own status – since, even before this recent ruling, they could apply for U.S. citizenship.

Please contact a Jackson Lewis attorney with any questions.

  • Is it a significant achievement to make it onto a national sports team?
  • Would winning a top-ten spot in a European championship constitute an award for excellence?
  • Would being one of a duo who were U.S. junior ice dance champions constitute an internationally recognized prize?

These are questions USCIS has answered in the negative in denying extraordinary ability (EB-1) permanent resident (“green card”) petitions. The rise in these denials, like the steep increase in denials of employment visas, including H-1B and L-1 visas, results from President Donald Trump’s anti-immigration policies affecting legal and illegal immigration. The approval rate for the extraordinary ability category at the end of the Obama Administration was 82.1%. For FY 2018, the rate fell to 69.4%, and the rate likely will be around 56.3% for FY 2019.

To qualify for an EB-1 green card, a foreign national must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The achievements must be proven through extensive documentation. Scientists, artists, and others who would have qualified easily for EB-1 visas before are facing newly heightened standards. Cases involving athletes are particularly illustrative of this.

Unless an athlete has evidence of a one-time achievement, such as a universally recognized Olympic medal, an individual must show that he or she meets at least three out of 10 criteria set out in the regulations to prove eligibility. As the criteria lend themselves to subjectivity, case decisions are not only influenced by law and policy, but also the adjudicator’s opinions.

The athlete EB-1 extraordinary ability petition brings elite athletes to the U.S. as permanent residents, a critical step that is required before becoming a U.S. citizen. Foreign-born athletes cannot be members of the U.S. Olympic team without U.S. citizenship in hand. Reportedly, Christina Carreira, a Canadian, wants to be able to skate with her American-born partner and represent the U.S. at the Olympic Games. USCIS denied her green card, stating that the duo’s U.S. junior ice dance championship and their 2018 silver medals in the world junior championships were not internationally recognized prizes.  Without permanent residency, Carreira cannot qualify for U.S. citizenship.

In the 2016 Olympics, the U.S. topped the medal count with 121 Olympic medals. The U.S. was represented by 50 foreign-born athletes, including Kerron Clemen (gold medalist in the men’s 400 meter hurdles), Paul Chelimo (silver medalist in the men’s 5000 meter race), originally of Kenya, Danell Layva (won two individual silver medals in gymnastics), who defected to the U.S. with his family from Cuba, and Foluke Akinradewo (bronze medalist as part of the U.S. Women’s Volleyball team), born in Canada to Nigerian parents. The diversity of the U.S. Olympic team also was represented through its coaches.

Historically, the EB-1 petition can be a faster way to a green card and therefore, a faster way to U.S. citizenship. But that may change if Congress passes the Fairness for High-Skilled Immigrants Act of 2019 or another bill that cuts the backlog for PERM cases without increasing the number of visas available overall. Potential U.S. Olympians could be too old to compete at that high level by the time they jump through all the hoops for obtaining U.S. green cards and then citizenship.

It is no secret that H-1B visa denial rates have been on the rise over the last two years. Recent reporting sheds light on the litigation ensuing from those denials and the impact of denials on H-1B beneficiaries.

Sinduja Rangarajan is a senior data journalist at Mother Jones, a publication that focuses on investigative reporting, among other areas. She was formerly a data reporter at Reveal, a Center for Investigative Reporting. She has explored H-1B denials and developed a database that exposes “the unprecedented [number of] legal challenges” to the Trump Administration policies that have led to those denials as well as the results of those litigations.

Ms. Rangarajan’s data shows that before President Donald Trump took office, fewer than 10 cases were filed a year in federal court against USCIS challenging H-1B denials and alleging the agency’s violations of the Administrative Procedures Act (APA). Now, there are more than 60 year – her charts show nearly a straight line up since 2017. The cases “allege that the agency has been making inconsistent and incorrect decisions, ignoring evidence, and misapplying the law.” Many of the cases filed result in H-1B approvals before the litigation moves forward. She documents 38 of 97 during the 2017-2019 period.

But more than the data, her stories on Reveal focus on the lives of highly-skilled immigrants who have “given their youth to this country” and built lives here only to be thrown into chaos by denials or having to live in limbo due to the uncertainty regarding H-1B renewals.  President Trump has complained that companies are moving out of the United States because we “discriminate against genius[es]” and make it too hard for companies to bring the talent they need to this country permanently. While not everyone on an H-1B visa falls into the “genius” category, there is overlap. Yet, USCIS has instituted policies that yield denials seemingly indiscriminately — suddenly questioning the credentials of foreign nationals who have been working in highly technical positions for years and giving no deference to prior approvals.

Ms. Rangarajan herself is concerned about the precipitous rise in H-1B denial rates and resulting instability. She describes how she and her husband spend their evenings trying to figure out how to emigrate to Canada. She also tells the story of an H-1B worker in Texas who, after years of hard work in the United States, bought his dream house and then, due to an unexpected H-1B denial, he lost his job and had to sell his home. He managed to find similar job and got an H-1B approval – but it was too late for him. He has already lost at least a part of his American dream.

The Trump Administration is continuing to make it more difficult for companies to obtain H-1B visas – planning to issue regulations that will make it harder to challenge denials under the APA.  In the meantime, other countries, such as Canada, are taking advantage of the H-1B chaos and welcoming highly-skilled workers — like Ms. Rangarajan.

 

Earlier today, USCIS announced it is implementing the registration process in the next H-1B lottery. H-1B employers have been awaiting confirmation of and details regarding the new registration process for H-1B cap-subject petitions.

Every “cap season,” employers prepare and file petitions subject to the annual H-1B cap in early April. Beneficiaries of petitions selected in the H-1B lottery can, upon approval of those petitions, commence employment for the sponsoring employers as of the following October 1. For the fiscal year 2021 cap, employers will undergo a new process that USCIS says “will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers.”

DHS formally created the H-1B registration requirement in the final rule published on January 31, 2019, which took effect on April 1, 2019. Per the final rule published November 8, 2019, employers filing cap-subject petitions for the fiscal year 2021 cap will be required to first electronically register and pay the associated $10 H-1B registration fee. That final rule is effective December 9, 2019.

Among the announced requirements, features and steps of the H-1B cap registration process are:

  • Employers must complete a registration process requiring only basic information about the company and each beneficiary.
  • USCIS will open an initial registration period from March 1, 2020 through March 20, 2020.
  • The H-1B lottery, if needed, will then be run on the electronic registrations received.
  • Employers whose registrations are selected will be eligible to file H-1B cap-subject petitions within the prescribed timeframe.
  • USCIS will post step-by-step instructions informing registrants how to complete the online registration process along with key dates and timelines as the initial registration period nears.
  • USCIS will conduct public engagements and other outreach activities to ensure registrants’ and interested parties’ familiarity with the new registration system.
  • USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
  • DHS will publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.

We will provide further updates as USCIS announces additional details and instructions leading up to the initial registration period. We also encourage employers to consider their hiring needs and potential candidates, and gather the basic information necessary for initial registration as early as possible. As there may be “growing pains” associated with USCIS’s first-time use of this new process, it is not too early to start preparing.

Just as the H-2B visas for the first half of the fiscal year 2020 ran out (with some limited exceptions), the Department of Homeland Security (DHS), in cooperation with the Department of Labor (DOL), has released a new final rule on H-2B visas that changes and modernizes the recruitment process.

The rule, which becomes effective on December 16, 2019, provides that employers will no longer need to run an expensive print ad in a newspaper of general circulation for these temporary, seasonal, non-agricultural worker visas. Instead, DOL will post the job ad on its Seasonaljobs.dol.gov website.

DOL believes that this will improve efficiency. This also will help DOL expand and enhance its electronic job registry to publicize available job opportunities to the widest audience possible. Certifying Officers (COs) will retain the discretion to evaluate case by case whether additional recruitment might be necessary to ensure an adequate labor market test.

When the new rule was first published for comment in November 2018, DHS and DOL suggested that it would be up to the employer to place an electronic ad and ensure that it met all regulatory requirements (including that it be clearly visible on the website homepage, that it be easily retrievable and publicly accessible at no cost, that the website be functionally compatible with the latest browsers, and that it be easily reviewable on mobile devices). By the end of the comment period, DHS and DOL decided to handle the posting themselves since making the employer responsible for meeting the technical requirements appeared unwieldy, especially for employers who may not be tech savvy.

Commentators, particularly newspapers, defended the viability of print ads and expressed concern about the financial impact on newspapers and the fact that not everyone – especially in rural areas – has good or even adequate internet access. Nevertheless, DHS and DOL concluded based on data from PEW and others that the internet is becoming the most popular way to search for jobs and that the number of individuals without access to the internet is declining. In addition, DOL noted that, by its handling of the electronic posting, unscrupulous employers will have no place to “hide” advertisements.

DOL recognizes that the Seasonaljobs.dol.gov site is currently a bit “clunky,” so it is transitioning to a new platform that, among other things, will be mobile friendly.

When the H-2B recruitment postings begin, the site will include:

  • A concise job description with a link to the full description;
  • The geographic location of the position;
  • Accessibility to language translation services;
  • Accessibility to Web scraping; and
  • An enhanced RSS feed.

This move may be a first step toward eliminating the print newspaper ad requirement for PERM recruitments – likely an even bigger blow to newspaper classified ad revenue.

Please contact a Jackson Lewis attorney with any questions.

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.

 

On November 21, 2019, the new EB-5 Investor Visa Program rules went into effect.  That was also the day that the government could have shut down if a spending bill or another continuing resolution had not been approved.  It could also have been the day that the EB-5 Regional Center Program would end.  But, Congress acted and passed a continuing resolution that would keep the government running and reauthorize the EB-5 Regional Center Program until December 20, 2019.

To avoid the continuing uncertainty of the sunsetting provision of the Regional Center Program, Senators Patrick Leahy (D-VT) and Charles Grassley (R-IA) have introduced the EB-5 Reform and Integrity Act of 2019 (S. 2540) that would extend the Regional Center Program until September 2024 and provide reforms to cure some of the weaknesses in the program including national security vulnerabilities.

The EB-5 Investor Visa Program allows foreign investors to apply for permanent residence if they make a substantial investment in a commercial enterprise in the United States and create or preserve at least 10 permanent full-time jobs for U.S. workers.  Under the DHS’s new rule, the standard investment amount increased from $1 million to $1.8 million.  For investments in a Targeted Employment Area, it increased from $500,000 to $900,000.

The Regional Center Program allows foreign nationals to pool investments and invest in regional centers that are in underserved areas to promote economic growth.  Regional Centers are designated by the government and allow for pooled investment.  There have been scams in the Regional Center Program and Centers have been closed due to fraud.  While Grassley and Leahy acknowledge that some of the EB-5 programs’ problems have been addressed by the DHS’ new rules, more needs to be done legislatively regarding the Regional Center Program.

Beyond extending the Regional Program for a full five years, their new bill would:

  • Give DHS more authority to deny or terminate applications for fraud or threats to public safety or national security;
  • Establish an EB-5 Integrity Fund to conduct audits and site visits;
  • Require background checks for project principals;
  • Require more disclosures;
  • Require more oversight for securities compliance;
  • Improve calculations regarding job creation; and
  • Improve accountability and transparency.

In addition to scam and fraud issues, the EB-5 program overall has been plagued by delays in processing times and priority date issues.  The Grassley-Leahy bill would help with this as well by providing for premium processing and adjusting fees to the point where efficient processing can be achieved.

With another government shutdown still looming before the end of the year, the future of the Regional Center Program is a “wait and see” game.  If you have questions about the EB-5 program and its future, Jackson Lewis attorneys are available to assist.

Poland will become the 39th member of the Visa Waiver Program (VWP) on November 11, 2019.

Polish citizens and nationals will be able to apply to travel to the United States for tourism or business purposes for up to 90 days without obtaining a visa stamp — but they first must register online with the Electronic System for Travel Authorization (ESTA).

Acting Secretary of the Department of Homeland Security Kevin McAleenan made this announcement, explaining that the move is “a testament to the special relationship that exists between our two countries, and the ongoing friendship and close cooperation on our joint security priorities.”

Polish citizens and nationals who already have valid B1/B2 visa stamps in their passports should continue to use those for travel to the United States. ESTA will start accepting online applications for the VWP from Polish citizens and nationals who do not have valid B1/B2 visas on November 11th.

In order to be eligible for the VWP, an applicant must have an e-passport enhanced with an embedded electronic chip for security. Because ESTA applications can take up to 72 hours to adjudicate, it is important to apply to ESTA a comfortable time in advance of the departure date.

ESTA authorization generally is valid for multiple trips to the United States for a two-year period or until the passport expiration date, whichever is earlier.

Should you have any questions about the VWP or ESTA, please reach out to a Jackson Lewis attorney.