Regulatory Agenda Includes Stripping Employment Eligibility From H-4 Spouses of H-1B Visa Holders, Other Action
The Trump administration recently announced its spring 2019 regulatory agenda.
On the list for the Department of Homeland Security are proposals (not final yet), among others, to:
- Revise the definition of “specialty occupation” to “increase focus on obtaining the best and the brightest” foreign nationals via the H-1B program, revise the definition of “employment” and “employer-employee relationship” to “better protect U.S. workers and wages,” and add requirements to “ensure employers pay appropriate wages to H-1B visa holders”
- Increase monitoring and oversight of the EB-5 program and encourage investment in rural areas, including soliciting feedback on proposals for redefining components of the job creation requirement and defining conditions for regional center designations and operations
- Remove employment eligibility for H-4 spouses of H-1B workers
- Withdraw a regulatory provision stating that U.S. Citizenship and Immigration Services must grant or deny an asylum applicant’s application for employment authorization within 30 days
- “Promote greater accountability in the application process for requesting employment authorization and…deter the fraudulent filing of asylum applications for the purpose of obtaining Employment Authorization Documents”
- Raise fees for the Student and Exchange Visitor Program
Details: Announcement is here; Department of Homeland Security list is here; Department of State list is here.
USCIS Accelerates Transition to Digital Immigration Processing, Announces I-539 Online Filing
On May 22, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a new strategy, eProcessing, to accelerate USCIS’s transition to a “digital business model.” USCIS said eProcessing “will be a complete digital experience, from applying for a benefit, to communicating with USCIS, through receiving a decision on a case.”
- As a first step, certain visitors for business, visitors for pleasure, and vocational students can now file Form I-539, Application to Extend/Change Nonimmigrant Status, online. Additional visa classifications are coming soon, USCIS said.
- Included are single applicants (without co-applicants or legal/accredited representation) wishing to extend their stay who hold status as B-1 temporary visitors for business, B-2 temporary visitors for pleasure, F-1 academic students with a specific status expiration date, F-2 spouses or children of academic students with a specific expiration date, M-1 vocational students, and M-2 spouses or children of M-1 students.
Details: USCIS announcement re eProcessing is here; online I-539 filing is here; USCIS announcement re I-539 online filing is here.
Texas Service Center to Begin Accepting Certain H-1B Petitions
As of May 20, 2019, the Texas Service Center has begun processing certain H-1B cap-exempt petitions requesting a change in employer or previously approved employment, concurrent employment, change of status to H-1B, and others.
USCIS said this does not include H-1B petitions for cap-exempt entities.
The Texas Service Center will share this workload with the California Service Center, Vermont Service Center, and Nebraska Service Center. Starting July 19, 2019, USCIS may reject any of these petitions that are filed at the wrong service center.
Details: USCIS announcement is here; direct filing addresses for the I-129 is here.
USCIS Director Cissna Out Effective June 1
On May 26, 2019, L. Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS) since October 2017, submitted his resignation “at the request of the President,” effective June 1, 2019. In an email, Mr. Cissna thanked USCIS staff and said, “As an immigration law and policy professional dedicated to the rule of law like so many of you, I appreciate that this opportunity to serve was a unique experience.”
The move follows the ouster of other Department of Homeland Security (DHS) officials last month, including DHS Secretary Kirstjen Nielsen and Secret Service Director Randolph “Tex” Alles. A replacement for Mr. Cissna has not yet been announced. According to reports, Ken Cuccinelli, former Virginia Attorney General, is at the top of the list, and the move is part of a White House effort to go in a “tougher direction.”
Details: News reports are here and here.
Trump Proposes Merit-Based Immigration Plan
President Donald Trump proposed an immigration plan on May 16, 2019, that shifts the emphasis to a merit-based system to admit highly educated, high-skilled immigrants.
In a speech announcing the proposal on May 16, 2019, President Trump said the biggest change would be to “increase the proportion of highly skilled immigration from 12 percent to 57 percent,” and possibly higher. Immediate family of new U.S. citizens, defined as spouses and children, would go “right to the front of the line.”
President Trump also said the plan makes no change to the number of green cards allocated each year, but will “establish simple, universal criteria for admission to the United States,” to be accomplished by an “easy-to-navigate points-based selection system.” A would-be immigrant “will get more points for being a younger worker, meaning you will contribute more to our social safety net. You will get more points for having a valuable skill, an offer of employment, an advanced education, or a plan to create jobs,” he said.
Reaction to the proposed plan was mixed, according to reports. House Speaker Nancy Pelosi (D-CA) quickly proclaimed the plan “dead on arrival.” Sen. Chuck Schumer (D-NY), minority leader in the Senate, said the White House plan was “a political document that is anti-immigration reform.” Sen. Mitch McConnell (R-KY), majority leader, said he “look[s] forward to reviewing the President’s proposal.”
Details: Video and transcript is here.
USCIS Completes Data Entry for FY 2020 H-1B Cap-Subject (Lottery) Petitions
U.S. Citizenship and Immigration Services (USCIS) announced that it has completed data entry for all fiscal year 2020 H-1B lottery petitions, including those under the U.S. advanced degree exemption.
The agency will begin returning all unselected H-1B lottery petitions and will announce when notifications are completed. USCIS did not provide a specific timeframe but said, “We ask petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition that we have returned.”
Details: USCIS announcement is here.
Lawsuit Accuses USCIS of ‘Attack’ on IT Consulting
A new lawsuit, ITServe Alliance v. USCIS, argues that U.S. Citizenship and Immigration Services (USCIS) is “trying to end the information technology consulting…business model.” Among other things, plaintiffs note that until recently, USCIS adjudicated initial H-1B (lottery) petitions in a relatively timely manner to allow for approvals on the requested start date of October 1. But in 2018 and 2019, the time the agency took to adjudicate an H-1B lottery petition grew to 9.5 to 12.5 months, despite the fact that Congress expected the agency to conclude H-1B adjudications within 30 days.
The lawsuit asks whether USCIS is relying on factors Congress had not intended the agency to consider when adjudicating H-1B visas filed by the IT consulting industry, and asserts that the dramatic increase in processing times “is the direct result of [USCIS’s]…attack on the IT Consulting community” through the agency’s informal adjudications and policy memos.
The lawsuit also notes that USCIS recently increased the processing times and percentage of requests for evidence sent on initial petitions, and points to a disparity in adjudications and processing times for direct employers versus IT consulting firms.
Details: Lawsuit is here.
Klasko News
FIRM NEWS
On Wednesday, June 12, Elise Fialkowski, Michele Madara, and Feige Grundman will host a webinar on how imperative it is for companies to have a comprehensive worksite compliance program in the era of BAHA and increased enforcement actions from the federal government. Click here for more information and to register.
IN THE NEWS
Klasko Spring Seminar Success Covered by the Digitaljournal.com
The firm’s annual seminar was recognized in this article about the sold-out event, entitled “2019 Climate Change: Navigating a Difficult Immigration Environment”.
William A. Stock Quoted on Forbes.com about USCIS Ignoring Time Quotas Set by Congress
Bill was quoted multiple times in this article addressing criticism of USCIS’ time management of the H1B visa process.
H. Ronald Klasko Spoke with Bloomberg Law about Lawsuits Regarding H-1B Denials
Ron spoke with Bloomberglaw.com about litigation against the Trump administration’s immigration policy and its impact on H-1B processing. These suits could provide new insight on the inner workings of USCIS.
RECENT SPEAKING ENGAGEMENTS
Jessica DeNisi
Jessica DeNisi presented on May 7th at the 12th Annual IIUSA EB-5 Advocacy Conference about finding investors in the U.S. for EB-5 and E-2 visas.
Elise Fialkowski
Elise spoke on May 29th at the NAFSA 2019 Conference in Washington, DC, about hot topics in advanced employment-based immigration.
UPCOMING SPEAKING ENGAGEMENTS
Ronald Klasko
On June 5th, Ron will be speaking at The Investment Migration Forum about E-2 visa options and evaluating 3rd country citizenship.
Ronald Klasko | William A. Stock | Elise Fialkowski
Firm partners, Ron, Bill, and Elise will be panelists at the 2019 AILA Annual Conference on June 22nd, where they will cover topics in litigation, business strategies, and client/attorney relationships.
ICYMI: RECENT BLOG POSTS AND ALERTS
CLIENT ALERT: Israeli Nationals Now Eligible for E-2 Visas
Oliver Yang issued this client alert about the E-2 visa becoming a new option for companies and citizens of Israel.
Immigration Law Ramifications of Unlawful Presence Litigation
Ron Klasko gives background on the D/S unlawful presence issue and covers courts decisions on, and reactions to the policy.
Learning O-pportunities: Strategies for O-1 Success
Feige Grundman and Alexander Magalli share tips for successful O-1 visa petitions gleaned from examining denials of AAO appeals in 2018.
Hiring Foreign Contractors: What Every Company Should Know
Michele Madera details the steps that should be taken to prepare for the additional scrutiny that comes when companies hire third-party IT consultants in this article published by The Legal Intelligencer..
Sink OR Swim: Strategies for Outstanding Researcher Success
With an 80% sustained denial rate at the AAO, EB-1 visa eligibility seems nearly impossible, but Feige Grundman and Liam Jordan share strategies for success in this article by monitoring AAO decisions for patterns.
To Extraordinary and Beyond: Strategies for EB-1 Success
Feige Grundman and Jonathan Madara reveal a statistical strategy that almost guarantees a denial, and explain why filing an EB-1 Extraordinary Ability petition is not a DIY project.
FIRM FEATURE
Alex Magalli, technical writer on the EB-1 Team, shows off his new pair of custom Chuck Taylors. Alex exemplifies the KILP mission in his work every day by preparing petitions for the brightest minds in science, technology, and the arts. Now his passionate approach to his work radiates from his head to his feet.
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.
