Trump Administration Moves Ahead on Reversing H-4 EADs
On February 20, 2019, the Trump administration sent a proposed rule to the Office of Management and Budget (OMB) for review that would halt work authorization for H-4 spouses of H-1B visa holders in the United States. If OMB approves, the administration is expected to move forward with the regulatory process, including publication of the proposed rule in the Federal Register and requesting public comments. Publication of a final rule could take months, and new legislation or lawsuits could have an impact. It is also unclear whether the more than 90,000 current H-4 spouses with work authorization, mostly women from India, will be exempted from the final rule. Historically, in similar situations, the Department of Homeland Security (DHS) has allowed current EADs to expire. As of now, H-4 visa holders can still apply for and work under H-4 EADs.
According to information DHS filed with OMB, “DHS anticipates that there would be two primary impacts [of the rule] that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs [employment authorization documents] are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”
Some companies are working with their employees to seek alternatives. For example, according to Bloomberg Law, Facebook spokesperson Anthony Harrison said, “Our objective is to always obtain independent work authorization for employees where possible and we are actively working with employees who might be impacted.”
The Trump administration has long vowed to rescind the H-4 work authorization program, which has allowed H-4 spouses to apply for EADs since 2015. It is unclear what prompted the sudden move forward with the rule, after a long delay. In December, the D.C. Circuit Court of Appeals allowed a lawsuit against the H-4 program to proceed. That case was filed by “Save Jobs USA,” a group of technology workers who say the H-4 program takes away jobs for U.S. workers. Natalie Tynan, a former DHS employee, said, “In general from an agency’s perspective, the agency prefers to issue its regulations rather than have the courts opine on what the regulations should say. So any opportunity to moot out litigation is a positive one for the agency.”
For California in particular, 30,000 visas are at stake. Fifteen House of Representatives members from California signed a letter in March 2018 urging the Trump administration not to kill the H-4 program. Several of them recently introduced a new bill to protect the program, the “H-4 Employment Protection Act” (H.R. 7150).
Details on the proposed rule are here. The OMB notice is here. The March 2018 letter is here. The text of H.R. 7150 is here.
Premium Processing Resumes for H-1B Petitions Filed by December 21
U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing for all H-1B petitions filed on or before December 21, 2018.
Those who received a transfer notice for a pending H-1B petition and are requesting premium processing service must submit the premium processing request to the USCIS service center now handling the petition. They should also include a copy of the transfer notice with the premium processing request to avoid possible delays, USCIS said. Additionally, those who received a request for evidence (RFE) for a pending petition should also include the RFE response with the premium processing request. If the petition was transferred and the premium processing request is sent to the wrong center, USCIS said it will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.
USCIS noted that when an H-1B petitioner properly requests the agency’s premium processing service, the agency guarantees a 15-day processing time. “If we do not take certain adjudicative action within the 15‑calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition,” USCIS said.
A previously announced temporary suspension of premium processing remains in effect for H-1B petitions to which it applied that were filed on or after December 22, 2018. On January 28, 2019, USCIS resumed premium processing for FY 2019 cap-subject petitions, including those eligible for the advanced degree exemption. USCIS said it plans to resume premium processing for the remaining categories of H‑1B petitions “as agency workloads permit.”
The USCIS announcement, which includes instructions on where to send a premium processing request if USCIS has transferred the petition, is here.
Trump Administration Increases Scrutiny, RFEs for H-1B Petitions
According to statistics released by U.S. Citizenship and Immigration Services, the percentage of H-1B cases with requests for evidence (RFEs) has greatly increased. In the first quarter of fiscal year (FY) 2017, the rate of H-1B RFEs was less than 30%. In the first quarter of FY 2019, that rate skyrocketed to 60%. At the same time, the percentage of H-1B completions with an RFE that were approved has fallen, from almost 80% in the first quarter of FY 2017 to about 60% in the first quarter of FY 2019.
Approval rates were much higher for certain large companies; Apple, Facebook, Google, Intel, and Microsoft reportedly all had 99% approval rates; Amazon and Cisco had a 98% approval rate.
According to reports, a frequent reason for the RFEs was asking companies to prove that the offered job was in a “specialty occupation.” Other questions related to valid employer-employee relationships and specific assignments.
The USCIS statistics are here.
USCIS to Issue New Version of Form I-539 and New I-539A on March 8
U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.
Form I-539 is used for a variety of application types, including:
- Certain nonimmigrant applications for an extension of stay
- Certain nonimmigrant applications for a change of status
- Reinstatement for F-1 and M-1 students
USCIS has expanded the scope of information to be gathered and will change the filing and adjudication requirements. The revised Form I-539 includes the following significant changes:
- Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
- Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 instructions.
- Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.
USCIS said it will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.
The USCIS announcement is here. Read Klasko’s Client Alert on this here.
House Representatives Send USCIS Inquiry re “Alarming Growth in Processing Delays”
Eighty-six Democratic members of the House of Representatives sent a letter on February 12, 2019, to U.S. Citizenship and Immigration Services (USCIS) Director Lee Francis Cissna, expressing their “grave concerns about the alarming growth in processing delays” at USCIS and requesting “prompt and detailed” responses to a series of related questions. “Clearly, policy changes implemented by the current administration in 2017 and 2018 have increasingly shifted the agency away from its service-oriented mission,” the letter states. “Rather than continuing to seek ways to simplify and streamline its benefit-delivery systems, USCIS now appears more focused on erecting barriers to the benefits it administers, including by significantly delaying adjudications.”
The letter notes that as of the end of fiscal year (FY) 2017, the Department of Homeland Security reported a net backlog of 2,330,143 USCIS cases, which was more than double the backlog reported after FY 2016.
The letter asks for responses to questions about, among other things, the causes of the backlog; the use of “extreme vetting”; USCIS’s reversal of longstanding guidance on deference toward prior determinations regarding nonimmigrant employment extension petitions; and USCIS’s proposed FY 2019 budget, which requested the transfer of over $200 million from USCIS to U.S. Immigration and Customs Enforcement.
The letter, which notes that USCIS was created by congressional mandate, asks USCIS how it intends to reduce and eliminate processing delays while ensuring fairness and quality and not passing costs for “the agency’s inefficiencies” on to the applicants and petitioners “experiencing hardship due to USCIS’s crisis-level delays.”
The letter is available here.
March Visa Bulletin Shows Progress
The Department of State (DOS) has released the Visa Bulletin for March 2019, showing modest progress for EB-1 for all chargeability areas as well as EB-2 for China and India; EB-3 and Other Workers China, India, and the Philippines; and EB-5 China and Vietnam, with the remainder of the priority dates remaining Current.
The specific changes in the Final Action Cut-Off Dates, or priority dates, from the February to the March Visa Bulletin are:
- EB-1: China and India—forward progress of two weeks for China and India to February 22, 2017; Mexico—forward progress of three weeks to February 22, 2017; All Other Chargeability Areas—forward progress of one month to January 1, 2018.
- EB-2: China—forward progress of three months to January 1, 2016; India—forward progress of three days to April 9, 2009.
- EB-3: China—forward progress of one week to July 8, 2015; India—forward progress of one month to May 22, 2009; Philippines—forward progress of four months to December 1, 2017.
- Other Workers: China—forward progress of two weeks to August 15, 2007; India—forward progress of one month to May 22, 2009; Philippines—forward progress of four months to December 1, 2017.
- EB-5: China (Non-Regional Center)—forward progress of one week to September 8, 2014; Vietnam—forward progress of one month to July 15, 2016.
Applicants whose priority dates are currently backlogged are recommended to review the dates to determine if they may be eligible to file during the month of March. U.S. Citizenship and Immigration Services (USCIS) noted that beneficiaries of approved employment-based immigrant petitions whose priority dates become current in March 2019 should use the “Final Action Cut-Off Dates” when filing during the month of March 2019. USCIS in the recent past had accepted applications filed during certain months based on the typically earlier “Dates for Filing.”
The March 2019 Visa Bulletin is here.
USCIS Closing Moscow Field Office; U.S. Embassy in Moscow Moves Visa Unit
Due to “a significant decrease in workload,” U.S. Citizenship and Immigration Services (USCIS) will permanently close its field office in Moscow, Russia, on March 29, 2019. The last day the office was open to the public and accepting applications was February 28, 2019. Also, the Visa Unit of the U.S. Embassy in Moscow has moved to a new location.
The USCIS field office in Athens, Greece, will assume jurisdiction over immigration matters in the Russian Federation, Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. The U.S. Embassy in Moscow will assume responsibility for certain limited services previously provided by USCIS to individuals residing in Russia. The USCIS Refugee Affairs Division will assume primary responsibility for adjudicating refugee cases presented for interview in the region.
The new location for the Visa Unit of the U.S. Embassy in Moscow is 8 Bolshoy Deviatinsky Pereulok, 121099, Moscow, Russia.
The USCIS notice, which includes details on filing instructions, is here. Information on the USCIS Athens office is here. The website for the U.S. Embassy in Moscow is here. The U.S. Embassy announcement about the Visa Unit move is here.
USCIS Clarifies Advance Parole Policy When Renewal Application Is Pending
The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently reported that the agency has resolved a discrepancy in the application of policy concerning persons with advance parole who recently filed renewal applications and then left the United States. In some cases, their renewal applications were denied upon their return even when their original advance parole was still valid. The Service Center Operations Directorate was issuing denials but the Field Operations Directorate still approved renewal applications where the applicants had traveled abroad as long as they returned to the United States with previously approved and still valid advance parole documents, the Ombudsman explained. USCIS has now clarified its policy.
The Ombudsman noted that USCIS adjudicators are now consistently using information from the Arrival and Departure Information System, which identifies those who file advance parole applications and then leave the United States. That was triggering denials under USCIS regulations, stating that “if you leave the U.S. during the pendency of the application you will be deemed to have abandoned it.”
In practice, there were inconsistencies in the way USCIS was enforcing those instructions, as noted above. Furthermore, the Ombudsman noted, “there were practical implications to the new practice of denying these renewals for advance parole.” In many cases, applicants re-filed their parole applications, in many cases without a fee, resulting in more work for USCIS. In addition, if an individual did not receive a decision on the re-filed advance parole application before a planned trip, the applicant often would appear at a local USCIS field office to apply for emergency advance parole. “In the end, therefore, USCIS was expending substantial resources to deny and re-adjudicate parole applications for: (1) individuals who it had already determined were eligible for an original advance parole document; and (2) were in fact traveling with authorization under the original parole document that was still valid upon return.”
The Ombudsman said it met numerous times with USCIS over the course of a year to discuss these issues, and that the Ombudsman “made the case that the denials, while authorized by law, did not make operational sense and did not in reality further the spirit of the policy encapsulated by the instructions.” The Ombudsman said that USCIS Director Francis Cissna reversed course in November 2018. The USCIS statement, “Emergency Travel,” on its website now states, “At times, an individual may have an approved advance parole document while a second one is pending. Individuals may travel on the approved [advance] parole document, provided the document is valid for the entire duration of the time abroad. The pending Form I-131 will not be considered abandoned in this situation.”
The Alliance of Business Immigration Lawyers (ABIL) noted that although USCIS has announced it will no longer deny pending advance parole applications if an individual travels on an unexpired advance parole while the new parole application is pending, this does not address what happens to those who travel on an H or L visa while an advance parole application is pending. Based on the wording of the USCIS announcement, it appears that advance parole applications will still be denied if an individual travels on an H or L visa. ABIL noted that anecdotal evidence, although limited at this time, indicates that this is the current practice at USCIS. Attempts to obtain clarification from USCIS have not yet received a response.
The USCIS’s “Emergency Travel” statement is here. The Ombudsman disseminated this news via email on February 8, 2019.
Applicants Can Now Request Certificates of U.S. Citizenship Online
U.S. Citizenship and Immigration Services (USCIS) announced that applicants can now complete and file online Forms N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.
Applicants can file Form N-600 to obtain a Certificate of Citizenship for themselves or their minor children if they:
- Were born abroad and are claiming U.S. citizenship at birth through their parents; or
- Automatically became a U.S. citizen after birth, but before they turned 18 years old.
Applicants can file Form N-600K if they regularly reside in a foreign country and want to claim U.S. citizenship based on their parents. Applicants must secure lawful admission to the U.S. to complete Form N-600K processing. Children of U.S. service members have separate requirements for naturalization under INA Section 322.
Other forms available for online filing include:
- Form I-90, Application to Replace Permanent Resident Card;
- Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings;
- Form N-400, Application for Naturalization; and
- Form N-565, Application for Replacement Naturalization/Citizenship Document.
Additional information is available here.
ICE Indicts Eight People for U.S. Student Visa System Violations in Undercover Operation
U.S. Immigration and Customs Enforcement (ICE) recently announced three indictments charging eight individuals with conspiracy to commit visa fraud and harboring aliens for profit, following an undercover investigation by ICE’s Homeland Security Investigations (HSI). Six of the defendants were arrested in the metropolitan Detroit area. Two others were arrested in Lake Mary, Florida; and Culpeper, Virginia.
According to the indictments, from approximately February 2017 through January 2019, the defendants, a group of foreign citizens, conspired with each other and others to facilitate hundreds of foreign nationals in illegally remaining and working in the United States by actively recruiting them to enroll in a metro Detroit private university that, unbeknownst to the conspirators, was operated by HSI special agents as part of an undercover operation. As part of the scheme, ICE said, the defendants/recruiters assisted foreign citizen “students” in fraudulently obtaining immigration documents from the school and facilitated the creation of false student records, including transcripts, to deceive immigration authorities. The documents obtained as a result of the conspirators’ actions were based on false claims, false statements and fraud, ICE said, since the purported foreign students had no intention of attending school, did not attend a single class, and were not bona fide students. All participants in the scheme knew that the school had no instructors or actual classes, the agency said. “The defendants intended to help shield and hide their customers/’students’ from United States immigration authorities for money and collectively profited in excess of a quarter of a million dollars as a result of their scheme,” ICE noted. If convicted, the defendants face a statutory maximum penalty of five years in federal prison.
The ICE announcement is here.
Register for the Spring Seminar – spots are filling up! Klasko Immigration Law Partners is pleased to invite you to the 15th annual Spring Seminar at the Union League of Philadelphia on April 16, 2019. Click here to register and get all the details.
IN THE NEWS
Bill Stock Quoted in LA Times Article
Bill spoke with the LA Times about the increase in processing times and backlogs for the H-1B visa.
Ron Klasko Spoke with bloomberglaw.com on Challenging Visa Denials
Ron was quoted in this Bloomberg Law article the firm’s success with challenging visa denials ruling in the favor of employers.
Anu Nair’s Speaking Engagement Announcement Covered in The Digital Journal and AILA
Anu Nair was a panelist at an Indian American Chamber of Commerce event, and both The Digital Journal and AILA reported on the news.
Bill Stock Spoke with NBC News on the Proposed Rule Change to H-1B Spouses
Bill was quoted several times in this article from NBC News about the latest developments in the proposed rule change that would strip employment authorization from H-1B spouses.
RECENT SPEAKING ENGAGEMENTS
H. Ronald Klasko
Ron participated in the AILA Bangkok Chapter webcast, Unlawful Presence Litigation episode on February 6.
H. Ronald Klasko
On February 13, Ron spoke in New York at the AILA New York Chapter Conference.
Elise A. Fialkowski
On March 1, Elise Fialkowski was a panelist at the Philadelphia AILA Chapter March CLE. Her panel was entitled, Compliance Fraud and Detection Site Visit, I-9 Audits, PAF and PERM file compliance.
Anu Nair spoke on the 2019 AILA EB-5/Advanced Business Conference and Webcast about developments in the EB-5 process, hot topics, and the floating market on March 2.
UPCOMING SPEAKING ENGAGEMENTS
H. Ronald Klasko
Ron will be a featured speaker at the 2019 AILA Spring Federal Court Litigation Conference on March 12. He will be speaking on a panel entitled Business Litigation 2019: “Which Ball is in Which Court?”.
H. Ronald Klasko
Ron will visit Wharton students on March 27 and advise international MBA graduates of their options once they complete their degree.
ICYMI: RECENT BLOG POSTS AND ALERTS
The Impact of the EB-5 Backlog for India
Anu Nair wrote an article for the latest issue of EB5 Investors Magazine on recent changes to the EB-5 process and how they affect Indian investors.
CLIENT ALERT: USCIS Changes H-1B Cap Process
Michele Madera provides extensive information on the publication of a final rule revising H-1B cap procedures and the link between these changes and the Buy American, Hire American Executive Order.
CLIENT ALERT: Three-Year Unlawful Presence Bar Now Applies to Some F/J/M Nonimmigrants
Feige Grundman discusses how recent policy changes now apply to some temporary visa holders and their effect on the legal status of F/J/M Nonimmigrants.
Running in Circles: Does Applying to Change Status to F-1 Make Sense Anymore?
Maria Mihaylova breaks down the path to a F-1 visa and how changes in the vetting process and requirements have impacted the efficiency of the process.
CLIENT ALERT: USCIS to Issue New Version of Form I-539 and a New Form I-539A: Effective Date is March 11
To prepare clients, William Stock covered USCIS revisions to the I-539 forms and how they will impact filing processes.
Podcast Episode 12: Avoiding Status Violations in the Side Gig Economy
Check out the new episode of Statutes of Liberty: An Immigration Podcast, in which Bill Stock, Michele Madera, and Lisa Felix cover common questions from foreign nationals regarding employment and status violations.
Klasko’s New Peer Recognition Program
The firm has implemented a new Peer Recognition Program that provides a way for staff members to formally express appreciation for their colleagues’ contributions to a positive work environment. The winner is then publicly recognized at the firm’s monthly celebrations, receives the “Ronny Award”, which remains with them for the month, their name in a publicly displayed plaque, plus an additional gift to keep. To kick it off, Ron Klasko himself was recognized in December at the firm’s holiday party, and Technical Writer Alex Magalli won the award for the month of February. Congratulations, Alex!
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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.