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My annual ritual. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having increasingly more difficult conversations with their clients who wish to hire foreign nationals into what are called “speciality occupation” positions. Last year, after President Trump signed an Executive Order on April 18, 2017 entitled “Buy American, Hire American” (“BAHA”), the conversations became very different from previous years. This year it seems even worse. Let me explain.
The purported purpose of the “Hire American” portion of BAHA is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry of foreign workers into the United States. President Trump specifically highlighted the H-1B visa program, directing the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid foreign workers.
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field.
Notwithstanding what you read in President Trump’s “fake” tweets, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First and foremost, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An executive order cannot modify existing statutes or regulations. However, BAHA does clearly direct the above-referenced agencies who administer immigration programs to approach their administration obligations from an enforcement standpoint rather than as providing a service to those parties that they regulate. Consequently, a number of agency memoranda have either been issued or repealed since BAHA was signed by the President.
In 2018, practitioners saw how BAHA would play out in real time. Quite simply, as a result of BAHA, employers, their current / prospective employees and their attorneys are being besieged by requests for evidence (“RFE’s”) from USCIS. According to The Wall Street Journal, “the administration is more closely scrutinizing applications for the high-skilled visa program known as H-1B, sending back more than one in four applications between January and August [of 2017] via “requests for further evidence,” according to data from [USCIS], which administers the program. A year earlier, fewer than one in five were sent back.”
In terms of my own practice, and anecdotally what I am hearing from virtually every colleague of mine that practices in this area, these RFE’s are making requests that we’ve never seen before, including questioning the prevailing wage classification and level selected on the underlying LCA associated with the H-1B petition, and also questioning whether the position requires at least a Bachelor’s degree in a specific educational specialty.
Specifically, USCIS is taking the position that a Level 1 wage, as a general matter, cannot support a claim that the offered position is in a “specialty occupation.” Alternatively, the RFE’s often claim that if a position is sufficiently complex to be considered a “specialty occupation”, then it cannot have a Level 1 wage associated with it. Some RFE’s make both arguments and then ask the employer-petitioner to essentially prove the impossible.
And, where at first we starting seeing these RFE’s in specific types of case (e.g., software developers, computer systems analysts), we are now seeing them issued in a wider array of occupations, including engineers (e.g., civil, mechanical, industrial, etc.), lawyers, dentists, teachers, physicians, and accountants/auditors.
Mercifully for our clients we have been able to successfully overcome these RFE’s, but now without a lot of extra time and effort put into the case that, given the existing regulatory framework and case law, seems absolutely unnecessary. These RFE’s have added substantial expense and uncertainty to the H-1B process. The result is that it discourages immigration without making any formal policy change. This needs to change.
On October 19, 2015, the Department of Homeland Security (“DHS”) published a notice of proposed rulemaking in the Federal Register seeking to improve and expand training opportunities for F-1 nonimmigrant students with science, technology, engineering or math degrees (commonly referred to as “STEM” degrees). The rule also proposes to expand what is called “cap-gap” relief for all eligible F-1 nonimmigrant students.
While this is a welcome regulation, and there’s a litigation aspect to it that I will not get into here (but probably should given my audience), the fact that we need this regulation at all is just another example that our immigration system is broken.
A brief primer on “practical training.” Practical training may generally be defined as experiential learning, including paid employment or an unpaid internship, directly related to a student’s major area of study. It may be authorized for F-1 nonimmigrant students who have been enrolled in a DHS-approved college, school, university, conservatory, or seminary for one full academic year. There are two kinds of practical training available: (1) curricular practical training; and (2) optional practical training (“OPT”). OPT is the subject of this article.
Generally, students may be authorized for up to 12 months of OPT at each higher level of postsecondary education. For example, a student may take 12 months of OPT during his or her bachelor’s level, an additional 12 months at his or her master’s level, and an additional 12 months at his or her doctoral level.
It is typically during OPT that a student identifies an employer that may wish to sponsor him or her for longer term temporary or permanent employment. That requires the employer to sponsor the student, more often than not by filing a petition with U.S. Citizenship and Immigration Services (“USCIS”) to change the student’s nonimmigrant status, usually to an H-1B nonimmigrant worker status. The problem is, there are more employers wishing to petition for their workers than there are H-1B visas available, and often both employer and student are shut out of the H-1B program as a result.
A related and important issue is that typically a student’s post-completion OPT will run out months before he or she will be eligible for H-1B nonimmigrant worker status, assuming they were one of the lucky ones to be selected. This brings in the concept of the “cap-gap.”
Spring postsecondary school graduates often face a gap in their period of authorized stay in the United States. Typically it is the period between the end of their OPT and the beginning of their H-1B nonimmigrant worker status (which is generally October 1, the first day of the government’s fiscal year). To deal with this, DHS issued an interim final rule in April, 2008 (the same rule that created the STEM extension and which is the subject of the litigation that I am not writing about), commonly referred to as the “cap gap rule.” It offers an “automatic” extension of the student’s F-1 nonimmigrant status, including any OPT employment authorization that may have been authorized, until October 1 of the fiscal year for which a student is the beneficiary of a timely filed H-1B petition requesting a change of status to H-1B nonimmigrant worker status. This regulation essentially provides continuing work authorization during the “cap gap” for students engaged in post-completion OPT who are also the beneficiaries of such H-1B petitions.
Under the 2008 interim final rule, F-1 nonimmigrant students who earn a degree in a STEM field may be eligible for an extension of their post-completion OPT for up to 17 months, for a total of 29 months of OPT. U.S. Immigration and Customs Enforcement’s (“ICE”) Student and Exchange Visitor Program (“SEVP”) has designated certain Classification of Instruction Programs (“CIP”) codes assigned to major fields of study to constitute the eligible “STEM fields.” While a student may be eligible for additional periods of OPT at each higher level of study, the STEM extension is a one-time benefit, and may be granted only if a student is currently engaged in OPT based on a STEM degree. (To be eligible for a STEM extension, a student must also have an employer who is enrolled in the E-Verify program.)
The new rule would, among other things, extend the STEM OPT period to 24 months, allow an additional period of OPT for subsequent degrees, and even provide STEM OPT eligibility for a prior degree. Very importantly for practitioners in this area, the rule also clarifies which occupations qualify. The new rules also leaves open the possibility of adding eligible fields in the future. Finally, and importantly, the new rule provides continued “cap gap” relief.
These changes are critical to attracting foreign students to our colleges and universities, and to encourage the pursuit of practical training from leading, innovative businesses in the United States. U.S. businesses that provide STEM OPT training opportunities benefit from this program through employee retention and a strengthened market position both domestically and abroad.
Once again, however, I will stand on my soap box and say our country still needs comprehensive immigration reform. For the time being, however, we’ll once again need to satisfy ourselves with these regulatory “baby steps.”
Something a little different, but if you’re advising a client who is waiting in line for an employment-based or family-based immigrant visa (e.g., basically, a Green Card), it’s critical that you know what the Visa Bulletin is, and how to use it.
So what’s the Visa Bulletin? The Immigration and Nationality Act (“INA”) creates annual limits on the number of immigrant visas that the U.S. Department of State (“DOS”) may issue to applicants worldwide in each government fiscal year. For family-based immigrant petitions, the limit is 226,000 immigrant visas per year. For employment-based immigrant petitions, the limit is 140,000 immigrant visas per year.
The INA has also established an “immigrant numerical allotment and control system” which, as the phrase suggests, controls how these annual immigrant visas are allocated within the groups referenced above.
The immigrant numerical allotment control system is administered by the DOS, and specifically the DOS’s Visa Office. Each month, the DOS publishes the Visa Bulletin, which summarizes the availability of immigrant visas as allocated among the various family- and employment-based immigrant “preference” categories in light of the numerical limitations noted above. Every month, the Visa Office determines the number of immigrant visas used thus far in the fiscal year, and then estimates future use and demand. In doing so, it is able to report which categories are “current” (i.e., immigrant visas are available), and which categories are “oversubscribed” (i.e., there is a backlog).
By reviewing the Visa Bulletin, you can (very) generally advise your client when he or she may be able to apply for an immigrant visa (if they are currently outside the United States) or for their Green Card (if they are currently inside the United States) in light of what your client’s “priority date” is.
Recently, U.S. Citizenship and Immigration Services (“USCIS”), in coordination with the DOS, reported that they were revising the procedures for determining immigrant visa availability for applicants who were in “oversubscribed” family- and employment-based preference categories. As reported, the revised process is intended to enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for immigrant visa issuance published in the Visa Bulletin. This was really good news.
In reporting this good news, the DOS revised the Visa Bulletin to now include “Application Final Action Dates”, which are the dates when immigrant visas may finally be issued, and “Dates for Filing Applications”, which are the earliest dates when applicants may be able to apply for their immigrant visas (or their Green Cards, if they are presently in the United States).
Under this new process, if an intending immigrant is presently in the United States, and has a “priority date” earlier than the listed “filing date” for their particular immigrant visa category in the Visa Bulletin, they will now be able to file their applications for their Green Card earlier than they would have been allowed under the old process. (However, they still have to wait for the “final action” date to become current before their permanent residence can be approved.)
For those intending immigrants who are in the United States and are stuck in a category that is substantially oversubscribed, this means they will be able to receive employment authorization and travel documents earlier than they would have under the old system (still while they await final action on their cases). Again, this is a really big deal (in a time when comprehensive immigration reform has been stymied at every turn).
Our country still needs comprehensive immigration reform. Without it, however, I suppose we’ll have satisfy ourselves for the time being with these regulatory “baby steps.”
 There is actually a third category, for what are referred to as “Diversity” immigrants, and the annual limit in this category is 55,000 immigrant visas year.
 A priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by the U.S. Department of Labor.
Many who know me will tell you that I have a propensity to have stream of consciousness moments. I think to myself, “Define Irony”, and then I try to think about a (classic) movie moment where this statement might have been made. Has anyone ever seen the movie “Con Air”? Hardly a classic, I know. Nevertheless, does anyone remember when all the convicts were dancing on the plane to Lynyrd Skynyrd’s “Sweet Home Alabama”? Steve Buscemi, a fabulous actor, says “Define Irony: A bunch of idiots dancing on a plane to a song made famous by a band that died in a plane crash.”
Merriam-Webster defines irony as:
(1) a pretense of ignorance and of willingness to learn from another assumed in order to make the other’s false conceptions conspicuous by adroit questioning —called also Socratic irony;
(2) (a) the use of words to express something other than and especially the opposite of the literal meaning, (b) a usually humorous or sardonic literary style or form characterized by irony (c) an ironic expression or utterance;
(3) (a) incongruity between the actual result of a sequence of events and the normal or expected result; an event or result marked by such incongruity, (b) incongruity between a situation developed in a drama and the accompanying words or actions that is understood by the audience but not by the characters in the play —called also dramatic irony, tragic irony.
Where am I going with this? Good question. Right after the President’s State of the Union Address, House Republicans finally released their “Standards for Immigration Reform.” It was a one page document that primarily echoed what the Republican leadership had been saying for months: border security and interior enforcement is their top priority, and they offered a commitment to some sort of legalization program for those in the country without legal status. The document also highlighted the importance of implementing an entry-exit visa tracking system and employment verification, above and beyond their interior enforcement goals.
Finally, right? I mean, it’s not a perfect, and indeed it’s pretty vague on some level, which means it offers House Republicans cover within their own party and when they’re negotiating with their Democratic colleagues. But it was progress nevertheless.
And then, literally in the wake of this statement, barely one week later, House Speaker John Boehner seemed to stamp out (once again) any prospect for immigration reform. Speaking of the Obama Administration, he said “There’s widespread doubt about whether this administration can be trusted to enforce our laws. And it’s going to be difficult to move any immigration legislation until that changes.” Speaker Boehner went on to say, “We are going to continue to discuss this issue with our members, but I think the President’s going to have to demonstrate to the American people and to my colleagues that he can be trusted to enforce the law as it is written.”
Really? Are you kidding me? So the Republicans are no doubt concerned about some of the commentary leading up to the State of the Union Address, where there was some discussion that if the President could not get his way legislatively in certain areas, he would simply resort to Executive Orders. But to say that the President can’t be trusted to enforce our laws?
Let’s consider deportations during the Obama Administration. Ever read “The Economist”? I love that magazine. And I think it’s fair to say that it’s pretty conservative too. Well, The Economist recently labeled the President as “Barack Obama, deporter-in-chief.” “America is expelling illegal immigrants at nine times the rate of 20 years ago; nearly [two million] so far under Barack Obama, easily outpacing any previous president. Border patrol agents no longer just patrol the border; they scour the country for illegals to eject. The deportation machine costs more than all other areas of federal criminal law-enforcement combined. It tears families apart and impoverishes America.”
A week later, The Economist followed up their earlier story with another article entitled “America’s deportation machine, The great expulsion.” Says the article, “ It is hard to find many areas where the federal government is so effective in implementing laws passed by Congress.” The article highlights the growing pressure that President Obama’s deportation machine is putting on the courts, and also even speaks to a detention bed quota. But the article also singles out something known as “Secure Communities” as the real culprit behind the dramatic increase in deportations. “The turning of police officers into immigration officials has brought border enforcement into areas
of the country far from the deserts of the south-west. Secure Communities, the name given to the programme that links police work to the immigration database, began life in a single jurisdiction in Texas in 2008 at the end of George W. Bush’s presidency. By May 2013 it was operating everywhere.”
So, not only do we have those federal agencies and officials who we expect to be enforcing our immigration laws doing a pretty good job, but now we also have state and local officials, who have essentially been deputized to do the same.
Can’t be trusted? Really? Define irony. Or, maybe we should be saying define disingenuousness. I’m trying to think of a movie quote. “Anyone? Anyone?”
Late yesterday afternoon, at 3:58 PM, not five full days after the H-1B filing season began, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap had been reached. They will now use a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. “Specialty occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.
That’s right, a “lottery” system.
USCIS announced that it had received sufficient H-1B nonimmigrant worker petitions to reach the government’s fiscal year 2014 cap. Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. Shortly after USCIS’s announcement, I reached out to my clients who we had filed new H-1B petitions for with USCIS and told them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her client to keep their fingers crossed, but that’s exactly what I did.
The H-1B cap has not been reached this early since 2008 (just before the economy tanked), when 168,000 H-1B petitions were received by USCIS within the first five days of being eligible to file petitions for that fiscal year. This is yet another clear sign that we need comprehensive immigration reform, and soon.
Imagine yourself as a business owner, and you’ve identified a foreign national this past winter whose unique skills would greatly benefit your company. The first thing I would tell you is that you have to wait to file your petition with USCIS until April 1 (not when we had that first discussion), for an October 1 start date (yes, six months later). I’d also have to tell you that not only would you have to jump through a bunch of hurdles to get everything done in time for the April 1 filing date, but that I could not promise you that USCIS would even accept your petition. How does anyone run a business with that much uncertainty (or delay for that matter)? And yet that’s the very system that we work within.
Rumor has it that the “Gang of Eight” in the U.S. Senate are going to propose comprehensive legislation for immigration reform this coming week. My fingers are crossed.