Visa Lawyer Blog

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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Given the recent termination of the Deferred Action for Childhood Arrivals (DACA) program and the controversy surrounding the immigration system as of late, in this post we address the numerous myths surrounding the DACA program and of immigration law in general. Although there are numerous studies and empirical research debunking the common myths attributed to the immigration system, as well as detailed economic reports published by governmental agencies corroborating the positive effects of immigration, Americans continue to hold a negative perception of immigrants and are increasingly skeptical of the immigration process. In truth, much of these perceptions are perpetuated by the unwillingness of Americans to obtain readily available information on the internet, to discover that the immigration process for individuals who entered the United States illegally is riddled with obstacles. More and more we are seeing Americans rely on news stations to accurately deliver the news and do the work for them. Unfortunately, the best way to understand the immigration process itself is to go straight to the source, and not rely on such sources for information.

The public needs to know the facts to better understand that the average immigrant actually has very few immigration options available to them under the current immigration system.

MYTH #1 It is easy to get a green card under current immigration laws

Most Americans believe that it is relatively easy to get a green card. This cannot be further from the truth. Immigration laws are highly complex and are designed to make it more difficult for extended family members, low-skilled workers, and undocumented immigrants to immigrate to the United States. Under current immigration laws, there are generally only two ways to immigrate to the United States and obtain permanent residency, outside of special immigrant categories specifically reserved for special categories of individuals including: asylees, refugees, certain witnesses of crimes, victims of abuse, and individuals who may qualify for withholding of removal. It is extremely difficult for individuals to qualify for permanent residency under one of these special categories.

Outside of these special categories, foreign nationals may immigrate to the United States and obtain permanent residency, only if they have a qualifying family member (such as a US Citizen or LPR spouse, child, etc.) who may petition for them or if the beneficiary works for a U.S. employer on a valid visa who is willing to sponsor the foreign national by petitioning for their permanent residency.

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On August 02, 2017, Republican Senators Tom Cotton (R-AR) and David Perdue (R-GA) introduced a new Act called “Reforming American Immigration for a Strong Economy” before the U.S. Senate, otherwise known as the RAISE Act, which is a new piece of legislation that has recently been backed by President Trump.

The RAISE Act aims to overhaul the employment-based immigration system and replace it with a skills-based system that awards points to immigrants based on the immigrant’s level of education, age, ability to speak the English language, future job salary, level of investment, and professional achievements. In addition, the RAISE Act would terminate the Diversity Visa Program, which awards 50,000 visas to foreign nationals from qualifying countries, and would ultimately reduce the number of family-sponsored immigrants allowed admission to the United States. The Act intends to focus on the family-based immigration of spouses and minor children and would reduce the number of refugees allowed into the United States.

Among other things the RAISE Act would:

  • Terminate the Diversity Visa Program which awards 50,000 green cards to immigrants from qualifying countries;
  • Slash the annual distribution of green cards to just over 500,000 (a change from the current issuance of over 1 million green cards annually);
  • Employment-based green cards would be awarded according to a skill-based points system that ranks applicants according to their level of education, age, ability to speak the English language, salary, level of investment, and achievements (see below);
  • The issuance of employment-based green cards would be capped at 140,000 annually;
  • Limit the maximum number of refugees admitted to the United States to 50,000;
  • Limit admission of asylees. The number of asylees admitted to the United States on any given year would be set by the President on an annual basis;
  • Amend the definition of “Immediate Relative” to an individual who is younger than 18 years of age instead of an individual who is younger than 21 years of age;
  • Adult children and extended family members of individuals living in the United States would no longer be prioritized to receive permanent residence. Instead the focus would remain on the immediate relatives of U.S. Citizens and legal permanent residents such as spouses and children under the age of 18;
  • The Act would allow sick parents of U.S. Citizens to be allowed to enter the United States on a renewable five-year visa, provided the U.S. Citizen would be financially responsible for the sick parent.

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Great news for cap-exempt H-1B applicants! Effective immediately, the United States Citizenship and Immigration Services (USCIS) will resume premium processing services for certain cap-exempt H-1B petitions.

As you may recall in early April, USCIS temporarily suspended expedited processing of all H-1B petitions to reduce H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark.

Today, July 24, 2017, USCIS announced that certain cap-exempt H-1B petitioners can now take advantage of premium processing services.

Please note that H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program are not affected by the suspension.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners or applicants who make use of the service. Applications that are not processed within 15 calendar days otherwise receive a refund of the $1,225 premium processing fee. To make use of the service, petitioners or applicants must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision.

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7541767406_8bf4575705_zNew developments have recently emerged regarding the Trump administration’s decision to dramatically scale back or rescind the International Entrepreneur Rule, passed under former President Barack Obama, a rule that would have made it easier for eligible start-up entrepreneurs to obtain temporary permission to enter the United States for a period of 30 months, through a process known as “parole,” for the purpose of starting or scaling their start-up business enterprise in the United States. International entrepreneurs would have been able to apply for this benefit beginning July 17, 2017.

However, this may all change in the coming days. The San Francisco Chronicle has reported that the Trump administration plans to undo the International Entrepreneur rule, to prevent foreign entrepreneurs from coming into the United States and starting their companies. This comes as part of President Trump’s commitment to “buy American, and hire American,” and his promise to create more jobs in the United States, by encouraging American companies to expand within the United States. All of this unfortunately comes as no surprise. It is no secret that the President has consistently expressed his anti-immigrant sentiment through his immigration policies and executive orders.

An administration official has come forward on condition of anonymity disclosing that the Trump administration plans to push back the rule’s effective date from July 17, 2017 to March 2018, to give the administration enough time to dramatically scale back the rule or get rid of the rule altogether.

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On June 13, 2017, the American Immigration Lawyers Association (AILA) spoke with Charles Oppenheim, the Chief of the Visa Control and Reporting Division for the U.S. Department of State, to discuss current trends trends and future projections for various employment and family preference categories.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems and priority dates on the Visa Bulletin. Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence. Applicants who fall under family preference or employment categories must wait in line until a visa becomes available to them in order to proceed with their immigrant visa applications. Once the immigrant’s priority date becomes current, per the Visa Bulletin, the applicant can proceed with their immigrant visa application.

Current Trends & Future Projections:

Employment-based preference categories:

EB-1 China and India:  

The final action date imposed on EB-1 China and EB-1 India (January 1, 2012) during the month of June of 2017, will remain and is expected to remain through the end of this fiscal year.

Per Charles Oppenheim, “Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.”

EB-2 Worldwide:

Good news! EB-2 Worldwide remains current due to a slight decrease in demand in the second half of May and a steady level of demand in the month of June.

Projection: Oppenheim expects a final action cutoff date to be imposed on this category in August which is expected to be significant, however this category is expected to become current again on October 1, 2017.

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16F211BF-4FDC-4D41-8FF7-55867BAB7DB9I first met Suman Kanuganti two years ago, back then he was working for another company but contemplating opening his own high-tech startup company and becoming an entrepreneur.

In advising him on his ambitious pursuits, I recommended that he follow his plans and dreams confidently and full-heartedly. Shortly afterwards, Suman quit his previous job and started to focus on his new company, Aira, based here in San Diego. Through the assistance of my immigration law firm, he received his H-1B visa so that he could continue focusing on his amazing work at Aira in developing assistive technology and services for the blind and visually impaired.

His work at Aira continues at a rapid and productive pace, poising the company well for future growth and success. In just two years, Suman, as Co-Founder & CEO, has transformed his startup into the leading developer of remote technology that is bringing immediate access to information and assistance to those with vision loss. This is greatly enhancing the mobility, independence and productivity of blind people in a wide range daily activities – from navigating busy streets and airports, to reading printed material, recognizing faces, catching the bus or Uber, functioning efficiently in the office or classroom, experiencing cultural and sporting events, and literally traveling the globe.

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On December 6, 2016 Congress passed a continuing resolution to fund government programs through April 28, 2017. Among the programs that qualified to receive additional government funding was the EB-5 Regional Center Investor Program, a program made possible by a Congressional statute. The Continuing Resolution effectively extended the EB-5 Regional Center program through April 28, 2017 with no changes to the program’s policy. With time running out, Congress must either extend the statutory deadline once again to September 30, 2017, or pass reforms to the program. The government is currently holding Congressional hearings to make changes to the EB-5 Regional Center Program. It appears that legislators are contemplating overhauling the EB-5 program altogether, instead of extending the validity period of the program. At this stage, however, it is not likely that a major overhaul of the EB-5 program will take place by April 28th.

Proposed Rule EB-5 Immigrant Investor Regional Center Program

For their part, the U.S. Department of Homeland Security has already introduced a series of proposals in the Federal Register to modernize the EB-5 Immigrant Investor Program. The comment period for the proposed rule closed on April 11, 2017.

Among its major provisions the Department’s proposed rule would authorize:

  • Priority date retention for EB–5 petitioners;
  • Increases the minimum investment amount for targeted employment areas (TEAs) and nonTEAs to $1.8 million;
  • For investors seeking to invest in a new commercial enterprise that will be principally doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million;
  • DHS is proposing to make regular CPI–U-based adjustments in the standard minimum investment amount, and conforming adjustments to the TEA minimum investment amount, every 5 years, beginning 5 years from the effective date of these regulations;
  • Revisions to the TEA designation process, including the elimination of state designation of high unemployment areas as a method of TEA designation;
  • DHS proposes to allow any city or town with high unemployment 4 and a population of 20,000 or more to qualify as a TEA;
  • DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as highunemployment areas; instead, DHS would make such designations directly;
  • Revisions to the filing and interview process for removal of conditions on lawful permanent residence.

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As the days lead up to April 3, 2017, (the first day that USCIS will begin to accept H-1B petitions for fiscal year 2018) our office will be very busy putting the final touches on all cap-subject H-1B petitions. In this post, we will discuss what you should be doing now to tie up any loose ends and increase your chances of selection this H-1B season. In addition, this post will outline what you can expect to receive from USCIS after filing.

First, create a preliminary checklist to ensure that you have met all the requirements to properly file your H-1B cap-subject petition:

Note: Premium processing is suspended for all petitions filed for H-1B fiscal year 2018 for both the H-1B regular cap and master’s cap. Do not file a Form I-907 request for premium processing because the form will be rejected. If you include the I-907 fee in combination with any other filing fees associated with the H-1B visa, USCIS will reject the entire H-1B petition.

Checklist:

  1. Did you include the correct version of all forms with revision date on/after Oct. 23, 2014? See uscis.gov/forms to download current form versions.
  2. Did you properly sign and complete Form I-129 including the correct H Classification Supplement?
  3. Did you properly sign and complete the I-129 and H Supplement?
  4. Did you properly sign and complete the I-129 Data Collection Supplement and Filing Fee Exemption Supplement?
  5. Did you include a properly signed and certified Form ETA-9035 Labor Condition Attestation (LCA) from the Department of Labor for the position for which the beneficiary is applying for?
  6. Did you ensure all forms have an original signature in black or blue ink?
  7. Did you include separate signed checks or money orders for each filing fee with the correct fee amounts?

REMEMBER that USCIS recently changed its fee schedule for certain petitions effective December 23, 2016. See https://www.uscis.gov/fees for a complete list of current fees.

  1. Did you include all required documentation and evidence in support of your petition? See below for a running list.
  2. Did you ensure that you have included only one H-1B position for the beneficiary of each H-1B petition you have prepared?
  3. Do you know the service center where you must file the petition? If not, ensure that you submit your petition to the correct USCIS service center. The service center where your petition must be filed depends on the work location of the H-1B beneficiary as you have specified in the petition. To determine the correct service center see https://www.uscis.gov/i-129-addresses. Failure to submit your petition to the correct service center will result in a rejection of your H-1B petition.

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Beginning April 3, 2017, the United States Citizenship and Immigration Services (USCIS) will temporarily suspend expedited processing of H-1B visas, a service previously available to H-1B petitioners known as premium processing. The reason: to reduce overall H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark. Premium processing previously guaranteed a 15-day processing time, or refund of the $1,225 premium processing fee. Although premium processing did not increase a petition’s chances of being selected for an H-1B visa, it gave petitioners the benefit of waiting a shorter period and allowed selected petitioners the option of upgrading their application to premium processing after filing.

Petitioners will not have the option of paying for the premium processing service for a period of at least 6 months beginning April 3, 2017. The suspension will affect all H-1B petitions filed on or after April 3, 2017 including all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption. Additionally, the suspension may affect petitions that are cap-exempt, but will not apply to other eligible nonimmigrant classifications filed with Form I-129.  While the premium processing service is suspended, petitioners may not file a request for premium processing (I-907) for an I-129 Petition for H-1B worker until USCIS has announced that it has resumed premium processing for H-1B petitions. Beginning April 3, 2017 if a petitioner submits a single check combining fees for premium processing and the Form I-129 USCIS will reject both applications (not just the request for premium processing). To avoid this DO NOT submit any premium processing requests on or after April 3, 2017.

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