New trend in H-1B requests for evidence: Level 1 wages

Many attorneys who are members of the American Immigration Lawyers Association ("AILA") are reporting a significant increase in Requests for Evidence ("RFEs") related wage issues in H-1B petitions. USCIS Vermont and California Service Centers recently began issuing a large number of RFEs where the agency is questioning whether an H-1B position qualifies as a specialty occupation because it is entry level, or questioning whether the Level 1 prevailing wage is too low for the offered H-1B position, based upon the duties described in the H-1B petition.

H-1B occupations are those that meet one of four basic criteria to be considered a specialty occupation: 

1. a Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position; 
2. the degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree; 
3. the employer normally requires a degree or its equivalent for the position; or
4. the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

According to the U.S. Department of Labor ("DOL")'s prevailing wage policy guidance from 2009, a Level 1 (so called "entry-level" wage) is appropriate when a position requires a basic understanding of the occupation where an employee performs routine tasks that require limited, if any, exercise in judgment, working under close supervision. Attorneys report the RFEs they are receiving from USCIS quote this language from DOL and then state the positions described in the H-1B petitions are more complex than roles that would be assigned Level 1 wages, and therefore states employers have not sufficiently established the H-1B petitions are supported by certified Labor Condition Applications ("LCAs") that corresponds to the petitions.

Many employers file H-1B petitions for entry-level petitions and appropriately select Level 1 wages where the minimum requirement is a bachelor's degree or higher. For example, doctors, lawyers, engineers, architects and software developers, even at the beginning of their careers, must still possess a bachelor's degree, master's degree, or other professional degree as a minimum to do their job. Even the DOL worksheet included in the 2009 wage guidance indicates that if an occupation requires a bachelor's degree and up to two years of experience (for a Job Zone 4 occupation), it would appropriately be assigned a Level 1 wage.  Accordingly, employers and their immigration counsel should work to respond to these RFEs, consider citing DOL's own guidance, referencing typical O*Net taks work activities, knowledge, and Job Zone examples for the selected occupation and why that position is still clearly in Level 1 for wage purposes, while ensuring that the response still incorporates why the position qualifies as a specialty occupation.

We believe this increase in RFEs may be related to the USCIS policy memorandum, issued on March 31, 2017, that rescinded a prior USCIS memo that had acknowledged computer programmer positions are specialty occupations for H-1B purposes, and keeping in line with the current administration's "Buy American Hire American" agenda. It should be noted, however, that the March 31 policy memo was specific to entry level computer programmer positions and not a broader Level 1 wage policy for H-1B visas.  Indeed, there is nothing in the Immigration and Nationality Act or in implementing regulations that states a Level 1 wage is ineligible for H-1B petition approval.

If your company has received one of these Level 1 RFEs and need to devise a strategy for response, you can contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to see if they may be able to assist.  Please keep in mind that USCIS provides a firm deadline for RFE responses and failure to respond in a timely manner may result in denial of the petition and the foreign national losing work authorization in the U.S. 

DHS delays implementation of International Entrepreneur Rule, may ultimately rescind it

Last month the Department of Homeland Security ("DHS") announced by publication in the Federal Register that it would delay implementation of the "International Entrepreneur Rule," a new regulation, promulgated under President Obama's tenure in office, that provided immigration opportunities for a small number of international entrepreneurs who could show that they would provide a significant public benefit to the United States in the form of economic growth and the creation of U.S. jobs.  The International Entrepreneur Rule empowered the Secretary of DHS to grant discretionary parole authority to foreign national entrepreneurs who met certain criteria in order to increase and enhance entrepreneurship, innovation, and job creation in the United States.

This rule was set to take effect on July 17, 2017 but DHS published a final rule with delaying the effective date and requesting comments on July 11, 2017. By this action, DHS has now delayed implementation of the International Entrepreneur Rule until March 14, 2018.  DHS has opened the matter for an extremely brief public comment period and could potentially rescind the program entirely. If you would like to make your opinion on this new rule heard, please ensure you submit a comment through the Federal Register's e-Rulemaking portal or by mail by August 10, 2017. 

Revised Form I-485 - now 18 pages in length with expanded inadmissibility questions - becomes mandatory on August 25, 2017

On June 26, 2017 USCIS released an updated version of Form I-485, Application to Register Permanent Residence or Adjust Status. This form is commonly referred to as the "green card" application, whereby an applicant requests USCIS adjust his or her non-immigrant status to that of permanent resident or "green card" holder based on meeting certain criteria. USCIS will continue to accept current version of I-485 (revision date of 1/17/2017), totaling 6 pages, until August 24, 2017. The new version of Form I-485 (revision date of 6/26/2017) is now 18 pages long, and USCIS described as "substantially updated to reduce complexity after collecting comments from the public and stakeholders."  In addition USCIS notes the revised form has "better flow and organization of questions to make it user-friendly for both applicants and USCIS" and that "readability has significantly improved due to new spacing columns, flow, white space, and formatting."

In a teleconference on August 3, 2017, USCIS representatives specifically noted that applicants using the new version of the form no longer need to complete and submit a separate Form G-325A, as that data regarding address and employment history and family biographical information is now incorporated into Form I-485. USCIS also revised Supplement A and Supplement J to Form I-485, so applicants must ensure they are using the correct supplements (if applicable) when filing their green card applications on or after August 25, 2017.

One of the most significant differences between the current and revised Form I-485 is the length of the section regarding inadmissibility questions. The updated Form I-485 contains 80 questions, many with sub-questions, covering issues of general eligibility and inadmissibility. Applicants should review these questions carefully and consider whether working with a qualified immigration attorney may help them proceed with confidence during this important process.

Visa Bulletin August 2017

The August 2017 Visa Bulletin is now in effect and with this month's visa bulletin we see retrogression in the EB-2 category for all countries, and continued backlogs in the EB-1 category for both India and China.  The Visa Bulletin is a publication from the U.S. Department of State, released monthly, that informs beneficiaries of employment-based and family-based immigrant petitions when they are eligible to undertake consular processing for immigrant visas or apply for adjustment of status in the United States for securing their lawful permanent resident ("green card") status.  In many categories and for several populous countries, there can be backlogs and years of waiting for a green card to become available.  Typically, the EB-1 category (available for Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers) is current all year round - meaning if a foreign national meets that criteria, he or she may file their green card application concurrently with the EB-1 petition.  Similarly, the EB-2 category for persons with advanced degrees or filing under the National Interest Waiver category is current for foreign national from most countries (China and India are notable exceptions) all year round.

With the July Visa Bulletin, the EB-1 category became backlogged for persons from India and China and that trend now extends to the EB-2 category for all other countries effective August 1, 2017.  Since the U.S. government runs on a fiscal year that begins October 1, most observers expect these categories will again become current this fall.  This trend, however, shows us that these categories are highly sought-after throughout the year and applicants would be wise to file as early in the fiscal year as possible, as waiting until the summer months brings with it a risk for backlogs and unavailability of green cards until the next fiscal year.

If you have questions concerning immigrant visa availability and the potential effects on your case, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

The latest news on DACA and Dreamers

On July 21, 2017, a bipartisan Senate bill sponsored by Republican Sen. Lindsey Graham of South Carolina and Democratic Senator Dick Durbin of Illinois (S. 1615) introduced the Dream Act of 2017.  The measure would allow recipients of President Obama's Deferred Action for Childhood Arrivals (DACA) program, commonly known as the "Dreamers" to obtain green cards and a path to citizenship, if certain criteria are met.

Massachusetts Attorney General Maura Healey, along with 19 other Democratic attorneys general, have joined together to urge President Donald Trump to keep the under-threat DACA program. In a letter to the president, the attorneys general said the 800,000 recipients of the DACA program have been an economic boom to universities and employers.

On the other side of the DACA debate, Texas and nine other states have sent a letter to the Department of Justice requesting that DACA be phased out and that DHS rescind the June 15, 2012 DACA memorandum and not renew or issue any new DACA or expanded DACA permits in the future.  If not, the letter indicates that the states will amend their litigation pending in the Southern District of Texas to challenge the DACA program.  The current administration has yet to provide any specific details about its plans for keeping or terminating DACA.

Alert: emails from clientverification@state.gov are legitimate

We often see news alerts warning employers and individuals to be wary of phone calls and emails from those claiming to be from a U.S. immigration-related government agency. Recently, a number of U.S. employers began reporting they have been receiving emails fromclientverification@state.gov in which the sender was requesting confirmation that a foreign national will be providing services at the company, sparking obvious concern over whether these emails were part of a scam.  

Emails sent from this address, however, are not part of a scam. The American Immigration Lawyers Association ("AILA") has confirmed with the U.S. Department of State ("DOS") Visa Office that emails sent from an authorized contractor with the email address clientverification@state.gov are legitimate and employers should respond accordingly. Employers may want to consider adding that email address or the domain @state.gov to their individual or company-wide Safe Sender list to avoid these important emails ending up in junk or spam filters.  

If someone in your company receives one of these emails and needs advice on how to respond appropriately, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com. If in the future you receive any other email on an immigration-related matter that you think is suspicious, please reach out and seek advice prior to responding.

USCIS announces H-1B cap reached for 5th year in a row but sharp decline signals possible frustrations with the H-1B program

U.S. Citizenship and Immigration Services ("USCIS") announced on April ­7, 2017 that it had reached the H-1B cap for fiscal year 2018 ("FY2018"). The congressionally mandated cap is set at 65,000 H-1B visas plus an additional 20,000 H-1B visas available to foreign nationals with a U.S. Master's degree or other advanced degree obtained in the U.S.  

As a result of reaching the annual cap within the first five business days of April, USCIS ran a computed-generated lottery system. Per its usual procedure, USCIS first ran the U.S. Master's cap; those not selected in the first run were then placed in the regular H-1B cap for the second random lottery. USCIS then announced on May 3, 2017 that it had completed data entry for all FY2018 H-1B petitions. This means employers and attorneys can expect to see the agency cash filing fee checks and send receipt notices for petitions that were selected in the lottery. Once all the receipt notices are issued, USCIS will begin the process of returning petitions not selected in the lottery (including the uncashed filing fee checks). In its most recent announcement, USCIS indicated it is unable to provide a definite time frame for returning those petitions but typically employers can expect them to be returned in late May or early June. 

The total number of H-1B petitions received for FY2018 was 199,000 which is down 15% from the previous two years.  By comparison, USCIS has over the past five years received 124,000 in FY2014, 172,500 in FY2015, 233,000 in FY2016 and 236,000 in FY2017.  It is difficult to state with certainty why the decline occurred this year. Are employers frustrated with the high cost but low chances? Are foreign students accepting offers of employment abroad or not enrolling in U.S. universities as they did previously because securing work authorization after school is so difficult? Is it because the new STEM extension now allows for up to 2 additional years of OPT work authorization for certain graduates and employers are forcing foreign nationals to utilize this more cost effective yet short-sighted solution?  Or is the U.S. slipping in global competitiveness to more immigration-friendly countries?  The reason remains to be seen but Iandoli Desai & Cronin will be watching closely next year to see if the numbers decline again or if FY2018 was just a fluke. 

For updates on all H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Not selected in the H-1B lottery? Other work visa options to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options. A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN  visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (are subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for an entity abroad related as a parent, branch, subsidiary, or affiliate of a U.S. entity;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics. 

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

DOS releases June 2017 Visa Bulletin - EB-1 retrogression for China & India

As of June 1, 2017, foreign nationals from India and China filing in the EB-1 category may be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. The EB-1 category is an employment-based category for priority workers that includes: 

• Aliens of Extraordinary Ability;
• Outstanding Professors and Researchers; and,
• Multinational Managers and Executives. 

According to the U.S. Department of State's ("DOS") June 2017 Visa Bulletin, the Final Action Chart shows the priority date for Indian and Chinese nationals has retrogressed to January 1, 2012. However, the Dates of Filing Chart lists those two countries (as well as all others in the EB-1 category) as "current." As of May 10, 2017, USCIS has not indicated which chart it will use for determining eligibility for filing adjustment of status applications. Based on past practice, USCIS will likely use the Final Action Chart. This means that as of June 1, 2017, Indian and Chinese nationals with priority dates earlier than January 1, 2012 will be eligible to submit their green card applications, and those with later priority dates will have to wait until immigrant visas become available in the coming months.  It may not be until October (when the U.S. government's new fiscal year begins) that the EB-1 category becomes current again for India and China.

Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, had previously stated EB-1 and EB-2 Worldwide demand at USCIS had increased dramatically, and had predicted a final action cut-off date would be imposed for EB-1 China and India no later than July. The EB-1 category remained current for nationals of all countries except India and China. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.   

DOL launches new features related to PERM audits and email notifications

In order to reduce burdens on employers and streamline the PERM system, the Department of Labor ("DOL") has recently made several announcements relating to PERM email notifications and a new portal for submission of documents for PERM audits. PERM is the first step towards obtaining a green card for many foreign nationals who seek to live and work in the U.S. on a permanent basis. In November 2016, DOL announced that effective December 1, 2016 the Atlanta National Processing Center would begin issuing PERM notification letters via email to employers and attorneys in an effort to provide these case updates in a timely, cost effective manner without delays that can occur when they are sent via regular mail.  Stakeholders now receive the following letters/notifications via e-mail:

• Audit Notification Letters;
• Denial Notification Letters;
• Requests for Information Letters;
• Additional Audit Information Requests;
• Withdrawal Letters; and,
• Notices of Decisions from Appeals.

Please note that Certified ETA Form 9089 PERM application letters continue to be sent via regular mail due to the certification's security paper requirements in place with USCIS.

More recently, DOL announced that its Office of Foreign Labor Certification ("OFLC") allows submission of electronic documentation on the PERM Case Management System portal while a labor certification application is pending review and up to 30 calendar days after the notice of proposed final action is issued.  This new feature, effective April 15, 2017, will eliminate the need for employers or their attorneys to submit a response via mail, email or facsimile. For more information on the new feature, DOL recommends reading their PERM Quick Guide as it provides detailed information on the use of the system.