Given the events in Charlottesville this past weekend and the racist rhetoric that has been bubbling to the surface in our shared nation, we feel it is important to express our unwavering support for immigrants, minorities, the oppressed and marginalized, and those who have been victimized either directly or more subtly by groups and individuals that threaten the freedom and diversity that we hold so dear. As a firm of immigration attorneys and professionals, but more importantly as humans, we stand for diversity of people, cultures, and ideas and abhor any violence by words or actions to those who are viewed as “other” from some artificial norm. We all share a common core belief that everyone has a right to pursue their dreams or passions without fear or prejudice, that we are our best selves when we recognize the good in others, and we passionately work towards making the world a better place.
We stand committed to continuing to build coalitions and reach out to others in an effort to stop harmful legislation that undermines our tradition as a nation of immigrants. As counsel, we will continue to monitor the agencies we work with to ensure they maintain the longstanding tradition of approaching applications filed on the merits and the letter of the law. As people, we will continue to verbally and physically stand up and defend diversity, as we believe that is each of our responsibilities as individuals.
Proposed by Senator Tom Cotton from Arkansas and Senator David Perdue from Georgia, the “Reforming American Immigration for a Strong Economy” Act, or RAISE Act, is the most current attempt at overhauling the U.S. immigration system. The proposal faces stark challenges from both Democrats and Republicans and is unlikely to become law in its current form. However, the proposal does illustrate the desire to make changes to the immigration system and we will be monitoring the progress to ensure that we are on top of any and all changes that could impact our clients.
Currently, the proposal looks to make changes essentially to the immigrant visa system, making moves toward a points-based system rather than the current employment-based system. Points would be awarded for education, English proficiency, job skills, and other factors that bear primarily on an immigrant’s assumed likelihood to be a productive member of the American economy. Family-based immigration would remain a possibility, but only for spouses and minor children of American citizens or permanent residents. Those applicants under the points system would be allowed to submit for consideration and DHS would select from the pool of applicants on a monthly basis based on the points awarded, and applicants not selected for consideration within twelve months of filing will be removed from the pool. Applicants who are unsuccessful can pay the fee again and refile. Based on the current language of the bill, those applicants with the highest scores will be most successful. There have been two clear lines of criticism leveled at this proposed legislation:
1) That it is a radical departure from our immigrant history and actually doesn’t support our cultural and economic needs, and
2) That it is untethered from the temporary nonimmigrant visa process, and permits the immigration of applicants who, although highly educated English speakers, may not be successful in establishing themselves in the U.S.
The overall number of immigrant visas would be limited to 550,000 per year if these changes take effect and the Diversity Immigrant Visa program is scrapped, which is a significant decrease from our current levels. Additionally, the number of refugees admitted in the United States would be limited to 50,000. However, the bill has a very long road ahead of it before it becomes law and there is vocal opposition from many interested parties. We will continue to monitor the legislation and keep all clients apprised of changes and progress.
Earlier this summer, the Canadian government launched a Global Skills Strategy visa program to allow an influx of highly skilled workers into Canada. This program eases the requirements for companies to bring in foreign workers with specific technology or business-related skills. Among other benefits, the program offers two-week application processing times for work permits, as well as temporary resident visas, spousal work permits and dependent study permits, with certain exceptions.
Generally, to qualify for the work permit, the foreign national must be employed abroad and their employer must be approved to hire a foreign worker through the Global Talent Stream (a fast-track stream of the Temporary Foreign Worker Program). The foreign national must have either executive or managerial skills or qualify as a professional under the National Occupational Classification. The two-week processing also applies to immediate family members accompanying the highly skilled workers to Canada.
Further, Canada has also enacted an additional work permit exemption. Eligible workers will be allowed one 15-day work permit-exempt stay in Canada every six months, or one 30-day work permit-exempt stay every 12 months.
If you or your employer has Canadian operations, are seeking to break into the Canadian market, or have a specific Canadian business need, we are happy to assist you in obtaining your Canadian work permit or work permit exemption. Our firm handles Canadian immigration matters for current firm clients.
We embarked on the FY18 H-1B cap season knowing that we were facing issues with the loss of premium processing and generally growing processing times for most applications. However, we also understood that USCIS announced the suspension of premium processing so that they could prioritize cap cases, giving us a justifiable hope that things would move more efficiently. Unfortunately, we are now four and a half months post-filing and roughly 20% of our cases have been adjudicated and approved, nearly 20% have received a Request for Additional Evidence (RFE), and the remaining 60% are still adjudicated. Having spoken with other immigration firms, our situation appears to be the norm.
This suggests two important updates. The first is that case processing is going to take longer than October 1 for this year’s H-1B cap, and significantly longer than that date for many cases. The second suggests that there is an increase in RFEs resulting from recent guidance issued by USCIS, presumably in relation to the president’s Make America Great Again Executive Order. On our end, we are paying close attention to expiration dates for those individuals who may be impacted. We are specifically monitoring dates for individuals who are currently F-1 Cap Gap and thus lose work authorization after September 30, as well as those who are waiting for an H-1B approval before they can enter the U.S. to begin working. Individuals in these situations may qualify for an expedite of the H-1 as premium processing still remains unavailable. We will separately reach out to clients who fit this criteria. Fortunately, the vast majority of cases generally have flexibility where either the applicant holds an underlying TN, L-1, or other status that permits continuing work authorization past September 30.
On the second issue, which unfortunately only exacerbates the already slow processing, we are also seeing an uptick on RFEs this year, directly in response to two recent guidance memos from USCIS. We view this as a coordinated effort to cull the H-1B numbers. The first issue is that USCIS released guidance confirming that not all computer programmers are eligible for H-1B approval. At the time, this announcement was not news as USCIS had previously been difficult on such cases. However, USCIS is approaching this memo from a different angle and questioning filed petitions to ensure they are not for computer programmers. As an example, we received a RFE that asks us to explain how the software quality assurance engineer is not actually a computer programmer because the adjudicator has indicated that some stated duties suggest the person may do some programming. This is obviously a new tactic and one we will directly push back on. The second RFE relates to wage rates. USCIS is questioning whether a specific position qualifies for H-1 consideration if a wage level I was used to set the prevailing wage. Their contention is that a level one wage is intended for student interns and thus is not meant for H-1B filings which require a minimum of a bachelor’s degree education. We recognize that given these new questions being raised by USCIS, we expect more RFEs and are prepared to forcefully respond to both of these current process issues. We will notify clients as soon as we receive any updates on pending cases, and if the update is that an RFE has been issued, please know that we have a strategy to deal with these new questions from the government. We expect that all cases we filed against the cap will ultimately be successful.
On July 17, USCIS released a new version of Form I-9, Employment Eligibility Verification. USCIS will accept the previous edition of Form I-9 until September 17, 2017. In addition to making a few small changes to the instructions, USCIS made revisions to the List of Acceptable Documents. Specifically, USCIS reorganized the documents in List C, “Documents that Establish Employment Authorization”, while also adding “Consular Report of Birth Abroad” (Form FS-240) to List C. List C also now combines all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into one section (C#2). You can find a copy of the new Form I-9 here.
USCIS announced that it will only accept the Final Action Dates chart* in the Department of State Visa Bulletin for September 2017. Just as in the August Visa Bulletin, projections show continued movement in the EB-3 category for the Philippines, moving from June 1, 2015 to November 1, 2015. There is minimal movement for all other categories, including the EB-2 Category for most chargeability areas, which is moving from April 1, 2015 to January 1, 2016. No movement for EB-3 China, which is staying at January 1, 2012. EB-1 for India and China continues to be backlogged; however, we anticipate the category to become current again at the start of the new fiscal year on October 1, 2017.
*Be sure to only reference the priority dates in the “Final Action Dates” chart when monitoring the Visa Bulletin. Only on very rare occasions has USCIS announced it will recognize the “Dates for Filing” chart, and the September Visa Bulletin is no exception. On August 10, USCIS announced yet again it will only recognize the “Final Action Dates.”
NEW HIRE COMPLIANCE: I-9 AND E-VERIFY
USCIS just released a revised version of Form I-9, making now a great time to review your new hire procedures to ensure you’re maintaining compliance. In this webinar, Dave will help you navigate immigration-specific issues that will affect how your complete Form I-9 for your foreign national employees. Additionally, you will explore the pros and cons of registering for E-Verify and some common mistakes made when confirming work authorization through E-Verify.
9/21/17 @ 2pm EST / 1pm CST / 11am PST
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **