31 August 2018
31 August 2018,
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A Note of Concern with our Current Immigration System

I’ve started this opinion piece several times – trying to drill down to the issue that I want to really discuss, but I’ve been held back because there is always something else more important that intervenes or a new announcement that again changes the calculus.  Each of these happenings has gotten in the way of addressing the issue I want to raise.  It’s also helped me finally focus because this piece is now well overdue – it’s important that you all get a sense of what is happening.

This year we’ve seen RFE rates at more than triple the usual rate for the non-immigrant cases we file, and each RFE can end in a denial if we are not careful (and unfortunately even being careful doesn’t prevent bad decisions).  These unique challenges explain our dilemma and at times our delays.  I’ve struggled to try and easily explain this to clients and find the best analogy is to explain – how would your business shift if you used to get only 10% of your merchandise returned, but now you are getting 30-40% of it returned as defective for repair, and then 20% of what you repair comes back yet again and you need to then replace that piece.  We are constantly trying to figure out how to limit the number of “repairs” (in this case RFEs from USCIS) or “replacements” (denials from USCIS, where we ultimately refile the case all over again), and that is often best achieved by looking back at what USCIS now says is defective.  Of course, USCIS in this analogy continues to find more imperfections with everything they see.  Our workload has more than doubled this past year, but humans are not scalable, and there are a finite number of people practicing in this field.  We’ve done our best to add to our team, and we continue to add in an effort to ensure we remain timely in all that we do.  Of course, when things get more difficult, people get more anxious and we face more questions and scrutiny – that has also understandably impacted our efficiency.  Previously, a less than 10% RFE rate still represented a significant number of questions USCIS didn’t need to ask – however we find current RFEs are entirely unnecessary, but serve the purpose of limiting immigration.

Despite having witnessed over 20 years of immigration processing; there is no parallel in prior history. Consistently throughout the last 18 months we’ve witnessed new immigration policies and guidance introduced under the guise of national security or to prevent systemic fraud or abuse, only to recognize that the change neither makes us safer or that the fraud is imagined or minimal at best.  While we recognize the need to have checks and balances, our current administration, through myriad cuts and tweaks is harming a system that was already badly in need of repair.  And its abundantly clear that Congress has no interest in policing any of the policies or taking proactive steps to fix the system we currently have.  As such, the administration enjoys unfettered authority to make whatever changes it sees fit to make without consequences.  And although the changes hurt many who rely on a stable system, many of these changes are disproportionately impacting certain types of people and employers (think of the Muslim Ban, and the February 2018 Third Party Worksite Memo).  Put another way, some employers will face some denials, and that will be difficult and hard to fathom, but those employers will move on and find another way, whereas other employers may find that getting an approval gets increasingly difficult because of the type of company they run.  Our laws weren’t written to discriminate against certain types of employers, but they are being used in that manner.

It has gone well past the point where we academically debate whether the administration is against immigration.  One only need look at the types of changes and the legal knots adjudicators are twisting themselves into to justify a denial to know there is a problem.  There is a well-established principle in law that relates to how we interpret laws and regulations – it involves the plain meaning of a word or phrase.  In the H-1B context we need only document that we’ve met one of the four stated criteria to successfully get an H-1B approval as a specialty occupation visa, and one criteria states “the duties of the job are so specialized and complex that the attainment of a bachelor’s degree or higher is required.”  From a plain meaning perspective, that criteria is simply saying if you can establish the job duties are specialized and complex enough to require a degree, then you can receive an H-1B approval.  This criteria is fairly easy to understand and apply, and in the case of say a lawyer, it is easy to argue that this is technical work that requires certain skills and understanding and that a degree allows someone to perform the specialized and complex duties.  And one would normally expect that you could then use the same standard to argue a computer engineer position is equally as complex and thus also requires a degree.  Unfortunately, despite the standard of plain meaning, USCIS has now inserted a separate test, and they’ve stated it in the denials we’ve recently seen. They now claim the position must be more complex and specialized than the norm in its occupational classification for that criteria to work.  In other words, if USCIS already interprets the DOL classification used in your H-1 filing as not requiring a degree, you must somehow show that the position is much more complex and specialized than regular positions in that classification. Frankly, it shouldn’t be this hard, and USCIS shouldn’t be reinterpreting the English language to deny certain cases, but they are.

It’s been painful over these last 18 months as we adapt to these changing adjudications.  Especially when none of this is accomplished through changes in the law or regulations – were it a new law Congress would have to vote, and were it a new regulation there would be advance notice and comment and we could sue to prevent bad regulations from being implemented. Under either scenario we have notice and can plan or take preventive measures.  Instead the changes we are seeing are only noticeable when you receive a denial.  We file cases as we have for years only to find that the rules have changed, and then when we adapt to those changes, we are presented with other new rules.  The sand is shifting underneath our feet.

At the heart of my message I want to convey that our practice area is undergoing transformational change and that is always difficult – both on those impacted and those trying to limit the impact of that change.  We still win dramatically more than we lose, and for most the system still works, but it has gotten much more difficult and time consuming and we’ve had to rethink everything we do.  Please bear with us as we continually change to respond to the latest update or approach that we are seeing from the government.  And of course please pay attention to our updates and best practice alerts as they are released – it is the best way we can accurately and effectively communicate our concerns to our clients.  We will be holding a series of update webinars in September that will allow individuals and employers to ask questions and ensure everyone understands the impact of recent changes.  And even today we are reporting on three very important changes and trying to assess their impact to our clients.

As the field changes so must our business approach. An important policy note, we have always shared on the downside of RFEs received – meaning we’ve always reduced our fees when we’ve felt the total cost was higher than the original filing and written off additional time. However, in addition to increased RFEs we’ve also seen increased complexity in the issues USCIS is raising.  While we continue to want to share in the downside, we must be more pragmatic given the time involved and complexity of the responses we are producing. Obviously we want this process to remain a reasonable expense and we will do our best to be efficient. If I could make a suggestion to our clients, the best way to avoid RFEs is to do your best to provide the materials we ask for at the outset of a case, and in responding to an RFE, the more proactive our clients can be in providing us with supporting documents, the more efficient we can be in our response.

We do expect difficultly with certain types of cases to continue and given the information we’ve received over the course of the last few months we now better understand what types of cases USCIS is generally singling out for denial.  And if the case you wish to file fits that pattern we will let you know and you can make a decision on whether you wish to file or not.  Although there is generally a discernable pattern, we will worry about every case receiving either an unwanted RFE, or an unexpected denial, especially now that USCIS has the authority to deny cases without first issuing an RFE (as of September 11, 2018).

To help you better understand the volume of important changes we’ve just posted a timeline highlighting the past 18 months on our website.  We will also be posting best practices to deal with the new NTA issue coupled with the new authority that USCIS officers will have to deny cases on our newsfeed by end of business day Tuesday.

As the majority of these changes are not Congressionally sanctioned we also suggest clients impacted by these changes recognize federal litigation as one available option for redress and AILA is seeking possible class action candidates for various pieces of litigation – we’d be happy to help coordinate any joint effort to hold DHS accountable to properly interpreting the INA and CFRs.  If you have any helpful solutions as to how we work through this period of change, please don’t hesitate to reach out to me.

With good old fashioned lawyerly skill and perseverance we’ll ride out this period of difficulty and throughout we’ll continue to keep you informed.  If there is one thing I know from my 21 years it is that the pendulum swings one way and then it swings back!

USCIS Extends and Expands Suspension of Premium Processing for H-1Bs

Last spring USCIS announced it would suspend Premium Processing for all Cap-subject H-1B filings. Similar to years prior we all had the expectation that the suspension was temporary in nature and would be lifted by early September to allow us to upgrade delayed Cap cases.  Instead, August 28, USCIS announced that it is extending its suspension of premium processing for cap-subject H-1B petitions through February 19th, 2019. In addition, starting on September 11, 2018, it will be expanding the suspension to include certain additional H-1B petitions. It expects that these suspensions will last through February 19, 2019. USCIS explained that the extension and expansion of the suspension is necessary in order to process long-pending petitions, respond to petitions with time-sensitive start dates, and prioritize H-1B extensions that are nearing the 240-day mark. We actually have a better solution – if USCIS stopped issuing its RFEs, NOIDs and erroneous denials they would save significant adjudicative time and Premium Processing could be reinstated.

In expanding the suspension of premium processing to nearly all H-1B petitions, this suspension will now include H-1B Change of Employer petitions. However, the suspension will not apply to 1) Cap-exempt petitions filed exclusively at the California Service Center because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution; or 2) Petitions filed exclusively at the Nebraska Service Center requesting a “continuation of previously approved employment without change with the same employer” with a concurrent request for consular notification or extension of stay. Furthermore, USCIS has stated that it will continue premium processing H-1B petitions if they were properly filed before September 11, 2018. The suspension of premium processing will not apply to any other nonimmigrant petitions.

USCIS has stated that, although premium processing is suspended, petitioners may submit an expedite request on an H-1B petition if they meet the Expedite Criteria (available here). The petitioner must be prepared to demonstrate how they meet at least one of the expedite criteria, and that these requests are granted at the discretion of office leadership.

The practical effect of this announcement is that, unlike in past years where premium processing was restored by September, we will not be able to upgrade H-1B petitions to premium processing in order to obtain an approval notice sooner. This could significantly impact F-1 students working on “cap-gap” status, as we cannot file premium processing upgrades for these individuals to obtain an H-1B approval by October 1 and thereby resulting in a temporary period where they are unauthorized to work. We will also not be able to file Change of Employer petitions with premium processing, meaning that foreign nationals may have difficult decisions to make regarding when to inform their prior employer that they are leaving. If you have a specific question regarding your case, please contact the legal team member handling your case to discuss your options.

USCIS Issues Updated Guidance on Notice To Appear Policy

On June 28, USCIS issued updated guidance regarding its policy for issuing Notices to Appear, in order to align with the Department of Homeland Security’s immigration enforcement priorities. A Notice to Appear (“NTA”) is a document instructing a foreign national to appear before an immigration judge on a certain date, which begins removal proceedings against the foreign national. USCIS has previously been authorized to issue NTAs in cases involving national security concerns; cases where issuing an NTA is required by statute or regulation; certain Temporary Protected Status (“TPS”) cases; and certain DACA cases. The new guidance expands the range of cases in which USCIS may issue an NTA, which now include cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits; criminal cases where the applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if those acts were not the basis for denial or removability; cases in which a naturalization application is denied on good moral character grounds; and finally and perhaps most importantly, in cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States. Translated for the lay-person if you I-94 has expired at the time of denial UCIS will issue an NTA and commence removal proceeding. This is a significant departure from prior practice and removes various reinstatement options non-immigrant visa holders typically maintain.

USCIS claims that this updated guidance is necessary to maintain national security and protect the integrity of the immigration system. In reality, this new guidance will likely have numerous adverse consequences. First, it could have a chilling effect, discouraging foreign nationals from applying for immigration benefits for which they are eligible out of fear that they will be denied and placed in removal proceedings. Second, it effectively considers anyone who is “not lawfully present” when their immigration benefit has been denied – even those who have been wrongly denied – to become undocumented and therefore subject to removal proceedings. As a result rights of appeal and reinstatement are effectively obliterated – who wants to appeal an adverse denial if it can land you in immigration jail. Finally, the Department of Homeland Security was set up to have three branches, service (USCIS), enforcement (ICE) and border control (CBP). This new guidance turns USCIS into an enforcement agency that denies applications and refers individuals to immigration court, which is not in line with how the agency was set up by Congress. Ultimately, this new guidance is further evidence of the Trump administration’s crackdown on all forms of immigration, including legal immigration, and will likely do more harm than good.

USCIS Policy Memo on Accrual of Unlawful Presence and F, J, and M Nonimmigrants

On August 09, 2018, USCIS changed its policy regarding when individuals in F, J, and M nonimmigrant status begin to accrue unlawful presence in certain instances.

Previously, individuals in these categories with “duration of status” did not begin to accrue unlawful presence until the day after an immigration officer denied an immigration benefit after making a formal finding that they had violated their status while adjudicating the new immigration benefit or on the day after an immigration judge ordered the individual excluded, deported, or removed (whether the decision were appealed), whichever came first.

Individuals with dates certain on their I-94 began to accrue unlawful presence the day after the expiration of their I-94.

The new policy memo has changed the way individuals begin to accrue unlawful presence, most notably for individuals with “duration of stay” status.

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following: •The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;

•The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
•The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
•The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

The most notable change is that accrual of unlawful presence starts once the violation occurs, rather than when an immigration officer makes a formal finding of a violation. This same policy change applied to the dependents of these nonimmigrant categories. Given this dramatic change, it’s extremely important that all F, J, or M nonimmigrants maintain proper status and course load at all times.

Updates on NAFTA

On August 27, President Trump announced that the United States and Mexico had reached a trade agreement that would replace the North American Free Trade Agreement, or NAFTA. The most significant aspects of this new agreement relate to automobile manufacturing and agricultural products.

The timeline for implementation of the new agreement is uncertain. The United States and Mexico seek to finalize the agreement by the beginning of September, before the new Mexican administration comes into office. However, Canada has not been a party to any of the recent talks, and it has several reservations about elements of the new Mexico-U.S. trade agreement. Furthermore, Congress must ratify any agreement the U.S. reaches with Mexico and/or Canada and the President was given Congressional authority to modernize NAFTA, not to sign a bilateral agreement with Mexico. So it remains to be seen whether Congress will support NAFTA remaining intact.

It is also unclear what effect this agreement, which is intended to replace NAFTA, will have on the TN visa. Given the considerable unknowns, we will continue to monitor the situation and will provide updates as they become available.

USCIS Returns Unselected H-1B Cap Petitions

As of July 30, 2018, USCIS has returned all FY2019 H-1B Cap-Subject petitions that were not selected in the April lottery. Our firm has notified all clients of the return of their petitions, and we have been discussing other options for employing individuals who were not accepted into this year’s H-1B lottery. If you have any questions about your H-1B cap case, please contact the legal team member working on your case to confirm the status and discuss other options if necessary.

September 2018 Visa Bulletin

The September 2018 visa bulletin has changed dramatically in relation to the August publication. EB-1 dates for all areas of chargeability have been retrogressed as follows: “All Chargeability Areas Except Those Listed” and the Philippines are at June 01, 2016. China and India remain at January 1, 2012. EB-2 dates for “All Chargeability Areas Except Those Listed” and the Philippines are retrogressed to January 01, 2013. China has been retrogressed to January 01, 2013. India has been retrogressed to January 01, 2007. EB-3 for “All Chargeability Areas Except Those Listed” and the Philippines have been retrogressed to November 01, 2016. China is at November 01, 2014 and EB-3 India at January 01, 2003. In short, we don’t expect that there will be any AOS filings until October and given recent warnings from the Department of State, we may continue to see significant backlogs come October’s Bulletin.

** 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 **

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