Immigration policy has increasingly become a hot-button issue as each day goes by. Given the efforts to make this a wedge issue, it’s difficult to find common ground on immigration policy between the two parties. Honestly, because the parties seem to be diametrically opposed to each other on this very central part of the American fabric, we had given up on bipartisan solutions being offered until we suddenly saw movement in the “Fairness for High-Skilled Immigrants Act of 2019”. Introduced in the House earlier this year (as H.R.1044), it was passed by a wide margin in July 2019 and this switched attention over to the Senate which had companion legislation – S.386. Senator Grassley, Chairman of the Judiciary Committee added amendments to the Bill that impact the H-1B program. Otherwise the Bill was virtually identical to the House passed H.R.1044. Senator Mike Lee of Utah sought to move this legislation forward with unanimous consent of the Senate starting this past July, but first had to convince Senator Rand Paul who introduced his competing BELIEVE Act. After reaching a deal with Senator Paul, Senator Lee was again seeking to bring a unanimous consent resolution and instead another Senator, Sonny Perdue chose to hold up a vote and receive additional concessions in the draft. After overcoming the objections of Senators Paul and Perdue, Senator Lee was going to schedule the unanimous consent vote but was advised that Senator Dick Durbin had an objection as well. We understand that Senator Durbin is seeking an increase in the total number of immigrant visas awarded per annum, a change that would make this particular legislation much more reasonable in terms of outcome, but at the same time may anger other members of the Senate (or House) who were willing to support the original Bill under consideration.
The point of outlining the above is that Senator Lee is very close to getting this measure through the Senate. As the Senate Bill is different than the House Bill, there will either need to be an amended House Bill approved or a Conference Committee will be formed to reconcile the two Bills before receiving final approval from each chamber. Once approved, the Bill goes to President Trump for signature.
Several months ago, approval of the Bill through both chambers was uncertain, but now it is closer to becoming a reality. A review of the Bill’s impact on the Visa Bulletin, and in particular for immigrant visas from all countries other than India is significant. A very helpful write-up from the Cato Institute gives a very clear picture of the likely consequences of immigrant visa processing for all other countries over the next six+ years and it paints a very stark picture. Clearly our current system has been unfair for individuals born in India and China because per country quotas have restricted the flow of immigrant visas, thus creating significant backlogs. The backlogs are at their worst ever, and they are not going to improve without Congressional involvement. However, this Bill does nothing to increase immigrant visas (that is intentional on the part of Senator Lee, as he was seeking to get as broad a coalition of Senators as possible supporting his Bill), and as a result, by relieving the very serious backlog for India, the legislation creates a significant backlog for everyone else. As the Cato Institute article suggests, if we eliminated the per country quotas and increased the number of immigrant visas (one suggestion is to exclude dependents from counting against the quota), such a proposal would work much better to create a truly equitable system.
Given that this bill is much closer to becoming law at this point, it is important for everyone going through the green card process to examine their situation now. The House version of the bill had a “grandfathering” provision, which permits individuals who have already secured an I-140 approval as of the date of enactment of the bill to rely on the Visa Bulletin in effect prior to the change in law. To make this very clear, our goal – if the person in question was born anywhere but India – would be to ensure all of our green card applications in process have an I-140 approval prior to the signing of the bill into law. For some clients, there is nothing we can do if this bill becomes law in the next few weeks, we will simply not meet the deadline. However, the longer this process drags on, the longer our clients have to get PERM approvals and/or I-140 approvals.
The very difficult reality – this bill may not pass the Senate, or it may not be signed by the President (he may choose to veto the bill, causing an additional round of voting), or possibly Senator Durbin will be able to change the Bill to increase immigrant visas and thus avoid the significant backlog this Bill will create. So we may move everything forward as quick as possible and ultimately not experience the negative outcome anticipated by the current Bill’s passage. Unfortunately, we will not know the outcome before it is too late to take steps to avoid the possibility of an impact on our clients’ cases.
Each of our clients must do their own review of this situation and come to a decision on how to react. As a firm, we recommend commencing PERM filings for any employees eligible to file a PERM. We also recommend filing all I-140s using Premium Processing at this time, and until the Bill’s passage or defeat. As the research from Cato shows, an individual who falls under the “Worldwide” immigration column in the Visa Bulletin with an approved I-140 is current now and eligible to adjust their status, whereas someone who gets their I-140 approved just a day after this Bill is signed is likely current in 2022 or possibly may wait until 2027 – a full seven years from now. The obvious business justification for assuming the additional charge of Premium Processing is that the employer will hopefully save money by avoiding the next two or three H-1B status filings.
We will continue to keep our clients updated on the likely passage of this bill, at which point it will be up to President Trump as to how he will respond. While there is significant conservative press opposed to this Bill as a “green card giveaway” this is a truly bipartisan piece of immigration legislation with broad support and the President may consider this a good opportunity to demonstrate he can be presidential. Please feel free to contact us with any questions regarding your immigration process.
DHS has proposed a fee of $10 for each electronic registration employers submit for the FY 2021 H-1B Cap Season. On January 31st, USCIS published a final rule requiring employers seeking to file H-1B cap-subject petitions, for the H-1B “lottery,” to first electronically register with USCIS. USCIS would then conduct the lottery if more registrations are received than the allotted quota amounts. USCIS then notifies employers of those selected registrations to file an H-1B petition. The agency considers the fee as “appropriate” and “nominal” in order to recuperate the cost of implementing and maintaining the H-1B registration system.
As the new H-1B Cap Season filing process is changed by this new electronic preregistration process it creates a new workflow and filing possibilities. In the near future we’ll be explaining in more detail the timing of the upcoming H-1B Cap Season and how we propose to tackle it.
In February 2019, in response to President Trump’s Buy American and Hire American Executive Order, the Department of Homeland Security (DHS) submitted the proposed rule for H-4 EAD revision to the Office of Management and Budget (OMB). Upon successful review, the proposed rule would be published in the Federal Register and undergo a comment period. Thereafter, the proposed rule would undergo additional review before it is signed by the DHS Secretary and published in the Federal Register. The rule was expected to be published this summer; however, in a letter to the court, in the case of Save Jobs USA v. DHS, DHS provided an updated timeline. According to DHS, the proposed rule is not expected to be published in the Federal Register until spring 2020. The agency noted that the new timeframe was “aspirational.” To put this in context, USCIS was publicly stating that the H-4 EAD would be canceled as early as Spring/Summer 2018, and apparently the government is succeeding in stretching this process out as long as possible. While the Administration has publicly supported getting rid of the H-4 EAD, the lack of progress to this end suggests that some individuals within USCIS are behind the scenes delaying the end of this important program.
At this time, there are no changes to the H-4 EAD program. As a result, eligible H-4 dependents are advised to file their initial or renewal applications as soon as possible. Renewals are generally accepted by USCIS six months before the expiration of the current EAD.
In a proposed rule, published in the Federal Register this September, the Department of Homeland Security (“DHS”) is seeking to collect five years of social media history from applicants for certain immigration and travel benefits such as the Visa Waiver Program, adjustment of status, and naturalization. The agency may use the information collected to confirm information attested by an applicant. If finalized, applicants would be required to provide the social media platforms and corresponding social media identifier used over the past five years. Some of the affected forms include:
DHS already uses publicly available information to determine eligibility for benefits. According to the agency, the additional collection of social media identifiers and associated platforms will assist the agency by “reducing the time needed to validate the attribution of the publicly-available posted information to the applicant and prevent mis-associations.”
It is important to note that employment-based petitions such as Form I-129 and I-140 are not included in the proposed rule. Nonetheless, all applicants for immigration benefits ought to verify that the information attested on their immigration forms are consistent with their social media profiles.
Immigration and Customs Enforcement (“ICE”) has had the authority to conduct site visits for STEM OPT employment since the program’s regulation were revised in May 2016. However, the agency has not begun conducting inspections until recently. Generally, ICE will provide 48 hours advance notice of the site visit, but no notice is required if a complaint was filed with the agency or if there is evidence of noncompliance with STEM OPT program rules. Notices are being sent via email to managers of the trainees with an attached Notice of Site Visit. During the site visit, some of the questions ICE officers may ask include information provided on Form I-983; the trainee’s qualifications; how the position relates to the trainee’s degree or academic program; and whether the trainee is placed at a third-party worksite. A typical visit may last from 1 to 1.5 hours, depending on the number of foreign nationals being investigated and the information requested by the officers.
If your company receives a Notice of Site Visit, please contact a member of our team for assistance.
On August 20th, the Department of State (“DOS”) announced that the E-1 treaty trader and E-2 treaty investor visa validity periods would be reduced from the maximum 60 months to 15 months. The change was set to take effect on August 29th but has been postponed until September 26th, 2019. The new limitation would only impact E-1/E-2 visa requests from September 26, 2019 onwards. However, at the time of this writing, the DOS has not updated the Reciprocity Schedule for France to reflect the new change. As a reminder, a visa stamp allows the visa holder the right to request admission to the United States, it does not impact the period of admission. Hence, E-1/E-2 visa holders will still be entitled to a period of authorized stay of two years upon a valid entry into the U.S. in E status.
On September 4th, USCIS released a “Fact Sheet” reminding employers that the Department of Homeland Security will continue to enforce all rules and regulations related to employment eligibility verification. Employers are reminded that newly hired employees must properly complete and sign Section 1 of Form I-9 no later than their first day employment, and employers are required to physically examine employee’s document(s) and complete and sign Section 2 of Form I-9 within three business days of the employee’s first day of employment. If a new employee’s document was lost, stolen or damaged within three business days of the first day of employment, they may present a receipt demonstrating that they’ve applied for a replacement. The replacement document must be presented within 90 days from the date of hire.
Please contact a member of our legal team if you have questions regarding completing Forms I-9.
The October 2019 visa bulletin has made progress in some categories, and retrogressed in others, compared to September 2019 in terms of dates for filing for employment-based visa applications. As we had anticipated, EB-2 and EB-3 Worldwide are no longer retrogressed and both remain current. EB-1 Worldwide has advanced to July 01, 2019. EB-1 China has retrogressed to September 01, 2017; EB-1 India has retrogressed to March 15, 2017, and EB-1 Philippines has advanced to July 01, 2019. EB-2 China has retrogressed to August 01, 2016 while India has advanced to July 01, 2009; EB-2 Philippines is current. EB-3 China has advanced to March 01, 2017. EB-3 India has retrogressed to February 01, 2010, and EB-3 Philippines is current.
** 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 **