Article: H-1B REGISTRATION FINAL RULE OF FEBRUARY 2, 2024, AND MORE – GET READY!

As published in the Immigration Daily on February 12, 2024

DHS’s February 2, 2024, final rule for H-1B registration, “Improving the H-1B Registration Selection Process and Program Integrity”, included the most important attempt at reform of the H-1B registration system – adding fairness – one beneficiary, one chance. The system will now be beneficiary-centric under which the beneficiary will have one chance of being selected regardless of how many organizations apply for him or her. The system to be replaced allowed multiple organizations to sponsor candidates for registration, in effect giving many candidates more selection chances. Over the years since the first registration in 2020 for the FY-2021 H-1B cap, gaming of the system became endemic as the unscrupulous saw little penalty in conspiring to give applicants more company sponsorships, and the number of registrations zoomed from 274,237 in FY- 2021 to 308,613 in FY-2022, 483,927 in FY-2023, and in the last year, 780,884 for FY-2024. Without the intervention, registrations could conceivably have topped 1 million for this year.

The rule outlines timing and procedure for this year’s registration:

Timing –

  • Registrants will be able to create new accounts beginning at noon Eastern on 2/28/24.
  • Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until 3/6/24 to enter beneficiary information and submit the registration with the $10 fee.
  • The initial registration period will open at noon Eastern on 3/6/24 and run through noon Eastern on 3/22/24.
  • USCIS intends to notify account holders and upload selection notifications to their accounts by 3/31/24.

Procedure –

  • The $10 fee remains for this year (it is projected that the registration fee will rise to $215 next year).
  • The process will be beneficiary-centric instead of organization-centric.
  • Online filing of non-cap Form I-129’s (Petition for a Nonimmigrant Worker) and associated I-907’s (Request for Premium Processing Service) will begin on 2/28/24.
  • Online filing of H-1B cap cases and associated I-907’s begins on 4/1/24.
  • USCIS will transition paper filing location for H-1B and I-907 petitions from service centers to the USCIS lockbox with the new filing locations to be announced in March.

To further combat fraud in the registration process, participating applicants must have a valid passport or travel document at the time of registration. Without such, they cannot participate. While renewal of the passport or travel document can be done later, the final rule says that “Such circumstances could include… a change in passport number or expiration date due to renewal or replacement of a stolen passport, in between the time of registration and filing the petition.”  Other parts of the rule have words like “requiring valid passport or travel document information” … “While DHS recognizes that some individuals may not possess a valid passport or travel document, DHS has a strong interest in requiring passport or travel document information for each beneficiary….”

Emphasis was also placed upon this in the USCIS email announcement on January 30, 2024, specifying that, “USCIS will require registrants to provide valid passport information for valid travel document information.”

This year promises to be much different from past registration years. USCIS has already projected a much smaller number of registration applications than last year that will turn into a higher number of successful registrations if USCIS selects in the same average range of numbers as in the three years prior to the past year. So organizations and applicants interested in cap H-1B petitions should get ready for an interesting ride beginning this month.

It should be noted that unless the new January 31, 2024, final rule on fee increases, “US Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” is delayed or stopped by legal action, most organizations with selected registrants will have to pay enhanced fees to file H-1B petitions. For most nonprofits, the fees will remain the same. For small for-profit employers (25 or less full-time employees in the United States), the increases will be less, while those on larger for-profit employers (with 26 or more full-time employees in the United States) will be more. In addition to the regular add-ons ($500 fraud fee and either $750 or $1500 job training fee), both of the latter categories will have to pay a $600 asylum program fee, and the larger for-profit employers an enhanced $780 I-129 fee instead of the regular $460 fee. Fee increases are slated to go into effect on April 1, 2024.

IMMIGRATION NEWS THAT YOU CAN USE –MATTER OF STOCKWELL BROUGHT BACK TO BEGINNING STATE; ANOTHER BIA DECISION AFFIRMS RIGHTS OF CONDITIONAL RESIDENTS THROUGH MARRIAGE

As published in the Immigration Daily on January 31, 2024

  1. Matter of Stockwell Brought Back to Beginning State.

Looking at the USCIS policy manual recently, it now entirely embraces Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), in which a person receiving conditional residence can marry someone else and that person can sponsor for permanent residence without having to go into the immigration court. USCIS had taken this route before, but complicated it later by saying that these applicants would have to go through the court, but now is coming back to the idea that USCIS can adjudicate.

This applies where USCIS has terminated the conditional residence for failure to timely file form I-751. Previously USCIS said that conditional residence could only be terminated by a formal notice by the agency. In the policy manual now, persons who file for adjustment of status from another marriage after the second anniversary of obtaining conditional residence, may be eligible to adjust on the new basis regardless of whether USCIS issues a notice of termination of status before the individual files an adjustment under the new basis. USCIS is now conceding that the INA provides that a conditional residence status terminates as a matter of law as of the second anniversary of the noncitizen’s lawful admission for resident status.

  1. Another BIA Decision Affirms Rights of Conditional Residents through Marriage.

The BIA decided in a recent ruling, Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023), to solve the problem of persons who do not have the above situation of another marriage in the wings; whom DHS believes have non-bona fide marriages, but in going to immigration court, have their cases terminated, and are left in legal limbo without lawful status. In Ferreira, the immigration judge (IJ) first concluded the DHS had not established removability and terminated and when the respondent filed another I-751, it was denied by USCIS and removal proceedings re-initiated. The IJ then terminated a second time because DHS could not find the file in two hearings. The BIA ruled that given the significance of a respondent’s interest in securing review of a denial of an I-751, an immigration judge should ordinarily review the denial of a form I-751 upon the request of the respondent.

Alan Lee, Esq. Q&As published on the World Journal Weekly on January 28, 2024 : 1. Applying EAD Encounters Two Situations 2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem 3. For an Expiring Combo Card, You Can Make New Applications 4. Premium Processing Application lockbox Address 5. Mailing Address and Residential Address

1. Applying EAD Encounters Two Situations

A reader asks:

My PD is at the end of July 2022, and now EB1 Form B can be submitted to I-485 to apply for EAD. Now I encounter two situations and want to ask for advice respectively.
1. My wife came to the United States on a J-2 visa from 2004 to 2006, and the old passport she used has been lost. She then returned to China and came to the United States to study again in 2020, using a new passport. Now that I-485 is submitted, a copy of the previous passport must also be submitted, and the old passport has a stamp for entering and exiting the United States, which can prove that the J-2 meets the two-year service requirement of the home country. However, now the old passport is lost. How should I deal with this situation?

2. My wife is currently a student with an F-1 visa and is expected to graduate by the end of next year. She is currently being interviewed for an intern in the summer next year. If I submit the I-485 together with me now, if I want to intern next summer, will I have to activate the I-485 combo card? She can no longer apply for an OPT EAD card. If I submit the I-485 separately now and submit it to her when the deadline is approaching, she might be able to apply for OPT EAD first and then get the combo, or should I submit the I-485 together now while she is intern? Also use I-485 EAD?

Mr. Lee answers,
To your first question, your wife can present a copy of the dependent  DS-2019 form that she had when she came to the US under the J-2 visa; her affidavit explaining what she was doing from 2006 to 2020; and backing that up with whatever evidence that she has of her residence in China or any other country including any subsequent passports that she may have applied for and received outside of the United States.

To your second question, I do not see any disadvantage in filing I-485 applications for both of you at this time. You can both apply for employment authorization cards. I note that we have been seeing USCIS move faster on approving EAD cards based on I-485 filings, most coming well before six months in uncomplicated cases. In addition, USCIS is now giving five years validity time to EAD’s s based upon adjustment.

2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem

A reader asks:
I applied for I-140 and am waiting for approval. However, I still have an H-1B visa in hand, which can last for a while. Even if it expires, I plan to go to Canada to sign it back because I cannot leave the country while waiting for the I-131, which affects my vacation. I would like to ask if there are any disadvantages to submitting I-485 without I-131? For example, will it be slower or something? Can it be only fileI-485, not fileI-131?

Mr. Lee answers:
An I-131 application for advance parole while an I-485 adjustment of status application is pending is purely a benefit and not a detriment. Filing without the advance parole application will not slow the processing of the I-485. With the unexpired H-1B visa, you can travel in and out of the US during the time of processing of the adjustment application. Upon expiration, you should be able to have it renewed since the H-1B is a dual intent visa, allowing an individual to remain in the US on H-1B status while the permanent residence application is pending. Normally a renewal of the H-1B visa in Canada should not be a problem, although US consulates in many countries are wary of giving visas to third country nationals.

3. For an Expiring Combo Card, You Can Make New Applications

A reader asks:
In 2021, when my EB-1A was approved, I still had a pending NIW. In December 2021, I-485 was submitted based on approved EB-1A, and the pending NIW was also withdrawn. Unfortunately, I-485 was still transferred to NSC. In February 2022, there was no movement after the fingerprints were taken. During this period, I also received a NIW withdrawal notice. I received the combo card in June last year. This year I went to congressmen and the White House to urge me, but all I got were template responses from CIS. At this moment, the combo and physical examination are about to expire. what do I do?

Mr. Lee answers:
Unfortunately, USCIS is a money strapped agency and cannot adjudicate all of its cases on a timely basis. That can be seen from the long backlog processing dates that it releases to the public. For an expiring combo card for employment authorization and advance parole, you can make new applications. At this time, there is no additional USCIS filing fee for either application where the I-485 application remains pending. As for the medical examination, it is currently good for two years, and so it is up to you whether to take another one at this time or wait until USCIS is ready to adjudicate and requests a new medical.

4. Premium Processing Application lockbox Address

A reader asks:
I applied for EB-1A for special talents. Last week, UPS sent it to TSC Premium Processing. Today, the entire application was returned. The rejection letter from USCIS said: The fee for the I-129 petition I submitted was incorrect. What’s happening here? I applied for EB-1A and submitted I-140, not I-129 at all. No matter in the I-907, I-140 or cover letter I submitted, it was clearly stated that I was applying for EB-1A. The only thing I can think of is, should I fill in the I-907 and I-140 that I applied for E11? Maybe the people reading it don’t know that EB-1A is E11?

Another possible reason I think is that they thought I sent it to the wrong jurisdiction. I am not in the United States now. When I sent the application, I filled in the mailing address of my previous residence in New Jersey (TSC jurisdiction) and asked the landlord to collect it on my behalf. Physical address is the Chinese address filled in. Maybe they think I can’t send it to TSC using a c/o mailing address in TSC’s jurisdiction. But even so, should a Chinese address be able to send TSC?

Mr. Lee answers:
If you submitted the fees of $700 and $2500, they would be correct fees and USCIS should not have rejected the I-140 petition for alien worker and I-907 premium processing application. It appears that your choice is to send them the same package with an explanation, or to redo the forms and send in the paperwork again. On where to send an application if you are in China, the current address for a person stating an address in New Jersey is:

USCIS Chicago Elgin Lockbox

U.S. Postal Service (USPS):

USCIS
Attn: Premium I-140
P.O. Box 4008
Carol Stream, IL 60197-4008

FedEx, UPS, and DHL deliveries:

USCIS
Attn: Premium I-140 (Box 4008)
2500 Westfield Drive
Elgin, IL 60124-7836

5. Mailing Address and Residential Address

A reader asks:
I am going to apply for I-140. The mailing address (5b-5g) in Part 4 of the form is the Chinese mailing address filled in Chinese. Foreign address (3a-3f) is the Chinese residential address filled in English. Can these two be filled in differently?

Mr. Lee answers:
Mailing address and residential address are many times different. That is the reason for which USCIS gives the two spaces. Many individuals have different mailing addresses for security reasons or because they just prefer that their mail goes to a different address.

IMMIGRATION NEWS THAT YOU CAN USE – USCIS TAKES FIRST STEPS FOR H-1B CAP SEASON; POLICY MANUAL ON F-1 AND M-1 STUDENTS CLARIFIES POINTS OF LAW AND PROCEDURE.

As published in the Immigration Daily on January 22, 2024

  1. USCIS Takes First Steps for H-1B Cap Season.

A big change for H-1B filings – both cap and non-cap with I-129 and I-907 is being announced to take effect in February to make everything electronic. USCIS is encouraging setting up organizational accounts to allow multiple people in an organization and legal representatives to collaborate and prepare H-1B registrations, I-129’s, and I-907’s. There will be two national engagements on organizational accounts on January 23 for companies and 24 for legal representatives as well as several smaller sessions leading up to the H-1B registration. The entire H-1B lifecycle then becomes fully electronic from registration to final decision and transmission to the Department of State. For those still doing paper filings, USCIS will transition the paper filing location from service centers to the USCIS lockbox.

This is a good change to further save the forests of the world. USCIS will have shrunk its H-1B paper footprint from two copies to the present one copy to the future no copy. If this had been announced earlier, it would have given USCIS the option of demanding complete petition filings of all interested parties instead of soliciting registrations of organizations if the new beneficiary centric registration system was not yet ready for this year’s H-1B cap selection process.

  1. Policy Manual on F-1 and M-1 Students Clarifies Points of Law and Procedure.

Perusing the USCIS policy manual pertaining to nonimmigrant students, there are some new and old policies of which readers should be aware of or remember:

  1. The policy manual on F or M-1 status now says that officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or immigrant visa petition as not necessarily impacting eligibility for the classification, so long as the student intends to depart at the end of the temporary period of stay – that in all cases, the officer must consider all facts presented when determining whether the student is eligible for F or M classification.
  2. F-1 students may be eligible for public high school for one year after paying the school district the real cost of schooling, but there is no F-1 study allowed in public schools for elementary grade children.
  3. When a student is transferring between schools or programs, the limit is five months that he or she is allowed before resuming classes at the transfer school or program, or within five months of the program completion date on the I-20 – whichever date is the earlier.
  4. The policy manual reminds students on STEM OPT extensions that they have duties not only to report change of address or employer or loss of employment within 10 days of the change to the DSO, but also to complete a validation report every six months to the DSO within 10 business days of each reporting date; and submit a self-evaluation of progress toward the training goals described in the I-983 prior to the conclusion of the STEM OPT period, and both student and employer must sign each evaluation to attest to its accuracy. There must be an initial evaluation within 12 months, and a concluding evaluation.
  5. On travel outside the US during the cap-gap period and returning under F-1 status, the policy manual says that travel is permitted where USCIS has approved the H-1B petition and request for change of status; the student seeks readmission before the date of the student’s H-1B employment beginning (normally October 1), and the student is otherwise admissible. If traveling when the application for change of status is pending, the change of status portion is deemed abandoned.

Knowing or remembering the rules may serve to keep the nonimmigrant student from running afoul of the intricacies of the law in this area.

Article: BIG CHANGES IN JANUARY 2024 VISA BULLETIN – WHY NOW?

As published in the Immigration Daily on December 13, 2023

October marks the beginning of the government fiscal year, in years past signaling a new year of visa numbers. August and September were generally “dead” months as we eagerly awaited the new visa allocations of October. Now after minimal bulletin changes from October-December, we get a visa bulletin chock-full of changes. Why? Have Visa Office operations changed so much that significant date changes must wait until the second quarter of the fiscal year?

That being said, the January visa bulletin is designed to bring smiles to the faces of many as there are no retrogressions, only advances.

Family-based final action dates: F-1 (adult single sons and daughters of US citizens) remained the same for ROW (Rest of the World) at 1/1/15 while Mexico and the Philippines remained at 5/1/01 and 3/1/12 respectively; F-2A (spouses and children under the age of 21 and unmarried of LPRs) advanced almost 9 months to 11/1/19 for all countries except Mexico which advanced 8 ½ months to 10/22/19; F-2B (adult single sons and daughters of LPRs) one week for ROW to 10/1/15 and the big jump was Mexico advancing 17 months three weeks to 10/22/03 while the Philippines remained at 10/22/11; F-3 (adult sons and daughters of USCs) up 3 ½ months to 4/22/09 for ROW and Mexico advanced 5 months 2 weeks to 9/8/98 and the Philippines remained at 6/8/02; and F-4 (siblings of USCs) ROW moved one month to 5/22/07, India advanced one month one week to 11/15/05, Mexico stayed at 9/15/00, and the Philippines moved one month three weeks to 10/15/02.

Family-based dates for filing: No changes.

Employment based final action dates: EB-1 (extraordinary aliens, outstanding professors and researchers, and multinational executives and managers) stayed current for ROW with China advancing four months three weeks to 7/1/22 and India three years nine months to 9/1/20; EB-2 (advanced degree holders or exceptional aliens) ROW advanced three months two weeks to 11/1/22 with China being up two months one week to 1/1/20 and India two months to 3/1/12; EB-3 (professionals or skilled workers) ROW moved up nine months to 8/1/22 with China advancing eight months one week to 9/1/20 and India one month to 6/1/12; EW-3 other workers (unskilled) ROW advanced one month to 9/1/20 and China one year to 1/1/17 and India one month to 6/1/12; both categories of EB-4 (religious) moved to 5/15/19 for all countries, representing an advance of four months two weeks for clergy and the reopening of the category from unavailable for certain religious workers because of passed legislation; EB-5 ROW (immigrant investors) remained current with China advancing two months one week to 12/8/15 and India one year 11 ½ months to 12/1/20. All set aside EB-5 numbers remained current. 

Employment based dates for filing: EB-1 ROW remained current with China advancing five months to 1/1/23 and India 1 ½ years to 1/1/21; EB-2 ROW moved up one month two weeks to 2/15/23 while China and India remained the same at 6/1/20 and 5/15/12 respectively; EB-3 ROW remained at 2/1/23 while China advanced 10 months to 7/1/21, India remained at 8/1/12 and the Philippines at 1/1/23; EW-3 other workers remained at 12/15/20 while China remained at 6/1/17, India at 8/1/12, and the Philippines at 5/15/20; both categories of EB-4 moved up six months for all countries to 9/1/19; EB-5 ROW remained current while China and India stayed at 1/1/17 and 4/1/22 respectively. All set aside EB-5 numbers remained current.

For the month of January, USCIS still continues to use dates of filing for both family-based and employment-based cases for adjustment of status.

One hopes that visa chart progression continues in coming months, but such will seemingly depend upon the inner operations of the State Department.

Alan Lee, Esq. Q&As published on the World Journal Weekly on December 3, 2023 : Re-entry Permit

A reader asks:
I handed in my re-entry permit at the end of December last year. On January 23 this year, I received a notice that the finger print was taken, which means that the fingerprints recorded before can be reused, and there is no need to print them. At present, I am considering returning to China for a year, and I have already returned to China, and I am applying for a reentry permit at the same time. However, the case has been stuck here. According to the USCIS website, the current reentry permit takes 17 months. I wonder if it really takes this long? If I still can’t get down, do I have to return to the United States?

Alan Lee, Esq answers,
Although the official USCIS published processing time for 80% of reentry permits is currently 17.5 months, that does not mean that your application will pend for that long. In looking at our recent past cases, we have had reentry permits approved taking as long as 19 months and as short as 9 months. The permanent resident card (green card) only allows the holder to be outside the United States at maximum 364 days. If you have not received the reentry permit, we strongly advise you to return to the States within the time permitted on the green card. If you stay outside the one-year limit, you would essentially be relying on the reentry permit being approved and shipped to you overseas for your entry back to the States after one year. A problem with approval or your residence receiving it in the US or with shipping it to you overseas could endanger you permanent resident status.

Article: CLEAR BENEFICIAL CHANGES TO THE H-1B PROGRAM IN THE PROPOSAL

As published in the Immigration Daily on November 24, 2023

This is the fourth of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

USCIS is reinstating the deference policy which instructs officers to consider prior determinations involving the same parties and facts, when there is no material error with the prior determination, no material change in circumstances or in eligibility, and no new material information adversely impacting eligibility. Here USCIS may consider including the word “clear” to emphasize that errors, changes, eligibility, and adverse information should not only be “material”, but should be “clear” errors, changes, eligibility, and adverse information to reduce the chances that a decision will just be made on difference in opinion between two officers.

Eliminating the itinerary requirement for H programs – the reason being that the itinerary is largely duplicative of information already provided in the LCA.

Where USCIS approves an H-1B after the initially requested validity date has ended (typically through favorable motion to reopen, reconsider, or appeals), USCIS may issue an RFE asking whether the petitioner wants to update the dates of intended employment, and if the petitioner wishes, it can submit a different LCA that corresponds to the new requested validity dates even if the LCA is certified after the date the H-1B petition is filed. USCIS would then approve the H-1B petition for the new requested period of time for which eligibility has been established rather than require the petitioner to file a new or amended petition.

H-1B cap exemptions are changing in a way that may benefit a number of organizations in that the  requirement that a nonprofit research organization be “primarily engaged” in basic research and/or applied research and governmental research organization that its “primary mission” is the performance or promotion of basic research and/or applied research would be changed to replace “primarily engaged” and “primary mission” with “a fundamental activity of” to allow for such organizations that conduct research as a fundamental activity, but are not primarily engaged in research or where research is not the primary mission, to meet the definition of a nonprofit research or governmental research entity.

On the same subject of cap-exempt organizations, and those working for companies on the site of the exempt organization, DHS proposes to change the phrase “the majority of” to “at least half” to clarify that H-1B beneficiaries who equally split their work time between the exempt entity and a nonexempt entity, may be eligible for cap exemption. In this context, and taking into account that many positions are performed remotely, the proper focus is on the job duties, rather than where the duties are performed physically. Also that the requirement that a beneficiary’s duties “directly and predominantly further the essential purpose, mission, objectives, or functions” of the qualifying organization would be replaced with the requirement that the duties “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the organization.

USCIS is proposing an automatic extension of cap gap work authorization from September 30 to April 1 in the next year to deal with delayed adjudications and avoid potential disruptions in employment authorization. This will cover automatic extension of F-1 status, post completion OPT and STEM OPT.

USCIS is clarifying that petitioners can put in any date after October 1 for cap cases as long as the requested date does not exceed six months beyond the filing date without fear of the petition being rejected.

On beneficiary-owners, DHS wants to encourage beneficiary owned businesses to participate in the H-1B program with the idea that the beneficiary must perform specialty occupation duties the majority of the time even though he or she may perform duties that are directly related to owning and directing the business. The non-specialty occupation duties must be directly related to owning and directing the petitioner’s business although a beneficiary-owner may perform some incidental duties, such as making copies or answering the telephones. Non-specialty occupation duties may include but are not limited to signing leases, finding investors, and negotiating contracts. (It would appear that this petition must give a breakdown of the percentage of time spent performing each job duty). DHS is trying to set reasonable conditions for when the beneficiary owns a controlling interest, meaning that the beneficiary owns more than 50% of the petitioner or when the beneficiary has majority voting rights in the petitioner. There will be limitations in that the time given for initial approval and first extension is 18 months and any subsequent extension will not be limited and can be approved for up to three years.

This concludes our series.

The above article and the ones preceding it do not entirely cover all parts of the proposed rule. Readers can peruse the complete proposal in the Federal Register, Volume 88, No. 203, October 23, 2023. Parts covered were those deemed most important and interesting by this writer. In summing up, other than the beneficiary centric proposal, there are some novel propositions, some included as the result of successful court challenges, and some that just make common sense. The DHS comment that “[W]hen DHS considered the immense cost savings that registration provides to both USCIS and stakeholders and the significant resources the agency would incur to revert back to a paper-based filing system for all cap-subject cases, the benefits of having a registration system still outweigh the costs and any potential problems caused by frivolous filings” is nonsensical in light of the catastrophic outlined abuses if the proposed beneficiary centric system is not ready in March.

Article: PROPOSED CHANGES TO THE EVIDENCE REQUIRED FOR ESTABLISHMENT OF H1B “SPECIALTY OCCUPATION”; CONTINUED RELIANCE ON OOH; EXPANDED AUTHORITY OF DHS TO COMPARE LCA POSITION WITH H1B PETITION, ETC. MEAN TIGHTENED ADJUDICATION STANDARDS.

As published in the Immigration Daily on November 21, 2023

This is the third of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

After making the proposal that regardless of how many entities sponsor a person, that person would only have one registration, USCIS says that the new program might not be ready for next year even though other parts of the proposed rule could be finalized. Most of the other parts are as follow in this and the final article:

USCIS will allow different degrees to qualify an individual for specialized occupation, but says that a petitioner has the burden of establishing how each field of study is in a specific specialty providing a body of highly specialized knowledge directly related to the duties and responsibilities of the particular position.

It gave an example that a petition with the requirement of any engineering degree in any field of engineering for the position of software developer will generally not satisfy the requirement.

It also gave the hypothetical that if such a position requires a bachelor’s degree in an unspecified “quantitative field” (which could include mathematics, statistics, economics, accounting, or physics), “The petitioner must identify specific specialties, such as the majors or degree fields, within the wide variety of “quantitative fields” and establish how each identified degree in a specific specialty provides a body of highly specialized knowledge that is directly related to the duties and responsibilities of the software developer position.”

Does this mean that USCIS could ask the petitioner to justify how each of 4-5 degrees qualify an individual for the specialty occupation? This would be an onerous burden.

Other than USCIS’ concession that a variety of degrees may be able to qualify as per Madkudu et al v. USCIS et al. 5:20-CV-2653-SVK (ND Cal. 8/20/21), (but with the possible idea that petitioners will have to delineate the variety of degrees and how they qualify for specialty occupation), USCIS is conceding that “normal” in the regulation standard (that a bachelor’s degree should be one which is normally required for specialty occupation) does not mean “always” – that as proposed, “normally” will mean “conforming to a type, standard, or regular pattern” and is “characterized by that which is considered usual, typical, common, or routine”. USCIS quotes Innova Solutions v. Baran, 983 F.3d 428 (9th Cir. 2020) that “normally does not mean always” and there is no significant difference between the synonyms “normal”, “usual”, “typical”, “common”, or “routine”.

However, USCIS will continue its practice of consulting the OOH (Occupational Outlook Handbook) on whether a degree is actually required for the occupation. The difficulty in the past has been the primary reliance of USCIS on the OOH when the Handbook was not designed to be relied upon for such, and it appears that the agency will once again give it primacy in putting it forth first in saying that “USCIS will continue its practice of consulting the US Department of Labor’s… Occupational Outlook Handbook and other reliable and informative sources submitted by the petitioner, to assist in its determination regarding the minimum entry requirements for positions located within a given occupation.”

The four criteria of 8 CFR §214.2(h)(4)(iii) for determining “specialty occupation” are changed in that qualifying under one will no longer be seen as satisfying the definition of specialty occupation as the language says that one of the criteria must also be satisfied to meet the definition of specialty occupation.

The first criteria that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position would be changed to a bachelor’s degree in a directly related specific specialty or its equivalent and the word “position” would be changed to “occupation” so that it would now read “A US baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular occupation”.

The second criteria that the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree is changed to “A US baccalaureate or higher degree and a directly related specific specialty, or its equivalent, is normally required for parallel positions among similar organizations in the employer’s United States industry”.

The third criteria that the company normally requires a degree or its equivalent for the position is changed to “The employer, or third party if the beneficiary will be staffed to that third party, normally requires a US baccalaureate or higher degree in a directly related specific specialty, or its equivalent for the position”.

The fourth criteria combines the left out portion of the present second criteria to add in the word “unique” which was in the second criteria so that the fourth now reads “The specific duties of the proffered position are so specialized, complex, or unique that the knowledge required to perform the duties are normally associated with the attainment of the US baccalaureate or higher degree and a directly related specific specialty, or its equivalent.”

Although there is a reference to the Madkudu settlement that allows persons with bachelor’s degrees with minors in the subject matter or other equivalents to qualify for H-1B’s, the only reference to the decision in footnote 18 was actually a negative remark in the settlement agreement that “[i]f the record shows that the petitioner would consider someone is qualified for the position based on less than a bachelor’s degree in a specialized field directly related to the position (e.g., an associates degree, a bachelor’s degree in a generalized field of study without a minor, major, concentration, or specialization in market research, marketing or research methods… or a bachelor’s degree in a field of study unrelated to the position), then the position would not meet the statutory and regulatory definitions of specialty occupation….” The rest of the language of the preamble to the proposed rule indicates that there will be a stricter standard on deciding what qualifies as the minimum education for specialty occupation.

Where an H-1B will be placed at a third-party organization, the actual work to be performed by the beneficiary must be in the specialty occupation and it is the requirements of the third-party and not the petitioner that are most relevant in determining whether the position is a specialty occupation. USCIS notes the difference between “staffed” meaning that the beneficiary is contracted to fill a position in the third party’s organization and become part of that third party’s organizational hierarchy and a beneficiary who provides services to a third party.

DHS is proposing that it will have its own authority to ensure that the LCA properly supports and corresponds with the accompanying H-1B petition. It notes that current DHS authority is only stated in DOL and not DHS regulations. This has been a bone of contention between immigration practitioners and USCIS as to the scope of its authority in attempting to match the LCA SOC code with the job title and duties. According to BingChat (please forgive the writer for using the source), the number of SOC codes has only risen from 821 to 867 from 1980 to the present. It is obvious that the number of new created jobs has grown infinitely since that time and employers many times have a difficult task in attempting to target their jobs within a particular SOC code. USCIS’ attempting to give itself more authority to nitpick over particular matches will not help. If this part is implemented, it should include a requirement that USCIS designate an alternate SOC code in any RFE or NOID with reasoning behind why it believes that its choice is more appropriate than the petitioner’s.

Commenting on the other above topics, the proposed rule should define more clearly what is considered equivalent education in accordance with the Madkudu settlement; deemphasize reliance on the OOH on what are minimum requirements to an occupation by listing the type of  sources can be used and then saying “including the OOH”; and clarify whether a petitioner with an occupation that can be met with different degrees as stated in the petition will be required to justify each degree or only the relevant degree of the beneficiary which relates to the position.

Article: THE LITANY OF ABUSES DESCRIBED BY USCIS TO THE H-1B PROGRAM BESIDES TO THE REGISTRATION SYSTEM IN THE PROPOSED RULE ARE EYE-OPENING.

As published in the Immigration Daily on November 17, 2023

This is the second of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

As said in Part 1, it is imperative that USCIS implement its proposed beneficiary centric registration system by the next lottery selection in Spring, or bring back the old system of petition filings complete with filing fees to ensure that organizations and beneficiaries actually have “skin in the game” rather than just being able to play by anteing up $10. The list of other abuses decried by USCIS with offered fixes in the proposed rule are not only eye-opening, but appear to mainly spring from the inept present registration system.

USCIS reveals not only how organizations and individuals game the system on selection, but how they afterwards work to make it all profitable as many of them do not have jobs available or the jobs will not be available in the near future.

For those who are overseas, companies delay the people coming here to the States until many months after they obtain the visas. If they do not have the jobs at all, the people can file for H-1B amendments with other companies if they can latch on. The more common situation is that the petitioning company files for an amendment to place them on other third parties’ jobsites rather than where they were supposed to go in the first place.

For those in the US where the companies do not have jobs, the people file for amendments with other companies or with the same company which is now assigning them to another jobsite. Because of this trend, USCIS is hot in the proposed regulation about the timely filing of amendments and that they include upfront evidence of maintenance of status.

Although left unsaid in the proposed regulation, people who are overseas would be eligible to file amendments if they have obtained the H-1B visas from the consulate, and those in the US would be able to do H-1B amendments after October 1 if the company did not withdraw the sponsorship.

USCIS is looking to crack down on the use of amendments for those in the US by emphasizing that they must give up front the evidence of maintenance of status. USCIS is clearly upset over this issue, but at this point is not saying that it will immediately reject or deny amended petitions that do not have this upfront evidence.

It is also emphasizing that companies need to do amendments as per the law as we know it after the 2015 decision of Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), reiterating all the circumstances under which amendments are required, but also noting that amendment is not required where the job is in the same MSA (Metropolitan Statistical Area) or PMSA (Primary Metropolitan Statistical Area), but amendment has to be done even if it is in the CMSA (Consolidated Metropolitan Statistical Area). Apparently, many of these companies are not bothering to do amendments where the people are being assigned to different worksites outside the area of employment covered by the LCA.

It is very wary of identity fraud in the registration process in which people are able to register more than once because of different passports or by saying that they are stateless in one registration and giving a passport in a second application. USCIS proposes that there will be no excuses for not having a passport under the proposal,

On documentation ensuring that companies actually have jobs available, and that the employment is not speculative, DHS would only say that the burden does not mean demonstrating nonspeculative daily work assignments through the duration of the requested validity period; nor identifying and documenting the beneficiary’s specific day-to-day assignments; that it does not intend to limit validity periods based on the end date of contracts, work orders, itineraries, or similar documentation.

USCIS is asking for advice on how it can deal with preventing petitioners from receiving approval for speculative H-1B employment and to stop the practice of delaying H-1B cap subject beneficiaries’ employment in the US until a bona fide job opportunity materializes. It points out that although the regulations require petitioners to notify USCIS if a petition goes unused because the beneficiary does not apply for admission so that USCIS can revoke approval of the petition, the regulation does not include a deadline for admission or a reporting deadline. In thinking about a deadline for admission or a reporting deadline, USCIS acknowledges that the approach would not prevent a petitioner from circumventing the provision by filing an amended petition and further delaying admission, or by having the beneficiary enter the US one day before the deadline and then leaving shortly thereafter. USCIS is also thinking about creating a rebuttable presumption that a petitioner only had a speculative position available if certain circumstances occurred which might include delayed entry or filing an amended petition before the beneficiary would have been admitted to the US in H-1B status. It is clearly flustered by all the ways that people are running around the rules.

The springboard to these abuses is the current registration system allowing beneficiaries multiple opportunities to participate in the H-1B visa lottery, resulting in well over half of the beneficiaries, 408,891, of the 780,844 having multiple registrations in this past selection process. USCIS statistics on the FY 2023 selection showed that one beneficiary had 83 registrations. With an effective barrier in place, most of the above abuses would be lessened to such a degree that the above measures while needed might not be as urgent.

 

Article: THE NEW APPROACH TO THE H-1B REGISTRATION SYSTEM – WILL IT WORK?

As published in the Immigration Daily on November 14, 2023

This is the first of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

USCIS is proposing a beneficiary centric registration system to replace its disastrous sponsoring organization registration system which has spawned unheard-of levels of abuse. In the proposal, it will not matter how many times an individual is registered by multiple organizations as that will only result in one registration, with USCIS seemingly sarcastic logic being that this proposed registration system will then allow the beneficiary if selected to pick from among sponsoring organizations to obtain the best terms of employment. In answer to concerns like ours that USCIS should go back to its old system which produced between 190,000-200,000 petitions in pre-registration days as opposed to780,844 registrations most recently (See “H-1B Selection Process a Travesty-Time to Go ‘Back to the Future’”, 5/1/23 Immigration Daily, and “Another Call For “Back To The Future” Change of Policy for H-1B Cap Selections by January 2024”, 9/14/23 Immigration Daily), it said that “[W]hen DHS considered the immense cost savings that registration provides to both USCIS and stakeholders and the significant resources the agency would incur to revert back to a paper-based filing system for all cap-subject cases, the benefits of having a registration system still outweigh the costs and any potential problems caused by frivolous filings.”

We imagine the weighing of costs and benefits depends upon whose perspective – the cost-cutting agency or those whose dreams of staying in the US legally are cheated. Without a feasible solution, the situation becomes intolerable. In the recent FY-2024 registration, over half of the 780,844 registrations were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. USCIS statistics from the previous year even showed one beneficiary with 83 registrations.

Fortunately, the solution of the beneficiary centric registration system seems a feasible solution as it takes away the chief incentive of multiple registrations – the increasing of odds in being selected. However, the change must be done now and certainly in time for the next H-1B registration period. Such would appear to be a simple fix to the system, but there appears to be doubt expressed in the proposed rule that the system change will be done on time. While saying that DHS may seek to finalize the provisions relating to the registration system before moving to finalize other proposed revisions of the rule, it adds that DHS and USCIS cannot predict with certainty agency resources for the next few years or even when the final rule would publish and therefore, there is also the possibility that DHS would need to delay the effective date of the registration system change. Further that the delayed date might only apply to the proposed changes of the beneficiary centric selection process, and in explaining why, says that it may delay the effective date if it determines that USCIS does not have sufficient time to ensure proper functionality of the selection process, including completing all requisite user testing – and DHS might need to delay the effective date for other reasons such as to avoid confusion that could result if the final rule took effect too close to the start of the registration period for the upcoming cap season or to avoid disparate treatment of registrations if the final rule took effect in the middle of the initial registration period or during a subsequent registration and selection period, particularly if USCIS needed to open a subsequent registration period later that year.

It is clear that no one will stand for another year of an inept and outrageous H-1B cap registration system like we have been seeing since its inception regardless of what USCIS says about its weighing of costs and benefits. Even if USCIS has to pour more personnel and capital than planned into fixing the system either by implementing the beneficiary centric system or going back to the old system of petition filings, it must ensure that a clear change is made in time for the next registration period in Spring 2024.