Author: Alan Lee

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.

IMMIGRATION NEWS THAT YOU CAN USE – EAD’S INCREASED TO FIVE YEARS FOR MANY CATEGORIES – QUESTION; KEEPING STRAIGHT UKRAINIAN AND VENEZUELAN TPS TIMETABLES; USCIS ADJUDICATING DEPENDENT NONIMMIGRANT APPLICATIONS ALMOST SIMULTANEOUSLY WITH PRINCIPAL PETITIONS.

As published in the Immigration Daily on October 24, 2023

  1. EAD’s Increased to Five Years for Many Categories – Question.

USCIS on 9/27/23 announced that it is increasing the length of time for EAD’s in certain categories to five years for initial and renewal EAD’s. These include applicants for asylum or withholding, adjustment under section 245, and suspension or cancellation of removal cases. Also those admitted as refugees, paroled as refugees, and granted asylum or withholding. It clarified that certain Afghan and Ukrainian parolees are employment authorized incident to parole.

Question: As is known, an EAD is only an ancillary application dependent upon the fate of the principal benefit being requested. How does an employer in good faith who does not use E-Verify know that the job applicant is no longer authorized to work when the principal immigration application has been denied since the job applicant will still be presenting an immigration document that is still facially valid for employment as it is one of the documents on the I-9 “A” list that establishes both identity and employment authorization? While recognizing that USCIS has better things to do with its time than constantly extending employment authorization, perhaps a lesser amount of time, three instead of five years, would be more appropriate.

  1. Keeping Straight Ukrainian and Venezuelan TPS Timetables

With extensions and re-designations to the TPS programs of Ukrainians and Venezuelans, we thought to offer a short timetable of the benefits for each nationality to make them clearer as to deadlines to apply, date to be in the US for eligibility, and time limits of stay:

Ukrainians:

  • First registration was from 4/19/22-10/20/23.
  • Extension goes from 10/20/23-4/19/25.
  • Re-registration for extension is from 8/21/23-10/20/23.
  • Redesignation for those continuously resident in US since 8/16/23 and physically resident in US on 10/20/23 and thereafter.
  • Redesignation also goes from 10/20/23-4/19/25.
  • Registration period for redesignated goes from 8/21/23-4/19/25.
  • Expected eligible Ukrainians for redesignation are 166,700 in addition to the 26,000 eligible for extension under the initial program.

Venezuelans:

  • First registration and extensions were until 9/9/22 and 3/10/24.
  • New TPS extension announced by DHS on 9/20/23 until 9/10/25.
  • Reregistration for extension goes from 1/10/24-3/10/24.
  • Redesignation for those continuously residing in the US since 7/31/23 and continuously physically present in the US since 10/3/23.
  • Redesignation time goes from 10/8/23-4/2/25.
  • Registration date for initial registration goes from 10/3/23-4/2/25.
  • Expected eligible Venezuelans for redesignation or 472,000 in addition to the 243,000 eligible for extension under the initial program.

More complete information can be found for Ukrainians in the Federal Register / Vol. 88, No. 160 / Monday, August 21, 2023, and for Venezuelans in the Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023.

  1. USCIS Adjudicating Dependent Nonimmigrant Applications Almost Simultaneously with Principal Petitions.

In case you missed it, USCIS posted a notice on its I-129 page that for H-4 and L-2 dependents who are applying in the same package with their principal’s I-129 petition, it will adjudicate the dependent I-539 application(s) directly after approving the I-129 petition. This includes H-4 and L-2 work authorization requests. The news is welcome to all as USCIS in the past adjudicated the dependent applications separately and could take weeks or months to make a decision, leaving a family in suspense even though knowing that the dependent application(s) would in all likelihood be approved. Hardship could arise in the situation where the dependent spouse was waiting for approval of employment authorization to take up or continue employment. The new policy may encourage the use of premium processing for the entire case in such situations. We remind dependents that no biometrics fee is required for the I-539 and that a mistaken combination payment for I-539 and biometrics will result in rejection of the application and upon resubmission not considered to be part of the above policy unless the I-129 was simultaneously rejected and the entire package resubmitted at the same time.

ALAN LEE, ESQ. SUPER LAWYER FOR 2023 IN NEW YORK METRO AREA

The 2023 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 3 lawyers of Chinese descent in the 82 attorneys chosen in the area of immigration law.

This is the 12th time that Alan Lee has been selected, having previously been honored in 2011, 2013-2022.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2023“

Alan Lee, Esq. Q&As published on the World Journal Weekly on October 15, 2023 : 1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country. 2. NIW processing time is usually about 12 months

1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country

A reader asks:
I am a member of the Communist Party of China. I applied for EB-1 with my wife. I-140 and I-485 were submitted together. The 601 main application has already got the card. I have been working with the combo card for a while, and now I am going to return to China. But I heard that the combo card will enter the small black room when entering the country, so the party member status is even more sensitive. I don’t know if you will be made things difficult in the small black room?

Alan Lee Esq. answers,
You are correct that applicants for adjustment of status who leave the US and return on advance parole mostly go into secondary inspection upon return. I am not sure that your description of a small black room is accurate. In the inspection, a Customs and Border Protection (CBP) inspector will generally look to see whether the application upon which the advance parole is based is still pending. The officer may also look at your information in the system to ensure that you do not have other reasons for inadmissibility, mainly on the criminal side. If you have already made an I-601 application for waiver of Communist Party membership, the membership should not be an issue for CBP unless something in the system indicates a danger to national security. Assuming that everything else is all right, the inspector should stamp your passport and allow you to enter.

2. NIW processing time is usually about 12 months

A reader asks:
Although I know that 63 days is not too long for NIW’s case, I check my status on case green every day. I roughly calculated that it will take 300 days for the number segment SRC239007 to be fully reviewed. Is this estimate correct?

Alan Lee Esq. answers,
You can check the USCIS processing times for most of the cases in the category to get a rough idea as to how long the NIW (National Interest Waiver) petition will take. Your case number begins with SRC (Southern Regional Center), which means that it is most likely with The Texas Service Center of USCIS. Currently, Texas projects 12 months waiting time for most of the NIW cases. For readers’ information, the other listed service center handling NIW’s, Nebraska, has an approximate wait time of 11.5 months. Kindly note that NIW petitions can now be premium processed at the cost of $2500 and that USCIS will reach the petition within 45 days of receipt of the I-907 premium processing application.

Article: OCTOBER VISA BULLETIN BRINGS MANY CHANGES TO EMPLOYMENT-BASED PREFERENCES

As published in the Immigration Daily on September 20, 2023

The October 2023 visa bulletin came out on September 15 bringing relief to many and frustration to others in the employment-based (EB) categories. Those in the family-based (FB) categories were mostly frustrated by the lack of movement. There were many positive advances along with a number of retreats in the Visa Office’s “final action dates” and “dates for filing” employment-based charts. The family-based (FB) categories had little or no movement at all in both charts. USCIS followed up with the positive news that it would follow the “dates for filing” chart for employment-based cases for the month, a big change as it last used that chart in March 2023. It continues to use the “dates for filing” chart for family-based cases.

The changes from the September visa bulletin were as follow:

Family-based (FB final action dates) Rest of the world (ROW) except for certain countries – F-2A for spouses and children under the age of 21 and unmarried of permanent residents advanced one year one month and one week to 2/8/19; Mexico F-2B for children over the age of 21 of LPR’s moved up five months to 1/1/02; Mexico F-3 for married children of US citizens advanced one month three weeks to 3/8/98; and India F-4 for siblings of US citizens moved forward three weeks to 10/8/05. FB dates for filing – Unchanged.

Employment-based (EB final action dates) ROW for EB-1 extraordinary aliens, outstanding professors and researchers, and multinational executives and managers jumped to “Current” from 8/1/23 for all countries except China (unchanged from 2/15/22) and India that advanced five years to 1/1/17. EB-2 ROW for exceptional aliens and those with advanced degrees moved up one week to 7/8/22 for all countries except China (advanced two months three weeks to 10/1/19) and India that jumped up one year to 1/1/12. EB-3 ROW for skilled workers and professionals jumped one year seven months to 12/1/21 for all countries except China (advanced four months to 1/1/20) and India that jumped 3 years four months to 5/1/12. EB-3W ROW Other Workers moved up three months to 8/1/20 for all countries except China (advanced four months to 1/1/16) and India which jumped 3 years four months to 5/1/12. EB-4 ROW Certain Special Immigrants moved up three months to 1/1/19 while the component for Certain Religious Workers became unavailable due to unpassed legislation. EB-5 ROW for unreserved investors remained current for all countries except China (advanced three weeks to 10/1/15) and India that dropped one year seven months and three weeks to 12/15/18. EB-5 set-asides remained “Current” worldwide.

Employment-based (EB dates for filing) ROW for EB-1 extraordinary aliens, outstanding professors and researchers, and multinational executives and managers remained “Current”  for all countries except China (advanced two months to 8/1/22 and India that moved backwards almost 3 years to 7/1/19. EB-2 ROW for exceptional aliens and those with advanced degrees moved up one month to 1/1/23 for all countries except China (advanced two months three weeks to 1/1/20) and India that remained unchanged at 5/15/12. EB-3 ROW for skilled workers and professionals advanced three months to 2/1/23 for all countries except China (advanced 10 months to 9/1/20) and India that remained unchanged at 8/1/12. EB-3W ROW Other Workers moved up six months to 12/15/20 for all countries except China (advanced one year six months to 6/1/17) and India which remained unchanged at 8/1/12. EB-4 ROW Certain Special Immigrants moved up five months to 3/1/19 along with the same movement for its component, Certain Religious Workers. EB-5 ROW for unreserved investors remained current for all countries except China (advanced one year to 1/1/17) and India that catapulted two years four months and three weeks to 4/1/22. EB-5 set-asides remained “Current” worldwide.

With a fresh supply of numbers for the start of Fiscal Year (FY) 2024, it remains to be seen how much forward movement the Visa Office can allow in the coming months.

Article: ANOTHER CALL FOR “BACK TO THE FUTURE” CHANGE OF POLICY FOR H-1B CAP SELECTIONS BY JANUARY 2024

As published in the Immigration Daily on September 14, 2023

USCIS must come to the inevitable conclusion that its current H-1B selection system is inoperable and fatally flawed by fraud. It must then go back to its old system of requesting the submission of full petitions by April 1.

This writer called for the action in a May1, 2023, article “H-1B Selection Process a Travesty-Time to Go ‘Back to the Future’”  after the extent of the chicanery was revealed by USCIS as the rate of selection approval plummeted for those playing by the rules. From FY 2018- 2020 just prior to the implementation of the registration system in FY-2021, the number of received petitions in the three years hovered in the consistent range of 190,000 – 200,000 for the approximate 85,000 available numbers. Since then, petitioners have not been required to submit full petitions from which selections are made, the only current requirements being $10 per candidate and a small online form filled in by the sponsoring organization. Not surprisingly, cheating has been the name of the game as the FY-2023 number of registrations ballooned to an astounding 780,884.

USCIS then announced and ran a second selection process at the end of July, undoubtedly with an eye on the outrage of those shut out by the cheating, and to its credit selected 188,400 to fill the approximate 85,000 slots. But this is an unsustainable situation and the agency does not have the resources to investigate most of the fraud cases.  With the closing of the second round of selections, USCIS sent an update on August 1, 2023, with strong warnings against people trying to game the system, but it revealed statistics that were simply staggering – 780,884 total registrations with eligible registrations being 758,994; eligible registrations for beneficiaries with no other registrations 350,103; and eligible registrations for beneficiaries with multiple eligible registrations 408,891. Besides attempting to scare off potential fraudsters, does anyone really believe that USCIS has the ability to investigate each selected multiple registration to see whether there are bona fide job openings by bona fide nonaffiliated organizations? Looking at the numbers provided by USCIS, only 21,890 registrations were found ineligible, and many of those were not deemed ineligible due to fraud, but for duplicates and other technical reasons.

USCIS is a cash-strapped organization that clearly does not have the resources to investigate each of the duplicate filings among the 188,400 selectees, nor for that matter, each of the non-selected among the 408,891 multiple registrations. A return to the old system would ensure that each submitted petition is bona fide because of the cost and effort required to put in full petitions. USCIS has until the beginning of the year if it decides to go back to the future since the time to submit petitions had traditionally been the first five business days of April and organizations will need time to put the paperwork together.

Q&A’s published on the World Journal Weekly on July 30, 2023: Article: 1. Where are all the I-601A cases going? 2. Watch out for distance learning. Q&As: 1. After receiving your permanent residence card, you do not need I-131 or I-765 2. It is a common situation that combo cards are not adjudicated together for all members of the family

Article:
1. Where are all the I-601A cases going?

We have had a number of I-601A provisional unlawful presence waiver cases transferred lately, and wonder whether they are headed to the location provided in the transfer notice, the Potomac Service Center, or if they will be headed ultimately to the new virtual remote HART (Humanitarian, Adjustments, Removing Conditions, and Travel Documents) Service Center that is opening at this time in order to speed up processing as a result of pending litigation. Of special interest to us is that the remote center will concentrate on I-601A’s as well as “bona fide determinations” for U visa applicants (I-918), VAWA petitions (I-360), and asylum reunification petitions (I-730). In an article written by a senior fellow at the American Immigration Council, Dara Lind, “New USCIS Center Is Good News For Some Of Its Worst Backlog Victims”, Immigration Daily, 4/19/23, she said that the Council documented in a recent class-action lawsuit that processing times for I-601A grew sixfold from 2017 to 2022, and that of the two service centers handling the waivers, it is taking three years at one center and 3 ½ in another one to decide 80% of the waivers. Attorneys in the lawsuit estimate that the class of people who have waivers pending for more than 12 months would include at least 70,000 people. In favor of the ultimate destination being HART, it otherwise makes little sense to transfer from the Nebraska Service Center to the Potomac Service Center since both have a current published processing time of 44 months for 80% of the cases.

2. Watch out for distance learning.

During the pandemic, USCIS was operating under Covid flexibilities under which distance-learning had been allowed in excess of the regulations under 8 CFR 214.2(f)(6)(i)(G) which states:

(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

In an ICE SEVP Broadcast Message on 5/11/23: “Termination of SEVP COVID-19 Flexibilities”, ICE said that because of the termination of the Covid public emergency on 5/11/23, the SEVP Covid-19 guidance terminated on that day. Active F and M nonimmigrant students are able to complete the 2022-23 academic year under Covid-19 flexibilities through the 2023 summer semester. But active F and M nonimmigrant students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits for the 2023-24 academic year. Initial or reentering students must enroll in programs complying with the regulatory limits for distance learning. This must give pause now to those students wishing to enroll in schools offering a tenuous connection to physical classroom instruction as USCIS may now be looking harder at these schools’ arrangements for instruction following the ending of the pandemic emergency.

Q&As:
1. After receiving your permanent residence card, you do not need I-131 or I-765

A reader asks:

Eb-1A and I-485 show that new card is being produced, but I-131 and I-765 show that case was received and fingerprints taken respectively. In this case, is there anything I need to do? Will I-131 and I-765 petitions be canceled automatically?

Mr. Lee answers,
It appears as if you received an email or emails from USCIS that your green card is being produced which although unofficial can usually be relied upon. It also appears that you have checked the USCIS online status system and the ancillary applications of I-131 advance parole and I-765 employment authorization application, which shows that the applications have been received and fingerprints taken. The online status system is only as current as the person inputting the data, and it would appear that no action has been taken although the information may not be current. You do not have to do anything at this point. USCIS should at this juncture close or deny both of the ancillary applications as it is granting your permanent residence. We have seen that sometimes when the agency personnel are working on the green card application and ancillary applications at the same time, the ancillary applications are approved as they are being worked on by other officers. Please note that if you receive approvals of advance parole and employment authorization after receiving your permanent residence card, they cannot be used as you are now in another status.

2. It is a common situation that combo cards are not adjudicated together for all members of the family

A reader asks:

I applied for EB-1B, and the principal and dependent had fingerprinted at the end of January. The main applicant’s combo card was approved at the end of February, but we have not heard anything on the dependent’s case yet. Is it normal? Is there a way to solve the situation?

Mr. Lee answers,
It is unfortunately a common situation that combo cards are not adjudicated together for all members of the family who apply for them. The solution is either to wait until the published processing times for 80% of adjudications in the categories of EAD and advance parole have been reached to trace the case through the USCIS Contact Center (1-800-375-5283 or one of the other ways to contact the Contact Center), or prove that the dependent meets the expedite criteria of the agency. The current expedite guidelines are:

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;
  • Emergencies and urgent humanitarian reasons;
  • Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
  • S. government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or
  • Clear USCIS error.

I note that we had a recent case in which the dependent received the combo card prior to the principal applicant, who had a more pressing need for it, but did not meet the expedite criteria. The principal did finally receive the card, just in time to keep working for the company without a break.

Article: CAN THE SCOTUS CASE, US V. HANSEN, HELP TO PROTECT ALIENS WHO MAY BE DEEMED INADMISSIBLE FOR ALIEN SMUGGLING?

As published in the Immigration Daily on July 25, 2023

The Supreme Court on June 23, 2023 by 7 to 2 vote, Amy Coney Barrett writing for the majority in United States v. Hansen, No. 22-179 (US 2023) said that his acts of encouraging noncitizens to come to, enter or reside in the US illegally through a fraudulent adult adoption program were not protected by the First Amendment right of free speech. The Ninth Circuit had ruled favorably for Hansen saying that the statute criminalized even commonplace speech such as telling immigrants who are in the country illegally that “I encourage you to reside in the US” or advising them about available social services. But in a narrow ruling, Justice Barrett said that the provision “forbids only the intentional solicitation or facilitation of certain unlawful acts,” not including protected speech. In looking back on statutory history, she pointed out that then, as now, “encourage” had a specialized meaning that channeled accomplice liability, and when Congress later amended the provision, it added “induce”, which also carried solicitation and facilitation overtones. The question is what effect this ruling may have upon cases in which applicants for immigration such as parents of those who entered the US illegally in the past are now accused of alien smuggling –that they encouraged their children to illegally come to this country and are thus inadmissible to immigrate. The inadmissibility statute, 8 USC § 1182 (a)(6)(E)(i), INA § 212(a)(6)(E)(i), defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” It tracks closely with the Hansen punishment statute 8 USC § 1324(a)(1)(A)(iv), INA § 274(a)(1)(A)(iv) imposing criminal penalties for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” We have seen cases in the recent past in which parents have been denied immigrant visas and been required to seek waivers based upon consular officers’ suspicions that they encouraged or helped their child to illegally come to the States. This has even occurred in situations in which a widow explained that the assistance came from her dead husband only and where both parents vehemently denied ever assisting the son or daughter. Is there a Hansen argument here that USCIS and consular officers are precluded from using the alien smuggling provision for encouragement or inducement unless they have well-founded suspicions based on accomplice liability or solicitation and facilitation? In other words, that the people did more than verbally encourage individuals to enter the US illegally. The Hansen case was of interest to the Supreme Court because of its intersection with First Amendment rights, but that case involved a US citizen and not an alien. The Court earlier ruled in Kleindienst v. Mandel, 408 US 753 (1972) that noncitizens are not entitled to First Amendment protections. However, Justice Barrett made a clear ruling not based upon the First Amendment, but upon statutory interpretation, which should be just as applicable overseas to an alien as to a citizen of this country.