Category: Articles

As published in the Immigration Daily on March 7, 2023

Predictions On Number of H-1B Registration Applications.

The FY-2024 cap H-1B registration process is in full swing with application dates from noontime EST March 1, 2023 –noontime EST March 17, 2023. Happy St. Patty’s day! Does anyone have a good estimate as to how many applications will be submitted? Our guess is – not as many as last year’s 483,927, which was an all-time record. The downturn in the high-tech industry may lessen the numbers this year. In looking at FY-2022 statistics provided in the recently released National Foundation for American Policy (NFAP) report, “H-1B Petitions and Denial Rates In FY-2022”, the top initial H-1B recipient companies were Amazon, Infosys, Tata Consultancy Services, Cognizant, Google, Meta/Facebook, HCL America, and IBM. A sampling of articles giving predictions seems to favor the idea that the number will be less, but not that much less. One cited the 257,000 job cuts in the tech industry since last year, but also the latest data from the US Bureau of Labor Statistics (BLS) that the overall tech unemployment rate fell to 1.5% in January, which is notably low. Another cited the BLS survey of the 1.5% unemployment rate in computer and mathematical occupations along with an 1.7% rate in architecture and engineering occupations as evidence of high demand for people with technical skills, but also noted that even if H-1B registrations plummeted by 50%, the agency would still receive nearly 3 times as many registrations as petitions that could be issued due to the 85,000 yearly cap. And two others predicted up to 500,000 and between 550,000-600,000 requests for H-1B registration would be made.

The total number is given in April, and we will see how the predictions fared.

CSPA Vis-À-Vis USCIS Adjustment Chart.

A huge development in The Child Status Protection Act (CSPA) is USCIS’s re-interpretation of the date on which a child’s priority date is reached for freezing age before turning 21 and he/she then no longer being able to immigrate as a child. USCIS announced a policy on February 14, 2023 that it would henceforth use the “dates for filing” chart of the monthly visa bulletin to finally fix the child’s age. Prior policy had been to use the “final action date” to determine whether the child was under the age of 21. In the past, a child would be able to file an I-485 under “dates for filing”, but if he/she turned 21 before the “final action date” opened, the case would be denied. Although there is no adjustment of status in cases being consular processed, the same rule should now apply for cases being interviewed overseas as the Attorney General (including DHS and its USCIS component) and not the Secretary of State determines the law in the field of immigration.

In determining when an age is “frozen”, the applicant must read two charts, the Department of State visa bulletin’s “dates for filing” one, and the USCIS monthly adjustment chart designating which of the Department’s two charts will be used for accepting adjustment of status applications. The USCIS Policy Manual instructs that, “The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.… Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. The DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart.”

This policy change applies to pending applications, with the guidance also saying that noncitizens can file a motion to reopen a previously denied adjustment of status application with USCIS by using form I-290B; that noncitizens must generally file motions within 30 days of the decision; and for a motion filed more than 30 days, USCIS may in its discretion excuse the untimely filing if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.

On the USCIS CSPA page, there seems to be more room for motions to reopen where an applicant is not yet 21 using the new guidance as it says, “If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen….”

We will look with great interest to see how this all works out going forward.

 

As published in the Immigration Daily on January 23, 2023

As we move into 2023 and the continuing threats to the economy, part of the answer to our problem is unsurprisingly – more immigration. Japan is a prime example of a closed society with declining birth rates and unwillingness to allow immigration which now finds itself with abandoned towns and villages, an aged population working into the 70s, and overreliance on overseas manufacturing. China may soon find itself in the same boat of an aged non-vibrant workforce as its population shrank for the first time in over 60 years in 2022, the total number of migrants to other countries far exceeds its intake of people coming into it, the long-term effects of its one child policy and current reluctance of females there to have larger families further depresses the population, and its workforce is rapidly aging with nearly 1/3 expected to be over 60 by 2035 (China’s official retirement age is 60 for men and 55 for women and although there is some movement to advance the retirement age, it is receiving resistance from those worried about the effect upon pensions and their desire to spend time with family).

The US fertility rate of approximately 1.7 births per female cannot sustain American greatness, as that is below the replacement rate of 2.1 required for the US population not to shrink without increases in immigration.

Support for increased immigration was voiced by Federal Reserve Chief Jerome Powell during a December 14 news conference that “Our labor force should be 3 ½ million more than it is”, and asking himself why is that, said “Part of it is just accelerated retirements – people dropped out and aren’t coming back at a higher rate than expected. Part of it is… Close to half a million who would have been working died from Covid. And part of it is that migration has been lower. It’s not our job to prescribe things, but I think if you asked businesses, pretty much everybody you talk to says,’ There aren’t enough people. We need more people.’” Citing Bureau of Labor Statistics data, the New York Times in the December 27, 2022, article, “Retirees Are One Reason the Fed Has Given up on a Big Worker Rebound” said that “Among those 65 and up, on the other hand, participation lags well below its prepandemic level, the equivalent of a decline of about 900,000 people. That has helped to keep overall participation steadily lower than it was in 2020.”

These are big numbers. The lack of workers is driving costs upwards for everyone due to inability to make things run smoothly in manufacturing, the supply chain, service industry, etc. The bidding war for workers is also a large factor forcing producers to keep raising prices with spiraling inflationary effects. The Fed’s only solution at present is to keep raising interest rates to make it more difficult for companies to borrow for their needs, which in turn forces them to lay off workers, with the anticipated ripple effect of US workers and their families having to cut back on purchases so that demand does not continue to exceed available supplies.

The US needs a younger population of workers, and those that are coming over with their families from other countries are usually the young and ambitious unafraid to leave their home countries.

We are not advocating open borders as there must be control over the numbers allowed into the country. That situation is amply demonstrated by the situation at the southwestern border. But the US must become a more generous nation in its immigration policies toward employment based, family-based, and refugee/asylum based. A good example of possible positive legislation could be an EAGLE (Equal Access to Green Cards for Legal Employment) Act (which last year proposed to lift individual country quota limits without increasing visa numbers) being proposed this year with an increase in numbers so that countries are not fighting each other over the quota limits. Imposing order over the southwestern border through the Biden administration proposal to control it through a 30,000 per month two-year parole program could also help in the revitalization of the workforce. Hiking of H-1B cap numbers for workers in specialized occupations could also help as over 400,000 applications for registration last year vied for 85,000 slots.

Yet the reaction from Republicans and conservatives to positive changes in immigration law in the 118^th Congress has so far been poisonous in seeking a restrictive agenda starting with the soon to be introduced “Border Safety and Security Act” and quoting their words “We Must Secure the Southern Border” without any ameliorative provisions.

Public opinion must be on the side of more immigration for the sake of the country. Recognition of the role of immigration in keeping the nation strong should be the overriding factor, and not the demonization of immigrants. A good place to start would be recognizing the contributions of the DREAMERS, children brought into this country who have been educated here and have contributed to the US in many occupations, including those most hazardous during Covid-19’s most deadly period. A continuous push should be made to give them permanent status and not have them continue being used as the ultimate bargaining chip in immigration negotiations. The Congress could then move on from there to other deserving or needed groups.

As published in the Immigration Daily on December 6, 2022

At a webinar on O & P petitions on August 3, 2022, the question was asked of when USCIS anticipated that we could file without a duplicate I-129 petition as several years ago, the Kentucky Consular Center (KCC) and USCIS had said that duplicates would no longer be required as they were moving towards a digitization process. The USCIS webinar response was that it was no longer necessary to provide a duplicate. However, without further assurance from the agency, many practitioners were understandably reluctant to abandon sending in duplicate copies.

On November 16, 2022, USCIS sent out its recommendations on how it wants paper (not online) petitions and applications to be submitted to it in order to improve scanning efficiency. We have some reservations concerning several of the points in the guidance and believe that further discussion may be warranted and have added our italicized comments at the end of the particular bulleted points on which we have questions.

USCIS instructs that petitioners and applicants should not:

• Hole punch, staple, paper clip, binder clip, or otherwise attach documents to one another. For large applications and petitions, the admonition can be complied with as they can be bound with large rubber bands – but such cannot be done with smaller applications and petitions and no one wants to chance some papers slipping out or being thrown away in the mailroom, in transit from the mailroom, or while on an officer’s desk.
• Include photos or documents smaller than 4×6 inches for evidentiary purposes. Provide photocopies of these items instead. The only exception is when we request a passport photo with the filing. Are passport photos considered documents not to be stapled or paper clipped? If so, it should be noted that it is difficult to secure loose passport photos in a way that assures that they will not be lost. The practice of securing the photos directly onto the applications assures that there is much less chance of photos going missing. Perhaps the point requires some clarification.
• Include anything that contains electronic chips and batteries (such as musical greeting cards) or any non-paper materials such as cassette tapes, CD-ROMs, DVDs, toys, action figures, or thumb drives. We will not accept these types of materials. However, we will accept photographs or photocopies of these items. Photographs of musical greeting cards, toys, and action figures can be photographed and perhaps understood, but CD-ROM and DVD covers are generally only good for musical acts or movies or the like – otherwise, how can you convey what is meant to be represented accept by photocopies of the contents – a prodigious endeavor. Ditto for most thumb drives.
• Submit forms or evidence documents bound with a binding or spiral wire/plastic.
• Submit evidence using photo albums, scrapbooks, binders, or greeting cards.
• Fold documents.
• Place sticky notes on documents. While we agree with this in general, we believe that placing sticky notes on top of the first page to identify the contents, but not on the documents themselves is helpful to USCIS in identifying what type of case is being submitted.
• Use insertable tab dividers. We believe that most practitioners have already abandoned the practice of using insertable tab dividers, and that the use of colored paper to divide parts of the petitions and applications mainly serves the same function and helps officers adjudicating them in differentiating the separate parts.
• Print forms on colored paper. The G-28 authorization of representation for attorneys and other representatives is the only USCIS form in a different color – blue – and printing it strictly on white paper increases the chances that the form will be overlooked by officers going through applications and petitions. Does this mean that the Service no longer wishes to even have the edges of a white G-28 blued to differentiate it from all the other white pages? This could use some clarification.
• Submit more than one copy of the same document or evidence unless required by the form instructions or regulations. If you are required to submit a copy of a complete prior application, petition, or request, clearly mark it as a “COPY” at the top of each page to ensure it is processed as intended. This is one development that can be cheered if only for the number of trees saved!
• Send original documents such as birth certificates, marriage certificates, driver’s licenses, passports, naturalization certificates, except when:
• Required by the form instructions for the application, petition, or request you are filing; or
• We specifically issue a request for you to submit an original document.

USCIS adds that avoiding these activities will improve its efficiency as it processes application, petition, or requests.

After digesting these recommendations, we looked over the form I-129 instructions and found to our chagrin that an alert had been posted for some time that no duplicate I-129’s have been required since August 11, 2022. One would think that USCIS would have publicized that change of policy loudly rather than just sticking it in the form instructions.

Looking for more surprises, we went through three popular forms, the I-131 Application for Travel Document, I-485 Application to Register Permanent Residence or Adjust Status, and I-765 Application for Employment Authorization, to see whether the photograph specifications had been changed. Both I-765 and I-485 instructions were the same that applicants must submit two recent identical color passport style photographs with white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched; that they must be 2 x 2”, in color with full face, frontal view on a white to off-white background with head height measuring 1 inch to 1 3/8 inches from the top of the hair to the bottom of the chin and eye height between 1 1/8 to 1 3/8 inches from the bottom of the photo. However, the I-131 gives applicants the alternative of submitting a digital photo which must be produced from a high-resolution camera having at least 3.5 megapixels of resolution.

While some of the bulleted points reflect common sense and have already been adopted by most petitioners and applicants, USCIS should take a moment to consider other bulleted points and clarify or change some of its recommendations.

As published in the Immigration Daily on November 7, 2022

Form N-648 applicants requesting disability exemptions for the English requirement and/or civics requirement and/or oath of allegiance should now see a big change in the general attitude of USCIS officers towards granting exceptions to the requirements. USCIS acknowledged in a form revision and policy update on October 19, 2022, that the changes were guided by public comments and feedback with USCIS Director Ur M. Jaddou saying, “This is a wonderful example of how USCIS is listening to the public it serves in order to better address their needs while fulfilling our responsibilities as an agency.”  The form itself has been shortened and simplified, and new telehealth guidelines further remove barriers for applicants and medical professionals. The form changes were also in response to the Administration’s goal to remove barriers for underserved populations under Executive Order 13985, Advancing Racial and Equity and Support for Underserved Communities through the Federal Government.

Applicants for medical exemptions have experienced an entire host of critical responses from USCIS officers, and under the new policy guidelines, adjudicators are no longer supposed to:

• Attempt to determine the validity of the medical diagnosis or second-guess why the diagnosis precludes the applicant from complying with the English requirement, civics requirement or both requirements.
• Request to see an applicant’s medical or prescription records solely to question whether there was a proper basis for the medical professional’s diagnosis unless evidence exists that creates significant discrepancies that those records can help resolve. The officer may ask follow-up questions to resolve any outstanding issues.
• Require that an applicant undergo specific medical, clinical, or laboratory diagnostic techniques, tests or methods.
• Conclude that the applicant has failed to meet the burden of proof simply because the applicant did not previously disclose the alleged medical condition in other immigration related medical examinations or documents. It is appropriate, however, to consider this a factor when determining the sufficiency of the N-648. The officer should always examine the evidence of record and ask follow-up questions to resolve any outstanding issues.
• Refer an applicant to another medical professional solely because the applicant sought care from a professional who shares the same language, culture, ethnicity, or nationality.

Officers should now only do the following when adjudicating the request for exemption:

• Determine whether the form has been completed, certified, and signed by all appropriate parties.
• Ensure that the form relates to the applicant and that there are no significant discrepancies between the form and information contained in the applicant’s “A” file or record.
• Determine whether the form contains enough information to establish that the applicant is eligible for the exception by a preponderance of the evidence including ensuring that the medical professional’s explanation is both sufficiently detailed as well as specific to the applicant and to the applicant’s stated physical or developmental disability or mental impairment.

On telehealth, the new simpler form allows the medical examination to be conducted through telehealth examination with the medical professional adhering to the state telehealth laws and requirements. Medical professionals allowed to fill out and sign the form are medical doctors, doctors of osteopathy, and clinical psychologists.

And where the applicant is so disabled as to not be able to understand or communicate an understanding of the oath of allegiance, a legal guardian, surrogate, or eligible designated representative can complete the naturalization process for the applicant and USCIS can waive the oath of allegiance. USCIS recognizes by priority legal guardian or surrogate, and then in the following order US citizen spouse, US citizen parent, US citizen adult son or daughter, and US citizen adult brother or sister who is the primary custodial caregiver & takes responsibility for the applicant. A person acting on behalf of the applicant must provide proof of legal guardianship or documentation to establish the familial relationship. In addition, the person must provide documentation to establish that he or she has the primary custodial care and responsibility for the applicant (for example, income tax returns, Social Security Administration documents, and affidavits from other relatives). For family members, they must provide proof of US citizenship. If the family member is not a US citizen, USCIS explains why he or she is not qualified to act as a designated representative and offers the applicant an opportunity to bring another person who may qualify.

The new form and guidelines are very encouraging and will hopefully not encounter resistance from naturalization examiners who have been overly skeptical of exemption claims in the past.

As published in the Immigration Daily on October 12, 2022

The last two years have been difficult for family preference cases, especially where the beneficiaries are overseas as scheduled interviews have been few and final visa availability dates largely static with the exception of Mexico. In the meantime, the employment categories have prospered under the rule that any family-based visas not used in one fiscal year are transferred over to the employment-based quota limit in the next fiscal year. The normal allotment of employment-based cases is 140,000, but in FY-2021 reached 262,288 and in the just concluded FY-2022 281,507. That means that in FY-2020 ending on 9/30/20, 122,288 family preference visas were left on the floor while in the year ending 9/30/21, 141,507 family preference visas were left unused. For FY-2023, the Department of State has projected employment-based visa usage to be approximately 200,000, meaning that 60,000 family-based visas are expected to have been left on the cutting room floor in FY-2022.

The effect of pandemic fears restricting the number of interviews at consulates and embassies and State Department priorities in light of staffing losses have checked the ability of US consulates and embassies to process family-based preference cases in which the beneficiaries are largely overseas as opposed to employment-based situations in which the beneficiaries are mostly in the US and working under temporary visas. Immigrant visa issuance was initially hamstrung by the Diplomacy Strong policy instituted in the early days of the pandemic which initially dictated a temporary shutdown and then visa services reopening on a limited basis post-by-post beginning on 7/15/20. In September 2021, the Department issued a memorandum setting prioritization of family preference categories as third tier priorities beneath tier 1 (Immediate relative intercountry adoption visas, age-out cases, certain special immigrant visas, and emergency cases determined on a case-by-case basis) and tier 2 (immediate relative, fiancé(e) and returning resident visas). In the 9/13/21 “Immigrant Visa Prioritization,” memo, the Department made clear that “This prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiancé(e) cases as possible with the goal of, at least at a minimum, preventing the backlog from growing in these categories and hopefully reducing it. However, the prioritization plan also instructs posts to schedule and adjudicate some cases in Tier Three and Tier Four each month.”

What are the chances that we will see the family preference classes make some moves forward or backward worldwide in FY-2023 (10/1/22 – 9/30/23)? So far, in terms of visa chart movement in October and November, there is no movement at all except for advances for Mexico. A quick synopsis of family-based movement in the latest visa chart is the following:

The November 2022 visa bulletin just came out and held no surprises and hardly any movement. FB final action dates chart: No movement except for Mexico F-2B advancing two months to 6/1/01, F-3 two weeks to 11/1/97, and F-4 two months to 8/1/00. FB dates of filing chart: Again, no movement except for Mexico F-1 advancing one year to 12/1/02, F-2B three months three weeks to 1/1/02, F-3 two months to 6/15/01, and F-4 two weeks to 4/1/01.

However, there appears to be some hope as the State Department hiring of consular staff is going well and in a 10/7/22 webinar between the American Immigration Lawyers Association and Department of State, DOS representatives affirmed that they will be fully staffed by the end of 2023. The question of whether family preference visa interviews and issuances will be attended to will likely come down to the question of priorities. In what direction will the new hires be pointed? It will not only be competition among the three tiers, but other parts of consular services that draw the attention of consular staff. DOS representatives spoke of competing interests such as nonimmigrant visas including visitors and students which help the economy and pointed to good work being done with diversity visas.

In light of the constant advancement of the Mexico immigrant visas in past months, it is possible that the immigrant visa unit there has taken liberties with the prioritization plan. If so, other immigrant visa issuing posts may be encouraged to move in the same direction

Just looking at the state of affairs in family preference categories and number of unused visas, however, attention must be given to interviewing qualified applicants, issuing immigrant visas, evaluating visa demand, and then moving the categories forwards or backwards just as in pre-pandemic days. In looking through past visa bulletins, the family preference final action dates have not changed and have sat stagnant except for Mexico since September 2021, one year and two months ago. It is almost as if the State Department has set up a placeholder final action dates chart for family preferences, which has become more embarrassing month by month.

In light of the restocking of consular staff and hopefully the immigrant visa sections, the Department of State should feel it appropriate sometime in this fiscal year to move the worldwide family preference dates in a meaningful manner.

As published in the Immigration Daily on August 16, 2022

We are pleased to report that in an unpublished August 1, 2022, decision, the BIA affirmed on certification the favorable decision that we received from the immigration court in one of our cases terminating proceedings against a permanent resident with a Virginia burglarious tools possession conviction. The issue was whether our client had to show that someone was actually prosecuted under the facially overbroad Virginia statute for the type of conduct which was not an immigration crime under the federal definition.

Following the immigration judge’s initial decision not to terminate on the basis that we had not shown that someone could actually be prosecuted under the statute for a non-immigration crime, we again moved to terminate on the basis of changed law in New York that such a showing was not required. Matthews v. Barr, 927 F3d 606 (2d Cir. 2019). The IJ agreed and terminated proceedings, but certified her decision to the Board.

The Board concluded that “the respondent was not required to make the showing, as the statute was facially overbroad and this case is under the jurisdiction of the United States Court of Appeals for the Second Circuit.” It further said that “The Second Circuit has interpreted the realistic probability test as being inapplicable if a state statute is facially overbroad” and “as the Immigration Judge correctly recognized, the Second Circuit has extended its case law to depart from the Board’s requirement of prosecution to satisfy the realistic probability test.”

Although unpublished (not a precedent decision), the decision is important in understanding the Second Circuit (which has jurisdiction over cases in New York, Connecticut and Vermont) interpretation of law on this point and the Board’s acceptance of the Second Circuit’s stance in states under the jurisdiction of the Circuit Court.

As published in the Immigration Daily on July 18, 2022

Confusion now appears to be the watchword in the area of prosecutorial discretion. The focus is upon DHS Secretary Alejandro Mayorkas’ prioritization memorandum of September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law, which sought to change immigration enforcement priorities from going after all undocumented immigrants to those who were threats to national security, public safety, and border security (those entering illegally on or after November 1, 2020). The guidelines were then followed by the Kerry Doyle memorandum on prosecutorial discretion on April 3, 2022, an attempt by DHS to significantly reduce the backlog of immigration court cases by empowering ICE chief counsels and their trial attorneys with the authority to dismiss or administratively close many cases of unlawful immigrants not barred by criminal acts, national, border, or public security questions, or certain types of immigration fraud.

Currently, there are conflicting decisions in the Fifth (Louisiana) and Sixth (Ohio) Courts of Appeals over the authority of the Biden Administration to prioritize classes of individuals for enforcement. In the Fifth Circuit, the court upheld a vacatur by the district court enjoining use of the earlier DHS Secretary Alejandro Mayorkas memorandum upon which the Doyle memo arguably rests. Texas v. US, No. 22-40367 (5^th Cir. 7/6/22). The Sixth Circuit had just the day before upheld the Administration’s ability to prioritize in State of Arizona v. Biden, No. 22-3272 (6^th Cir. 7/5/22). The Administration is now moving before the Supreme Court on an emergency application to stay the vacatur citing the Sixth Circuit’s decision.

Whether the Court will agree with the Government is up in the air, but it would appear that there are at least two factors in favor of lifting the vacatur – the Court has spoken unfavorably on the use of wide-ranging injunctions by a district court as recently as June in Garland v. Aleman-Gonzalez, 20-322 (S.Ct. 6/13/22) (which the Fifth Circuit dubiously distinguished saying that the district court judge here issued a vacatur which only reestablished the status quo), and recently gave the Administration a victory on the use of discretion in the enforcement of immigration laws at the border by striking down the Trump implemented Migrant Protection Protocols (MPP) which forced migrants to remain in Mexico during the time that their asylum applications were being decided. Biden v. Texas,  No. 21-954 (S.Ct.6/30/22).

In the meantime, the American Immigration Lawyers Association (AILA) is recommending that requests for prosecutorial discretion refrain from citing or relying on either Mayorkas or Doyle memo in any way as long as the vacatur is in effect. The ICE Office of the Principal Legal Advisor (OPLA) has noted the vacatur on its website and posted a notice that “Accordingly, until further notice, ICE will not apply or rely upon the Mayorkas Memorandum in any manner.”

As published in the Immigration Daily on April 14, 2022

The H-1B lottery selection system has proven to be a time and cost saver for employers trying to hire H-1B cap workers during a fiscal year, but it has room for significant improvement. On the numbers, in FY2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations in its first round of selections in March. The 87,500 was projected to be sufficient to meet the H-1B numerical allocations. Then, on July 29, 2021, USCIS announced a second selection of 27,717 resulting in a total of 115,217 selected registrants. This suggests that of the 87,500 initially selected, employers did not submit petitions or the petitions had irretrievable problems for 27,717 of the selected. It is difficult to imagine a vast quantity of defective petitions, so the bulk of the number would have been non-submitted petitions. This represents a rate of 31.7% of all selected registrants. Then on November 19, 2021, USCIS conducted a selection of 16,753 registrants, suggesting that 60.4% of registrants selected in the second round did not respond or petitions had irretrievable problems. These percentages might not factor every consideration that USCIS has taken or will take in conducting further lotteries, but are nonetheless illustrative of the non-response/problematic petition trends in the H-1B selection process.

While the current selection system makes much more sense than the past one of instructing petitioners to file full petitions for their prospective beneficiaries prior to selection, there are some frustrating flaws to the new system. Since it is much cheaper and less time-consuming to enter a potential H-1B employee into the lottery than submitting a full petition on his/her behalf, it stands to reason that there are much higher numbers of potential H-1B registrants to select from under the new system. In FY2022, USCIS received 308,613 registrants, as opposed to the 201,011 petitions to select from in FY2020—the year before USCIS switched to the H-1B lottery registration system—representing a 53.5% increase in the selection pool due in large part to what the author believes is the new system. After selections are made, non-response/problematic case rates are understandably high due to the relatively low level of investment employers made in registering their potential H-1Bs—all they needed to do was enter basic information into an online form and pay $10 per potential worker. Those who are not selected in the initial lottery must wait until a potential second or third lottery (July and November in FY2022). In FY2022, 72% of registrants were not selected in the initial lottery. Therefore, while approximately 31.7% of the initially selected registrants did not file or filed problematic petitions, the 72% that were not selected had to weigh their options as they would not find out if there would be a later round of selections until such happened in July. Many of the 72% were not in the fortunate situation where they could wait to be selected as some had expiring statuses and were compelled to take other legal measures to stay lawful, become illegal, or go abroad. A non-selection in the first round of H-1B lotteries often also has compelled employers to change their minds about sponsoring a beneficiary if he/she was selected in a future round, especially if expiring statuses or visas prevent H-1B candidates from working with their employers until the future selections are made. As such, by the 2^nd selection round in July 2022, many registrants had already moved on, as evidenced by the approximate 60.4% non-response/problematic H-1B rate. This lack of response compelled USCIS to conduct a third lottery in November 2021 for 16,753 registrants—for a process that should in theory have allowed for adjudications of all H-1B cap workers for work beginning on October 1 of the same year.

Clearly, at the heart of the problem are the following: (1) the barrier for entry is too low for employers such that the bulk of approximately 31.7% of those selected choose not to file H-1B petitions; (2) registrants not selected in the first lottery round do not know whether they will be selected in a later round (or if there will be another round); (3) plans very often change for those who are not selected in the first round, especially if they would have to wait until July or later to see if they are later selected—a selection in July or November is not equal to a selection in March. While DHS notes that there may be monetary fines and criminal penalties under 18 USC 1001(a)(3) for employers who engage in a pattern and practice of submitting registrations for which they do not file petitions, the numbers show these penalties do not work as an effective deterrent for registering and failing to file.

Is there a solution? The author believes that fortunately, the H-1B lottery system can be significantly improved by implementing one or more of the following steps:

1. Select more registrants on the initial lottery. In FY2022, USCIS selected 87,500 in the initial H-1B lottery. Even if all 87,500 properly filed H-1B petitions, it is unlikely that USCIS would have allocated the mandated 85,000 cap H-1B visas based upon that selection alone. Even with the post-Trump era H-1B denial rate of 4%, the expected number of H-1B approvals would have been 84,000 assuming that all 87,500 successful registrants submitted petitions. Therefore, in order to avoid having to conduct a second or third lottery where interest by a large percentage of the pool has waned, USCIS should allow more room for error. It is inevitable that a significant percentage of those initially chosen will not submit petitions or will submit problematic petitions. Looking at the above statistics, a number incorporating the first plus second rounds (115,217) or somewhere in that range would likely be a good number of registrants to select in the first round. Did USCIS do something like this in March 2022? Hopefully, lessons were learned from last year.
   
   
2. Increase the H-1B registration fee. The $10 nominal rate is a big part of the problem. Employers submitting $10 per reservation simply do not have enough skin in the game and can decide not to file petitions without much consequence unless DHS finds that they are engaging in a pattern and practice of submitting fraudulent registrations. A payment of $100 per registration would be more appropriate and deter employers from submitting registrations unless they are serious about filing H-1B petitions. That is certainly cheaper than employers filing whole petitions before the advent of the registration system and would help with USCIS’ poor financial status. To soften the blow of the larger fee, USCIS can implement a system whereby it deducts the $100 from the I-129 filing fee for successful H-1B cap registrants, and/or returns a portion of the registration fee for unsuccessful registrants.
   
   
3. Implement an “opt out” button on the registrants’ myUSCIS portal. Petitioners should be given the choice to opt out of their registrations if they choose not to move forward. The infrastructure to implement a button appears to be already mostly in place in the myUSCIS portal. A button to opt out can be programmed onto the myUSCIS page for H-1B registrants so that they can opt out at any time. A perfect place to implement a “withdraw registration” button is under the “view notice” button on each row for selected beneficiaries. A “withdraw registration” button should bring the H-1B registrant to a page listing all ramifications of withdrawing a registration and confirming whether the petitioner really wants to withdraw. Upon implementing this button, USCIS should run selections at the end of each month to make up for any shortfall. This solution should not come at a significant cost to USCIS, as much of it can be automated, and it would help USCIS reach its H-1B quota earlier by providing more selections to those who are truly interested in petitioning earlier, and while they are still interested in filing H-1B petitions. Implementing this solution would also greatly benefit H-1B employers and prospective employees as truly interested H-1B petitioners would have greater likelihood of being able to file an H-1B petition, and employers and prospective H-1B employees would have more clarity earlier in H-1B season as to whether they have been selected or may be selected in a more amenable timeframe.

The implementation of the above recommendations should in the author’s opinion improve the H-1B registration system.

As published in the Immigration Daily on December 20, 2021

Senator Joe Manchin (D-WV) said yesterday on “Fox News Sunday” that he will not support The Build Back Better Act, the chief legislative thrust of the Democrats that requires all 50 Democratic senators to be on board to pass through the reconciliation process with only Democratic votes. This may signal the end or proved to be a temporary roadblock with Democrats having to further negotiate to pare down the bill with one of their own. If the legislation somehow obtains the 50 votes, the important immigration component will also require further work.

The Senate parliamentarian, Elizabeth McDonough, delivered another blow to the Democrats’ plan to add immigration relief to the Reconciliation Bill on December 16, 2021, by rejecting Plan C, the main component of which would consist of parole of up to 10 years (5 years per application) with accompanying employment and travel authorization for those who enter the US before 2011. Plan A had included a path to citizenship for essential workers, DACA and TPS recipients, and Plan B updated the Registry date under which persons in the US by a certain date could adjust status from its present eligibility date of January 1, 1972 to January 1, 2010. The parliamentarian’s guidance was as follows:

The proposed parole policy is not much different in its effect than the previous proposals we have considered. The proposal, which would increase the deficit by $131 billion over 10 years, creates a class of eligible people (those who have been in the country for 10 years or more) who will qualify for a grant of parole in place status. This new class would make eligible for parole 6.5 million people – nearly the same number of people as the previous two plans. CBO estimates that 3 million people would adjust to LPR status – 2 million of whom would be otherwise ineligible under -current law. In order to effectuate the policy, the parole proposal changes the contours of the current parole in place program, making it a mandatory award of status for qualifying applicants rather than the current discretionary use of the Secretary’s authority and assessment, which the USCIS website states that the Secretary grants “only sparingly.” The grant of parole will be accompanied by the mandatory issuances of work authorization, travel documents, a deeming of qualification for REAL ID and automatic renewal of PIP. These are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact and would subject to the proposal to a 313(b)(1)(D) point of order.

Where do the Democrats go from here? A realistic assessment by the negotiators vis-à-vis the parliamentarian would likely be the first step – is there a chance for Plan D? Would Ms. McDonough be more amenable to Plan C if it was not as extensive and only included a plan of parole with work authorization and travel documents and left out a deeming of qualifications for Real ID and automatic renewal of PIP (Parole in Place)? Would it be possible or even acceptable for Democrats to offer a plan for parole which was not equivalent to PIP to allow adjustment of status? Even now, DHS paroles individuals into the United States for many reasons and contests applications for adjustment of status on grounds that the parole status given did not entitle the holder to adjustment of status. If a realistic assessment is that the parliamentarian will likely not agree to any scenario which includes some form of relief to millions, then the Democrats seemingly have two choices – give up or override Ms. McDonough’s guidance on the ground that it is only advice. Giving up will exact a tremendous cost in terms of not only midterm election votes, and also place the reconciliation package in further jeopardy with some legislators signaling that they will not support the legislation without the immigration component. Overriding the parliamentarian on the other hand brings the twin risks that the Democrats will not have the votes as moderates balk and that success in doing so would set a precedent in which either party in power could simply go through the reconciliation process to achieve its goals disregarding the parliamentarian’s guidance.

If the rest of the reconciliation package can be worked out, and it comes to the choice of overriding the parliamentarian or not, we favor the override as the future of US immigration quite literally hangs in the balance and without some form of immigration relief now, it will be likely many years before the opportunity arises again. (The latest polls indicate that the Republicans are poised to make significant midterm election gains.) The Democrats can only do so if they can band together as one since loss of one member in the Senate and more than a few in the House would spell doom for the effort. If they can achieve unanimity, they would not be specifically confined to Plan C, the most limited plan, but should likely still consider it heavily as there will undoubtedly be legal challenges and the plan that hews closest to being less a substantial change in policy and having a large budgetary impact would be the most defensible.

As published in the Immigration Daily on November 23, 2021

1. USCIS does third round of H-1B picks for first time.

USCIS surprised just about everyone in holding a third round of H-1B selections for fiscal year (FY) 2022 on November 19, 2021, over a month and a half after the beginning of the fiscal year on October 1, 2021. In FY-2021, the agency conducted two rounds, and with the large number of H-1B registrants for this year (308,613 for the 85,000 slots), it was assumed that the second round in July 2021 was the final word. This was a happy surprise for organizations and those selectees now willing and able to move forward with H-1B processing. The downside is that a number of organizations may not be so willing and able to sponsor as they were earlier in the year and that the selectees may have moved on to other jobs, gone back to school, taken other nonimmigrant/immigrant options, or left the country. Nevertheless, the third round will solve problems for a number of individuals whose statuses are or may become questionable. Notice was given to petitioners’ attorneys/representatives and petitioning organizations on their myUSCIS accounts including details on when and where to file. Petitioning organizations have from November 22, 2021 until February 23, 2022, to file petitions with USCIS.

2. Filing addresses extremely important to pay attention to.

USCIS announced that it is planning to open a new lockbox in Elgin, Illinois, next year; that now certain adjustment of status applicants submit their applications to the Phoenix lockbox instead of the Chicago or Dallas lockbox; that it has streamlined filing locations for certain employment based forms to a single lockbox location and that people can find the latest filing instructions on I-130, I-131, I-360, I-485, I-601, I-765, I-824, and I-864 pages; that in the coming year, USCIS is planning a few more filing location changes and will direct some family-based adjustment of status applications to Dallas; and that next summer, USCIS will move the lockbox facility in Arizona from Phoenix to Tempe. So the watchword for all is to check the filing locations for every petition or application going out!

3. EAD changes for H-4, L and E dependents.

On the heels of the H-4 and L dependent spouse automatic extension EAD settlement in Shergill, et al v. Mayorkas, 2:21-cv-01296 (WD Wash 11/10/21), USCIS issued a policy alert on November 12, 2021, “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses”, PA-2021-25, on the procedures to follow for three nonimmigrant classes of spouses, H-4, E, and L –that all of them are eligible for automatic EAD extensions of work authorizations if they properly filed an application to renew their EADs before expiration and have an unexpired I-94 form showing their status as H-4, E, or L nonimmigrant. The automatic extension continues until the earlier of 180 days from date of expiration of the previous EAD, end date of the I-94 showing valid status, or the approval or denial of the EAD renewal application. For automatic extension of the previous EAD, employers for I-9 purposes need to see the form I-94 indicating the unexpired nonimmigrant status, I-797C receipt for timely filed EAD renewal application stating “Class requested” as “(a)(17)”, “(a)(18)”, or “(c)(26)”, and facially expired EAD issued under the same category.

The policy alert also provides that E and L dependent spouses are employment authorized incident to their status and are no longer required to request employment authorization by filing for I-765 but may continue to file form I-765 if they choose to receive an EAD. The problem with the new policy for E and L dependent spouses is that at present, there are no distinguishing markers on their I-94’s to distinguish them from children, and so on until USCIS can implement changes to the I-94 to distinguish them, an I-94 solely indicating H or L nonimmigrant status is insufficient evidence of employment authorization under list C of the I-9 form. So until that time, E and L spouses still need to rely upon an EAD as evidence of employment authorization. USCIS noted that three classes of E dependents are not recognized under the new policy – spouses of employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO) must continue to apply for EAD’s under 8 CFR 274a .12(c)(2); spouses of long-term investors in the Commonwealth of the Northern Mariana Islands under 8 CFR 274a .12(c)(12); and spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.

4. December visa chart holds a few bright spots.

A few bright spots in the December visa chart were the advances in the Mexico family-based categories, EB-5 open availability for direct investments for all countries, and China’s advance in EB-2 and EB-3W categories under dates for filing. Both family-based (FB) charts remained the same except for final action dates for Mexico that moved from 1-4 months and for dates for filing F-2A advancing worldwide to 9/1/21 (unimportant as the category is open under the final action dates chart and USCIS allows that date to be used for filing purposes), and Mexico preferences advancing 0-4 months; employment based (EB) final action dates remained current worldwide* except for regional center investments under EB-5 being unavailable for all countries, China moved one and a half months in EB-2 to1/1/19, and EB-3W (other workers) two years to 3/1/12; and India EB-2 advanced six months to 5/1/12 (not especially helpful for most Indian cases that had already downgraded to EB-3 in 2020 when the availability date reached 1/1/15); in EB dates of filing, China’s EB-2 advanced two months to 4/1/19, EB-3W 5 years to 5/1/15, and EB-5 direct for all countries including China became current. EB-5 regional investment cases remain unavailable as there is no implementing legislation. (Unless investors are involved in direct EB-5 investments (only about 5% of investors), the EB-5 movement in the December visa chart was not very exciting).

For the month, USCIS is allowing final action dates to be used for the F-2A category, and dates for filing for both FB and EB categories.

*Worldwide here meaning all but oversubscribed countries China and India (EB-1 to EB-3) and El Salvador, Guatemala, Honduras, and Mexico (EB-4 religious cases).

5. New York District Office/Contact Center meeting points.

The Contact Center meeting of 10/21/21 was reported by the New York chapter of the American Immigration Lawyers Association (AILA), and the following are some interesting items which readers may or may not know in working with the Center:

• Urgent inquiries for the Center to call back are up to 72 hours, but currently 48 hours.
• Cases classified as nonurgent for the Center are up to 30 days for callback, but currently 20 days.
• Representatives are supposed to take two phone numbers.
• For cases without receipt numbers, the attorney/representative should state that the inquiry is for a specific filing that doesn’t have a receipt number and tier 1 will escalate to tier 2 to research/special handling and then generate a service request to the office where the case is pending.
• While a tier 1 officer should provide the name and the agent ID number, a tier 2 immigration services officer (ISO) only needs to provide the last name.
• On biometrics appointments where the person is turned away because the ID is not sufficient or for other reasons, the person should contact USCIS and let them know why the biometrics was not collected on the scheduled date and the officers would try to accommodate.
• Good cause for rescheduling biometrics appointments may include but are not limited to medical reasons, employment reasons, necessary travel, travel that was previously planned, coverage on the job (people cannot take a particular day off), illness/Covid.
• The Contact Center encourages applicants to use their myUSCIS account to request rescheduling.
• On callbacks, representatives can ask about another two cases when they receive a call back.
• It was confirmed that USCIS is not speaking to paralegals, only to the lawyer on the G-28 authorization of representation.

Happy Thanksgiving to all!