Category: Articles

As published in the Immigration Daily on February 12, 2024

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

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

Timing –

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

Procedure –

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

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

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

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

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

As published in the Immigration Daily on December 13, 2023

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

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

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

Family-based dates for filing: No changes.

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

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

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

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

As published in the Immigration Daily on November 24, 2023

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

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

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

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

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

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

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

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

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

This concludes our series.

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

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 (9^th 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.

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.

 

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.

As published in the Immigration Daily on October 16, 2023

This is the second of a two-part article on the artificial intelligence immigration problem with the PERM system; the NIW option; and a possible solution.

Part 2 – Clarity and Expediency In Employment-Based Immigration for AI Worker

In Part 1 of this article, I laid out the problems pertaining to the United States attracting talented foreign artificial intelligence (AI) workers with regards to procedures governing employment-based permanent residence. In this second installment, a possible solution to better attract AI employees for permanent residence is discussed.

It would benefit the US’ ability to attract AI talent if there is categorical eligibility to forgo the test of the labor market for qualified foreign workers in AI jobs applying for permanent residence. Canadian immigration policy fast-tracks adjudications and visa issuance for foreign workers in six fields of high demand including STEM (science technology engineering and mathematics) and healthcare.[1] Thereafter, the top ranking applicants in those fields are invited to apply for permanent residence.[2] Since Canada employs a “points” system, and assigns points for factors such as years of experience, education, and age, it can determine who the top ranking applicants are. While the United States does not have such a system, it can still find pathways to fast-track the immigration of AI workers. 

US immigration policy currently has some mechanisms in place to fast-track the immigration of highly-demanded workers. One is Schedule A. If an occupation falls within Schedule A, the Department of Labor “pre-certifies” the foreign worker’s position, thereby allowing the employing petitioner to forgo the test of the US labor market. This shortens the PERM green card process by approximately 11-12 months, and eliminates some of the uncertainty in the process. Schedule A pre-certification is available for physical therapists, professional nurses, and “immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.” A highly skilled AI worker may fall into the latter category. But the problem is that in practice, it takes considerable preparation, documentation, and labor to demonstrate exceptional ability in AI-related sciences, and that the adjudication guideline for the demonstration of exceptional ability is not as straightforward as it is for physical therapists and nurses. Additionally, the requirement of exceptional ability weeds out AI specialists who may not be prominent in their industries, but are still highly useful and potentially vital employees to US AI companies.

To improve its ability to attract the best AI talent worldwide, the US government should categorically define its most demanded AI workers and apply a “Schedule A” designation to them. The INA in 1965 gave DOL’s Secretary authority to revise the list “any time upon his own initiative or upon a written petition of any person requesting the inclusion or omission of any occupation…”[3] In practice, however, DOL has not updated Schedule A since 2005, leaving the same occupations on the list for that time: physical therapists, nurses, and immigrants with exceptional ability in the arts and sciences.[4] This is an inaccurate representation of the current needs of the US labor force. If it were up to date, AI tech employees would be on the list in some form. Doing this would greatly reduce uncertainty as to which foreign workers are qualified for a fast-track to permanent residence, and increase adjudicative efficiency. Senator Martin Heinrich’s proposal on modernizing Schedule A is a reasonable solution that should be considered: “The DOL can take short term action by expanding Schedule A using a data-driven approach that uses data on vacancies, unemployment rates, wage growth, and hours worked to assess the sectors most in need of support… In the long term, the DOL could adopt a transparent, modernized statistical model to regularly update the Schedule A list every 5 years.” [5]Modernizing the Schedule A list to incentivize foreign workers to move to the United States to work in high-demand occupations would bolster U.S. competitiveness in key fields such as AI, semi-conductor production, and biotechnology without harming wages and working conditions of U.S. workers.[6] 

To make this policy even more effective in attracting foreign AI workers, qualified Schedule A workers should be exempt from visa backlog restrictions. The reality is that it would be difficult to make a dent in the green card backlogs—especially for those in oversubscribed countries like India and China—even with Schedule A expansion since such employees would still be subject to EB-2 backlogs.[7] But to exempt Schedule A from employment-based visa limits, Congress would have to propose and pass a legislation.[8] This is a tall ask since Congress rarely passes legislative reforms to the U.S. immigration system. While unlikely to pass, this exemption from EB-backlogs for Schedule A is worth consideration. Schedule A was enacted in 1965 to offer permanent resident visas to “qualified immigrants who are capable of performing specific skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.”[9] A skills shortage is backed by compelling evidence for artificial intelligence workers. Talent shortages in AI are likely to have negative economic and security consequences for the country. Therefore, to help the US remain a leader in emerging technologies in the world and the world economy, and maintain its high level of security, the US should consider not only adding AI engineering related positions to Schedule A, but also allowing Schedule A employees to be exempt from EB-visa backlogs.

[1]CTV News, “Health-care workers, science and tech experts targeted in new Canadian fast-track immigration system.” Sissi De Flavis, June 28, 2023. https://www.ctvnews.ca/canada/health-care-workers-science-and-tech-experts-targeted-in-new-canadian-fast-track-immigration-system-1.6459698

[2]Id.

[3]American Action Forum, “Expediting Immigrant Labor Certification: What Are the Options?” Isabella Hindley. April 19, 2023. https://www.americanactionforum.org/insight/expediting-immigrant-labor-certification-what-are-the-options/

[4]Joint Economic Committee Democrats, “Modernizing the Schedule A Occupation List Can Help the United States Address Key Employment Shortages.” Senator Martin Heinrich (D-NM). June 30, 2023. https://www.jec.senate.gov/public/index.cfm/democrats/issue-briefs?ID=BDFE9EB0-1E17-4BA2-B3D0-C13A6CF31123

[5]Id.

[6]Id.

[7] Lindsay Milliken, A Brief History of Schedule A: The United States’ Forgotten Shortage Occupation List, University of Chicago L. Rev., September 2020.

[8]Id.

[9]Id.

As published in the Immigration Daily on October 10, 2023

This is the first of a two-part article on the artificial intelligence immigration problem with the PERM system; the NIW option; and a possible solution.

Part 1 – The Artificial Intelligence Immigration Problem with PERM and the NIW Option

The introduction of ChatGPT, Bing Chat, GitHub CoPilot, and all the other variations of artificially intelligent chat bots has ushered in a new age of artificial intelligence (AI) which has created a boon in demand for AI-specialized employees. Per Forbes Advisor, the AI market size is expected to reach $407 billion by 2027, and AI is projected to create 97 million jobs worldwide.[1] Since AI is the next disruptive phenomenon of human advancement and will likely drive the global economy in the near future, nations are vying for leadership in this space. While the United States had been a top tier attractor of global talent for important endeavors in the past, the highly restrictive immigration policies for business-related immigrants and visa holders combined with long wait times and uncertainty may deter top AI talent from working for US companies. This could result in the US losing leadership in the global economy and lagging other countries such as China or even neighboring Canada in AI competence. 

The difficulties in attracting high-end AI talent with respect to US policy in affording legal status and permanent residence to such employees include the following:

• The lack of a direct classification for AI specialists when it comes to sponsorship for permanent residence. Employers and their attorneys typically sponsor AI employees under EB-2 or EB-3 utilizing job titles that match closely with jobs officially recognized by the Department of Labor (DOL). When a job does not have a direct match with a “generic” Department of Labor title and duties, the sponsoring employer typically “couches” the employee’s duties/title toward one that is recognized by the DOL. For instance, according to techtarget.com, one of the top AI jobs in demand is an AI Product Manager.[2] Of note, there is no official DOL O*NET entry for “product manager” let alone “AI product manager.” The same applies for machine learning engineers, natural language processing engineers, and many other common AI jobs. This causes sponsors to have to modify their employees’ jobs to fit the mold of a recognized DOL job–a task which is comparable to fitting a square peg into a circle. Along with this comes uncertainty as to whether the Dept of Labor will recognize the AI job at a specified wage, and ultimately whether a green card petition will be approved.
  
  
• The unacceptably long time it takes for the PERM labor certification and sponsorship process to complete. The Department of Labor lacks the resources to issue expedient prevailing wage determinations and labor certification approvals. After submitting a proposed job to Department of Labor via ETA 9141, it currently takes about 6 months to receive a prevailing wage determination. After that, the test of the US labor market usually takes about 3-4 months, then the employer can submit a PERM labor certification application (ETA 9089). The DOL is now taking approximately 11-12 months without audit to issue a decision on the labor certification. Once certification is received, the employer may file an immigrant visa petition (I-140) on behalf of the AI employee. (Concurrent filing with Form I-485 is possible where the priority date has reached the visa availability date, but is likely not available in most cases currently in light of the backlogged availability dates). The I-140 takes about 6 months or so for adjudication. Once the employee’s priority date (the date that ETA 9089 was submitted) is current, the foreign worker can apply for the green card (Form I-485).
  
  Even assuming there is current visa availability (for the Oct. 2023 visa bulletin, only the EB-1 category is current in all countries except China and India), the process from start to finish typically takes well over 2 years. It takes substantially longer for many applicants in jurisdictions in which employment-based I-485 applications are backlogged (e.g. the NYC field office processing time is listed as 21.5 months for such cases)[3]. For those from backlogged countries such as China or India, the process can take even longer–potentially greater than 10 years for India-born. This long period combined with the uncertainty of a positive result and the requirement for a foreign worker to maintain legal status throughout the green card process is a strong deterrent to top AI workers thinking of bringing their talents to the United States.
  
  Due to the long wait and uncertainty of the PERM labor certification process, more petitioners have turned to national interest waiver (EB-2 NIW) cases to shorten the process. NIW cases can be filed by noncitizens alone or by companies petitioning for noncitizens. The EB-2 NIW allows a petitioner to skip the requirements of a job offer and a test of the US labor market if it can demonstrate that the employee’s proposed endeavor has substantial merit and national importance, he/she is well-positioned to advance that endeavor, and on balance, it is beneficial to the US to waive the labor certification requirement. In theory, a valuable AI employee working for a US company is engaged in a nationally important endeavor for the US to advance the country’s overall AI capabilities. However, the flexibility of the NIW requirements combined with the recent spike in popularity of EB-2 NIW lead to uncertainty and inconsistency in quality and timing of adjudications.[4] The EB-2 NIW is akin to a grant application. A foreign worker will express his/her case on the benefits his/her skills will bring to the United States and why the job offer requirement should be waived. The flexibility given to adjudicators for NIW applications brings uncertainty to the applicant. Especially as USCIS is now receiving significantly increased numbers of EB-2 NIW applications, there is more “competition” for favorable adjudications on this type of application. The more applications USCIS receives, the longer the EB-2 NIW processing times[5], and the more discerning USCIS officers will be on granting EB-2 NIW status. The more sub-par petitions USCIS receives (especially in one category such as AI), the more likely an adjudicating officer will be inclined to issue requests for further evidence (RFEs) and notices of intent to deny (NOIDs) and denials even in cases that are deserving of approval. Therefore, there is a chance that a highly qualified AI worker would be denied an EB-2 NIW. The EB-2 NIW adjudications, outside of objective evidentiary submissions such as awards, grants, and credentials, may therefore be decided in who can compile the most persuasive NIW applications and/or hire the best immigration lawyers.
  
  

[1] Forbes Advisor, “24 Top AI Statistics And Trends in 2023” by Kathy Haan (Apr. 25, 2023). https://www.forbes.com/advisor/business/ai-statistics/

[2] Tech Target, “10 Top AI Jobs in 2023” by Andy Patrizio (Aug. 17, 2023). https://www.techtarget.com/whatis/feature/Top-AI-jobs

[3] USCIS check case processing times (Form: I-485, Form Category: Employment-Based Adjustment Applications, Field Office: New York City NY) https://egov.uscis.gov/processing-times/

[4] The number of EB-2 NIW applicants has approximately doubled in one year. In Q1 of FY 2022, 4,883 applications were received. Form I-140 Immigrant Petition for Alien Worker By Fiscal Year, Quarter, and Case Status Fiscal Year 2022 (Q1-Q4) https://www.uscis.gov/sites/default/files/document/data/I-140_FY22_Q4.pdf. In Q4 of FY2022, the number jumped to 6,917. In Q1 of 2023, USCIS received 8,806 EB-2 NIW applications. The approval rate decreased from 93% in Q1 of 2022 to 84.6% in Q1 of 2023.

[5] Posted processing times for NIW cases are 11-14 months. There is an option for premium processing that confers a decision or further action within 45 calendar days. However, it comes at a cost of $2,500.

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.

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.