Category: Articles

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.

As published in the Immigration Daily on August 7, 2023

While it is good that USCIS is digitizing and modernizing its adjudication processes to increase efficiency and accuracy, the ongoing shift from paper-filed applications to e-filing has some growing pains. The example discussed here is the (relatively) new guidance by USCIS in assembling paper-filed applications to maximize ease of scanning documents. (https://www.uscis.gov/forms/filing-guidance/tips-for-filing-forms-by-mail) In a reversal from traditional policy, USCIS now discourages applicants from using fasteners, hole punch, staple, paper clip, binder clip, or any other tool for attaching documents to one another when filing directly with a USCIS service center “as that may cause delays in scanning the documents into the electronic database systems.” As an unintended result of this new guidance, it appears that USCIS has been misplacing submitted application documents and issuing requests for further evidence (RFEs) asking for documents that had already been submitted. Our law firm has encountered a few of these types of RFEs. One recent example is an I-539 application to extend nonimmigrant status for an O-3 dependent which was filed concurrently with an I-129 petition for the O-1 principal where the I-129 was initially approved, then USCIS issued an RFE on the I-539 asking for copies of the applicant’s marriage certificate, the principal’s most recent I-797 approval notice, and the dependent’s passport, visa, and I-94. Needless to say, these were all submitted in the original submission.

In this case, we numbered all of the exhibits and provided an exhibit list after the attorney cover letter; separated all exhibits with colored “exhibit pages” clearly labeling each exhibit; and rubber banded together the entire concurrent I-129/I-539 filing with all enclosed evidence. Despite these concerted efforts to ensure that USCIS would see all of the evidence, we received the RFE for documents that were submitted in this application.

While it is understood that USCIS is digitizing and moving away from paper, and that this problem will be resolved once USCIS reaches its goal of allowing all forms to be filed online, USCIS’ mishandling of paper documents in the interim resulting from the guidance discouraging adhesion of documents is a problem that must be addressed. It is less than ideal for a supposedly reliable agency, and not a good first impression of America for many noncitizens, to lose documents in transfer from the mailroom to the scanner. Perhaps in the transitory period to e-filing, USCIS should continue to encourage applicants to fasten their applications with ACCO fasteners. In any case, it should enact workable policies in the interim to prevent loss of documents to minimize time and resource waste and counter completely avoidable and unnecessary RFEs and rejections.

As published in the Immigration Daily on July 25, 2023

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

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

As published in the Immigration Daily on May 1, 2023

USCIS announced the results of the FY-2024 H-1B initial registration period results on April 28, 2023, and they revealed a lot as to why there were so many disappointments this March. What a broken system! USCIS received 780,884 H-1B registrations of which over half were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. 110,791 selections were made, less than last year’s 127,600 because of anticipated higher H-1B1 use (which is set off against the H-1B numbers) and a higher anticipated petition filing rate by selected registrants. So the selection rate was 14.19% overall and if taking into account only the 758,994 eligible registrations (those that were not disqualified, deleted, or had payment problems), 14.6%.

It is apparent that there is much fraud in the selection process with individuals and companies putting up multiple applications. Under the law, H-1B registration for an individual is generally only one (no multiple applications by the same organization) and should only be made by an organization with a bona fide need for the individual. The exception is where another organization has its own bona fide need for the individual. The staggering number of beneficiaries with multiple eligible registrations, 408,891, belies this premise. It is clear that many individuals and organizations are colluding in the multiple applications and effectively squeezing out bona fide applicants.

What is the solution – we propose that it is to go “Back to the Future” and once again have organizations file full petitions instead of merely paying nominal amounts of money (currently $10 per registration) for the privilege of filing the specialized occupation petitions. Individuals and their organizations have no “skin in the game” to not try to game the system given the low threshold to play and lack of enforcement against violators. My partner, Arthur Lee’s article two years ago, “Recommendations to Improve H-1B Lottery System”, Immigration Daily 4/14/22, pointed out the astonishing rise of 53.5% in the number of H-1B registrants in FY 2022, 308,613, as opposed to the 201,011 H-1B petition registrations in FY 2020, the year before USCIS switched to the lottery registration system, and advocated a rise in the registration fee from $10 to $100 as a partial solution. USCIS has now proposed a fee increase to $215. However, this writer does not believe that even such a large fee increase will have any effect as the staggering numbers here indicate that many organizations and individuals will simply consider the amount a cost of doing business, and it is well known that USCIS fee increases do not discourage applications for immigration benefits. A prime example is USCIS’ premium processing fee which has risen from program inception of $1000 to today’s $2500 (for most cases) and only seen highly increased usage of the service. The real deterrent to this type of fraud is to have interested organizations put in full petitions with documented need for the individuals. One of the reasons given by USCIS for implementing this failed registration system was the voluminous number of papers that would have to be returned for each unselected petition – however, the amount of paperwork is now halved as the agency no longer requires duplicate copies of H-1B petitions.

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. With the registration system in place in FY 2021, registrations zoomed up to 274,237, the next year 308,613, the next 483,927, and this March 780,884. At this rate without change, the number will exceed 1 million by next year because of fraud without regard to the economic conditions of this country. Many H-1B pundits had thought that the numbers would drop this year because of problems in the tech sector resulting in tens of thousands of layoffs, but were sadly mistaken.

So it would seem that the only sensible solution is to go “Back to the Future”. In its announcement of the overall numbers on April 28, USCIS acknowledged in a paragraph, “Measures to Combat Fraud in the Registration Process”, that the large number of multiple eligible registrations raised serious concerns of some gaining unfair advantage, but only reiterated the penalties which many have already ignored and will likely keep ignoring until there is some real “skin in the game”.

As published in the Immigration Daily on April 21, 2023

The May 2023 visa bulletin generally had good news for family-based cases (FB) and bad news for employment based cases (EB). A quick summary of relevant developments of final action dates and dates for filing charts revealed the following:

FB final action dates: Good news that F-3 is generally (“generally” means with exception and the author would rather use it than “rest of the world” to describe the movement in categories except where particular countries are mentioned) moving up three weeks to 12/8/08 and F-4 three weeks to 4/8/07. F-2A remains backed up at 9/8/20. FB dates for filing: F-1 moves four months and three weeks to 1/1/17, F-3 three months to 2/8/10, and F-4 1 ½ months to 2/1/08. EB final action dates: Bad news that EB-2 worldwide drops back four months to 2/15/22 and EB-3 from current to 6/1/22. Good news for China is that EB-3 moves six months to 4/1/19, EB-3W 6 months to 4/15/15, and EB-5 2 months to 9/8/15. EB dates for filing: EB-3 worldwide goes from current to 5/1/23, but China benefits moving up four months to 6/1/19.

It appears that demand for US immigration through the employment categories is increasing in many countries of the world prompting a series of warnings by the Department of State in the May bulletin:

• China and India EB-1 are already at 2/1/22 final action dates and 6/1/22 dates for filing, and Visa Office says that the category for the two countries will “most likely” retrogress in final action dates in coming months because of increased worldwide demand. [This affects both filing and approving of cases as USCIS is only accepting the final action dates chart lately].
• Further retrogression in the EB-2 category for the rest of the world was necessary to keep number use within the FY-2023 annual limit and the situation will be continually monitored with any necessary adjustments to be made accordingly.
• India is facing further retrogression in EB-2 and EB-5 final action dates as early as next month to keep visa issuances within annual per country limits – that every effort will be made in October to return the final action dates to at least the final action dates announced for April.
• Retrogression in EB-3 worldwide was necessary to hold number use within the limits with the same prognosis that the situation will be continually monitored and any necessary adjustments made accordingly.
• EB-3W will likely retrogress worldwide in coming months.

There are of course only a finite number of immigrant visa numbers available for the preference categories annually – 226,000 for FB and 140,000 for EB cases. The forward movement of the FB categories which have been held static by the Department of State for many months is welcome to the many who have been waiting to reunite with their loved ones, but is unwelcome to those in the EB categories who have been helped in recent years by the crossover in unused FB numbers which can be used by them. The number of available visa numbers has unfortunately become a zero-sum game between FB and EB categories.

Only one fair and equitable solution is available, and that is increasing the number of visa numbers available for both FB and EB categories (FB because of the unconscionable number of years that most intending immigrants must wait to enter the US and EB because they fill areas of need in the country). Unfortunately, that is a pipe dream given the present lack of cooperation between political parties and concerns over the surge of migration at the Southwest border.

So we appear to be headed into a situation wherein FB cases will begin to be processed faster as US consulate posts bounce back to fuller capacity to set up interviews for cases, and EB cases will generally take a longer period of time to complete.

As published in the Immigration Daily on March 21, 2023

 Transit Policy at Border A Head Spinner.

In a bind at the Southwest border because of exploding numbers of migrants, the Biden Administration put forth a two-year parole program for 30,000 per month for the four countries of Venezuela, Nicaragua, Haiti, and Cuba in January 2023, which reduced the number of migrant crossings by 97% in that month. In February, the Administration announced its plan to end the embattled pandemic related bar of Title 42 on May 11, 2023, under which the government has been expelling great numbers of migrants without allowing them the opportunity to apply for asylum. Based upon the Administration’s plan, the Supreme Court de-scheduled oral arguments in February in a suit challenging the use of Title 42.

In its place, the Administration published for comment a temporary transit bar rule effective on May 11, 2023, the ending date of Title 42, to continue discouraging migrants from illegally crossing the US Southwest border. The carrot continues to be the two-year parole program for proper entries, and the stick the inability in most cases to apply for asylum if crossing the border unlawfully unless the migrant made an asylum application in a country that he or she transited before arriving at the US border. Specifically, this proposed rule will establish a rebuttable presumption that certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum, if they traveled through a country other than their country of citizenship, nationality, or, if stateless, last habitual residence, unless they were provided appropriate authorization to travel to the United States to seek parole pursuant to a DHS-approved parole process; or presented themselves at a port of entry at a pre-scheduled time or demonstrated that the mechanism for scheduling was not possible to access or use; or sought asylum or other protection in a country through which they traveled and received a final decision denying that application.

This presumption could be rebutted, and would necessarily be rebutted if, at the time of entry, the noncitizen or a member of the noncitizen’s family had an acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or satisfied the definition of “victim of a severe form of trafficking in persons”. The presumption also would be rebutted in other exceptionally compelling circumstances, as adjudicators may determine. Unaccompanied children would be excepted from this presumption.

The rebuttable presumption would be a “condition” on asylum eligibility that would apply in affirmative and defensive asylum application merits adjudications, as well as during credible fear screenings. Individuals subject to the rebuttable presumption would remain eligible for withholding of removal and protection under the Convention Against Torture (“CAT”).

Why is this a head spinner?

The first is opposition to the carrot. While 360,000 annually in a two-year parole program is not ungenerous, it should be remembered that Poland is hosting over 2 million Ukrainians and Colombia 2.5 million Venezuelans. Yet without any other plan, 20 states filed suit on January 24, 2023, saying that the expanded use of parole authority is unlawful.

Further head spinning is the direct contrast between the transit ban here and the one imposed under the US-Canada Safe Third Country Agreement in which arrival at a formal crossing point bars the migrant from making a claim for asylum in either country, and the migrant must in effect sneak into either country from the other to be eligible for asylum. Exceptions exist. An article in the New York Times on February 9, “Texas sent busloads of migrants to New York. Now the city is paying for tickets to Canada”, outlined the City’s handing out free tickets at the Port Authority bus terminal to Plattsburgh upstate near the border, normally a $75 bus ride of about seven hours. Once there, vans and cars charging anywhere from $50 per person to even $150 take them to Roxham Road, an informal crossing into Québec, where Canadian police officers immediately place them under arrest, direct them to a barn, and process them to be sent to shelters. The attraction of Canada is that once people make a refugee claim at the border, they immediately receive health coverage, social assistance and work permits within 3 to 4 months.

Where do we go from here? No one knows whether the carrot and stick approach will continue to work, or whether lawsuits against the transit ban or parole program will upend the plan.

It should be noted that the Biden Administration is also contemplating the revival of family detention of migrant families crossing illegally into the US to help prevent the anticipated surge beginning May 11. The policy as first put in place by the Trump administration caused family separations and soul-searching in the nation. Officials said that contrary to the Trump implementation, the Biden Administration would adhere to the terms of the Flores court settlement (Flores v. Reno, CV 85-4544 (USDC CD CA 1/28/97)) which only allows children to be detained for 20 days. Stay tuned.

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.