IMMIGRATION NEWS THAT YOU CAN USE: CAP H-1B SELECTION PROCESS ANNOUNCED COMPLETE; EB-5 REGIONAL CENTER REAUTHORIZATION/REFORM LAW TO BEGIN IN MAY; TITLE 42 NEWS INCLUDING UKRAINIANS; NO MORE PAPER I-94S AT THE BORDER; THE DEPARTURE OF EXPANDED EXPEDITED REMOVAL.

As published in the Immigration Daily on March 31, 2022

  1. Cap H-1B selection process announced complete – start the petitions!

USCIS announced on 3/29/22 that the H-1B selection process was completed and that online accounts would either show submitted, selected, denied, or invalidated failed payment. Petitions can be submitted beginning April 1 and petitioners will have at least 90 days to submit petitions; a petition must be properly filed with the correct service center and within the filing period indicated on the registration selection notice; and that petitioners must include a printed copy of the selection notice with the petition. Other parts of the announcement were that USCIS will not be using any prepaid mailers, [e.g. FedEx labels], to send out communications or approvals. Also, that issuance of I-797 receipts may be delayed – that if more than 30 days pass since confirmation of delivery and no receipt, petitioners should contact the USCIS Contact Center for assistance.

  1. EB-5 regional center reauthorization/reform law to begin in May.

A happy development has been the reauthorization of EB-5 regional centers for five years until September 30, 2027 in the “EB-5 Reform and Integrity Act of 2022”. The legislation goes into effect on 5/14/22, 60 days from the President’s signing on 3/15/22. There will likely be a number of changes in the May or June visa charts. Among the expected developments are backlogging of the China EB-5 direct investment category and a long date for China regional center cases. Some of the important features are carveouts for visa numbers – 20% for rural cases, 2% infrastructure cases in which federal, state, or local governments contract for EB-5 financing for the maintenance, building, and improvement of infrastructure, eg. private municipal bond deal, and 10% for areas of high unemployment. If these categories are more favorable than others for natives of China, they may feel inclined to invest in these types of projects. TEA (Targeted Employment Area) investment for rural and high unemployment areas will go up to $800,000 and the same amount will apply for an infrastructure project (which does not have to be in a TEA), and all others $1,050,000. Every five years beginning in 2027, the investment amounts will rise based on the change in the CPI (consumer price index). Federal and not the state will now determine whether the proposed area is in a high unemployment area or infrastructure project. A high unemployment area with 150% of the national rate of unemployment will be the census tract in which the NCE (new commercial enterprise) is principally doing business, and any adjacent census tract – the so-called “doughnut” approach. All present pending and filed cases will be grandfathered to the point that any future lapse in extending the regional center program will not affect adjudication and visa allocation. For investors in the US from countries with open quotas, they will be eligible to file concurrent I-526/I-485 applications. The dangling petition situation in which legislative nonrenewal of I-526 petitions filed up to June 30, 2021, left them hanging in uncertainty as to whether the cases could continue has been mostly alleviated by a provision that government agencies must continue adjudicating petitions and allocating visas to regional center investors who filed I-526 petitions up to September 30, 2026.

  1. Title 42 news including Ukrainians.

Title 42 has been big in the news this month with the Administration giving case-by-case exceptions to Ukrainians and with two court cases, one with the Court of Appeals in Washington DC and the other with a District Court in North Texas. CBP came out with a memorandum on 3/11/22 announcing exceptions under Title 42 for Ukrainians – that the public safety pandemic concern that has been used to turn back migrants without allowing them a chance to apply for asylum, will basically not apply to Ukrainians at land border ports of entry – “that CBP is authorized, consistent with the Title 42 Order, on a case-by-case basis based on the totality of the circumstances, including considerations of humanitarian interests, to except Ukrainian nationals at land border ports of entry from Title 42.” Who is eligible? “Those “who are in possession of a valid Ukrainian passport or other valid Ukrainian identity documents, and absent risk factors associated with national security or public safety, may be considered for exception from Title 42 under this guidance.” Those granted an exception can be processed for any disposition “including urgent port of entry humanitarian parole on a case-by-case basis.” This may precipitate a rush of the southwestern border by Ukrainians. In the DC case, Huisha-Huisha v. Mayorkas, the DC court made the ruling that although the executive is allowed to use Title 42 to expel persons attempting to enter the US without an asylum hearing because of pandemic concerns, he is not allowed to send them back to countries where they face persecution. The Administration had been sending many back to countries of persecution. In the Texas case, Texas v. Biden, the judge said that the Administration could not continue exempting children from Title 42. The Title 42 ban is set to expire in early April and the question is whether the Administration should continue extending it. One writer said that stopping it would solve both problems. The Biden Administration appears to be leaning in that direction even though such action would promote a run on the border and perhaps cause problems in giving a midterm election line of attack for Republicans. News reports today indicate that the Biden Administration is willing to take the risk and lift Title 42 restrictions in May.

  1. No more paper I-94’s at the border.

On another border issue, CBP gave notice on 3/18/22 that it will no longer be issuing paper I-94’s for land crossings, but only electronic I-94’s. So we should not be surprised from now on that persons crossing the border on TN and other statuses will no longer have paper I-94’s.

  1. The departure of expanded expedited removal.

The Federal Register notice which expanded expedited removal, 84 FR 35409 (7/23/19) was rescinded on 3/21/22 by another notice in the Federal Register, 87 FR 16022 (3/21/22). Now we are back to the future. Under expanded expedited removal, the previous boundaries of only using it when undocumented immigrants were discovered within 100 miles of the Mexico/Canada borders and being here less than two weeks were expanded by Mr. Trump so that it could be used against undocumented immigrants discovered in any location in the country and they would have to prove that they were here for at least two years two years before being exempted from expanded expedited removal. Although not used much, the threat of it caused panic to many members of the immigrant communities.

 

Article: “WILL K-3s COME BACK INTO VOGUE? WHY BASE PERM PREVAILING WAGE DETERMINATIONS ON ALTERNATIVE REQUIREMENTS NOW? WHY 10 YEAR LPR INSTEAD OF 2 YEAR CPR CARDS FOR THOSE MARRIED LESS THAN TWO YEARS? PHOTOS NEEDED AT NATURALIZATION OATH CEREMONIES? NEW FORMS FOR APRIL AND NEW USCIS LOCKBOX IN ELGIN, ILLINOIS.”

As published in the Immigration Daily on February 14, 2022

  1. Will K-3s come back into vogue?

The K-3 visa was instituted in 2000 when legacy INS took years to approve immediate relative spouse cases. It allows a US citizen petitioner to file not only the traditional I-130 petition for alien relative, but also a nonimmigrant I-129F K-3 petition for the married spouse. As the agency improved on backlog processing, use of the K-3 option decreased drastically, especially as the petition was nullified if both I-130 and I-129F met each other at the next waystation of the process after approval, the National Visa Center (NVC). Although USCIS processing times are known to be many times unrealistic, the published times give one pause to consider the possibility of K-3 petitions to all service centers except Nebraska. The following are the published processing times as of February 12, 2022, for immediate relative and K-3 petitions:

Service Center             I-130 processing times               K-3 processing times

California                         29.5-38.5 months                        9-12 months

Nebraska                             4.5-7 months                              5-7 months

Potomac                            12.5-16 months                            3.5-7 months

Texas                                  10.5-14 months                            3.5-7 months

Vermont                            11.5-15 months                             7-9 months

K-3 processing times at the consulates and embassies track the time for immigrant visas according to State Department information, so it would appear that there may be some merit to considering K-3 petitions at this time. If USCIS reduces the I-130 backlog times or processes cases out of chronological order (as we have seen in some of our cases), the attraction of the K-3 visa becomes less.

  1. Why base PERM prevailing wage determinations on alternative requirements now?

For those attorneys whose practices include PERM labor certifications for permanent residence, the Department of Labor announcement through FAQs on July 16, 2021, relating to implementation of its revised prevailing wage determination form, ETA 9141, was a disappointing surprise in demanding that employers use the higher wage of either its principal or alternative requirements as the prevailing wage. The labor certification process is the method by which employers must test the American job market for able, qualified, available and willing US workers before a non-US worker can obtain residence status through nonavailability of US workers for the position. The sponsoring employer in the first step applies to the Department for a weighted-average wage in the job locality by informing the Labor Department of the job title, duties, and requirements and upon receiving a prevailing wage determination, then offers that wage to US workers in the recruitment process. Many employers not only have a principal set of requirements, e.g. Masters degree +3 years of experience, but also an alternate set of requirements, e.g. Bachelors degree +5 years of experience, that they will accept to attract a higher number of candidates and also sometimes because the non-US worker being sponsored might only qualify under the alternative requirements. Over the years, the Department policy had been to only consider the employer’s principal requirements for purposes of setting the wage to be assigned in understanding that principal and not alternative requirements should govern the wage level. Yet in one fell swoop, the Department reversed historical policy through the July 2021 round of FAQs. Such penalizes an employer that has a primary set of requirements for which it is willing to pay a prevailing wage by forcing it to now recruit such workers at a higher rate of pay if the Labor Department determines that the alternative requirements command a higher wage. Such makes little sense historically and logically. In addition, the upward forcing of wages does not serve the country’s best interests in the battle against inflation as it becomes part of an everlasting cycle of raised wages and raised product prices in response which largely contributes to the current rise of inflation in the US (7% from January 2021-January 2022). The author would be interested to know whether there is any attorney, firm, or organization with pending or impending litigation over the new policy.

  1. Why 10-year LPR instead of 2-year CPR cards for those married less than two years?

Section 216 of the INA states that an alien spouse is considered a conditional resident who obtains status by virtue of a marriage entered into less than 24 months and that this applies to both spouses of US citizens and permanent residents. (Please note that this does not include spouses immigrating with their spouses – only those who are petitioned on form I-130). We have anecdotally seen cases in which such spouses of permanent residents recently approved for adjustment of status were given 10 year green cards instead of 2 year conditional residence cards. It may be that the current open availability of the F-2A visa category (for spouses and children of permanent residents) versus the past backlog in the category may be causing some confusion among USCIS adjudicators since F-2A cases used to take well over two years, but such errors have capacity for damaging future effects, and we encourage officers to be more careful in noting the marriage date. It is academic that an I-751 petition to remove the conditional basis of residence status must be filed within the 90 days preceding the second anniversary of the issuance of conditional permanent residence. A conditional resident who fails to file is not considered to be lawfully in the country. In addition, such an applicant who later files for naturalization would be denied, and informed that he or she would still have to file the I-751 petition. Mayhaps USCIS will apologetically recognize its error and offer the individual an opportunity to file the I-751 out of time, but such a result would nevertheless cause the applicant much stress not to mention the loss of time, energy, and money in filing and paying for an unsuccessful citizenship application.

  1. Photos needed at naturalization oath ceremonies?

What do you ask your client to bring to USCIS for a naturalization interview? For convenience’s sake, we encourage them to take everything with them even though officers may only be interested in a few items. We also suggest bringing new passport size photos- if they wish- on the off-chance that an officer may ask. But we never thought that photographs would be requested at the swearing-in ceremony. Lo and behold, a client recently reported to us that at the oath ceremony for herself and husband, she was requested to provide passport photos while her husband was not. Such necessitated her having to exit the building, find a place that took photos (usually a few around federal buildings), and hustle back to the building in time for the ceremony. And she further informed us that the officer told her that “This happens all the time.” The moral appears to be that, if an applicant is willing to take new passport photos, it may be prudent to take the photos not only to the interview, but to the oath ceremony as well.

  1. New forms for April and new USCIS lockbox in Elgin, Illinois.

The penalty for filing old or noncurrent forms with USCIS is rejection of petition or application, which can be both embarrassing and damaging if there is a time deadline. The watchword is to always look at the form edition and compare it with the current form in use before filing. A list of recent changed forms that will come into play in April are:

  • I-864 and all its variations (A, EZ, W) – 12/8/21 editions as of 4/7/22 only.
  • I-829 – 12/8/21 edition as of 4/7/22 only.
  • I-824 – 12/2/21 edition beginning 4/7/22 only.
  • I-102 – 12/2/21 edition as of 4/7/22 only.

USCIS also announced the opening of a new lockbox in Elgin, Illinois, for which I-751s must now be filed for those residing in New York, New Jersey, and most of the East Coast. The address of the lockbox is:

(USPS)

USCIS
Attention: I-751
PO Box 4072
Carol Stream, IL 60197-4072

(FedEx and other couriers)

USCIS
Attention-I 751 (Box 4072)
2500 Westfield Dr.
Elgin, IL 60124-7836

In addition to taking I-751s, the lockbox in Elgin will also begin accepting additional workloads including N-400s and I-130s  in the coming weeks and USCIS expects the transition to Elgin to be completed by late summer 2022. Additionally, it expects to move the lockbox facility in Arizona from Phoenix to Tempe in Fall 2022. So keep your eyes open!

Article: “IMMIGRATION NEWS THAT YOU CAN USE – NEW H-1B CAP SEASON RAMPING UP; DROPBOX USE EXPANDED FOR US VISAS OVERSEAS; F, M and J VISA APPLICATIONS MADE EASIER; MFL TERMINATION LETTERS AND NVC NEED FOR QUALITY CONTROL; FLEXIBILITY EXTENDED FOR TIME TO RESPOND TO USCIS ACTIONS; VISA PROBLEMS WHERE APPLICANTS LEAVE US BEFORE DECISIONS ON EXTENSION/CHANGE OF STATUS REQUESTS.”

As published in the Immigration Daily on January 18, 2022

  1. New H-1B Cap Season ramping up.

About 1 ½ months from now, USCIS will begin the employer registration process for new H-1B candidates who will be able to begin work in October 2022 or later if they are selected and their subsequently filed H-1B petitions approved. (Please note that this notice does not affect current H-1B holders except possibly H-1B cap exempts attempting to move to H-1B cap organizations). All employers who have not already done so should begin to put together a list of those candidates (many of whom may be on practical training) that they are interested in sponsoring.

There are encouraging signs that this H-1B season will go more smoothly than those in the recent past. Three regulations that could have adversely affected H-1B processing have been abandoned by the Biden administration – one by the Department of Labor which would have significantly raised the wages to be paid H-1B workers, and two by DHS that would have 1.) made it more difficult for candidates to qualify for H-1B status and 2.) changed the selection process from random selection to highest wages paid.

Unfortunately, the number of new H-1B visas to be awarded still remains 85,000, far short of the number of eligible candidates. For many, however, this may be the most viable means for companies and other organizations to acquire new talent and for candidates to establish a foothold in this country. H-1B holders are allowed to remain in the country for up to six years and even longer if the company takes timely steps to sponsor them for permanent residence. Many employers have been happy with the ability to retain bright, hard-working staff members for a number of years.

  1. Dropbox use expanded for US visas overseas.

The Department of State announced a change of policy on December 23, 2021, allowing waivers for even first time applicants for many employment-based visas, including H-1B and L intracompany transferees. This discretionary waiver of in-person interview applies to those who have had a petition approved by USCIS, are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility.

Although this is good news, persons thinking of taking advantage of this development should be aware that a waiver of the interview is discretionary and up to the consulate or embassy; and that the schedule of interviews or waivers of such is dictated by consul or embassy. In addition, a further risk for those who are interviewed and refused is being stuck in administrative processing, which may take time to resolve assuming that resolution is possible.

With such said, this is indeed good news as it will reduce the risk of consular processing for many nonimmigrant work visa seekers. Applicants should also be aware of the effect of Covid on the process in the country or region of which the following three are described in which they will ultimately be dropping passports and other documents:

  • China – Fully vaccinated with inactivated vaccine – take PCR test at U.S. departure city of flight seven days before boarding at either Avass Bioscience or Real-time Laboratories; monitor your health for seven days at the departure city; take second PCR test within 48 hours before departure. If fully vaccinated with non-inactivated vaccines, do all of the above plus take S protein IgM antibody and an N protein IgM antibody tests within 48 hours before departure at one of the two companies. If not fully vaccinated or unvaccinated, do the same.

    Persons with a history of infection have more to do including lung CT or x-ray and 14 day quarantine.

    Once in China, there are further restrictions including a quarantine period.
  • Hong Kong – Suspension of flights from the United States, Australia, Britain, Canada, France, India, Pakistan and the Philippines for two weeks beginning on 1/8/22.

  • India – India is usually on the backend of infections after Europe and the Omicron variant is fast spreading in India since late December. The government has introduced night curfews, shut down movie theaters, and slashed restaurant and public transport to half capacity. It is known that the Oxford AstraZeneca vaccine which has been used for about 90% of India vaccinations does not protect against omicron infections, although it appears to help reduce the severity of the illness. Persons interested in making an appointment by dropbox have been frustrated by the lack of appointments, and the Department of State has promised to release another 20,000 dropbox appointments in the spring. One wonders, however, whether Covid will begin to disrupt the schedule of appointments.
  1. F-1, M-1, and J-1 visa applications made easier.

 Good news for student visa applicants applying for the first time or for renewals with the Department of State reverting to pre-Trump policy in an update to the Foreign Affairs Manual making the question of nonimmigrant intent easier to meet. Establishing that a person has nonimmigrant instead of immigrant intent is essential to gaining approval of student visas. The FAM guidance makes clear to consular officers that such applications are to be given latitude on the question of nonimmigrant intent:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify the applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future… In the circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States. Therefore, the residence abroad requirement for student applicants is to be considered in the context of the usual limited ties that a student would have, and their immediate intent.

With this revision, the US under the Biden administration is showing a more open and welcoming America.

  1. MFL termination letters and NVC need for quality control.

One wonders whether the National Visa Center requires more quality control in its issuance of MFL-1 termination letters as we recently received three which were clearly unwarranted. Under NVC policy, communication with the agency within a one-year period of time stops the case from going into deregistration. Yet on two of these cases, we had clearly sent in communications on time. It may have been that NVC receipt of communications and acknowledgment of such have been impacted by Covid, but if so, there should also be appropriate lag time for NVC to coordinate the communications before sending out MFL letters. Under NVC policy also, an applicant’s filing an I-601A Application for Provisional Unlawful Presence Waiver stops the case from going into the deregistration process, and yet we also had to fend off the third MFL letter when we had filed the I-601A application in January 2021.

  1. Flexibility extended for time to respond to USCIS actions.

USCIS is again extending flexibilities because of the pandemic for responding to certain actions of the agency between March 1, 2020 and March 26, 2022 inclusive. Such allows another 60 calendar days past the due date for requests for evidence (RFE’s), continuations to request evidence (N-14), notices of intention to deny (NOID’s), notices of intention to revoke (NOIR), notices of intent to rescind, notices of intent to terminate regional centers, and motions to reopen N-400 naturalization applications after receipt of derogatory information after a grant. In addition, flexibilities are further extended to I-290B notices of appeal or motions and N-336 requests for hearings on a decision in naturalization proceedings if the form is filed up to 90 days from the issuance of the decision, and USCIS made the decision between 11/1/21 – 3/26/22.

  1. Visa problems where applicants leave US before decisions on extension/change of status requests.

During the time of Covid, it has oftentimes been difficult for visitors to the US to leave the country on time as international flights are canceled with little or no notice, or countries have multiple restrictions on reentry that cannot be met within a short period of time. So, many visitors have been forced to file for extensions or changes of status to remain in a quasi-legal status while making arrangements to leave, and then leave the US before decisions are rendered on their requests. The questions are what is the status of their visas since there is an automatic visa cancellation provision in the law where individuals overstay their visas, and whether the US consulates and CBP are on the same page.

The Foreign Affairs Manual states that a person departing after the date on the I-94 passes but before an application for extension or changes status has been decided by USCIS has a blanket exemption from visa cancellation, if the application was filed in a timely manner and was nonfrivolous in nature. It is not clear that CBP is entirely onboard in light of its response from the American Immigration Lawyers Association New York Chapter/CBP meeting on December 2, 2021, in which CBP reportedly said, “Application of INA 222 (G) is quite case specific. Detailed reference as to the application of INA 222 (G) can be found in 9 FAM 302.1-9 which has specific helpful scenarios (which CBP may refer to but is not bound by). Recommend carrying the receipt notice if an extension application was timely filed even if later abandoned.”

To have CBP be on the same page insofar as visa cancellations are concerned would promote certainty in travel and prevent a situation of which we heard a few weeks ago in which the parent of an LPR traveled back to the US on the same visa five months after departing only to have a CBP officer cancel the visa on ground that the extension application was abandoned as the applicant had not shown up for her biometrics appointment.

News: “Our law firm gains remand of 1-212 prelude to I-601A as USCIS appellate body (AAO) examines in detail evidence given in application and appeal and decides that certain points relied upon in initial USCIS denial are not relevant.”

Dear Readers,

Attached is a nonprecedential AAO decision that we just received remanding the matter to the Field Office Director relating to a conditional application for permission to reapply for admission on form I-212 to allow the applicant to file form I-601A application for provisional unlawful presence waiver. In the decision, the AAO considered all of the applicant’s evidence of equities presented in the initial application and on appeal along with the unfavorable factors of skipping a court date and repeated immigration violations, and noting that the applicant contested inadmissibility for misrepresentation.


In making a de novo review, the AAO stated that, as the applicant indicated that he would depart the United States and apply for an immigrant visa, it did not need to determine whether he was inadmissible for misrepresentation – that the Department of State would determine the applicant’s eligibility; that having a final order of removal should not have constituted a negative factor against a favorable exercise of discretion as having a final order was a prerequisite to seeking permission to reapply; that the Director weighed negatively the applicant’s unlawful employment, and although conceding as positive factors the applicant’s employment and payment of taxes, did not appear to weigh favorably his employment and multiple years of tax filing; that the decision did not appear to fully address the evidence about hardship to the applicant’s family; that the Director erred in not considering the applicant’s hardship and that positive factors may also include the applicant’s respect for law and order, good moral character, family responsibilities, and his likelihood of becoming a lawful permanent resident.


The AAO’s careful examination of all factors should encourage the inclusion of as much evidence of equities as possible with the application and on appeal.


Very Truly Yours,

Alan Lee, Esq.

Comment on USCIS proposed regulation, “Modification of Registration Requirement for Petitioners Seeking to File Cap Subject H-1B Petitions”, RIN 1615-AC61 – by Alan Lee, Esq.

As published in the Immigration Daily on November 3, 2020


Below is our comment to the above proposed regulation which would allow USCIS to first give favor to the selection of H-1B registrations or petitions (if the registration system is suspended) on the basis of petitioners offering higher wage levels. Persons wishing to comment should do so through the federal e-rulemaking portal, www.regulations.gov by the end of day on December 2, 2020.

Your comment was submitted successfully!

Comment Tracking Number: 1k4-9ke5-6eog

Your comment may be viewable on Regulations.gov once the agency has reviewed it. This process is dependent on agency public submission policies/procedures and processing times. Use your tracking number to find out the status of your comment.

Agency: U.S. Citizenship and Immigration Services (USCIS)
Document Type: Rulemaking
Title: 30 DAY COMMENTS CLOSE ON 12/2/2020; 60- DAY IC COMMENTS CLOSE ON 1/4/2021; Modification of Registration Requirement for Petitioners Seeking To File Cap- Subject H-1B Petitions
Document ID: USCIS-2020-0019-0001

Comment:
Dear Sir/Madam:

I am submitting this comment in opposition to USCIS’s NPRM, USCIS-2020-0019; RIN 1615-AC61 for a number of reasons including its mistaken correlation of money to the worth of a position, discriminatory effect on US workers, its potential harm to the nation, and its violation of the US spirit against egalitarianism.

As a 35 year plus practitioner of immigration law, especially business-related, I believe that I have much practical and theoretical experience in the area of H-1B visas, including that the program was never meant to be as restrictive as the Trump administration would have us believe it to be in its latest bald attempt to make the program unusable to smaller sized organizations.

The proposed rule would allow USCIS to employ wage levels to either the H-1B registration system or to H-1B cap petitions in any year in which the registration requirement is suspended in such manner that selections would first be based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment.

Wage, however, is a poor barometer of a position’s worth. A Fortune 500 company can pay twice or even three times the going rate for college graduates than other workplaces. Many companies or other organizations do not have the resources to compete moneywise with large corporations that are able and willing to overpay for the same level of candidates.

Looking at government hiring practices shows the absurdity of correlating high pay with the worth of a position. The government hires many college graduates who are very bright, but it is unwilling or unable to compete moneywise with large corporations. Does that mean that a job in the government is less complicated or requires someone with lesser brains? The answer in most cases is a resounding no!

Wage inequality and discrimination against US workers is another problem with this proposed regulation. An employer wishing to have a good chance of getting an H-1B worker would have to up the level of pay – on many occasions more than the job is really worth – and wind up paying the alien more than it would a US worker for the same position. The employer might then be liable for practicing employment discrimination.

How will this country compete in the 21st century against the rest of the world? The best way is to nurture those who have come through the US education system and to attract others who may eventually help to keep the country competitive. That is the reason why it is so important to have programs like CPT, OPT, and the H-1B visa program. Rome was not built in a day, and neither do most people become superstars directly after graduation or even after a period of time of CPT, OPT, or even H-1B status. This proposal is part of the suite of regulations designed to raise H-1B qualifications to star level. But this nation needs not only superstars, but highly educated persons who are capable in their fields, and able to support the work of the superstars. The entire history of H-1B practice has been in this direction. The way to attract the highly trained from other countries is to lower and not constantly construct barriers. This nation is especially lacking professionals in the STEM sciences and playing catch-up to many other countries. Although there is now growing emphasis on STEM sciences in colleges and universities, much of America’s youth is more engaged in the liberal arts as STEM subjects are harder, boring to many, and exacting.

Many of the breakthroughs in the future will not come from Fortune 500 companies, but from small ones that cannot afford to pay artificially elevated wages to their employees. Did a small R&D biotechnology firm like Moderna have enough funding to pay level II, III or IV wages in its early stages to incoming graduates at the Master’s or PhD levels? From reports that the company’s experimental vaccine research was greatly accelerated by a $1 million contribution from the country western star Dolly Parton before the federal government stepped in with an offer of funding, one could believe that money was tight. The US will be the loser if USCIS ever implements this proposed regulation.

This country was built in large part by small businesses paying people a fair wage and not by the egalitarianism of big business outbidding the market and grabbing up the prize – in this case, limited H-1B visas. This proposed rule is against the American spirit of equal opportunity for all US businesses and pitches the field against smaller sized businesses.

For the reasons stated above, the proposed rule makes no sense except as a deterrent against use of the H-1B program by many organizations desirous of and in need of the candidates’ services.

Your consideration of this comment is appreciated.

Alan Lee, Attorney-at-Law
408 Eighth Ave., Ste. 5A
New York, NY 10001
2125649496

 

ALAN LEE, ESQ. CHOSEN 2020 SUPER LAWYER IN NEW YORK CITY

The 2020 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 2 lawyers of Chinese descent in the 69 attorneys chosen in the area of immigration law, the other being Tsui H. Yee. This is the ninth time that Mr. Lee has been selected, having previously been honored in 2011, 2013-2019. He exclusively practices U. S. immigration and nationality law in Manhattan near Penn Station with his son and associate, Arthur Lee, Esq.

Please click here for the “Super Lawyers – New York Metro 2020

ALAN LEE, ESQ. SUPER LAWYER FOR 2019 IN NEW YORK CITY

The 2019 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 2 lawyers of Chinese descent in the 67 attorneys chosen in the area of immigration law. This is the eighth time that Alan Lee has been selected, having previously been honored in 2011, 2013-2018.  He exclusively practices U. S. immigration and nationality law.

Please click here for the “Super Lawyers List for Immigration 2019

Article: Immigration Procedure – 10 Possible Items Of Interest

As published in the Immigration Daily on February 19, 2019

We thought that the following might be of interest and that you might not know about them or at least some of them. If you do not, good reading –

1. Does an applicant on DS-160 have to answer “yes” where an immigrant petition has been filed on behalf of the parent or spouse? The Department of State has amended 9 FAM 302.9-4 (B) (8) to state that “an applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering “no” to this question.” Consular officers many times expect the answer “yes”, so the American Immigration Lawyers Association (AILA) takes the position that a derivative beneficiary named on an immigrant petition may respond negatively or affirmatively to the question, with neither response resulting in a finding of material misrepresentation.

2. There is a new procedure for the consolidation of H and L visas for China beginning 3/1/19 as exclusive jurisdiction will only be in Beijing, Guangzhou and Shanghai. Chengdu and Shenyang will no longer be handling these cases.

3. The Pew Research Center currently estimates that the number of undocumented immigrants in the country fell from 12.2 million in 2007 to less than 11 million in 2016, and the number of illegal entries in 2017 was 310,000, the lowest of any year since 1971. So, where’s the national emergency?

4. What is the border? In a post by the American Immigration Council, the “border zone” encompasses 10 states in their entirety, touches dozens more, and contains 9 of the largest 10 cities in the country. Customs and Border Protection (CBP) has broad authority to operate within 100 air miles of any U. S. boundary, including setting up and operating immigration checkpoints on many routes within the 100 mile radius that eventually meets the border. Within 25 miles, agents have even more leeway such as entering private property without a warrant or permission. Based on news and other reports, there are 170 checkpoints with the vast majority spread across the Southwest border states.

5. U.S.C.I.S. reopened premium processing on February 19, 2019, for all H-1Bs filed on or before December 21, 2018. Such would apply mainly to H-1B transfers, amendments and concurrent filings since premium processing has been constantly open to extensions and recently to FY-2019 cap cases.

6. In looking at statistics on H-1Bs, a news report in the Los Angeles Times, “Immigrant tech workers struggle to get H-1B visas under Trump:’ I’ve never felt so helpless’” said that in 2017, 74% of all H-1B’s were approved, down from 87% the year before and the lowest approval rate in at least a decade. You can bet quite safely that 2018 results were even worse. From another source, the proportion of H-1B petitions denied increased by 41% from the 3rd to the 4 th quarter of FY- 2017. A major consequence of the increase in denials and the long waits is that many H-1B holders are now reluctant to change jobs because that means another adjudication by U.S.C.I.S.

7. Since June 2017, at least 14 lawsuits have been filed in federal courts around the country concerning H-1B denials. The plaintiffs are directly suing to federal court and bypassing the U.S.C.I.S. Administrative Appeals Office (AAO).

8. A suit was filed on 12/19/18 in the DC District Court on a H-1B extension denial without the parties going to the AAO, the plaintiff, a Minnesota finance and IT company, and the beneficiary a computer systems analyst in a position entitled “BI business analyst” or business intelligence business analyst. She had held H-1B status since October 2008 and had an approved I-140. The company’s stated requirements for the job were an MS in computer science, computer engineering, electrical engineering or related field +3 years as a technical analyst or similar analyst or consulting position involving business objects universes and reports. The denial was based upon the U.S.C.I.S. Service Center Director’s view that the occupation of computer systems analyst does not require a bachelors level of education or higher or its equivalent in a specific specialty.

9. Another H-1B suit filed in the same court on 10/16/18 and bypassing the AAO involved a large construction concern in Dallas filing an H-1B amendment/extension for the beneficiary as an assistant project manager in September 2017. The beneficiary, who had already been approved to work for the company under H-1B status as an equipment logistics engineer through June 2018, held an MS in construction management, and the employer’s stated requirement was a bachelors in construction management, engineering, or related. The Occupational Outlook Handbook (OOH) which is heavily relied upon by U.S.C.I.S. in determining H-1B specialty occupations, said that it was increasingly important for construction managers to have a bachelors degree in construction science, construction management, architecture or engineering. The denial was based on the U.S.C.I.S. Service Center Director’s view that, as per the OOH, the construction manager occupation is not a specialty occupation.

10. The liaison meeting of AILA and NY/NJ Customs and Border Protection (CBP) on 10/23/18 clarified that if an adjustment applicant is traveling on advance parole, and CBP learns that the application for adjustment of status to permanent residence has been denied when the person tries to reenter, CBP will not parole the passenger on the basis of the now denied I-485, but has discretion to defer the inspection. CBP will look to see if the I-485 was denied on criminal grounds. Based on CBP’s initial review, it may decide to defer the inspection for 30 or 60 days to allow CBP to talk to U.S.C.I.S. and determine the nature of the denial while the passenger addresses the denial with U.S.C.I.S. Once the initial deferred inspection period has ended, the passenger may be able to get a further extension if CBP believes the issue will be resolved favorably with U.S.C.I.S.

New H-1B Regulation “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-Subject Aliens” Becomes Final Changing The Order Of Selection But Delaying Pre-Registration System

As published in the Immigration Daily on February 1, 2019

The final rule will only have one component taking effect on April 1, 2019, the flip-flopping of the order of petition selection of U. S. Masters and higher degrees vis-à-vis bachelors and advanced foreign/U. S. for-profit institution degrees. The second part, the pre-selection system for organizations to register ahead of time for the opportunity to file cap subject petitions, has been postponed for this year.  Even in the proposed rule, U.S.C.I.S.  was hesitant on when it could be implemented, and many including this writer believed that it was nigh impossible for the system to come into being for this year’s H-1B selection (See “Article: Comment on U.S.C.I.S. New H-1B Proposed Regulation by Alan Lee, Esq., Immigration Daily, January 2, 2019).

Changing the order of selection by allowing all of the U. S. Master and higher degree cases to be put in the regular cap case selection, and then allowing the unselected to claim the U. S. Masters cap quota of 20,000+ numbers instead of running the U. S. Masters selection for the exclusive 20,000+ numbers first and then allowing the unselected to be put in the later regular cap selection was estimated by U.S.C.I.S. to yield another 16% or 5340 more numbers to U. S. Masters degree holders.

Was this a good strategy to favor those with U. S. advanced Masters or higher degrees? That is questionable as it is not merely a question of bachelors versus masters and higher degrees, but the exclusion of many persons who have had years of experience that those with recent advanced U. S. degrees do not have. Many with bachelor’s, master’s and PhD degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

This writer believes that the change in regulation applies mainly to those who have just acquired U. S. Masters degrees, many of whom have no relevant experience other than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s or advanced degrees from other countries and years of working in a particular field are oftentimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

On the pre-selection system, the agency noted that, “USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.” In response to comments, it is increasing the filing time period to 90 days instead of 60 days after selection, a change that would make it even more unlikely for the system to begin in FY 2020. In the final rule, it also eliminated the idea of staggered filings because of concerns over the potential for negative impact for beneficiaries relying on the existing cap gap provisions under which beneficiaries must still be in OPT status on the date of filing to be eligible for cap gap protections.

Article: The Art Of The Deal In Making The Wall

As published in the Immigration Daily on January 23, 2019

The art of the deal now is fixing the deal – to fold the present hand and start dealing a new one. The hounds are baying at him now on all sides, and he should know that it’s time for him to quit his present play if he wants to get the Wall. Mr. Trump created this whole fiasco when he put the livelihoods of 800,000 federal workers at risk in a long shutdown that he and the Republican Party own. And for what – a Wall projected to cost at least $24 billion of taxpayer money? A wall that will not stop drugs? A wall that can be tunneled under, dynamited, gone around through points of entry and the seas? To solve a humanitarian crisis of his own making when true concern would be multi-country conferences and agreements on solutions for the problems encouraging migration? To solve the “mass” invasion of the United States on the southern border when current statistics show arrests at almost an all-time low since the early 70’s? He has failed to convince the nation at large of the Wall’s necessity. So if he really continues to push for the Wall, he will have to ante up.

It goes without saying that Mr. Trump created the shutdown crisis in the hope that he could bowl over the Democrats before they established their agenda firmly in the House of Representatives. So the early stages of negotiation were to give nothing at all, pump up the absolute importance of the Wall as the penultimate solution against drugs, crime, illegal immigration, and terrorism, and attempt to shift shutdown blame on the Democrats, which was and is very hard to do as he initially said that he would own the shutdown. When that didn’t work, Mr. Trump then moved into the second phase of negotiation with his base and party (no direct negotiations with Democrats) offering temporary relief to 700,000 Dreamers and 300,000 holders of TPS (Temporary Protected Status). He offered what he could justifiably say to his base was actually nothing that these groups did not have before he took steps to remove their statuses. He would have to have been incredibly naïve not to realize that the offer was dead on arrival – so he should perhaps be given the benefit of the doubt that this offer was just his beginning point of negotiation although his base did not understand. To Democrats, he had taken these groups hostage in revoking DACA and TPS, and so he was only offering to put them back in the same state that they were before his actions. To his base, however, he was roundly criticized as an immigration appeaser and traitor.

Now it appears that Mr. Trump will be forced to move into the third phase of negotiation in which he will have to truly offer something to Democrats for the Wall or unilaterally end the shutdown with nothing to show for it except for the pain that he inflicted on the Nation. His negotiating hand of cards appears to have nothing in it. He is now being unanimously blamed for the shutdown, not the Democrats. Even members of his base are criticizing him for it at this point. His DACA and TPS hostages have largely escaped for now, with the Supreme Court yesterday giving notice that it would take no action on his request to review the DACA case, the upshot being that a decision is not expected until 2020. In addition, his revocation of TPS has been stayed by Judge Edward Chen of the Northern District of California in October, and there is no immediate threat to TPS members as the Ninth Circuit Court of Appeals will likely support the injunction, and Mr. Trump would have to take the case to the Supreme Court. Even if there was a threat to TPS members, such would not likely move the Democrats and the country who largely view DACA members as more blameless and have twice as many members. In the art of the deal, he has lost leverage, and he more than anybody else should understand this.

It remains to be seen what Mr. Trump will offer in the third phase, but anything that he offers will be looked at warily by all sides based on his long history of going back on his word. Democrats are thus far united in their belief that any legislation ending the shutdown should not include funding for the Wall. That does not mean, however, that pressure cannot be exerted to change their minds if the right offer is made. Two bills will be put on the floor of the Senate tomorrow, January 25th, a Democratic one reopening the government without wall funding, and a Republican one reopening with wall funding, the above Trump proposals, and a poison pill on asylum. Both are widely expected to fail to obtain the necessary 60 votes. In this writer’s opinion, what would truly get the ball rolling would be an offer of permanent status with or without a road to citizenship for an expanded class of DACA members which is projected to be about 1.8 million individuals. Perhaps also worthy of heavy consideration might be the present 700,000 DACA members getting some form of permanent status with a road to citizenship and the 300,000 TPS members status relief for the next 3 years. The point is that for Mr. Trump to break the logjam and obtain the funding that he wants for the Wall, he has to put forth something new that is untainted by himself. This will cause huge howls from his impassioned base, but if he intends to do the deal, he needs to put something of substance on the table.