Proposed H-1B Lottery Changes: Winners and Losers

As news continues to circulate about the proposed pre-registration process for the H-1B visa lottery, the Trump Administration has hinted on a new prioritization strategy for H-1B beneficiaries with master’s degrees and higher. Thus, the April 2019 lottery could see a pre-registration process that skews greatly towards those with advanced degrees, especially for individuals with advanced degrees from a United States college or university.

 New Proposal

According to Bloomberg Law, the unreleased proposal aims to “increase the probability of the total number of petitions selected under the cap filed for H-1B beneficiaries who possess a master’s or higher degree from a U.S. institution of higher education each fiscal year.” The proposal for pre-registration processing could also place greater limitation to minimum wages for H-1B beneficiaries. Thus, USCIS would seek to grant H-1B visas to foreign nationals graduates from masters and doctoral programs in the United States who have high paying employing petitioners. In a scheduling document, the White House stated that it hoped the proposal would “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The statement also cited that the change is “being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation.” Through the pre-registration process, and the new skewed selection criteria, DHS intends to more fully abide by the standards outlined in the Executive Order Buy American Hire American.

Winners and Losers

For employers with a high demand for advanced degree holders, this potential proposal could mean smooth sailing come April. Especially for firms in Silicon Valley, the prioritization of foreign nationals with masters and higher degrees from United States institutions allows employers to source employees from prestigious institutions. However, for those employers that employ H-1B visa holders with bachelor’s degrees, or advanced degrees from foreign institutions, the change could bring about staffing troubles. According to Mercury News, “[o]utsourcing and staffing companies such as Infosys, Cognizant, Tata, Wipro and Deloitte tend to obtain more visas for bachelor’s degree holders.” If the changes affect the April 2019 lottery, companies and potential beneficiaries could be in serious trouble.

Digital Border Search Under Federal Scrutiny: CBP

Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.

Border Doctrine

Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”

Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.

A Failed H-1B Visa Fraud and Abuse Hunt: USCIS Referrals Low

Following the executive order “Buy American, Hire American: Put Americans First”, USCIS began a new initiative to crack down on H-1B fraud and abuse. According to Bloomberg Law, the hunt for individuals and companies that abuse the H-1B program has proven largely unsuccessful.

Increased Site Visits

Prior to President Trump’s executive order, H-1B petitioners were randomly selected for compliance reviews. Now, USCIS shifts towards “targeted site visits” that prioritize scrutiny towards firms and employees that may have disadvantaged U.S. workers. Specifically, companies with a high concentration of H-1B workers, consulting companies, and unverifiable companies were targeted more heavily in the new Trump-era of worksite visits. The introduction of new fraud detection initiatives was intended to prevent companies from denying U.S. workers access to specialized job markets. Additionally, USCIS hoped that the increased site visits conducted in fiscal year 2018 would expose an inordinate amount of fraud and abuse in the H-1B visa program. However, the increased effort showed little evidence of widespread fraud.

Low Percentage of Fraud and Abuse

According to USCIS numbers exclusively released to Bloomberg Law, USCIS conducted over 23,000 site visits in fiscal year 2018 (FY18). Of those visits, less than 5% yielded in a referral to Immigration and Customs Enforcement (ICE) for benefit fraud. These numbers include all site visits conducted by USCIS; H-1B worksites saw only 6,300 visits in FY18. H-1B workplaces saw 556 “targeted” site visits, spurred by the executive order, for those firms and employees under increased scrutiny. In a statement provided to Bloomberg Law, USCIS spokesman Michael Bars stressed the importance of the anti-fraud initiative in order to protect “the integrity of our nation’s lawful immigration system, harming American workers, and risking public safety and national security.” However, it remains unclear if the targeted site visit initiative has been successful in unearthing vast quantities of fraudulent H-1B visa beneficiaries.

End of Self-Scheduled InfoPass: USCIS Expands the Information Services Modernization Program

Later this month, the United States Citizenship and Immigration Service (USCIS) is set to expand online modernization initiatives to six new field offices, including the Detroit Field Office and several offices in the L.A. district. The modernization program, which is set to reach districts on the east coast and in the Midwest next year, should improve information efficiency for all classes of immigration applicants.

The End of InfoPass

Included in the modernization initiative is a new means of information services that would eliminate the self-scheduled InfoPass appointment system. Currently, applicants can schedule appointments online to meet in-person with USCIS representative to receive general information about their case and resources regarding their application. The new system would streamline information services by ending the Infopass appointment system and centralizing case status inquires and information resources through the USCIS Contact Center. There, applicants can receive immediate assistance through online messaging and live phone based support. USCIS hopes by ending the InfoPass appointment service, “emergency and other services that can only be provided in person” will receive more focused support.

Based on internal surveys, USCIS found that many users of the InfoPass self-scheduled appointment program could have saved time by calling the USCIS Contact Center or checking the USCIS website. In the long term, the new modernization efforts will help applicants save time by limiting the hassle of scheduling an in-person appointment. USCIS additionally hopes that by limiting in-person appointments, the service can better allocate resources and staff towards processing and adjudicating applications. For those who require in-person assistance, USCIS states that applicants will still maintain the right to schedule an appointment, and can receive assistance to do so through the new modernized information service program.

Trump Memo Put Congressional Case Assistance at Risk: Immigration Assistance

Many applicants for immigration benefits have found themselves in the office of their local congressperson. By seeking assistance from a local member of Congress, either a senator or representative, constituents with pending immigration cases can find an advocate within the federal government. With support from a Congressional office, those experiencing trouble with their immigration cases can receive specialized help with navigating through inefficient government agencies. However, as first reported by the Daily Beast, this beneficial service may soon be encumbered by unnecessary burdens.

Proposed Changes

The proposed changes to Congressional assistance procedures regulated by the United States Citizenship and Immigration Service (USCIS) would drastically increase the volume of paperwork required for Congressional staff to advocate on behalf of constituents. Currently, congressional staff only require a single privacy waiver to contact USCIS on behalf of a constituent. Congressional advocates are then able to make inquires with Federal agencies and coordinate with constituent’s immigration attorneys about any updates to a constituent’s case.  The new changes would require Congressional staff to obtain a new privacy wavier for each inquiry made on the behalf of constituents. For many of these cases, Congressional staffers must contact USCIS and other organizations multiple times to a receive follow up. If the new procedures are adopted, Congressional offices would be over encumbered by pointless paperwork. Additionally, the proposed procedural change would require Congressional assistants to obtain a handwritten and notarized signature signed, under penalty of perjury, by the constituent whose records were involved in any inquiry. The changes would prevent individuals with difficult immigration case issues to seek efficient assistance from their local Congressional office.

Naturalization Following the Passing of your U.S. citizen spouse: 3 versus 5 years

In the face of a terrible tragedy, foreign national spouses can face even more hardship after their U.S. citizen husband or wife passes. Typically, foreign nationals who are green card holders through their U.S. citizen spouse have the opportunity to apply for U.S. citizenship following a period of three years in the U.S. Unfortunately, the green card holding widows and widowers of U.S. citizens will face obstacles for future naturalization following the death of their spouse.

Immigration and Nationality Act

Under U.S. immigration law, permanent residents who have lived with their U.S. citizen spouses in the U.S. for at least three years may apply for U.S. citizenship at the end of three years. This allows spouses of U.S. citizens to apply for citizenship two years earlier than required for other permanent residents. Sadly, those individuals who have tragically lost their spouses before applying for or during their application for naturalization may not apply after three years of residence and instead wait the typically five years of residency. According the Immigration and Nationality Act:

A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated.

Under these restrictions, the surviving spouse may not apply for naturalization as a spouse of a U.S. citizen. Regardless if the application was submitted before the untimely passing of the U.S. citizen sponsor, the application for citizenship becomes invalid at the time death. As such, the INA clarifies that an applicant is ineligible to naturalize as the spouse of a U.S. citizen if their spouse passes away “any time prior to the applicant taking the Oath of Allegiance.” The only exception applies to certain widows or widowers of U.S. citizens who passed away during active-duty status in the U.S. armed forces.

Fee for Premium Processing Rises (DHS & USCIS)

Premium processing will now cost nearly $1,500. A service that significantly shortens the wait period for immigration benefits, premium processing allows applicants an opportunity to receive a decision from the United States Customs and Immigration Service (USCIS) within 15 calendar days. Thus, premium processing permits petitioners to know whether their application is approved, denied, or delayed due to insufficient evidence in about two weeks. Though, the extreme benefit of premium processing comes with an extreme cost.

More Funds for Efficient Processing

Few weeks back, the Department of Homeland Security (DHS) released a proposed final rule in the Federal Register to raise the premium processing fee for visa petitions to $1,410, about $200 higher than the current fee. This new price went into effect on October 1st of this year. The increase in price follows the percentage change to the Consumer Price Index, which is around 14.92%.

Each year, USCIS receives over 200,000 Form I-907s, or request for premium processing. With the increase in fees, DHS hopes to raise extra funds to allow for “premium-processing services to business customers, and to make infrastructure improvements in the adjudications and customer service processes.” The additional revenue will allot an extra $44 million; this money could be the key to ending suspensions to premium processing based on backlogs at service centers across the country. Although the cost of premium processing is quite steep, the announcement from DHS could be an indicator of more efficient processing in the months to come.

Premium Processing Suspended: USCIS Delays

On August 28th, the United States Customs and Immigration Service (USCIS) issued a notice of further suspension to premium processing for cap-subject H-1B petitions while expanding the premium processing suspension for additional H-1B petitions. The new suspension took effect on September 11, 2018.

Impacts

The suspension of premium processing continues to impact H-1B petitions filed at the Vermont and California Service Centers, with few exceptions. Originally, the suspension of premium processing was to end on September 10th. However, the extension of the suspension is set to end in February of 2019 and is delaying more applications than before. Those who have filed for premium processing before September 11th in anticipation of the original end to the suspension on premium processing will receive a refund of the premium processing fee. According to USCIS, petitions excluded from the limit to premium processing include:

  • Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization.
  • Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” with a concurrent request to notify the office in Part 4 so each beneficiary can obtain a visa or be admitted.) or extend the stay of each beneficiary because the beneficiary now holds this status.

The continued suspension of premium processing marks even longer periods of wait time for those wishing to work in the United States under the H-1B program. USCIS claims the continued suspension will help the Service Center address serious backlogs and it is unclear whether premium processing will be available for 2019 filing season.

TPS Re-Registration Period Open for Somalis

Unlike many beneficiaries of Temporary Protected Status (TPS), Somalis will have an opportunity to maintain their protected status until 2020. USCIS announced an 18-month extension period of TPS benefits for Somalis ending on March 17, 2020.

Re-Registration

Applicants who wish to re-register for TPS must submit a Form I-821 before October 26thof this year. Beneficiaries may request an EAD during the re-registration process, or separately at a later date. Those who apply before the October deadline for EADs will receive new employment authorization with an expiration of March 17thof 2020. However, if a Somali TPS beneficiary possesses an EAD with an expiration date of September 17th, they may not receive a new EAD until after the expiration. Thus, USCIS has automatically extended the validity of EADs for Somali TPS beneficiaries until March 16thof 2019.

Cause for TPS

For several decades, Somalis have fled armed conflict in search of a safer environment. Because the situation continues to deteriorate in Somalia, the Secretary of Homeland Security extended the designation of Somalia as a region eligible for TPS.

Uncertainty for TPS

Although the 18-month extension is good news for Somalis who have lived and worked in the United States for decades, there is increasing uncertainty regarding the longevity of the TPS benefits program. In the last several months, nations (including Haiti, Nicaragua and Nepal) have lost TPS status. The program is one of the many legal immigration programs that are at risk under new executive directives.

USCIS Permits Negative Consultation Letters from Labor Unions: O-Visa

In a recent decision, USCIS will now accept copies of negative consultation letters directly from labor unions in regards to a current or future O visa petition request. Now, labor unions will have the opportunity to speak against potential O-Visa beneficiaries without interference.

O- Visa Program

The O-1 Visa benefits individuals with extraordinary ability or achievement in a variety of careers (e.g. science, education, business, athletics, or the arts) including the motion picture and television industry. The O-Visa program benefits also includes individuals that accompany O-1 visa holder (i.e. assistants, integral partners, dependents). Under the O-Visa program, eligible individuals may work in the United States for a petitioning employer for up to three years with the opportunity to extend an additional three years. To be considered for an O-Visa, applicants must submit a written consultation from a peer group related to the field or a letter from a person with expertise in the beneficiary’s field. Typically, the labor unions or peer group write in affirmation of the beneficiary. Now, labor unions can urge USCIS to deny an O-Visa application.

Labor Unions for Change

The change comes following several meetings between the director of USCIS, L. Francis Cissna, and several labor unions. Union leaders were concerned that many O-Visa applications had provided USCIS with false affirmative letters. Labor unions can now directly send negative letters regarding a potential O-Visa beneficiary to USCIS. Although the decision serves to provide greater transparency in the O-Visa application process, the increased involvement of labor unions may create even more barriers for those wishing to work in the United States.