No Procedural Changes for Upcoming H-1B Cap Season (No Pre-Registration for now)

The U.S. Citizenship & Immigration (USCIS) has confirmed to American Immigration Lawyers Association (AILA) that it is not implementing any procedural changes to this year’s H-1B cap season which begins on April 1, 2018. Just as in the past, the rumors mills were abuzz with news that USCIS is planning to implement some form of pre-registration system for H-1B cap cases. While that is still a possibility in future, for the upcoming H-1B lottery USCIS intends to follow the same procedures that it had followed in the past, which presumable would not include a pre-registration system. 

In addition, the USCIS also advised AILA that while it does not anticipate that premium processing will be suspended for non-cap H-1B petitions, it may do so for a short time for H-1B cap cases.

What if my petition approval is not in the PIMS?

Prior to the issuance of an H, L, O, P or Q visa, a US consular officer must verify that a petition approval is legitimate through the Consular Consolidated Database (CCD) in a “PIMS” report. According to the US State Department, the CCD is a “data warehouse that holds current and archived data from the Bureau of Consular Affairs.”  Although an applicant may have a paper Form I-797 approval notice, a visa will not be issued without confirmation from USCIS. The PIMS report enables consular officers to quickly access and confirm USCIS petition approval through the CCD. The collaboration between USCIS and the State Department simplifies the approval verification and visa issuance process at US consulates.

What if my petition approval is not in the PIMS?

For the KCC to enter the information in the PIMS, the petitioner, at the time of initial filing has to submit a duplicate original petition which should include original signatures as well as all the additional documents. Same should be done with any response to request for additional evidence (RFE). It is advisable to separate the original petition and the duplicate original with a brightly-colored coversheet with a note that the duplicate original should be forwarded to the KCC. Once USCIS approves a visa petition, a copy of the petition approval is sent to the Kentucky Consular Center (KCC), which processes paperwork for non-immigrant work visas from consulates around the world. It takes KCC five days to get a case from the service center once it is approved. Once KCC has received the case, it takes them additional three days to scan it in the system with the day of receiving being day zero. If at the time of the interview the petition approval is not found through the CCD, the KCC will research and verify the petition approval, if requested. KCC can typically confirm a petition approval within two business days.

Delays in Visa Issuance

At times visa applicants are informed that a visa cannot be granted to them and that further administrative processing is required. Generally, the visa officer will not inform the applicant whether the further processing is PIMS related or for some other issue. Visa applicants should be prepared for the possibility of visa processing delays and should plan their foreign visits accordingly by building in flexibility in the event of a delay.  Additionally, it is strongly suggested that the applicant take the original petition approval and complete copy of the petition along with a copy of the RFE to the visa interview.

Government Shutdown: What it means for your visa application

In the early morning of January 20th, officials in Congress and the White House announced that the federal government would shut down. The shutdown came after the Senate failed to pass legislation approving federal spending for the next year. To enable the operations of the federal government, including major bureaucratic agencies like the Department of Labor (DOL), both houses of Congress must agree upon and pass legislation to fund the government for limited period of time. Over the years, Congress has become less efficient in passing funding legislation, passing appropriations on a yearly basis as opposed to long term. Therefore, the recent shutdown occurred due to an ongoing political debate in Congress that inhibited negotiations on annual federal spending.

Although Senate Republicans and Democrats reached an agreement Monday afternoon to fund the government for the next three weeks, a looming government shutdown remains for February 8th. With government agencies closed, many people with pending visa applications are uncertain about the upcoming spending vote.  Here is what to expect if the government shuts down again in February:

Timeline of DOL Applications Shift

Since the Office of Foreign Labor Certification (OFLC) is associated with the Department of Labor (DOL), employees are furloughed (or prevented from working) during the shutdown. Prior to the shutdown, OFLC reported an increase in the number of LCAs, therefore a long-term shut down could create a substantial backlog. Any application submitted during a shutdown will be processed at the time that the government reopens. Thus, permanent labor certification applications (PERM) submitted by employers (either through mail or hand delivery) during the shutdown will not process through OFLC until the government reopens. The iCERT website that is used for the online PERM submission also is shut down. Therefore, applications with timely recruitment or prevailing wage determinations may be out of date once the government reopens. Previously in 2013, employers were given an extension for necessary recruitment or prevailing wage determinations if the shutdown delayed submission of PERM.  Applicants should note that OFLC will not have access to email, and therefore will not be able to respond to requests or questions during a shutdown.

USCIS, CBP, & DOS

USCIS is a fee-funded agency with the exception of E-Verify and will remain open during a shutdown, however E-Verify will not be available. Due to national security concerns, Customs and Border Patrol (CBP) will still operate normally during any shut down. Similarly, Department of State (DOS) which deals with the Visa and passport operations are fee-funded and generally are not impacted by the shutdown but since the embassy operations are not fee-funded so visas can be affected, and the consular posts will generally only handle diplomatic visas and “life or death” emergencies. 

If you have any concern regarding the potential impacts of a shutdown on your application, please feel free to schedule a consultation with our office.

Building Walls: Canadian Immigration in Trump Era (BAHA)

Over the last couple of days, news of President Trump’s disparaging comments about immigration from Caribbean and African nations has swept through the country. The justified outrage over the racist comments follows a year of anti-immigration sentiments from the executive and members of the Republican Party. Although the Trump Administration failed largely over the last couple of months to restrict immigration on comments alone, the president has instigated a wave of damaging anti-immigration attitudes within all levels of government and for all types of immigrants. The war on immigration expands to all countries. For Canadians, a primarily white nation that neighbors the United States, the effects of Trump’s anti-immigration America have bridged a wall between the neighbors.

Changes in Canadian Immigration

According to some AILA representatives, immigrating to the US from Canada has become significantly more difficult in the year since Trump’s election. Following the executive orderㅡ Buy American Hire American (BAHA)ㅡ Canadian natives both applying to live and living currently in the US have noticed the effect of the administrative change. Although there has been no official order to inhibit immigration from Canada, anti-immigration attitudes have affected applications. Through NAFTA and other work visa programs, Canada supplies thousands of high skilled workers, many of whom have experience increased paperwork and wait times with recent changes. Those currently residing in the US have reported challenges to green card applications and increases in the number RFEs. Overall, Canadians are finding it more and more difficult to come to the US with Trump in office.

Significance

The Trump Administration has made it clear: the executive does not support immigration. The problems with Canadian immigration serve as a litmus test for immigration from all countries. The restriction on immigration from a majority white, industrialized democracy proves that the Trump Administration has truly committed to tougher enforcement surrounding immigration.

Trump Ends Protected Status for Salvadorans

According to the New York Times, the Trump administration has ended Temporary Protected Status (TPS) for citizens of El Salvador. The order from the Department of Homeland Security (DHS) will remove an estimated 268,000 Salvadorans from the United States, many of whom have been in the US for nearly two decades. The humanitarian order for Salvadoran TPS followed two devastating earthquakes in 2001, that crippled the country. Now, many families must make arrangements to leave the US in the next 18 months.

Administration and TPS

The announcement to end TPS for El Salvador follows a series of decisions from the Trump administration that aim to reduce the of number of non-citizen workers in the US. Late last year, DHS announced the end of TPS programs for Haitian and Nicaraguan citizens. With TPS, foreign citizens who are eligible may apply for employment authorization documents (EAD). Therefore, hundreds of thousands of Salvadorans have been working legally in the US for over a decade. The current administration’s policy changes will subject over 400,000 immigrants for deportation.

Opponents of TPS claim that the program is now a “quasi-permanent” structure that no longer gives “temporary” protections to immigrants in crisis. Therefore, opponents believe that TPS beneficiaries are abusing the system and hurting the economy. However, Salvadorans have been working and paying taxes for nearly two decades, and many workers fear that El Salvador lacks the infrastructure for a safe return of its citizens. According to Dallas News, there are an estimate 36,300 TPS recipients in the state of Texas that have been contributing to the economy and employers in the state. Some Salvadorans must now leave jobs they have held for twelve years to an uncertain return home. Although TPS is short term in nature, the announcement will greatly hurt companies who legally employ beneficiaries of TPS.

For Employers

In recent months, the Trump administration has openly opposed immigration programs like TPS. The DHS has not announced other plans to end other TPS program, however it is imperative that employers of TPS workers carefully follow announcements from the DHS. As of this month, seven other countries are under Temporary Protected Status. However, employers of Salvadoran, Nicaraguan, or Haitian beneficiaries must make arrangements with their employees before the official end of TPS.

Spike in RFEs: Slowing H-1B Immigration (2017 USCIS Data)

As previously reported, USCIS has increased requests for additional information (through RFEs) for thousands of H-1B applicants. Following the President Trump’s executive order, BAHA (Buy American, Hire American), obtaining approval for H-1B petitions has been increasingly difficult as USCIS attempts to abide by the EO. The executive order aims to decrease the population of foreign workers in the US, and has already presented a barrier for many immigration programs. Although the Trump Administration’s efforts to increase burdens to the H-1B petition process is nothing new, 2017 USCIS data provides evidence of the extent of efforts to slow the H-1B petition process.

2017 USCIS Data

According to an article published by Quartz Media, requests for evidence, RFE, spiked last year following changes by the Trump Administration. The article notes that many H-1B applicants have complained that the requests are often unwarranted. In 2017, USCIS increased RFEs by 40% between January and November. Compared to 2015 data, the number of RFEs for H-1B petitions increased by 65% compared to last year. USCIS may issue a RFE due to lack of initial evidence or if the USCIS officer requires additional evidence to adjudicate the H-1B petition. Although an RFE does not represent a denied application, the additional request can significantly slow the H-1B application process, in some cases delaying the petition for several months.

Trump Administration and H-1B

Several reports regarding the future of H-1B visas have emerged from the generally unsupportive White House. Although a direct policy change to the H-1B petition process has yet to come to fruition, many view the increased hurdles for H-1B visas (like the spike in RFEs) as an indirect approach to steadily reduce the high skilled foreign workforce in the US. If you or your employer requires assistance responding to a RFE, feel free to schedule a consultation with our office.

“Irrevocable” Proxy Votes Necessary for L-1 Qualifying Relationships: (New USCIS Guidance)

USCIS released policy guidance for officers adjudicating “qualifying relationships” for L-1 visa petitions. The new policy guidance requires an irrevocable, or irreversible, proxy vote to establish the “requisite control of a company in an L-1 visa petition.” The petitioner must now show that the proxy votes, which are votes used by owners of entities to determine control the entity, are irrevocable between the parent and subsidiary or between affiliates.

Policy Background

The L-1 visa allows a U.S. or foreign employer to petition a temporary transfer of a foreign employee to U.S. to work for subsidiary or affiliated operations in the U.S. To qualify for the petition, a petitioning employer must prove that a “qualifying relationship” exists between the foreign entity and the US company. To determine the relationship, USCIS officers must find proof of a parent/subsidiary or affiliate relationship between the U.S. and foreign company. Officers often determine a relationship between entities through an investigation of voting control between entities.

One way to examine control between entities is to use control established through proxy votes. According to USCIS, “Proxy votes are obtained when one or more equity holders irrevocably grant the ability to vote their equity to another equity holder, thereby effectively and legally giving the other equity holder “control” over the company or companies in question.” Therefore, the new policy memorandum requires adjudicating officers, using proxy votes as evidence of a qualifying relationship, to consider proxy votes if the petitioner has shown that the proxy votes are irrevocable “from the time of filing” through the adjudication. Petitioners must also provide evidence that the relationship, and irrevocable proxy vote control, will continue through the time of the visa.

The new policy guidance clarifies a decades old appeals decision, Matter of Hughes, which only established the understanding of “affiliation” for L-1 petitions. The previous ruling failed to clarify issues of control and ownership between entities. The new guidance will provide better evidence of L-1 visa qualifying relationships between petitioning entities.

Available Now: Online Filing of Citizenship Applications

USCIS recently announced the availability of N-400 applications for naturalization online. The online account allows for a central location for matters regarding your application for US citizenship. According to USCIS an online account will allow applicants to:

  • Check case status;
  • Receive notifications and case updates;
  • Access tailored case completion date estimates;
  • Respond to RFE;
  • Edit contact information;
  • Change address;
  • Pay filing and biometrics fees.

Although the new online option is extremely useful for those wishing to become US citizens, the online portal is not available to everyone. If an applicant is applying based on military service, applying from outside of the US, or applying for a fee waiver or reduced fee, they may not apply for N-400 online. Additionally, those who do not wish to utilize the online portal may still apply for naturalization through mail.

Through the online portal, applicants maintain the right to an attorney or authorized representative. Therefore, Sharma Law Offices can maintain your online application and provide expert assistance during your filing process.

DOJ and USCIS Joint Effort to Target Inadmissible Subjects Secures First Denaturalization

Last week, a federal judge removed US citizenship from a native of India who was pinpointed in a special investigation targeting inadmissible subjects, Operation Janus. The Justice Department and USCIS continue to assist with the Department of Homeland Security initiative to address naturalization cases with incomplete identification records known as the Operation Targeting Groups of Inadmissible Subjects, or Operation Janus. As reported by the Office of Inspector General in 2016, investigations found that in some 315,000 naturalization cases, fingerprint data was missing from the centralized digital fingerprint repository. Through Operation Janus, the Justice Department seeks to continue naturalization proceedings against those who unlawfully entered the United States through false identities.

The Case

As a January 5th, Baljinder Singh, no longer is a United States citizen. Baljinder, also known as Davinder Singh, allegedly entered the US in 1991 without proper documentation of identity. At the time, he claimed his name was Davinder Singh and was placed in exclusion proceedings for inadequate documentation. According to the DOJ, Singh failed to appear for his immigration court hearing and the court placed orders of deportation in January of 1992. In February of that year, Singh applied for asylum under the name Baljinder Singh. However, he abandoned the asylum application after marrying a US citizen. In 2006, Singh naturalized under the name Baljinder Singh. USCIS, after reviewing evidence uncovered through Operation Janus, matched the fingerprints of Baljinder and Davinder Singh and referred the case for prosecution. The District Court judge of New Jersey found that Singh illegally obtained his naturalized, and immediately revoked his citizenship. The Assistant Attorney General stated ““The defendant exploited our immigration system and unlawfully secured the ultimate immigration benefit of naturalization, which undermines both the nation’s security and our lawful immigration system.” USCIS has reviewed Singh’s case, and thousands more, in compliance with Operation Janus to review fingerprint data. According to the Justice Department, USCIS plans to refer “an additional 1,600 for prosecution.” The Department of Homeland security announced that it would immediately begin removal proceedings in Singh’s case.

Checking Your Status Made Easier: CBP VWP Website Update

On January 5th U.S. Customs and Border Protection (CBP) announced the implementation of new initiatives that will help to ease the application process for travelers using the Visa Waiver Program (VWP). The program, that allows citizens of certain countries to travel to the United States for business or tourism for a period of up to 90 days, facilitates travel to the US without submitting a visa application. VWP qualified countries include South Korea, France, New Zealand, and many others. The new initiative will provide more transparency regarding authorized status for VWP travelers already in the US.

Change

To facilitate an easier travel experience for VWP applicants, CBP will now provide applicants with access to check their status for admission to the US. Found under the “View Compliance” tab on the I-94 website, the new status feature allows travels to stay informed during their stay. The site provides the number of days a traveler has remaining through their visa program or displays the number of days a traveler remains in the US past their “admitted until” date. CBP additionally announced a new measure to electronically notify VWP travelers regarding an approaching expiration date. CBP will now send an email to VWP travelers, notifying them 10 days before the end of their lawful admission period. The new measures will ensure that VWP travelers do not accidentally overstay in the US

How Do I Check My Status?

Once on the I-94 website, users must provide their biographic and passport information under the “View Compliance” tab. The dates provided to travelers should be consistent with the number of days since approved entry minus the maximum 90 days allocated for VWP travelers. However, the admission timeframe will vary depending on the class of admission or visa type. If you have any questions about your VWP status, please feel free to contact our office.