Multiple Petitions for Same Beneficiaries: FY20 H-1B

Federal regulations prohibit the filing of more than one H-1B petition for the same beneficiary in the same Fiscal Year, regardless if the filing is adjudicated by a parent company and its subsidiary or related entity. However, some petitioners may be unsure if the company filed more than one petition, particularly if a petition for the previous fiscal year remains unadjudicated. While premium processing for most visa classes has been reinstated for Fiscal Year 2019 (FY19) and pending petitions are now be expedited, many petitions are still awaiting adjudication. As employers prepare for the Fiscal Year 2020 (FY20) H-1B cap-subject filing season, considerations must be made to ensure that pending FY19 petitions do not subject the company to the penalties of multiple filings.

Pending FY19 & New FY20 Petitions

Although many FY19 petitions have been resolved, some remain pending due to a Request for Evidence (RFE) or ineligibility for premium processing. Those employers who wish to file a petition for the same person for the same position for FY20 while another petition for FY19 remains pending must proceed carefully. Regulations dictate that employers may not file for the same petitioner in the same fiscal year, largely to prevent employers from unfairly filing multiple petitions to increase the likelihood of selection for the H-1B lottery. The regulation does not explicitly take issue with filings in differentfiscal years. However, given that adjudication of H-1B visas depends on the interpretation of USCIS officers, the duplicate filing could be flagged by government officials. To prevent this, employers may consider a different position for the beneficiary if one is available or present a memo outlining the circumstances of the pending FY19 petitions. If an employer submits a FY20 petition, and the FY19 petitions is approved before the FY20 petition, the petitioner should withdraw the unnecessary FY20 petition. If not, the beneficiary could be left with conflicting start and end dates for their H-1B visa. While this case would be an ideal scenario, it is unclear whether USCIS will adjudicate an FY20 petition while a FY19 petition remains pending. Please feel free to schedule a consultation to discuss the unique circumstances of any of your pending FY19 petitions.

USCIS Resumes H-1B Premium Processing: 2018 Filings

Recently the United States Citizenship and Immigration Service (USCIS) announced that the service would resume premium processing on February 19thfor those regular pool H-1B petitions filed on or before December 21stof 2018. This announcement follows an earlier resumption of premium processing for fiscal year 2019 masters-cap petitions.

Those petitioners who have received a transfer notice must request premium processing through the service center where the petition is pending along with a copy of the transfer notice, or Form I-797. If the premium processing and transfer notice are not filed concurrently, there could be potential delays to the beginning of the 15-day processing time. If a premium processing request is sent to the wrong center, USCIS will forward the request to the correct service center, however, the premium processing deadline will not begin until the request reaches the appropriate service center. USCIS will not refund the premium processing fee until 15 days after the request has reached the service center that possesses the appropriate petition. Additionally, those who have received a request for evidence for an application pending from submission on or before December 21stof 2018, should include the request for evidence response along with the premium processing request. As the fiscal year 2020 filing season begins, USCIS is making efforts to clear a backlog of pending application made in 2018. USCIS notes that it will announce when other classes of petitions regain access to premium processing.

Revised Form I-539 (H-4, L-2, F-2, B-1, B-2, etc.) Available March 11th

United States Citizenship and Immigration Service (USCIS) announced new changes to the Form I-539, Application to Extend/ Change Nonimmigrant Status. On the cusp of the H-1B filing season, this new change will swiftly alter form requirements for several visa petitions, including the dependents of H-1B visa holders.

Change to Form

On March 11, 2019 and beyond, all filed Form I-539 documents must reflect changes made in February, less than 30 days from the roll out. Those who submit older versions of the Form I-539, without a revision notation of 2/04/19, will receive a rejection. The new form includes requirements that every applicant and co-applicant pay a $85 biometrics fee. This requirement extends to all children, regardless of age (e.g. H-4 dependents, L-2 dependents, F-2 dependents). The change comes without a grace period nor a 90-day period for public comment.

Those dependents must sign and submit a separate Form I-539A, available on the USCIS website on March 11. The Supplement A form will no longer be available, and each individual dependent or co-dependent will submit a separate form. Parents or guardians may sign forms for those under the age of 14 or for any co-applicant who is not mentally competent to sign. All applicants and co-applicants must pay the $85 biometrics fee unless included in the exemptions to be listed on the USCIS website come March 11th. USCIS notes that “Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number.” These non-immigrant applications will now require these applicants and co-applicants to complete biometric screenings.

Evidence of “Good Faith” Marriage: Checklist of Required Documents for Form I-751

A U.S. conditional resident filing for the Petition to Remove Conditions on Residence, Form I-751, must provide information of a “good faith” marriage. The Form I-751 petition, made available to those conditional permanent residents who obtained status through marriage, requires evidence that the marriage was legitimate, and not a means to subvert immigration laws.

Types of Evidence

The documentary evidence portion of the Form I-751 may include several different categories of proof of a legitimate marriage. These include:

  • Residential Evidence:Documentary evidence of a shared home or residence can be helpful in establishing a bona fide marriage. Copies of official deed, lease, or mortgage with both of the spouse’s names can be used as evidence of a financial connection between the married couple. Copies of utility bills showing the same address, property insurance documents with the same address, and driver’s licenses listing the same address are all good examples of a residential connection between the spouses. If the couple does not live together, the petitioners should be prepared to explain the separate residencies.
  • Financial Evidence:Information proving shared monetary resources between spouses may be submitted to prove a marriage is legitimate. In particular, petitioners may file recent jointly filed tax returns, joint checking and savings account statements, and any loan and credit card statements that contain both petitioner’s names. Additionally, proof of a financial relationship may be established by documentation noting large purchases (e.g. houses, cars, etc.). Official legal estate documents, such as a will, can be submitted to provide evidence of path of inheritance for either spouse.
  • Evidence of Relationship: There are many ways that a couple can present evidence of a bona fide marriage. One such way is to provide documents and photographs overviewing the entire relationship. Photographs from the couple’s engagement, wedding, honeymoon, and holidays may be submitted. For photographs, it is important to include an approximate date for each photograph. Additionally, petitioners can include receipts from joint vacations or hotel bookings.
  • Family Evidence: Petitioners may submit any evidence proving shared children. Petitioners can also submit affidavits of family affirming their knowledge of the couple’s relationship. When submitting evidence of children, petitioners should provide copies of original birth certificates displaying both of the parent’s names. Adoption papers should list joint custody of the petitioning parents. Family members, like parents and siblings, may submit official statements, or affidavits of support, for the couple and their relationship.

The documentary evidence above is not an exhaustive list of documents accepted. Consider a variety of evidence of clear evidence when trying to establish a bona fide marriage. 

Birth Tourism Crackdown: Arrest of China-Linked Operators

In California, three people were arrested for allegedly operating a so called “birth tourism” scheme marketed towards Chinese clients. The charges included conspiracy to commit immigration fraud, international money laundering, and identity theft. According to the US Attorney General’s office, those in custody are accused of maintaining a business in Southern California that charged Chinese clients tens of thousands of dollars in fees in exchange for assistance for giving birth in the United States. The indictments unsealed late last month, are the first-ever federal criminal charges brought against a birth tourism scheme.

Birth Tourism

Birth tourism is a multi-million-dollar immigration fraud criminal industry that operates globally. These schemes are often housed in the US and help pregnant women with foreign nationality enter the US under a tourist visa, aiding in Consulate interviews, border entry, and visa payments. Once admitted into the US, these birth tourism operations typically arrange housing and other amenities while women wait to give birth on US soil. Essentially, these birth tourism schemes operate to provide children of wealthy foreigners with rights and privileges of US citizenship. Those alleged of operating a birth tourism scheme in California could be among hundreds of similar immigration fraud businesses operating across the United States.

Details of Indictment

According to the Department of Justice, those arrested stand accused of charging foreign mothers tens of thousands of dollars to provide their unborn children the “the most attractive nationality”; “better air” and less pollution; “priority for jobs in U.S. government”; superior educational resources, including “free education from junior high school to public high school”; a more stable political situation; and the potential to “receive your senior supplement benefits when you are living overseas.” One of the alleged in the indictment, Dongyuan Li, stands accused of operating a birth tourism business under the name You Win USA. Li allegedly used several apartments in Irvine California to house more than 500 Chinese birth tourism clients, charging between $40,000 and $80,000. Li is accused of receiving $3 million in wire transfers from China in two years. Also listed in the indictment is Wen Rui Deng, who stands accused of assisting over 8,000 women give birth in the US in the last two decades. Deng is among the 16 others listed in the indictment who are believed to have fled the US to avoid prosecution. The indictment alleges that many of the clients failed to pay medical bills associated with the birth of the child.

Joseph Macias, Special Agent in Charge of Homeland Security, promised aggressive targeting for those who make a “mockery of our laws and our values to benefit and enrich themselves.” This is yet another instance immigration fraud exposure fronted by DHS and other federal immigration agencies. The US Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations and IRS Criminal Investigation worked together with the FBI to secure the indictment. Those in custody await trial and are innocent until proven guilty.

H-1B Lottery Goes Electronic: FY 2021

On January 30th, the Department of Homeland Security released a final rule and amendment to H-1B petition regulations for those petitions subject to the H-1B cap. The new regulation requires petitioners filing H-1B visa petitions subject to both the regular cap and advance degree exemption to first electronically register with the United States Citizenship and Immigration Services (USCIS). The change will not impact Fiscal Year 2020 filings, set to begin in April of this year. DHS has suspended the requirement until further testing of the new filing system is complete. For those petitioning in the coming weeks, this filing season may be the last time that petitioners must pay filing fees and submit a complete application before consideration for the lottery. While some of the changes will benefit petitioner’s financially, other amendments may impact the chances for some H-1B beneficiaries.

Amendment

The final rule reverses the order by which H-1B petitions are selected for the lottery. The rule notes that the electronic system will first select petition “onbehalf of all beneficiaries, including those eligible for the advanced degree exemption.” The second round of selections, of 20,000 electronic petitions, would then be for those H-1B petitions eligible for the advanced degree exemption. DHS hopes that “[c]hanging the order in which USCIS counts these separate allocations will …increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education…” Besides a change in the order of selection, the new H-1B lottery selection process will be completely electronic. Thus, petitioners would pre-register for the lottery and only complete further documentation (e.g. the Labor Condition Application & Form I-129) if selected through the electronic pre-registration system.

Impact

While the new electronic filing system will disadvantage beneficiaries who do not qualify for the advanced degree exemption, the new filing system will save petitioners millions of dollars a year. The final rule will also attempt to curb the practice of “flooding” the lottery. The regulation prohibits petitioners from submitting more than one electronic registration for the same beneficiary during the same filing season. Therefore, those petitioners that submit more than one petition per beneficiary will invalidate all petitions filed on behalf of the beneficiary. While the final rule will not impact filings in April, the total impact of the changes to the Fiscal Year 2021 filing season will not be felt until 2020.

USCIS Increases Scrutiny for Family Based Applications

In the past few months, the United States Customs and Immigration Service (USCIS) has launched new initiatives to promote greater scrutiny towards several types of immigration applications. Under these new guidelines, Lawful Permanent Residents (LPR) and U.S. Citizens have received an alarming amount of RFEs, or request for evidence, for family-based applications.

Petition for Alien Relative

Once an individual is a LPR or citizen of the United States they may submit a petition for an alien relative to immigrate to the United States, or form I-130. Priority is given to immediate relatives (i.e. spouse, unmarried children, parent). Most frequently, LPRs and U.S. citizens file petitions for their spouse and children. To complete the form I-130, petitioners must establish a bona fide relationship with the relative that they wish to help immigrate to the United States. For years, the documents required to establish a bona fide relationship between spouses has been extensive, yet reasonable. Thus, to file a petition for an alien spouse, petitioners would present a marriage certificate and a few pictures documenting the relationship between the alien spouse and the citizen/LPR spouse. This application would be submitted and processed through a USCIS Lockbox and then referred to a local USCIS office. Later, during the interview process, spouses would be required to provide further evidence of a bona fide relationship (e.g. additional pictures, utility bills, credit card statements, etc.). However, it appears that USCIS now expects more evidence for initial filings than has been typical.

More Evidence, More Roadblocks

In the last several months, applications have been halted at the beginning stages. Several petitioners have received RFEs stating insufficient evidence based on documentation that has, in the past, been sufficient for the initial I-130 filing. These RFEs outline a new extensive list of documents necessary to establish a bona fide relationship including:

  • Courtship correspondence (i.e. texts, email, etc.);
  • Travel Records;
  • Photos;
  • Wedding Announcements;
  • Bank Statements.

In some instances, USCIS has required petitioners to submit notarized statements from members of the beneficiary’s family stating why they were not present at the wedding ceremony.

The volume of RFEs has significantly slowed the immigration benefit process. For family-based petitions, the level of documentation necessary for the first stage of the filing process is atypical and a nuisance for families attempting to reunite in the U.S.

ICE Creates Fake University: DHS Sting

Under the direction of the Department of Homeland Security, a special investigation ICE task force created a fake University to catch foreign students trying to stay in the United States using the ‘Day 1 CPT’ program. Through a bogus online presence and fake office front, the University of Farmington had all the trappings of a real educational institution. However, the fake university had no staff, no instructors, no curriculum, and no classes. Last week, “students” of, and recruiters from, this bogus university were arrested and indicted for conspiracy to commit visa fraud and harboring aliens for profit. These individuals now face the possibility of deportation.

ICE Operation

Since 2015, Homeland Security agents have posed as owners and employees of the University of Farmington. The fake university scheme attempted to lure those students who wished to work while going to school as well as those recruiters that assist fraudulent F-1 students in obtaining university documents. According to the indictment, the university was used by foreign nationals as a “pay to stay” scheme which allowed individuals to remain in the United States by falsely asserting they were full-time students at Farmington University. The operation maintained a shell office in Michigan, the address which was used to maintain false immigration documentation.

Exposing an Exploitation Network

Those arrested in the indictment last week included individuals involved in a nation-wide network of recruiters that assisted fraudulent students in obtaining false records including:

  • fake student records;
  • fake transcripts;
  • falsified statements.

These recruiters named in the indictment charged heavy fees to hundreds of foreign nationals so that they could remain in the United States. By portraying these foreign nationals as students of the University of Farmington, the recruiter network made over a quarter of a million dollars as per the newspaper reports. The profitable network owed its success to the exploitation of foreign nationals wishing to stay in the United States. However, it is unclear if any of the participants of the scheme were aware that the University of Farmington was a fake University.

The indictment comes after a wave of initiatives out of the Department of Homeland Security to maintain the legitimacy of visa programs, like student visa programs. The Homeland Security Special Agent in Charge noted that ICE will be “vigilant to ensure the integrity of the U.S. immigration laws and will continue to investigate this and other transnational crimes.”

Request Certificates of Citizenship Online: Online Filing

The United States Citizenship and Immigration Service (USCIS) announced late last month a new set of eligible visas and naturalization filings for online applications. With an online account, applicants can now complete and file a Form N-600, Application for Certificate of Citizenship. Additionally, USCIS announced that N-600K, Application for Citizenship and Issuance of Certificate Under Section 322 is now available online.

Digital Push

Over the last couple of years, USCIS has continued efforts to move filings, including all paperwork required, online. The director of USCIS, L. Francis Cissna expressed the services major goal to move into the digital age: “One of the major burdens to both benefit seekers and the agency’s adjudicators is the costly, time consuming, and cumbersome process of traditional paper filing.” The new visa classification available for online filing follows seven other visa classifications that have transitioned to online filing. “This addition to our online capabilities is yet another positive advancement toward a more efficient and convenient filing experience for everyone involved.” Other applications available for online filing include: Form I-90, Form N-336, Form N-400, Form N-565, among others.

Eligible Applicants

Applications for Certificates of Citizenship, form N-600, are available to individuals and their minor children if they were born abroad and are claiming United States citizenship at birth through their parents or automatically became a United States citizen after birth, but before they turned 18 years old. This naturalization application is often used by military service people for their children born abroad, however U.S. service members have separate requirements for naturalization. To complete the online filing, eligible applicants must createa USCIS online account. Once applicants create an account, either the applicant or the applicant’s counsel can complete and submit the Form N-600 or N-600K, including additional information and filing fees. Once submitted, applicants can monitor the status of their application, respond to request for evidence, and manage their contact information.

USCIS Introduces Online Fee Calculator

Regardless of the visa application, calculating total fees for filings can be a hassle. But what many don’t realize is that an improperly calculated fee payment would result in rejection of the complete application thereby leading to a longer application process. This tedious process has left many with rejected applications due to citing and submitting the incorrect or incomplete total filing fee. To amend this, USCIS now offers a free Online Fee Calculator to assist those filing their forms through a USCIS agency lockbox facility.

Calculating Fees

From the Immigrant Petition for Aliens Worker (Form I-140) to Applications for Naturalization (Form N-400), applications and petitions for citizenship and immigration benefits require payments to fund processing costs. While a significant sum, these fees enable USCIS to operate as the service almost entirely relies on application and petition fees. Often these fees change to adjust to changing processing costs and inflation. Through the new online calculator, applicants and petitioners can find out the exact filing and biometric fees required for their particular application. The Online Fee Calculator is up to date, and reflects any recent adjustments to fees. The online calculator matches up-to-date filing fees with the forms selected by the drop down menu found on the website. By selecting your form, the fee calculator will either present you with a flat fee rate, or if you filing fee varies, prompt additional information to determine your category or age group. Those who wish to file concurrent forms can multiple form calculations to receive a total filing amount. However, the tool does not currently offer a feature to calculate fees for multiple individuals. Once users have responded to the questionnaire, the Online Fee Calculator will include biometric fees, if necessary, as well as the total fee amount. This total represents the amount that should be filed with applications and petitions submitted to USCIS.

Improper Fees

Each year, USCIS processes millions of applications and petitions. Those which require fees are sometimes submitted with out-of-date and incorrect payments. Those applications are automatically rejected. For those filing at Lockbox facilities, checks, money orders, and credit card payments for applications may include the incorrect fee total. With the new Online Fee Calculator, applicants can rest assured that their fee payment is up-to-date to avoid rejections.