USCIS Challenged: Court Considers Restrictive H-1B Policies

A lawsuit filed by ITServe Alliance came to court for pre-trial proceedings on May 9th, bringing forth arguments against the United States Citizenship and Immigration Service (USCIS) and the Service’s policies that continue to produce H-1B visa denials. While there continues to be several restrictive USCIS policies, this lawsuit brings forth the issue of H-1B application denials with short validity periods and worksite requirements. In other words, USCIS currently may slash the duration of the H-1B visa below the three-year minimum based solely on an adjudicator’s discretion and deny applications based on third-party placement. District Judge Rosemary M. Collyer presently presides over the case and, at the conclusion of the lawsuit, will have a significant impact on future USCIS adjudications and policies. 

Lawsuit Arguments

According to Forbes correspondents, the lawsuit boils down to three major issues:

  • USCIS has not provided reasoning for disparate outcomes and adjudication processes for different types of employers (i.e. employment at primary worksite versus third party worksites);
  • USCIS does not explain why specific work assignments must stretch out for three years for contractors without allowing for paid, nonproductive time; and
  • There is no clear directive for changes to USCIS adjudication of H-1B petitions.

The plaintiff brings forth arguments against third party worksite policies, short validity periods, and anti-benching regulations. The plaintiffs argue that USCIS is beyond authority in denying applications when an employer intends to place H-1B workers at a third-party customer worksite. Representatives for the IT companies further argue that contractors should be considered viable employers under regulation 8 C.F.R Sec. 214.2(h)(4)(ii). In this case, the plaintiffs argue that contractors are as sufficient as day to day employers. To date, contracting H-1B employers have received denials based on third party, customer worksite location placements.

The plaintiffs have additionally brought issue with adjudication policies allowing short periods of visa validity, citing an H-1B approval that lasted only one day. The issue, like with other policy complaints, comes from the lack of transparency related to adjudication regulations. District Rosemary M. Collyer, over the next four weeks, will decide whether to order discovery (i.e. investigation of further information by each party) is necessary for the case.

USCIS & DHS Takedown Immigration Fraud Scheme Directed at Families

In Florida, federal prosecutors and the United States Attorney Maria Chapa Lopez announced indictment charges for Erika Paola Intriago, of Tampa, Florida. Intriago stands accused of four counts of wire fraud and three counts of wrongfully using government seals. Allegedly, Intriago posed as an immigration attorney through social media, manipulating immigrants and immigrant families from Florida to Illinois. If proven guilty, Intriago could face a penalty of 20 years for each count of wire fraud and up to five years in prison for each count of unauthorized use of governments seals.

Alleged Scheme

According to the indictment released by the Department of Justice (DOJ), Intriago posed as a licensed and qualified immigration attorney, despite holding no license to practice law in the state of Florida or any state for that matter. Intriago operated a business under the name of “EPI Services, INC” that purportedly helped assist individuals and families with all legal immigration matters. Through social media platforms like Facebook, Intriago advertised her services as a qualified legal expert in immigration matters to Hispanic immigrants around Florida. She particularly targeted vulnerable Spanish-speaking families, claiming to be a licensed immigration attorney. Victims of Intriago’s scheme needed assistance with matters before the United States Citizenship and Immigration Service (USCIS) and other agencies and payed Intriago to communicate between immigration agencies and the immigrant families both domestically and abroad. Intriago manipulated many of her victims by promising to secure her clients legal status if the victims payed through cash or money order. Intriago promised to pay USCIS fees directly, and instead pocketed the money without submitted forms or payments to the government. Intriago also stands accused of unauthorized use of government seals as a part of her scheme. Intriago would allegedly “create, copy, and affix seals of government agencies of the United States, including DHS and USCIS, to email messages, letters, and other documents created for and sent to her client-victims as purported proof that she was and had been acting on their behalf in immigration proceedings.” For some victims who had completed paperwork, Intriago either abandoned the immigration paperwork or did not inform her victims about notices of denial. Those victims who complained to Intriago were further victimized as Intriago would threaten to report undocumented clients to the U.S. Immigration and Customs Enforcement (ICE) Agency for deportation.

If you suspect someone is unlawfully posing as a licensed attorney, or you are someone or are aware of someone who is a possible victim please contact 1-866-DHS-2ICE.

I-94 Format Change: Arrival/Departure Form Number

The United States Customs and Border Patrol (CBP) updated guidance for I-94 and I-94W Arrival and Departure forms. Beginning May 2019, I-94 records will be alphanumeric, a change from the strictly numeric 11 digit system.

Depletion of Numeric-Only I-94s Codes

The record numbers for form I-94s are essential in any immigration application. While I-94 remain largely electronic, these forms are evidence of legal entry or exit into/from the United States. Those with past I-94s can access there I-94 information via the CBP website. The new system of record keeping will now involve both numbers and letters, and will remain an 11 digit code with 9 numeric digits, a letter in the 10thposition, and a digit in the 11thposition. This change will allow the CBP issue I-94 numbers for a much longer period without changing to a new coding system. Those who have a currently active form I-94 with solely numeric characters will maintain a valid I-94 until the “Admit Until Date” printed on paper copies of I-94s or as found on the I-94 website. Starting May 2019, all new I-94 form numbers will have this alphanumeric coding system.

I-94 Website

The CBP website allows foreign nationals the ability to track their current arrival status and check records of all previous arrivals and departures. To complete a new visa application, foreign nationals are required to have records of their entry, therefore the I-94 website can prove to be quite helpful. While most entry and departure records are maintained online via CBP, applicants remain responsible for finding their own records. The I-94 website provides the arrival or departure date and port of entry or exit for the passport entered through the online access forum. The records expand for only the last 5 years, and include documentation for passports that have since expired. The website does not, however, provide information for all land border arrivals/departures, closed loop cruises, or any other visa status. The website notes that the platform is only for information purposes and does not reflect a legal record of entry and exit. Eligible visa holders may use the website as a hub to check their compliance with the time terms of their visa.

DOL Investigations Yields Order for H-1B Backpay

A United States Department of Labor (DOL) investigation has resulted in a federal order for a Minnesota technology company to pay an engineer back wages to the amount of $43,336. A federal judge ruled against the company, citing violations to H-1B wage regulations.

The Case

The DOL Labor’s Wage and Hour Division (WHD) and its investigation unit provided evidence to Judge Theresa Timlin in Minnesota following findings of misconduct within the TLC Precision Wafer Technologies Incorporation, located in Minneapolis, Minnesota. The company, which employs H-1B highly skilled workers, failed to pay a microfabrication engineer, working under the H-1B program, the wages stated in the H-1B application. TLC Precision Wafer Technologies Inc. additionally failed to maintain adequate records of payment to the engineer. While the Tech company had payed the engineer over $14,000 in cash reimbursements, Judge Timlin denied credit for the payment due to the lack of records and reporting of the payment to payroll and the Internal Revenue Service (IRS), as required to credit these payments.

Originally, the engineer was set to receive an annual salary of $43,000, per the H-1B petition. However, the employee left the tech company after they received reduced hours and pay. H-1B workers must be paid “at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.” In denying the engineer payment as agreed in the H-1B program, the company unlawfully exploited the engineer. The company will now pay back wages of $43,366 in addition to payments for pre-judgement and post-judgement interest.

In a statement, the director of WHD in Minneapolis, David King said, “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and ensure no one is being paid less than they are legally owed.” While the DOL works primarily to protect the interest of US worker, the DOL additionally protects the wages guaranteed to foreign nationals, especially in the case of the H-1B minimum salary requirements.

The $5 Billion Behind H-1B: NFAP Report

Several media sources, and employers across the nation, were surprised when the National Foundation for American Policy (NFAP), a non-partisan research group, released aggregated data from the last two decades of H-1B filings. Since Fiscal Year 1999, H-1B fees payed by employers totaled nearly $5 billion. The report, released early April, highlights many of ways in which the H-1B financially supports government programming for the benefit of native workers. Although non-partisan in nature, the report does mention and critique the recent immigration changes made during the Trump Administration. In particular, the report assesses the potential consequences of the Trump Administration’s proposal to double H-1B fees.

Key Statistics

Employers seeking to hire high-skilled foreign nationals through the H-1B nonimmigrant visa program must pay a training and scholarship fee to the amount of $1,500. While the Trump administration has considered increasing these fees, the study claims that employers of H-1B holders have funded nearly 90,000 scholarships since its start in Fiscal Year 1999. With these funds over one million student and teacher recipients gained monetary funding for science, technology, engineering and math fields; these funds in the 20 year time span totaled $1.94 billion. H-1B fees paid by employers additionally granted around 2.5 billion dollars’ worth of technology training for US workers. Excluded from these estimates are the $1.6 billion worth of anti-fraud fees payed by employers.

The studynotes that, since Fiscal Year 2005, employers have paid nearly $1.6 billion to fund “audits and investigations against themselves.” While fees payed by employers have increased over the years, these increases have been matched with the expansion of the H-1B program. However, the report argues that the FY2020 increase in H-1B fees proposed by the Trump administration would unfairly burden employers. While there have been increases to fees in the past (outside of normal inflation adjustments), these increases have been met with increases to the H-1B cap. The proposal, which omits any expansion of the H-1B cap, could further deter employers and subsequently harm the scholarship program.

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.

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 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.

USCIS Resume Premium Processing: FY19 H-1B

On September 11, 2018, the United States Citizenship and Immigration Service (USCIS) further suspended premium processing for cap-subject H-1B petitions while expanding the premium processing suspension for additional H-1B petitions. Last year’s suspension was set to expand well into February. However, USCIS has announced that the Service will continue premium processing on January 28th for all fiscal year 2019 H-1B cap petitions. For petitioners, the lifted suspension will hopefully end a long period of delay.

Premium Processing

The Premium Processing request allows for petitioners to file for expedited processing of an H-1B visa. If approved, those petitioners who pay the premium processing fee are guaranteed a 15-day processing time. If the petitioner does not receive an adjudication within 15 days, USCIS refunds the premium processing fee of $1,410. The fee increased late last year by nearly $200 to adjust to the consumer price index.

Reason for Suspension

USCIS suspended premium processing in March of 2018 to adjust for the busy filing time. However, this left many forced to endure long wait times. Set to end in September of 2018, the suspension was again expanded into early this year. With over 200,000 applications for premium processing each year, USCIS often is unable to provide the expedited service.

Eligible Applications

By lifting the suspension on premium processing for FY19 filings, USCIS has now allowed those eligible for advanced degree exemptions (the master’s cap), to file for premium processing. Those who received requests for evidence (RFE) for a FY19 cap petition may submit their premium processing request with their RFE response. USCIS has yet to announce premium processing availability for other categories of H-1B petitions.