District Court Reinstates “Start-up Visa”

On December 1st, United States district judge James Boasberg ruled the Trump Administration’s delay of the Obama-Era International Entrepreneur Rule an unlawful use of administrative power. The ruling effectively reinstates the “start-up visa” program until further response from the administration.

Ruling

In NVCA v. Duke, the National Venture Capital Association (NVCA), a group of entrepreneurs and start up owners, sued the Department of Homeland Security for a decision to delay the International Entrepreneur Rule. The DHS delay followed the President’s executive order, Border Security and Immigration Enforcement Improvements (February 2017), that ended many immigration benefits. The NVCA sued based on the DHS’s violation of proper procedural requirements for administrative rules. Because the delay went into effect without notice or comment to the public, the judge ruled that NVCA had grounds to sue based on procedural requirements in the Administrative Procedure Act. The district court’s ruling in favor of NVCA reinstates the Obama-era rule effective immediately.

International Entrepreneur Rule

 The rule, set to go into effect in July of 2017 before the executive order, allows certain promising founders of startups to enter the United States to start growing their company. The visa program is intended for the benefit of the US economy due to startup potential for job creation and innovation. If approved through the international entrepreneurship rule, DHS can use “parole” authority to grant a period of authorized stay for certain entrepreneurs who did not qualify for other specialized visas (like H1-B). According to USCIS, this program has the potential to admit nearly 3,000 entrepreneurs annually. Eligible entrepreneurs can receive a period of stay up to 30 months with the potential to extend the period of stay an additional 30 days. The court ruling is a big win for foreign entrepreneurs, as well as for the US economy. The program promises to provide more US jobs as new startups expand across the country.

Administrative Processing for Visa Applications

Visa applications are sometimes held for so called “administrative processing.” If your application is delayed for administrative processing, it could mean additional wait time for your case decision.

What is Administrative Processing?

According to the Foreign Affairs Manual (FAM), Administrative Processing refers to “clearance procedure of the submission of a case to the Department”, or the Department of State (DOS). The FAM also advises consular officers to withhold information regarding the nature of the administrative processing order. If a case is held for administrative processing, you case could be suspended for up to 60 days.

Why is my case held for Administrative Processing?

As mentioned above, consular officers will not provide reasoning for an administrative processing order. However, former members of the Senior Foreign Service, Stephen R. Pattison and Andrew T. Simkin, offer a few reasons why a case could be held for Administrative Processing:

  • Circumstances that require further internal consultation within the mission or with the Department of State (DOS) arose during the visa interview, therefore it was impossible to decide the case at the end of the interview
  • The biographic or biometric testing for the case present a match for a wanted party and the consular officers must confirm the applicant is not the wanted party
  • The applicant’s intended commercial or academic activity triggers concerns about the possible illegal transfer of technology as defined in the Technology Alert List

The former explanation for administrative processing comes about if the applicant intends to engage in activities included in an area covered by the Technology Alert List (TAL).

What happens Next?

It can take 60 days or longer to resolve an administrative processing hold. An applicant can receive an administrative processing hold more than once, especially for issues of security. Issues regarding an application are usually resolved within the 60-day time frame, however inquiries about an application are limited until the end of the 60-day period. 

Administrative processing does not mean that the visa application has been denied. In fact, after administrative processing, most applications receive approval. If you need assistance making inquiries on behalf of you application, please feel free to contact our office

No Deference by USCIS to Prior Employment-Based Petition Approvals

On October 23rd, USCIS released a memorandum overturning previous policy on deference of eligibility in the adjudication of petitions for extension of nonimmigrant status. This new memo will affect most non-immigrant workers, as extensions of visas are quite common. The memo comes in response to the Executive order, “Buy American Hire American,” which has impacted other immigration policies. The goal of the policy memorandum is to “protect the interests of U.S. workers.”

Previous Policy

On April 23, 2004 USCIS released a memorandum that directed adjudicators of nonimmigrant extension petitions to defer to prior decisions of eligibility given in the original petition. For extensions, UCIS adjudicators had the burden of reviewing previous evidence of eligibility. The adjudicator had to only determine that the current facts of the case remained the same. The memo prohibited deference for “limited circumstances.” Additionally in August of 2015, USCIS released a second direction to adjudicators, allowing deference of original eligibility in L-1B cases.

New Policy

The memo returns assessment of extensions of non-immigration status to adjudication procedures prior to April 23, 2004. Therefore, adjudicators will no longer defer to previous eligibility assessments while reviewing extension petitions. Each extension is a new petition under the new procedure, and adjudicators will not rely on previous approvals. The burden of proof will be placed upon the petitioner to provide adequate evidence for eligibility. The adjudicators are not limited by previous eligibility decisions, and therefore may request additional documentation for the purpose of determining eligibility. USCIS states that the process will aid in “discovering material errors in prior adjudications.” USCIS complained that the deference procedure limited adjudicators from discovering errors in evidence or filing mistakes made in previous petitions.

Impact

Since the processing time of a nonimmigrant worker extension has increased, employers should expect greater delays. The new memo reduces efficiency, and will place a greater burden on employers of non-immigrant workers. If you have any questions about your petition of extensions for nonimmigrant work status, please feel free to contact our office. 

OIG criticizes USCIS H-1B Site Visit Program

On October 20, 2017 the US Department of Homeland Security Office of Inspector General (OIG) release a report titled “USCIS Need a Better Approach to Verify H-1B Visa Participants”. The audit conducted by the OIG reportedly found that USCIS site visits “provide minimal assurance” that both H-1B petitioners and respondents are compliant under immigration laws and regulations. In short, USCIS site visits do not establish sufficient evidence to determine whether a petition is fraudulent.

Flaws in Site Visits

The report found several flaws in the current process of USCIS H-1B site visits. Firstly, USCIS conducts a limited number of site visits during the year, and visits were found to be limited and incomprehensive. Additionally, OIG reports that USCIS does not place barriers on petitioners that previously abused the H-1B program. The OIG also criticizes USCIS for undeveloped training for field officers, who often underreport important site visit findings. Finally, the report claims that USCIS lacks means to collect, analyze, and report data related to the effectiveness of site visits on the H-1B program.

OIG Recommendations

The OIG report made four recommendations to improve the USCIS site visit program:

  • Develop a process to collect and analyze complete and accurate data for all H-1B site visit activity;
  • Identify data and assessments obtained through site visit programs post adjudication and implement measures to systematically share this information with external stakeholders as appropriate;
  • Conduct an assessment of the H-1B Administrative Site Visit and Verification Program;
  • Develop comprehensive policies across Directorates to ensure adjudicative action is prioritized on fraudulent or noncompliant immigration benefits identified by the H-1B ASVVP and targeted site visits.

The US Department of Homeland Security provided recommendations as a means to improve the USCIS H-1B system. However, the recommendations could mean stricter and more frequent visits to H-1B beneficiaries.

TSA to Enforce Real-ID Standards

If you have traveled domestically in recent months, you probably noticed signs posted by the Transportation and Security Agency (TSA). The posting notifies passengers of new regulations for acceptable state identification requirements for travel within the US. Due to the REAL-ID Act (2005), TSA security agents will no longer accept IDs, or driver’s licenses from certain states. Since airlines are federally regulated agencies, Congress can create new standards to ensure traveler safety. The federal act creates minimum security standards for obtaining state identification, rejecting some state’s loose policies for obtaining driver’s licenses. Starting January 22nd of next year, TSA agents will require an additional form of identification if an adult passenger 18 or over possess a driver’s license or state issued ID from the following states:

  • Kentucky, Maine, Minnesota, Missouri, Montana, Oklahoma, Pennsylvania, South Carolina, and Washington

What if I have a Permanent Resident Card?

If you reside in one of the above states, then your state driver’s license will not be adequate to pass through airport security for a domestic flight. If you are traveling within the US, a permanent resident card is an acceptable form of ID. Additionally, if you possess a government issued foreign passport, DHS trusted travelers card (e.g. Global Entry Card), or a USCIS employment authorization card you may use those forms of identification to fly within the US. According to DHS, “Aliens lawfully admitted for permanent or temporary residence, aliens with conditional permanent resident status, aliens with an approved application for asylum, and aliens who have entered the United States as refugees are eligible for a full-term REAL ID license or identification card.” It may be beneficial to carry more than one form of ID to avoid any inconvenience while passing through security.

The Real-ID standard may still affect residents of states not included in the above list. Many states not included in the list do not meet the minimum requirements under the law, but the federal government has granted limited extensions for certain states. Once you have made your travel arrangements, it is important to stay updated on the current list of unqualified state IDs.

Avoiding USCIS Scams

Around the world, foreign nationals are being targeted by immigration scams. The threat is so prevalent and expansive that the www.uscis.gov reserves an entire section of the website for immigration scam protection and prevention. USCIS requires monetary payments from visa applicants for a variety of filing fees and other expenses. Those who are awaiting decisions on their pending application can be especially vulnerable to USCIS scams. Here are a few things to look out for in potential scammers:

  1. The caller informs you of an issue with your application, but requires payment over the phone

USCIS will never request payment through the phone or via email. If the scammer is impersonating a USCIS officer, they will attempt to persuade you of the immediate necessity of funds for your eligibility approval. However, genuine USCIS requests for payment (if any to begin with) will always be relayed through a letter via USPS on official USCIS stationary.

  1. Award of Lottery Visa or Green Card by U.S. State Department Email

According to USCIS, if you are selected by the green card lottery program (also known as Diversity Visa) you will not receive an email. Instead, you will be notified through the Electronic Diversity Visa  website.

  1. Scam USCIS Websites

There are several scam website that promote false opportunities for employment or expedited visa approval opportunities. Similarly, there are websites that falsely claim to be affiliated with USCIS and other U.S. departments. Each official government website ends with a .GOV (e.g. uscis.gov). Additionally, USCIS will never ask for an applicant to pay to download a USCIS form. If you are asked to provide money for access for an immigration form or any supplemental information, you may be on a fake website impersonating to be a USCIS website.

If you are unsure of the validity of a certain form, you can contact your local USCIS office for verification or can call USCIS customer service at 800-375-5282.

H-1B Wage Level 1 RFEs

A request for evidence (RFE) is issued by the USCIS to request additional documents and/or information to make a final determination for a case. A RFE can be issued either due to lack of required initial evidence or if the USCIS officer requires additional documentation and/or evidence to determine the applicant’s eligibility for the benefit sought. The RFE will specify the documents or supplemental evidence required to complete the application or petition. The RFE includes both a strict deadline (generally 84 days) and location for submission of the requested evidence and/or documentation. The petition or application will be “held in suspense” until the deadline is met.

This March, USCIS released a memo questioning if a “computer programmer” would qualify for H-1B based on just the information contained in the Occupation Outlook Handbook (OOH), especially in cases where the beneficiary is being offered Level 1 wages. The policy memo, instead, instructs the employer to provide other evidence to establish that ‘computer programmer’ is a specialty occupation. Following the release of this memo, USCIS issued RFEs for almost all H-1B petitions filed for positions with Level 1 wages.

Entry Level Position and Level 1 Wage

Every H-1B petition is filed with a Labor Condition Application (LCA) on which the employer must choose a level wage for the position.  The lowest level wage is Level 1 and the highest is Level 4.  As per National Prevailing Wage and Helpdesk Center (NPWHC) worksheets, the wage level is determined by the education, experience, supervision, and skills required to perform the duties of the position.  Every position starts with Level 1 wage and depending upon the requirements of the position, NPWHC has the ability to issue a prevailing wage as high as Level 4.  However, in its RFEs, USCIS has failed to take into account these guidelines from NPWHC and has issued RFE without regard to the requirements of the position for which the H-1 B was filed for.

Conclusion

This upswing in the wage level RFEs is result of new administration’s BAHA (Buy American Hire American) policy. Employers filing the H-1B should take a close look at the requirements of the position before choosing the wage level.  Also, those responding to the RFE must closely analyze the requirements of the position and the regulations and address the issues raised in the RFE. Please contact our office to schedule a consultation if you or your employer needs assistance in responding to Wage Level 1 RFE.

Apply for EAD and SSN Simultaneously

To work lawfully in the United States, you may need to obtain a Social Security Number (SSN) from the Social Security Administration (SSA). SSNs report wages to the government and determine eligibility for certain government programs.

Earlier last month, USCIS released a new Employment Authorization Document (EAD) that now includes the option to apply for work authorization and a social security number at once. Through an information collaboration between the Social Security Administration and USCIS, foreign nationals will no longer be obligated to apply separately for a social security number.

Old Process

Previously, foreign nationals applied for Social Security Numbers in person at a local Social Security office. The in-person application process required proof of identity, proof of work authorization, two additional documents proving age, and of course a visit to a local SSA office. The process was often time consuming due to high demand and documentation requirements.

New Process

The new EAD form now includes additional questions to apply for a SSN or SSN replacement without an in-person trip to the SSA. Through the data sharing collaboration, USCIS will send the relevant EAD information to the SSA for processing. Once SSA receives the information from the USCIS, the applicant can expect to receive a social security card within two weeks. 

USCIS Issues Memo Defining “Affiliate” and “Subsidiary”

In early August, USCIS released a memorandum defining the terms “affiliate” and “subsidiary” used in determining the American Competitiveness and Workforce Improvement Act (ACWIA) fee amount for H-1B petitions. Under the ACWIA, petitioners with 25 or fewer full-time employees (FTE) must pay a fee of $750 per H-1B petition, while petitioners with more than 25 FTE must pay a fee of $1,500 per H-1B petition. The funds collected provide U.S. citizen workers, permanent resident workers, and others the opportunity to receive job skills training.

Changes

Originally, vague guidelines for “subsidiary” and “affiliate” created confusion for both adjudicating officers and petitioners when determining the official number of employees for determining the fee amount. Some companies may have 15 employees as a single entity, but 27 employees with included subsidiaries and affiliates. The memo, which mirrors the L-1 definition, provides the following clarifying definitions for “affiliate” and “subsidiary”:

  1. Affiliate: “(1) [o]ne of two subsidiaries both of which are owned and controlled by the same parent or individual, or (2) [o]ne of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity.
  2. Subsidiary: “a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.”

Going forward, each H-1B petitioner should add all the FTE working directly for them and the FTE working with their  subsidiary or affiliates of subsidiary to reach the correct number of FTE to determine the correct ACWIA fee. Case adjudicators will consider the full-time employment numbers based off these newly defined guidelines through the investigation of information provided during the petition (e.g. tax returns, employee records, public information).

Changes to Foreign Affairs Manual (90 day rule): New Guidelines for Inadmissibility for Misrepresentation

On the first of September, the Department of State (DOS) released new guidelines, published in the Foreign Affairs Manual (FAM), for the term “misrepresentation” for the purposes of deciding grounds for inadmissibility. Misrepresentation of intent to enter the US or receive a visa presents grounds for inadmissibility under INA. The new announcement eliminates the DOS 30/60 rule, which outlined whether a consular officer could presume that an applicant lied about their intentions based on actions that occurred after the applicant entered the US. Now, “conduct inconsistent with status” that occurs within 90 days of entry into the US, will be presumed as a purposeful misrepresentation of intent, creating grounds for inadmissibility.

Old 30/60 Rule

Previously within a period of 30 days, immigration officers assumed that any distortion of truth on applications for visas or entry into the US regarding the foreign national’s basis for admission was a purposeful misrepresentation of intent for visa. For example, if a non-immigrant entered the US on a visitor visa (like a B-1/B-2 visa ) and enrolled into an educational institution within 30 days of arrival or got married and filed an application for adjustment of status, the government previously assumed that the foreign national misrepresented their motive for entry. Under the old guidelines, inconsistent conduct that occurred between 30-60 days was not misrepresentative of the foreign national’s intent at application, but the conduct was eligible for investigation by an immigration officer.

New 90-Day Rule

The new FAM guideline extends the period of assumed misrepresentative intent to 90 days. Consequently, those who are in the US under the US Waiver Program, which allows admittance for a period of 90 days, are assumed to have willfully misrepresented intent if the file and application for change or adjustment of status. Those entering in a B-1/B-2 status or any other non-immigrant visa will also face a similar scrutiny. Under the new provision, consular officers are to presume misrepresentative intent for the entirety of the 90-days. If conduct occurs more than 90-days after entry or approval for US visa, the applicant is not presumed to have willfully misrepresented intent on their application. 

Impact

The new FAM timeline presents an issue for many non-immigrants who have a pending application for adjustment or change of status. The new 90-day rule will not affect applicants on a dual intent visa like H-1B. However, if a foreign national changes status within 90 days of arrival, they may be at a risk of inadmissibility. It is noteworthy to remember that accusations of misrepresentation on an application for a visa or entry in the US is refutable. It is important to receive consultation before changing or adjusting status during the period of 90 days since under the new policy the consular offer may presume misrepresentation at any time, even after 90 days of entry, if the facts of the case support such a determination. This new policy, being broader than the previous one, would result in increased misrepresentation findings which under INA may make an individual permanently inadmissible to the US.