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.

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.

CBP Issues Travel Reminder: Departure Date

This year, the United States Customs and Border Protection (CBP) launched a new electronic reminder system for foreign national travelers. The new emailing system sends reminders to travelers about the period of time remaining for their particular travel visa. Not only does the email reminder system help travelers keep track of their period of stay, the CBP email reminder will provide notifications for travelers who have overstayed their period of admission.

Email Notification

Within 10 days of the end of a traveler’s admissions period, travelers may receive email notifications from CBP counting down the remaining days left of their stay in the United States. If a traveler overstays, they will continue to receive notice of an overstay violation. In addition to email notifications, travelers may refer to the I-94 website to check their compliance with period of stay limitations. Via the website, travelers may click the “view compliance” tab and enter their personal information to receive updates on their remaining period of stay.

Phishing Warning

Phishing, or email scams, are forms of electronic correspondence that attempt to exploit online users through false email correspondence. Often, travelers receive fake emails from users pretending to represent the federal government of the United States. These emails may falsely notify travelers of urgent notices to their period of stay. Never provide your personal information to an online source claiming to represent the CBP unless you are sure the notification is legitimate. Email notifications should come only from travelerscompliance@cbp.dhs.gov. As fraudulent emails are quite common, it is always advised to check the email address of any notification sent by an official agency.

Stages of Notification

CBP will gradually launch the new travelers notification system. Certain Visa Waiver Program (VWP) recipients are the first to receive email notice from CBP, and most classes of admission will soon be added to the notice system.

OPT Extensions for STEM: New Worksite Changes

On August 17th, USCIS updated guidelines for OPT STEM extensions. The student visa program allows international students the opportunity to gain practical training. For F-1 student’s with degrees in science, technology, engineering, and math, extensions are available to receive temporary employment privileges by an additional duration of 24 months. To qualify, applicants must have a bachelor’s degree in a STEM field as well as other requirements. The program allows students to receive more hands-on experience with employers in a field relevant to the student’s educational background.

Several months ago, however, USCIS made changes to online regulatory guidelines. These changes made clear that students were expected to work only at the worksite related to their STEM OPT employer. Therefore, the previous guidelines prohibited anythird-party or other off-site placement. Thus, ICE worksite visits would be conducted only at the primary address of employment listed on the student’s application. For many, this change limited students from receiving diversified experiences at different worksite related to their employment.

 USCIS Renews Flexibility

The most recent changes to the OPT STEM website retract previous guidelines and offer students greater options and flexibility for training experience. According to USCIS, the Department of Homeland Security (DHS) clarified that STEM OPT students once more have the ability to “engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met.” USCIS reminds beneficiaries of STEM OPT that a “bona fide” employee-employer relationship must be maintained if a student receives training outside of the employer’s principal location. DHS will review each case to ensure that employers listed on the Training Plan maintain the required employee-employer relationship. Students should ensure that a third-party placement or offsite placement does not compromise their employee-employer relationship with their documented supervisor.

Major USCIS Changes: Update on RFE & NOID

On September 11, 2018, the United States Customs and Immigration Service will adopt new guidelines for the issuance of Request for Evidence (RFE) and Notice of Intent to Deny (NOID). Through no change to the laws of legal immigration, these new guidelines present one of the greatest threats to legal immigration in recent history.

Overview of Changes

In a series of policy memorandums, USCIS gave notice of new guidance for adjudicating officers. This guidance allows adjudicators to deny a request for immigration benefits without issuing an RFE or NOID. Previously, USCIS required adjudicators to send notice to applicants who provided insufficient evidence for an application or petition (RFE & NOID). Without a barrier to outright denial, those applying for immigration benefits can now receive denials if adjudicators determine that there is insufficient evidence.

Who is at Risk?

All applicants, from applications for naturalization to applications filed under the Violence Against Women Act (VAWA), are at risk under these new guidelines. After September 11th, applicants will be at risk of outright denial of their application or petition. With full discretionary power, USCIS adjudicators will be unforgiving of even small errors in applications. Therefore, if a naturalization application is missing a single document of evidence, a USCIS adjudicator can now deny the application without sending a notice for additional information or allowing the applicant to provide an explanation for the missing evidence.

Impact of Denial

If an applicant is denied benefits, then the petitioner or applicant will have to resubmit their application. Meaning, each applicant must repay all immigration fees regardless if their current employment visa was compromised by the denial. However, this is the best case scenario considering further USCIS changes regarding Notices to Appear (NTA). Under this regulation, some applicants who receive outward denials will be required to appear before immigration court to face removal proceedings. The devastating impact of these policies will impact families and highly skilled professionals alike. As September 11thapproaches, all applicants for immigration benefits must be extremely thorough in their applications. If you require assistance with any of your applications, please feel free to schedule a consultation.

Uncertain Future for Spouse EAD (H-4)

The H-4 EAD program allows certain dependents of H-1B highly skilled nonimmigrant workers the opportunity to apply for employment benefits. The work program is administrated by the United States Customs and Immigration Service (USCIS) under the direction of the Department of Homeland Security (DHS). However, the program is under threat by both a federal court of appeals and the president.

As is the case for many legal immigration benefits, the Trump administration and supporters are determined to curb the H-4 EAD benefits. The lawsuit, which threatens the spousal work program, was filed by Save Jobs USA. The complainant claims that the H-4 EAD program depresses wages and takes jobs from the American workers. Although the claims lack vital evidence, the Trump Administration does not support the Obama era program and may soon release new regulations that would end the H-4 EAD program and render the lawsuit unnecessary. USCIS continues to cite President Trump’s executive Order, Buy American Hire American, as the guidance for a proposal to end the spouse work program.

On February 21st, the U.S. Court of Appeals for the District of Columbia granted a motion from the Trump Administration to delay the case for 90 days on the condition that the Administration, and further the DHS, would release new regulations for the H-4 EAD. However, the case has continued to be delayed as DHS leadership continues to review the proposal to end the program. On August 20th, DHS notified the federal appeals court in D.C. of further delays to a finished proposal. However, DHS representatives also stated in the notice that the agency fully intended to go forward with the proposal once it has been reviewed by officials in the executive branch. For beneficiaries of the program, the imminent proposal does not necessarily mean an immediate change to the program, supporter will have an opportunity to oppose the proposal during the public comment period. However, because there have been several delays from DHS, it is uncertain when the proposal will be released.

Change of Address: Non-Citizens & Citizens

In most cases, the United States Customs and Immigration Service (USCIS) requires only non-U.S. citizens to report a change of address. However, if you are a U.S. citizen serving as a sponsor for a non-U.S. citizen, you may have to submit a Form I-865 to update your most recent address.

Non-U.S. Citizens

If you are a foreign national who is in the United states for a period of more than 30 days, or who is not an official government representative or diplomat for your country, you must report any change to your address within 10 days. Non-U.S. citizens can change their address online through an electronic Form AR-11. There, individuals with open or recently approved applications and petitions can amend their applications at the same time with the online change of address system. Although all non-U.S. citizens may file their Form AR-11 through the mail, the following must submit address changes through mail, not through the online portal nor through phone: Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant filed as VAWA self-petitioner; Form I-914, Application for T Nonimmigrant Status (“T visa”); Form I-918, Petition for U Nonimmigrant Status (“U visa”); Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse; and Form I-485, Application to Adjust status as an abused spouse under the Cuban Adjustment Act. Willful failure to notify USCIS of a change of address will result in a misdemeanor charge and could result in deportation proceedings. U.S. citizens, however, must file a separate notice of address change if they are a sponsor for a non-U.S. citizen.

U.S. Citizens

If you are a sponsor for a non-citizen i.e. if any time in the past you have completed Form I-864, you will need to complete a Form I-865, Sponsor’s Notice of Change of Address, if your address changes while the sponsorship agreement is still in place. Sponsors, who are citizens of the United States, have up to 30 days to submit a signed Form I-865 to USCIS following the change in permanent address. Each sponsor must submit a separate Form I-865, regardless if they share the same address. In many cases, sponsors must submit multiple notices for each relocation while the sponsorship agreement remains in force, which can span several years. The sponsor will maintain an obligation to report a change of address until the sponsorship agreement is no longer in place (e.g. the sponsored immigrant becomes a U.S. citizen or the application is abandoned or void). Failure to report an address change may result in fines ranging from $250 to over $5,000. Upon submitting the Form I-865, sponsors may receive further correspondence from USCIS for further documentation confirming the change of address.