Government Shutdown: EB-5 Program & Immigration Agencies

In the absence of congressional authorization, the EB-5 foreign investors visa program was set to end on December 21st of 2018. However, following the government shutdown that began on December 20th of 2018 and continues into the 2019, the United States Citizenship and Immigration Service (USCIS) announced that the future of the EB-5 program will remain pending until funding legislation passes in Congress. However, the shutdown will not drastically impact other application processes for visa benefits.

Impact on EB-5 Applications Prior to December 21st

USCIS notes that any Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, will not be accepted as of December 21st. Those Form I-924 applications still pending will remain on hold until funding is either allocated or denied to the EB-5 program. USCIS notes that it will continue to accept regional center-affiliated Form I-526s,  Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status submitted before close of business on December 22nd. However, the aforementioned applications will remain on hold until the end of the government shutdown.

Additional Visas Impacted

As reported during the last government shutdown, most vital functions of the United States government will continue while the government is shutdown. In particular, the US Customs and Border Patrol (CBP) will continue to function at ports of entry. Therefore, foreign nationals need not cancel travel plans abroad during the shutdown. The US Citizenship and Immigration Service (USCIS) will additionally remain open during the shutdown. Thus, any applications or petitions that include fee processing, will continue to be processed through the shutdown (e.g. adjustment of status, etc.). Visa processing services provided by US consulates, and managed by the Department of State, will also continue while the government is shutdown. The Department of Labor, which received funding in September of 2018, will continue Labor Condition Application processing. Although these essential government agencies will remain open during the shutdown, it is unclear when the shutdown will end, and whether programs like the EB-5 visa program, will continue into 2019.

DHS Proposed Rule: New Changes to Public Charge Inadmissibility

The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.

Major Changes

The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”  

Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.

H-1B Pre-Registration: USCIS Proposed Rule

The speculation about drastic changes to the H-1B registration process has come to fruition with the new proposed rule out of the Department of Homeland Security. The amendment to the current H-1B specialty occupation visa program would require petitioners to electronically register with the United States Citizenship and Immigration Service (USCIS) prior to start of the H-1B lottery each year. USCIS would open the online registration process two weeks before the beginning of the filing period for the new fiscal year. This change would eliminate the requirement for employers to complete paper cap-subject applications during the first week of April.

Major Changes

  1. Shortened Application: Petitioning employers would be required to electronically register each beneficiary they wish to sponsor through the H-1B visa program. However, only those registrations selected by USCIS will be required to produce a completed H-1B cap subject petition, including the DOL Labor Condition Application and the long form petition for nonimmigrant worker, or Form I-129.
  2. Reversed Selection Process: The new proposed process would reverse the H-1B selection process. USCIS would begin the filing season by first selecting H-1B regular cap applications, including those registrations eligible for the H-1B advanced degree cap exemption. Then, USCIS will select the 20,000 cap-exempt advanced degree petitions. 

 Analysis

In the proposed rule, DHS intends the change in the registration process to produce more H-1B petitions that are selected for beneficiaries for master’s degree or higher degrees. Specifically, DHS estimates that the change will increase the number of master’s degree or higher beneficiaries, with degrees from U.S. institutions, by 16 percent annually. In addition to an increase in the number of H-1B beneficiaries with higher degrees, DHS intends to waive the initial fees for pre-registration in order to save administration costs. DHS estimates that the change would save petitioners a range from $47.3 million to $75.5 million in filing fees. In addition, USCIS would save $1.6 million in processing costs.

Although these savings are attractive, some employers may experience difficulties employing foreign nationals with bachelor degrees or degrees from outside the U.S.. While it is uncertain if the new rule will apply to the 2019 filing season, the proposed rule is open for public comment until January 2ndof 2019.

USCIS Lawsuit: H-1B Visa Duration

A recent lawsuit filed in the U.S. District Court for the District of Columbia, ITServe Alliance v. USCIS, aims to limit the discretionary powers of the United States Customs and Immigration Service (USCIS) in limiting the approved duration of H-1B visas. ITServe Alliance, the largest association of information technology “IT” Services, Staffing, Consulting organizations, filed the lawsuit in hopes to change the ways in which USCIS processes and adjudicates H-1B visas.

Background

The lawsuit comes in response to continued employer dissatisfaction over the processing and approval of H-1B visa petitions. The plaintiff, ITServe Alliance, represents one of the largest populations of employers for the highly skilled immigrant work program, the IT sector. Like many other companies, members of the ITServe Alliance must compile an extraordinary quantity of documentation in order to file an H-1B petition. Besides the lengthy application process, employers like those ITServe Alliance are unduly burdened by the costs associated with H-1B petition filings. Regardless of this burden, USCIS may slash the duration of the H-1B visa below the three-year minimum based solely on an adjudicator’s discretion. In response, ITServe Alliance has filed a lawsuit claiming that USCIS lacks the written authority to reduce the duration of an H-1B visa below the three-year minimum.

Lawsuit

ITServe Alliance has asked a district judge to rule whether USCIS is within its administrative powers, outlined by the Administrative Procedure Act, to “exercise discretion and approve H-1B visas for any duration it deems supported by the employer’s evidence.” ITServe Alliance claims that USCIS carries no legal power to limit H-1B visa to durations less than three years. In exercising this administrative power, USCIS has, at times, approved visas for a period only of a few days. Consequently, firms have received approval notices afterthe H-1B visa has expired. Besides these abnormal cases, USCIS’s discretionary power to limit the duration of H-1B visas has left many employers hesitant to file new petitions. Although it is uncertain whether USCIS will change its administrative behavior in the near future, we will continue to keep readers updated on any changes.

International Students on CPT & OPT Denied H-1B Visas

Under new guideline interpretations, many former international students have received denials for H-1B benefits from the United States Customs and Immigration Service (USCIS). According to some reports, F-1 students who have completed work in their field for more than 12 months while earning a degree and in the one-year period following graduation, may be ineligible for H-1B visa benefits. Unfortunately, many students at the end of their Optional Practical Training (OPT) have received denials for their applications to switch to an H-1B visa and must return to their home countries and seek H-1B benefits from their local consulate.

Curricular Practical Training & Optional Practical Training

While studying in the United States, international students have two unique opportunities to gain practical working experience in a career relevant to their field of study. During their program of study, students may complete a for-credit work experience in a field relevant to their major. This program, known as Curricular Practical Training (CPT), allows students to work for up to 12 months while completing their degree. OPT is similar to CPT, but occurs after an F-1 has received their degree, and lasts up to 12 months unless the student receives an extension through STEM OPT. Some students complete both CPT and OPT experiences during their stay as an international student. Now, USCIS has determined that the total duration of work performed for practical training cannot exceed 12 months.

H-1B Denials

For years, students have been able to complete both CPT and OPT with no issues. However, under new practice, students with more than 12 months working experience due to CPT and OPT will be interpreted as having failed to maintain valid F-1 status, and therefore ineligible to switch from an F-1 to an H-1B visa. According to reports, students are continuing to receive approval for OPT spanning for 12 months, regardless if they have completed CPT during their program of study. Therefore, USCIS sets many international students up for denial from H-1B benefits and potential bars for additional visas. Although USCIS does not deny students from completing a period of practical training longer than 12 months, the accumulation of CPT and OPT work experience longer than 12 months will cause students to violate their F-1 status.

We strongly recommend F-1 students to be proactive about their maintenance of status by seeking legal advice in case they do not fully comprehend the law. It may not be enough for them to rely on the DSO’s advice or the USCIS’ approval of OPT following the CPT.

California Representative Attempts to Save H-4 EAD Program (H-1B)

As previously reported, the work authorization (H-4 EAD) program that allows the spouses of H-1B visa beneficiaries to find work while in the United States with their family is set to end under the Trump Administration. However, two California Congresswomen are gearing up to fight for the continuation of the Obama-era H-4 EAD program.

H-4 Employment Protection Act

On November 16th, Representative Anna G. Eshoo (CA-18) and Zoe Lofgren (CA-19) introduced the H-4 Employment Protection Act, which would prohibit the Trump Administration from ending the Obama rule that expands work authorization to include the spouses of H-1B visa holders. Congresswomen Eshoo and Lofgren represent the majority of San Jose, which is more commonly known as Silicon Valley.

One of the largest recruiting areas for highly skilled foreign workers, Silicon Valley hosts many families on the H-1B program. Since spouses are permitted to work through the H-4 visa program, many residents of Silicon Valley were able to pursue their own careers alongside their husbands and wives. In total, the H-4 EAD program has allowed over 100,000 H-1B spouses, primarily women, to obtain employment authorization documents. The Trump Administration is likely set to end the program before January next year.

“Protecting work authorization for these H-4 visa holders is a matter of both economic fairness and family unity,” Congresswomen Eshoo stated in a press release. “Eliminating this benefit would create a painful choice for many immigrants to either split up their families or return to their home countries and use their talents to compete against American businesses.” Residing in California can be especially challenging for families living off of the income of a single H-1B holding earner. Eshoo and Lofgren’s bill aims to protect those families that are vulnerable to the cut in income associated with the termination of the H-4 program.

Congresswomen Lofgren echoes this concern: “Prohibiting H-1B dependent spouses from working is of no benefit to our country, and if allowed to move forward, many of these families that can contribute so much to our workforce will simply move to countries with a more sensible approach to immigration. This much needed bill will block the Trump Administration from needlessly harming our economy and the lives of skilled immigrant families.”

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.