Immigration Newsletter
December 2017  |  Volume 9, Issue 5
Greetings!
 
Government scrutiny in immigration policies continues to increase, as discussed in our last several newsletters. The rescission of a policy giving deference to prior employment-based nonimmigrant approvals and an increase in H-1B Requests for Evidence and denials continue to signify the Trump administration's intent to discourage employers from taking advantage of the various employment-based immigration programs.

Below are summaries of the most recent immigration-related developments. Please note that our newsletter is primarily distributed to our employer clients, so we encourage you to share this information with your employees.
USCIS No Longer Giving Deference to Prior Nonimmigrant Adjudications
 
On October 23, USCIS issued a new Policy Memorandum ("PM") rescinding prior policies which gave deference to the disposition of former nonimmigrant petition adjudications. The former policies, issued in 2004 and 2015, directed USCIS officers reviewing nonimmigrant extension petitions (H-1B, L-1, O-1, TN, etc.) to defer to prior determinations of eligibility except in certain limited circumstances. This established a level of security for employers and employees, that once an initial nonimmigrant petition was approved, absent significant changes to an employee's position or an obvious mistake in the prior adjudication, USCIS would approve subsequent extensions of status.

The new PM rescinds and supersedes these policies, directing USCIS to give no deference to prior approvals and instead to re-adjudicate all extension of status petitions independently on the merits. The PM stresses that the burden of proof in establishing eligibility for the requested nonimmigrant status will always remain on employers for each petition. USCIS cites the cost and effort of reviewing past adjudications to determine whether the facts were, in fact, similar, as well as perceived limitations on officers' fact-finding ability, as the reasons for this change.

What this means for employers:
  • H-1B, L-1, O-1 and TN extension petitions are now subject to the same level of scrutiny as an initial petition, with USCIS giving no weight to past approvals for the same position. Given recent changes to USCIS adjudication policies and procedures, and general increased adjudication scrutiny, this dramatically increases the likelihood of Requests for Evidence (RFEs) and denials.
  • Individuals who have held H-1B status for many years run the risk of being found ineligible for that status now, since policies may have shifted during that time.  In addition to the increased scrutiny of Level 1 and Level 2 wage designations (discussed below), USCIS is now questioning the applicability of degree fields that are only peripherally related to the position much more than in the past, so someone with a degree in a related field may face an uphill battle in convincing the adjudicator that the position qualifies as a specialty occupation, or that the beneficiary possesses a qualifying degree.  
     
  • In the event that an employee's extension of status petition is denied, the decision may be appealed to the USCIS Administrative Appeals Office (AAO). However, unless the employee has an alternate basis of status and work authorization, the denial of an extension petition will require them to depart the United States until a favorable appellate decision is reached.
     
  • If you have employees in H-1B status who have not yet begun the permanent residence process, it may be worthwhile to begin the process earlier than you otherwise would, to provide another potential avenue for work authorization should the next H-1B extension be delayed or denied.  Employees who are immediately eligible to apply for permanent residence can obtain alternate work and travel authorization while their I-485 application is pending, bypassing the need for a nonimmigrant extension petition. However, the process leading up to the I-485 application can take approximately one year, so employers should plan accordingly.
Continued Increase in H-1B Requests for Evidence
 
As discussed in our August 2017 Newsletter, USCIS continues to issue Requests for Evidence (RFEs) challenging H-1B petitions which use a Level 1 prevailing wage. The RFEs come in two varieties; they either challenge: (1) that the job duties for a position are too complex for a Level 1 designation, which should only be used for employees with a basic understanding of the occupation who perform routine tasks; or (2) that because a position was designated as a Level 1 wage, it is not complex enough to qualify as a specialty occupation, which is the requirement for H-1B eligibility. The second variation of the RFE is often coupled with a longer request for the employer to establish that a position is a specialty occupation, requiring "highly specialized knowledge" typically acquired through attainment of a Bachelor's degree or higher in a particular field.

USCIS also seems to be narrowing the definition of specialty occupation to those that the Department of Labor (DOL) has determined only permit a limited set of qualifying degree fields (regardless of the employer's acceptable degree fields for a given position). For example, the occupation of Software Developer is defined by DOL as requiring a Bachelor's degree in Computer Science, Software Engineering, or a related field. USCIS would likely not scrutinize whether this is a specialty occupation. Management Analysts, conversely, are defined by DOL as follows: "many fields of study provide a suitable education...including business, management, economics, accounting...marketing, psychology and computer...science." USCIS will likely claim that, because the role of Management Analyst does not require specialized knowledge from a Bachelor's degree in a particular field, but rather a variety of fields, it is not a specialty occupation.

Additionally, USCIS is heightening scrutiny of the degrees possessed by employees and how they align with DOL's occupational categories. If an employee possesses a degree which has its own DOL occupational category, USCIS will likely issue an RFE for petitions seeking to employ them in a different occupational category. For example, a petition for an employee with an Electrical Engineering degree will likely receive an RFE if the H-1B position offered is for a Software Engineer, because Electrical Engineer is a separate occupational category according to DOL. In the past, this has not been the subject of RFEs.

RSST Law Group has developed a successful strategy for responding to the Level 1 and specialty occupation RFEs and has received many subsequent H-1B approvals. However, this increased scrutiny of occupational categories and wage levels for H-1B petitions will require greater analysis of employers' job offers at the beginning of each case moving forward.  This may increase preparation time as your RSST attorney develops a case strategy to overcome perceived challenges.  Employers should plan accordingly and anticipate more time before a case is filed and then adjudicated.  
The End of H-4 EADs?
 
As you may recall, the Obama Administration issued a regulation in 2015 allowing H-4 spouses of certain H-1B workers who are seeking employment-based permanent residence to obtain employment authorization (EADs).  That regulation was challenged in court almost immediately.  The U.S. District Court for the District of Columbia denied a motion for preliminary injunction and relief in May 2015.  In April 2017, the Trump Administration filed a motion requesting that the court hold the proceedings in abeyance to permit DHS to reconsider the H-4 EAD rule and potentially revise it through public notice-and-comment rulemaking.  That abeyance has since been extended until December 31, 2017, and it is expected that USCIS will issue new regulations rescinding the H-4 EAD authorization in the near future.  Notice will need to be published in the Federal Register and open for comment for 30-60 days.

We wanted to put you on notice of this anticipated change.  If you have any employees who are working pursuant to an H-4 EAD, please contact an attorney at RSST Law Group to discuss other possible options.  While we are hopeful that the revised regulation may allow individuals currently holding H-4 EAD to work pursuant to the EAD until it expires, we anticipate that the current EADs will not be eligible for renewal. 
SCOTUS Dismisses Initial Travel Ban Case
 
As summarized in our June 27 News Flash, the Supreme Court was scheduled to hear the government's appeal of two cases challenging President Trump's " travel ban" in October. However, both appeals were dismissed by the Supreme Court (on October 10 and October 24) because the Executive Order implementing the travel ban had been revoked and superseded by the Trump Administration.

The Administration's revised travel ban, issued via a Presidential Proclamation entitled, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats" was issued on September 24 and outlined in our News Flash. It restricts travel from eight countries: Iran, Libya, Somalia, Syria, Yemen, Chad, Venezuela and North Korea.  Implementation of this ban has been partially blocked by the 9th Circuit for those individuals with a credible claim of a bona fide relationship with a person or entity in the United States, but that stay is now being challenged to the Supreme Court. 
Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State provides periodic analyses of current trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of December 2017:
  • General Notes: It is not yet clear how the implementation of mandatory employment-based adjustment interviews will impact immigrant visa number usage, but the visa bulletin is not expected to be affected until later in the fiscal year.
     
  • EB-1 China and India, and EB-2 and EB-3 Worldwide: These categories are expected to remain current through at least April 2018. 
     
  • EB-2 India: This category is expected to advance one month at a time in the coming months. 
     
  • EB-2 and EB-3 China: EB-3 China remains ahead of EB-2, allowing for "downgrade" petitions. 
     
  • EB-3 India: As noted previously, due to the date advancement over the summer, quite a few numbers have already been used towards this fiscal year by cases which were adjudicated after the quota was met in September, so this date may hold for at least another month. 
There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website

Employment-Based Preference Categories
  • First (EB-1): Priority Workers. Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers,and Multinational Managers or Executives.
     
  • Second (EB-2): Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability. Also includes National Interest Waiver (NIW) applicants.
     
  • Third (EB-3): Skilled Workers, Professionals, and Other Workers.
Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.  

Following are the relevant Visa Bulletin Final Action Dates for December 2017 (i.e. dates that allow an application to be adjudicated):
  
Employment-Based
All Chargeability Areas Except Those Listed
China - mainland born
India
Philippines
1st
C
C
C
C
2nd
C
01JUL13
01NOV08
C
3rd
C
08MAR14
15OCT06
15JAN16
Other Workers
C
01JUL06
15OCT06
15JAN16
  
  
Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
Family-Sponsored
All Chargeability Areas Except Those Listed
Mexico
F2A
22DEC15
15NOV15

Processing Times

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received.  Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions:  

Application /
Petition Type
Current Reported
Processing Times
H-1B
CSC: 3 - 5 months
VSC: 4 - 6 months
NSC: 4 - 6 months
PERM
3 - 4 months
PERM Prevailing
Wage Requests
2 - 3 months
PERM audits
7 - 8 months from
initial date of filing
I-140
4 - 6 months
I-485
9 - 12 months
EAD
4 - 5 months
Advance Parole
4 - 5 months

Please keep in mind that these are average processing times, and there are always some outliers (i.e. cases that are approved more quickly, and some which take longer).  
In the News: What's Happening at RSST Law Group
  • RSST Law Group has once again been named by U.S. News Media Group and Best Lawyers as a First-Tier law firm in the area of Immigration Law in Boston in the 2018 U.S. News Best Law Firms rankings.
Please Note that this newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.
  RSST Law Group
50 Congress Street, Suite 200, Boston, MA  02109  |  (617) 542-5111 | www.rsstlawgroup.com