The final H-1B regulation published January 2019, prioritizes F-1 students and others who have completed a U.S. masters degree. This aspect of the rule will be in effect as of April 1, 2019, for this year’s H-1B season. However, the registration requirement will not be implemented until later.
Employers may file an H-1 petition up to six months prior to the start date of the sponsored employee. Demand has consistently been higher than the H-1B visa numbers available. H-1B visa numbers for new beneficiaries (new employees who have not had an H-1B visa number within the past six years) are limited to 65,000 for beneficiaries with a bachelors degree or equivalent, plus an additional 20,000 visa numbers for those with US masters or higher degrees. That means there are only 85,000 total H-1B visa numbers for cap-subject cases each fiscal year. Because the new fiscal year starts on October 1st, employers must file any new, cap-subject H-1B petitions within the first five business days of April. Thus, for this year, employers have between Monday April 1st , 2019 to Friday April 5th, 2019 to file for a start date of October 1st, 2019. Filing means that the petition must be received by those dates.
USCIS then runs a lottery to determine which H-1B petitions will receive a visa number. Those petitions that do not receive a visa number are returned to the employers. Receiving a visa number does not mean that the petition will be approved. It just means that USCIS will take the filing fees, review the petition and adjudicate it. Thus, those receiving visa numbers may still have their H-1B petitions denied.
In the final rule, DHS changes the procedure by which H-1B cap-subject petitions are selected in the lottery in order to favor F-1 students and others who hold a masters or higher degree from a U.S. college or university. Thus, employers who already employ an F-1 student (assuming he or she has a US advanced degree) on OPT have a higher chance of obtaining an H-1B visa number for their employee, than an employer sponsoring an employee abroad whose education was also abroad. The final rule reverses the selection process that USCIS used in the past. Now, USCIS will randomly select H-1B petitions for the regular cap first (the 65,000 visa numbers that may go to any beneficiary with at least a bachelor’s degree or equivalent, including foreign degrees, and also combining education and experience). After filling up the 65,000 H-1B visa numbers, USCIS will then select from among the remaining pool of petitions the additional 20,000 H-1B petitions that are reserved for beneficiaries with a US masters degree or higher (say, F-1 students with a PhD, MD or JD from a US university). USCIS estimates that this new procedure will result in an increase of 16% in the proportion of H-1B visa holders with an advanced US degree.
DHS believes that this rule is merit-based, and is consistent with the policy of “Buy American and Hire American” (BAHA). The rule does not make it easier to hire foreign nationals. Because the rule is expected to result in a greater number of beneficiaries with a US masters or higher degree, it is in line with the executive order’s goal to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries”.
DHS will also implement a new registration system for employers, however, this is suspended for this FY2020 H-1B cap season. DHS needs to perform user testing of the new online system. DHS anticipates starting the registration system in time for the FY2021 H-1B cap season. All employers must file a registration for each potential employee, and then wait to see if USCIS selects it before filing an H-1B petition. If USCIS does not pick the employer’s registration, the employer is not allowed to file an H-1B petition on behalf of that beneficiary.
Each fiscal year, USCIS will announce the start date of the registration period on its web site at least 30 days prior to the start of the registration period. The registration period will be for a minimum of 14 calendar days. The registration period will begin at least 14 days before the first day of petition filing and last at least 14 days. So, at least for two weeks. USCIS will then determine the end of the registration period, depending upon how many registrations it receives. USCIS may continue the registration period past two weeks, or reopen the registration period for an additional period of time.
Each registration must include the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number. SEVIS information is not required. USCIS may decide later on to include additional information required for registration. USCIS will check the system for duplicate registrations. Establishing eligibility is not required to file a registration. The registration period is not intended to replace the adjudication process or to assess whether the beneficiary is eligible for the position.
The required information is intended only to identify the beneficiary and limit potential fraud and abuse of the system. DHS is considering ways to allow employers to correct typos in their registrations. Employers will be able to edit a registration until it is submitted. Employers may also delete a registration and re-submit it prior to the close of the registration period.
DHS regulations already forbid the filing of multiple H-1B cap subject petitions by related corporate entities for the same beneficiary, unless there is a legitimate business need.
USCIS will then select sufficient registrations towards the H-1B cap, eliminate duplicate registrations, identify the employer and proposed employee, and to match registrations with subsequently filed H-1B petitions.
In sum, employers and foreign professional may proceed as usual in preparing and filing H-1B petitions this fiscal year. Since the registration process is postponed, the only procedure changing is USCIS’s manner of choosing which H-1B cap petitions receive visa numbers, so that a greater proportion will go to beneficiaries who are F-1 students with advanced degrees.
Copyright 2019 © Heidi J. Meyers, all rights reserved.
U.S. consulates in India have been issuing more 221(g) refusals to IT professionals, which is when the Consular Officer temporarily denies a visa for lack of essential information or because the applicant is undergoing administrative processing (basically, that the security checks are taking a long time). More software engineers, programmer/analysts and other IT personnel are being denied visas, and given a questionnaire regarding information that the Consular Officer should already have, including questions regarding the particular project the applicant is going to work on, the technical description of the project, budget, timeline, current status, how many employees are assigned to the project, and detailed information about the other employees on the same project.
At the time an H-1B or L-1B application is filed, an IT company will have certain projects going, and will not be able to anticipate all their future projects, as these continuously change, so the Consular Officer may be looking for a way to deny a visa if the original project proposed for the H-1B or L visa applicant is no longer on-going, and the company intends to send the applicant to another project, perhaps without the LCA on file.
Additionally, administrative processing, including security checks with the various agencies such as the FBI, CIA, DEA etc., may also be quite time-consuming, depending on a variety of factors.
Another issue is the BAHA (Buy American, Hire American) proclamation which has been added into the Foreign Affairs Manual (FAM), so visa applicants need to be ready to explain how their position in the US will not take jobs away from US workers, and how they and their project will benefit the US economically. Due to the ongoing shortage of labor in the US, it should not be difficult to document the shortage of IT professionals.
Visa applicants need to be able to express themselves clearly to explain their qualifications, the job duties and the project, as well as answer questions about the company itself and their future salary and benefits. Applicants need to review the petition support letters carefully and be aware of the contents of those letters.
The good news is, a 221(g) refusal is not a final denial, applicants and their employers still have the opportunity to submit additional evidence and make the Consular Officer happy.
2019 will be a good year for immigrants who apply for their green card through their employer. While there will be some economic issues this year, including slowing growth and higher prices due to the trade wars, the good news is that the unemployment rate is likely to stay at historic lows. Employers are having a very hard time finding U.S. workers to fill positions. This means employers who file PERM labor certification applications will have an easier time convincing the US Department of Labor that there is a shortage of U.S. workers ready, willing and able to do the job.
Second, the U.S. Department of Labor and USCIS are not affected by the government shutdown. The U.S. Department of Labor is funded through September 30, 2019, and will be able to continue processing PERM labor certifications, as well as prevailing wage requests and labor condition applications at its normal rate. This means, the first step of the labor certification process, where the employer first obtains a prevailing wage determination and then files a PERM labor certification application, should go as smoothly as ever.
USCIS is funded by the USCIS filing fees that applicants have to pay, and so they are continuing to adjudicate Forms I-140 employer immigrant petitions as well as Forms I-485 applications for adjustment to permanent residency. USCIS is also not affected by the government shutdown.
Third, backlogs in employment-preference visa numbers for the worldwide categories are either nonexistent, or are very reasonable. The US State Department Visa Bulletin for February 2019 shows second, third and fourth employment preferences for the worldwide category as all current, as well as the other workers employment preference. That’s fantastic! No backlogs! The first employment preference for the worldwide category is backlogged to December 1, 2017, a little more than one year, which is not bad at all in immigration time.
Fourth, because they are having such a hard time finding qualified employees, employers are more likely to be willing to go through with the labor certification process, which for the employer is time-consuming and expensive. Thus, it will be easier for immigrants to find employers who are eager to sponsor them.
The government has taken an extremely broad view of the material support to a terrorist organization ground of inadmissibility, using it to deny many victims of persecution the opportunity to be granted asylum or other relief from deportation.
According to the Immigration and Nationality Act (INA) ground of inadmissibility under section 212(a)(3)(B)(i)(VIII), material support to a terrorist organization is defined as the following:
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.
The definition of material support as a ground of deportability or removability is exactly the same as the definition for the ground of inadmissibility.
In immigration, the material support ground of inadmissibility has been applied to deny many Central Americans, Columbians, and others who are victims of guerilla and terrorist organizations, any relief from deportation or removal. The material support ground is interpreted so broadly, that even if you are forced while looking at the barrel of a gun of a terrorist ready to send you out of this world, you will still be found to have provided material support and will be ineligible for immigration benefits.
In Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) the BIA held that a woman from El Salvador was not eligible for cancellation of removal because she had provided material support to a terrorist organization. This unfortunate woman was a victim of the guerillas, who kidnapped and enslaved her, and forced her to watch her husband dig his own grave before they murdered him. However, in spite of the fact that she was a victim of the guerillas, the BIA held that she was not eligible for cancellation of removal because she had provided material support, as she was forced to cook, clean and wash their clothes while a slave to them.
This provision of law, clearly intended to stop bad guys (and bad gals!) who support terrorists from coming to the US or getting immigration benefits, is being used to punish women, children, and other weak and vulnerable populations who have been the victims of terrorists and transnational criminal organizations, as a cudgel to deny them any kind of immigration benefits or relief from removal and deportation.
The BIA has made clear, time and again, that even though an individual provides material support involuntarily, while under duress, he or she is still barred under the material support ground of inadmissibility. See, Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016).
The definition of duress is the following: “threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment. “confessions extracted under duress”. Synonyms: coercion, compulsion, force, pressurization, intimidation, threats, constraint, enforcement, exaction. Informal: arm-twisting. See, google definition, https://www.google.com/search?q=duress+definition&oq=Duress+definition&aqs=chrome.0.0l6.3471j1j7&sourceid=chrome&ie=UTF-8
It is a sad state of affairs that several of the federal appellate courts have gone along with this interpretation. For example, in Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018), the petitioner, Marleny Hernandez, a citizen of Columbia, a successful business woman, under threat from the FARC, provided food and other goods to the FARC every three months from around 1997 to 1999. As retaliation against her for having government officials as guests at her hotel, the FARC attacked and destroyed her hotel and store. The Second Circuit in Hernandez deferred to the BIA’s interpretation, as they found the statute to be ambiguous, and applied Chevron deference. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
As if it is not bad enough that the government applies the material support bar when the applicant was under duress, the BIA’s recent decision in Matter of A-C-M- makes clear that no matter how de minimus, small or trivial the support, the material support bar still applies.
What can one do in such a situation? There is an exception to the bar if one “did not know and should not reasonably have known, that the organization was a terrorist organization”. However, even if the immigration judge finds an applicant ineligible, all is not lost. First, even if it is found that the material support bar to asylum applies, the applicant is still eligible for deferral of removal under the Convention Against Torture. Second, in federal court one can argue that the plain meaning of the statute requires that support be material. The statute would not specifically state “material support” if the word material did not mean anything. If support was not required to be material, Congress would have left out that word, and just had the word support with no qualifiers. While the government may argue that the statute is ambiguous with regard to duress, there is no such ambiguity with regard to whether the support may be de minimus. It cannot be, as the support must be “material” and Chevron deference does not apply in this situation.
Another argument is that this interpretation of material support with no exception for duress or de minimus support is contrary to the non-refoulement obligation of the 1976 United Nations Protocol Relating to the Status of Refugees (the “Protocol”), to which the United States is a party.
Department of Homeland Security (DHS) has announced that it will initiate a wave of denaturalizations during 2019, which is provided for in ICE’s 2019 fiscal year budget. According to ICE’s FY2019 budget, their investigations are focused on citizens from “special interest countries”, i.e., Muslim countries, for example, Pakistan.People who have naturalized to U.S. citizenship can be denaturalized, or stripped of their citizenship, in two ways. First, the U.S. Attorney’s Office may bring criminal charges against the individual under 18 U.S.C. 1425, for unlawful procurement of citizenship. Anyone convicted of violating 18 U.S.C. 1425 automatically will have their U.S. citizenship revoked by the same federal court hearing the criminal case. However, there is a ten-year statute of limitations on criminal prosecution for illegally obtaining citizenship.
Second, the Office of Immigration Litigation (OIL) of the Civil Division of the Department of Justice may bring civil proceedings in federal court for denaturalization under 8 U.S.C. 1451(a). There is no time limit on bringing a civil denaturalization suit, and so a person could have been a U.S. citizen for decades prior to the commencement of denaturalization proceedings.
Once a person is denaturalized, they revert to being a permanent resident. However, their troubles are not over. ICE will then initiate removal proceedings against them and try to deport them.
In addition to the US Attorney’s Office and the US Department of Justice, ICE and USCIS are involved in investigations of possible denaturalization cases too. ICE attorneys from the Central Revocation Unit (CRU) of the Office of Principal Legal Advisor (OPLA) also pursue denaturalization cases and coordinate with the US Attorneys Offices and OIL.
ICE has decided to take the lead in denaturalization. In 2009, the Obama administration realized that in certain cases, fingerprint cards had not been digitized and checked against DHS records before naturalization. The Operation Janus program was created to compared those fingerprints against prior files, and ICE discovered that some people had removal orders, and created a list of cases for denaturalization.
According to the fiscal year 2019 ICE budget, ICE currently has 887 leads for the Operation Janice program, and they are focusing on denaturalization of individuals from “special interest countries”, meaning Muslim. More recently, ICE has created another new program, Operation Second Look, and are pulling naturalization files after running algorithms to try to select cases. There are now about 700 cases that they want to review for denaturalization.
In 2017, the Trump administration also created a new office within USCIS focused on denaturalization. The Trump administration as taken money away from the adjudications budget, about $207 million, and diverted it towards their denaturalization project. This loss of funding has caused a slow down in adjudications of naturalization cases, cause money being taken for other reasons.
DHS plans to hire 300 additional agents to investigate and prepare denaturalization cases, as well as 212 support staff.
In Maslenjak v. U.S., 582 U.S. __(2017), the Supreme Court held that not any misrepresentation is enough to convict someone of illegal procurement of naturalization in violation of 18 U.S.C. 1425(a). The government must prove that the defendant’s illegal act played a role in his or her acquisition of citizenship. Thus, violations of law that had nothing to do with obtaining citizenship cannot be used to convict someone of illegal procurement of U.S. citizenship.