H-1B Cap – Still Time
USCIS will begin accepting petitions for Fiscal Year (FY) 2016 H-1B visas from April 1, 2015. The soonest these visas can be used for work authorization will be October 1, 2015, which is the start of FY 2016. While there is still time to prepare a cap subject H-1B petition for filing with USCIS by the target filing date of April 1, the case file for any new H-1B petition subject to the cap should be opened within the next week or two in order to meet the filing deadline. The case pre-filing steps take a minimum of 7-10 business days, with most of that time taken up by the Department of Labor’s LCA (Labor Condition Application) process through which the required H-1B wage is confirmed. It is with a high degree of certainty that the FY2016 H-1B cap is predicted to be reached in the first 5 days of the filing season. USCIS will conduct a lottery through which visa numbers are assigned randomly among the petitions received in the first 5 business days of the filing season.
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals.
Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap, or who need to obtain a work authorized visa sooner than October 1, may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.
In a speech made on November 20, 2014, the President announced that he would take action on certain immigration items that fall under the purview of his executive immigration authority, including a new DAPA program and an expansion of the current DACA program. DACA (Deferred Action for Childhood Arrivals) is a program that allows persons brought to the U.S. before the age of 16 and no later than to January 1, 2010 to obtain a work card and a 3 year reprieve from being deported. The program does not provide lawful permanent residence or a formal legal status. President Obama recently announced that he would extend the DACA term from 2 to 3 years, and also remove the age cap that had required persons to apply before age 31. DACA only applies to persons with no lawful status prior to November 20, 2014. The President also recently announced a similar program for parents of children who are lawful permanent residents (green card holders) or U.S. citizens, called DAPA (Deferred Action for Parental Accountability). This program would also provide a work card and a reprieve from deportation. Applicants would be required to document continuous presence in the U.S. since January 1, 2010 and may not have any convictions for a serious criminal offense.
On Monday, February 17, 2015, Federal District Court Judge Andrew Hanen, of Brownsville, Texas entered an injunction halting the DAPA and DACA expansion programs indefinitely. The previous version of DACA remains in place. Next, the case will move to the 5th Circuit Court of Appeals, and probably at some point the U.S. Supreme Court. In the interim, the DAPA and expanded DACA programs remain in a state of limbo. Because administrative resources will probably be reallocated to shore up the DAPA and expanded DACA proposals, this will probably cause an indefinite delay on other proposals, including EAD work cards for H-4 dependents and early adjustment of status filings for persons with approved immigrant petitions who are waiting for their quota priority dates to become current to facilitate the last step of green card processing.
The most popular form of the EB-5 immigrant investor visa allows a foreign investor to obtain lawful permanent residence (green card) status by investing $500,000 in an approved regional center and documenting the direct or indirect creation of full time employment for 10 U.S. workers. As a program that has brought billions of dollars of investment to the U.S. and which requires no tax payer funding, the program has been considered a win-win-win for taxpayers, investors, and U.S. workers. More recently, however, the way the program is administered and the methodologies applied in how investment and employment benefits are counted have become more controversial politically. Canada recently eliminated a similar program because it was felt that the program was too burdensome administratively and underwhelming in terms of results, implying that solid development projects would have moved forward anyway without immigrant investor funding. In January of 2015, EB-5 opponent Senator Charles Grassley became the Chair of the Senate Judiciary Committee, replacing Senator Patrick Leahy, a long time supporter of the program. Senator Grassley has previously commented on his website that “there appear to be some major flaws [with the EB-5 program] that need fixing.” He will now be in a position to directly affect the “fixing.” [ www.grassley.senate.gov .] The EB-5 program has also started to draw attention because approximately 85% of the investors come from mainland China.
In addition, the Securities and Exchange Commission has moved to sanction two dozen immigration attorneys for accepting EB-5 program referral fees. Under the current law’s broad definition of what constitutes a security, EB-5 investments are deemed to be a security and only licensed brokers may accept a referral fee. [ See: www.bloomberg.com See also: www.sec.gov ]
The law authorizing the EB-5 regional center program is set to expire in September of 2015. Unless the political winds change soon, or state and local governments become more vocal in their support of the program, significant changes, and possibly the end of the regional center EB-5 program may come to pass soon.
Persons denied a visa at a U.S. consulate abroad are often surprised to learn that there is no meaningful appeal of that decision. Although there are some limited administrative maneuvers that can be made to request that the adjudicating consular officer take a second look at a “mistake,” there is no appeal as a matter of right.
In a case of Kerry v. Din, which is currently before the U.S. Supreme Court, 73 law professors have submitted an amicus curiae brief (amici curiae for Latin scholars) arguing that there is no law that supports the position that consular decisions denying visas are inherently or absolutely unreviewable. [Additional information about the case can be found at: www.supremecourt.gov/ .] In support of the case Respondent, Ms. Din, the professors have argued that at a minimum U.S. Federal courts do have the authority to review the decisions of consular officers to confirm: 1) that the officer’s decision does not violate the law; 2.) that the officer’s decision is based on a bona fides factual basis; and 3.) that minimally fair procedures have been used in making the decision. In recent times, courts have tended to apply a “general sentiment” of deference to the decisions of consular officers, but a growing number of administrative abuses have left many rejected applicants with no choice other than attempting litigation in Federal court.
The State Department’s own regulations require the reviewing officer to give the applicant a paper explaining the reason for a visa denial. The more conscientious posts sometimes comply with this regulation by giving the applicant a pre-printed check list of denial reasons. With the addition of a few case specific facts, this may be enough to satisfy the notice requirement of basic due process. But many officers do not even comply with that basic step. At many consulates, it is the current reality that decisions are often made without giving applicant a paper citing any specific legal reason for the visa denial. Even for those applicants afforded a written denial, the basic due process requirement of providing the applicant with “an opportunity to be heard” is often lacking in the current process.
For example, some processes require the consular officer to forward documents to another government office for additional processing, as is the case for certain waiver requests submitted to the Admissibility Review Office (ARO). At this time, officers routinely cull the filings to remove a substantial portion of the supporting documentation prior to forwarding to application to the other offices for final adjudication. When a waiver request is denied, due process concerns are raised with regard to whether or not the process was fundamentally unfair, and as to whether or not the applicant was given a fair chance to have the case heard.
As an additional example, it has become increasingly difficult to have any direct contact with the consulates because they hide behind a wall of contractors, who in turn claim limited or no ability to contact the consulate regarding certain case problems. For example, we are aware of an applicant who has been waiting more than 6 months to receive a decision on the last step of an immigrant visa (green card) application. The consulate’s website explains that all case inquiries must be sent through a government contractor that assists the consulate in visa processing. The following response was received in connection with an inquiry placed through the contractor: “We are not consular officers and as the time it takes to adjudicate an applicant’s case is at the sole discretion of the consular section we cannot provide you any information regarding when your personal documents will be turned over to courier. The average wait time is 5-7 business days which does not include weekends or U.S. or national holidays. Please note that this is only an average and not a guarantee as all applications are unique.” With a stated “average” processing time of 5-7 business days, what is the appropriate step after a patient wait of 5-7 months? It appears that the consulate’s process was not designed to provide a safety catch for any cases that fall out of the regular track processing queue.
The State Department steadfastly continues to stand by the position that there can be no administrative review of the decisions of consular officers. If the Respondent in Kerry v. Din prevails, the State Department may become buried in tsunami of law suits. To avoid that and to better manage its oversight procedures of its own officers and provide at least a basic level of due process to visa applicants, it should implement an administrative review procedure, as most other executive agencies have done. In this way, persons seeking an additional level of review may be required to exhaust administrative review procedures before proceeding to Federal court. This would also be a better way for the Department to insure a more consistent and fair application of law at its consulates abroad. In attorney liaison meetings, the Department has often cited a lack of resources as a reason for why it conducts its business in the way it does. In noting the high filing fees that apply to a number of immigration processes, including $2325 for many H-1B applicants, $4325 for some H-1B applicants, and $6230 for persons seeking approval for an immigrant investor regional center, it should be reasonable for the Department to calculate the appropriate fee amount required to cover its administrative costs of hearing administrative appeals. Voluntarily implementing this kind of system would provide applicants with at least a minimum level of due process, while also serving to uphold by example American principles of fundamental fairness in the countries where the State Department’s officers serve.