This newsletter has been prepared on behalf of clients and friends of the Law Offices of Robert Nadalin. It provides general information on recent changes in immigration and emigration related laws and should not be considered as a substitute for specific legal advice. For case specific advice, we recommend retaining legal counsel. To add or remove an e-mail address from our system, or for any other questions or comments regarding this newsletter, please e-mail: firstname.lastname@example.org .
An announcement about the future of the DACA program is expected soon, possibly on Tuesday, September 5. DACA (Deferred Action for Childhood Arrivals) is a program introduced by President Obama to provide a temporary work card to children brought to the U.S. without documents. In contrast to laws, treaties, and regulations, which take time to repeal, exit, or change, executive policies such as DACA can be changed with the stroke of the President’s pen. If a significant change to the DACA program is announced, persons now in that status should consult with an immigration attorney about how any changes in the DACA program will affect them.
Important information for individuals to consider if DACA ends can be found on the ILRC (Immigrant Legal Resource Center) website at: https://www.ilrc.org/sites/default/files/resources/if_daca_ends.pdf
Local Office Interviews Will Soon Be Required for All Employment Based I-485 Adjustment of Status Applications
USCIS recently announced that it will begin requiring in-person interviews at the local office for employment based I-485 adjustment of status applications. See: https://www.uscis.gov/news/news-releases/uscis-to-expand-in-person-interview-requirements-for-certain-permanent-residency-applicants . The I-485 application is the last step of the lawful permanent residence process (green card process) for most Company sponsored foreign workers. Until recently, most of these applications were adjudicated remotely by a regional service center within 6-12 months of filing. The result of the new change will likely be a much longer process for I-485 applicants, possibly by a factor of additional years. This in turn may create additional work load increases for USCIS including a need to process many more EAD work card and AP travel authorization extension applications.
If the number of applications completed each year by USCIS drops significantly, this could advance the green card quota “priority dates” to allow a greater number of persons to start the application process. However, the total time that they are in queue will likely be much longer. The priority date numbers affect how many persons may begin the I-485 process each year, and are supposed to allow for the filing of a sufficient number of applications each year to allow USCIS to meet the yearly quota of immigrant visas (aka “green cards”) allocated under the current law.
H-1B Cap Petition RFEs
Pursuant to President Trump’s “Buy American, Hire American” initiative, a large number of RFEs (Requests For additional Evidence) have been issued in connection with H-1B cap petitions filed under the FY2018 quota. The executive order (E.O. 13788) can be found on the USCIS website at: https://www.uscis.gov/laws/buy-american-hire-american-putting-american-workers-first . Although only Congress can change the law, USCIS has begun asserting that Level 1 salaries are for pre-entry level positions that are not sufficiently specialized or complex to meet the H-1B standard. These RFEs also assert in the alternative that if the positions are specialized and complex, a Level 2 or higher wage would be required and that a case linked to a Level 1 wage would have been improperly filed. This is a significant departure from the policies and practices of the previous 27 years, and is not a correct interpretation of the current law.
The regulation found at 8 CFR § 214.2(h)(4)(i)(B)(2) allows USCIS to “determine if the application involves a specialty occupation as defined in section 214(i)(1) of the Act” but does not give USCIS any authority to challenge the wage level certified by the U.S. Department of Labor (DOL) in the underlying LCA (Labor Condition Application) which supports the H-1B petition filing. If USCIS believes that DOL did not correctly certify the LCA or that DOL administrative follow up or an investigation is required, USCIS should refer the matter to the DOL for further action. DOL administrative case law confirms that the wage level determination process to confirm the correct level is complex and does not involve latching onto any single aspect of job description in an attempt to push for a higher wage level, but instead requires a review of the job duties as a whole and in the context of employer’s overall business. The applicable DOL guidance materials, including checklists for determining the appropriate wage level, provide guiding but not controlling factors. See: USDOL Administrative Case No. 2014-LCA-11, Quintanilla v. Myriad RBM, Inc., February 10, 2015. It is also noted the in the PERM labor certification process DOL has a well developed body of law that functions to assign wage levels based on the Company’s objective minimum requirements for the job offered, and that the sponsored employee’s personal qualifications have no influence on the applicable salary level. Like the H-1B process, the focus is on what qualifications the job itself requires. A person cannot obtain an H-1B visa for having a PhD. Instead, the sponsor’s job itself must require at least a bachelor or higher degree in the context of a specific body of highly specialized knowledge. This focus on meeting the threshold level of knowledge for a specific specialty is also supported by a Federal court’s holding in: Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012).
Immigration attorneys throughout the U.S. have been working to polish arguments in support of these RFE responses, and also taking steps to build case records in the event any cases later need to be litigated in Federal court. Hopefully that will not be needed, but we are proceeding cautiously as we work to complete the RFE responses.
State Department Update
In 2017 the “visa stamping” application process has become more difficult at some U.S. consulates abroad. Reasons include staffing shortages because of department reorganization as well as requests by some countries to reduce the number of U.S. staff at post. The implementation of the President’s Buy American, Hire American executive order, which is intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests,” has also let to more restrictive processes at some posts.
With the holiday season fast approaching, many foreign workers have made plans to visit friends and family abroad during the year-end holidays. Workers who plan to obtain a new visa stamp while outside of the U.S. should plan in advance. U.S. consulates abroad observe both U.S. holidays and local holidays and many of their staff also take vacations at this time. These circumstances, coupled with the other changes noted above, can extend processing times by a factor of 2-3 weeks or even longer. To accommodate any unforeseen delay, it is recommended that the foreign worker coordinate with his or her work supervisor to have a back-up plan in place so that work in the U.S. can continue without meaningful interruption in the event the foreign worker’s return from abroad is delayed. Information regarding visa application procedures at specific U.S. consulates abroad can be found at: http://www.state.gov/ .
USCIS Premium Processing Update
USCIS offers expedited processing called “premium processing” for many petition types. Under its premium processing program, USCIS promises a case response within 15 calendar days pursuant to the payment of a $1225 premium processing expedite fee. Earlier this summer premium processing was suspended for regular track cap, extension, and change of employer H-1B petitions. Although no official notice has been released yet, through liaison channels USCIS has indicated that it is hoping to restore a premium processing option for these cases from the start of October. Any official update regarding this proposed change should be confirmed on the USCIS website prior to implementation. The web link can be found at: https://www.uscis.gov/forms/how-do-i-use-premium-processing-service .
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