As many of you know, the most common H-1B professional worker visa category is subject to an annual quota/ cap per fiscal year (with some exceptions) and historically, the demand for initial H-1B numbers significantly exceeds the numbers available. So last year, employers and foreign nationals welcomed a new H-1B registration rule, whereby employers seeking to file H-1B cap-subject petitions had to first register electronically with the U.S. Citizenship and Immigration Service (USCIS) during a designated registration period. And at the end of the initial registration period, USCIS received more registrations than needed to reach the H-1B cap, so it randomly selected, through a computer generated lottery a sufficient number of registrations who were then notified to submit their H-1B cap petition filings to USCIS. Continue reading “Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?”
A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”
The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading “USCIS gets flexible on I-9 Process, but Employers must stay Vigilant”
U.S. Consulates around the world are gradually resuming routine nonimmigrant and immigrant visa services, after their suspension in mid-March due to the COVID-19 pandemic. The Department of State has confirmed that each Consulate will begin visa services on its own timeline, in light of the particular conditions of that country. Applicants should check the specific U.S. consulate website for most up-to-date information, available through the following website http://usembassy.gov. This means that applicants may soon be able to schedule or reschedule their visa appointments. It is also possible that the Consulate may automatically reschedule the applicant’s prior appointment. Importantly, Consulates continue to accept requests for emergency visa appointments through their scheduling service at https://ais.usvisa-info.com/. If you have specific questions, talk to your immigration lawyer, as the situation is fluid and subject to change.
On June 25, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced its plans to furlough over 13,000 of its staff, which will impact its current operations and mission. The USCIS Deputy Director for Policy Statement explained that if Congress does not provide the much needed funding, the furlough will being on August 3, 2020 and will last through the end of Fiscal Year 2020. The agency explained that this is due to the “ effects of the coronavirus pandemic”, that it has “a crippling budget shortfall that requires assistance from Congress.”
If the Congress does not provide additional funding to the agency over the course of the next month and USCIS furloughs its staff, the processing of pending cases will be significantly delayed. Moreover, USCIS may stop accepting new applications or may put them on hold until October 1, 2020. If your work permit or status document expires soon, you should work with you immigration counsel to see if your application/ petition can be submitted in the next month, before the expected furlough on August 3, 2020. The timely filing of an application for immigration benefit within the U.S, will allow you, in certain circumstances to remain in the U.S, legally and continue working, while the case is being adjudicated. Employers should work with their counsel to prioritize the cases for their employees who might be most adversely affected by these additional challenges. In these unprecedented times, it is critical to not only get information from credible sources, but also seek advice from immigration attorneys who can help you assess your specific immigration situation.
U.S. Consulates around the world are beginning to reopen and start scheduling visa appointments and it is critical for applicants to be well prepared for their interviews. Recently, the Department of State revised its Foreign Affairs Manual (FAM), to include a new, heightened adjudication standard for blanket L-1 applications. As detailed in our prior blog, the revised provision directs the Consular Officer to deny the L-1 visa if he/she “has any doubt” whether an applicant has established their L visa eligibility and if the “questions or issues cannot be resolved during the interview.” So the visa applicants should be prepared to confidently, concisely and directly provide the relevant information in responding at the interview. We recommend that employees, who would be applying for blanket L visas at U.S. Consulates abroad, work closely with their immigration counsel and prepare for their visa interviews. Oftentimes, Consular Officers have only a few minutes to review the documents and question the applicant. Therefore, the applicant’s preparation for the interview is critical for a successful visa adjudication.
Here are some tips for applicants preparing for their L-1 visa interview:
- Make sure to read carefully and thoroughly the L visa application package, especially the company support letter explaining the relationship between the companies, the job offered, and how the applicant qualifies based on her/his specialized knowledge or managerial/ executive experience.
- Applicants should be familiar with the content of the application packet but should not try to memorize it or use fancy complex legal verbiage.
- Applicants should be prepared to explain, in their own words, what makes their transfer to the US business critical.
- Applicants should be able to highlight their accomplishments as they relate to their specific employment within the company.
Applicants should be able to give direct, on point and truthful answers to the following common L visa interview questions:
- Why was he/she selected for this job?
- Isn’t there a US worker with the U.S. employer who can do the job?
- What is his/her specialty?
- What managerial decisions does he/ she make?
- Who will the applicant be working for?
- Who does the applicant report to? Who will the applicant report to in the U.S.?
- Will anyone report to the applicant in the U.S.? Be prepared to state names and titles of direct reports.
- If the applicant is coming to the U.S. as a specialized knowledge employee and will be working at a third party site, who at the U.S. company will control his/her work? It is important to know the name and title of his/her manager in the U.S.
- What company specific experience or knowledge does she/he have?
- How long does it take to acquire this special knowledge?
- How long will the applicant remain in the US? This is especially important if he/she would be coming to the U.S. on an intermittent basis, over a period of time.
- What are his/her plans after the US assignment ends?
This list is not exhaustive and the Consular Officer’s questions will be more case specific at the interview and applicants should be well prepared to respond, with the assistance of their counsel. The attorney can explain the legal framework and requirements for the highly scrutinized L intra-company transfer non-immigrant visa, which will help him/her in responding to the questions at the visa interview to ensure the successful case outcome and the visa issuance.
U.S. Citizenship and Immigration Services (USCIS) plans to reopen its offices on or after June 4, 2020. The USCIS temporarily suspended its in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus . USCIS field offices will send notices by mail to applicants and petitioners with rescheduled appointments and naturalization ceremonies impacted by the temporary closure.
The USCIS plans scheduling fewer appointments and interviews to ensure social distancing, allow time for cleaning and reduce waiting room occupancy, as well as to hold some interviews over video in separate rooms at an agency office. The USCIS will also begin holding naturalization oath ceremonies, but the ceremonies will be shorter and with limited exceptions, only the candidates will be permitted to attend to limit exposure.
Additionally, people entering USCIS facilities must wear face masks covering their mouths and noses and cannot arrive for interviews more than 15 minutes early or with too many people. Individuals should not come to their appointments if they are feeling sick, and there will be no penalty for rescheduling for that reason. USCIS also encourages applicants to bring their own pens.
USCIS’ planned reopening comes as the agency, funded by application fees, faces a budget shortfall in response to a drop in application requests during the pandemic. Earlier this month, the USCIS requested $1.2 billion in emergency funding, which would be repaid by individuals seeking immigration fees in the form of higher application fees.
The immigration regulations allow employees of large, multinational corporations that have an approved L-1 blanket petition, to apply directly at U.S. Consulates abroad for L-1 intra-company transfer visas to the U.S. This has been a fast, cost effective, and often times, easier and preferred method for employees who qualify to be transferred to the U.S. in L-1 nonimmigrant status. The standards for L-1 blanket adjudication at the U.S. Consulate have now been changed and seem to have become even stricter than for those seeking L-1 status through individual petitions filed with the U.S. Citizenship and Immigration Service (USCIS) – their standards have in practice also become tougher over the last 2 to 3 years, despite no recent regulatory changes.
The Consular L-1 adjudication process is detailed in the Foreign Affairs Manual (FAM), which includes a new, heightened adjudication standard for blanket L-1 applications. This is a higher standard than articulated in the prior FAM section, which stated only that the application must be “clearly approvable.” The revised provision directs the Consular Officer to deny the L-1 visa if he/she “has any doubt” whether an applicant has established their L visa eligibility and if the “questions or issues cannot be resolved during the interview.” This is different than the former meaning of “clearly approvable”, which has been the longstanding standard for blanket L adjudications and has been interpreted to mean that the applicant needs to provide clear and convincing evidence of eligibility for the L-1 visa, or documentation that makes the purported fact “highly probably or reasonably certain.”
Interestingly, the term “clearly approvable” remains in the revised FAM section. However, previously, the consular officers could issue an INA 221(g) refusal (aka administrative processing) notice and give the applicant an opportunity to submit further documentation to resolve the issue. The new FAM section may eliminate this practice, as it states that the Officers “must deny the visa” if the issue cannot be resolved at the visa interview. This is especially important, as U.S. Consulates around the world are beginning to reopen, and many potential or existing employees of large U.S. companies would likely be applying for blanket L visas at U.S. Consulates abroad in the coming months. This also means that the applicant’s L-1 visa interview preparation will be crucial for the case outcome, given that this provision allows the Officers to deny the visa if they are not satisfied with the applicant’s answers and the application presented at the interview.
The alternative to consular filing is the filing of an L-1 individual petition with the USCIS, where the adjudication standard is “preponderance of the evidence” – i.e., the petitioner must establish that it is more likely than not – that the beneficiary qualifies for the particular immigration benefit. However, USCIS filings are generally more expensive, take longer and have, as indicated above, been subject to more scrutiny and requests for evidence, including more denials, in the past few years.
Given the anticipated increased scrutiny of blanket L applications at U.S. Consulates and the current USCIS adjudication climate, it is critical for employers and individuals to work closely with their immigration counsel to determine the best filing strategy for success, after careful analysis of the individual case circumstances.
 See 9 FAM 402.12-8, available at https://fam.state.gov/fam/09FAM/09FAM040212.html#M402_12_8_F