Reminder: Time for the H-1B lottery fiscal year 2019 “Buy America, Hire America”

As a follow up from our last alert, please prepare for your H-1B filings. We anticipate that the H-1B will go to lottery. A lottery has been conducted the past four years for H-1B cap filings. During FY 2018, USCIS received 199,000 petitions within the first five business days of April. Similarly, USCIS received 236,000 petitions within the first five business days of April for FY 2017 and 233,000 petitions for the FY 2016 cap season. We also anticipate that the increased frequency of Requests for Evidence will continue in the H-1B category. The USCIS implemented the Executive Order “Buy America, Hire American: Putting American Workers First” resulting in both procedural and substantive changes during last year’s H-1B filing season and throughout the filing of all H-1Bs under USCIS’s de novo review to apply the new policy. We predict that these Requests for Evidence will continue specifically in the area of justifying entry level wages and complexity of duties to sustain that a role qualifies as an H-1B specialty occupation. USCIS will also continue to question if the degree and/or experience qualifies the individual in the specialty occupation.

Deferred Action for Childhood Arrivals (DACA) Program, Still No Protection

The Senate tried to meet the president’s challenge of addressing Deferred Action for Childhood Arrival (DACA) participants in the United States while maintaining a commitment to debate DACA/immigration in exchange for cooperation on last week’s Budget Agreement. Sen. Mitch McConnell (R-KY, Majority Leader) began an immigration week debate in the U.S. Senate. On February 15th, 2018 the Senate failed to pass commonsense reforms that would protect dreamers. The process started with much debate and followed by a series of votes on various immigration packages. Due to Senate procedures, all legislative amendments were required to receive 60+ votes to proceed for Senate consideration. At the end of the process, no package – Durbin for McCain-Coons amendment (DACA + Border), Toomey amendment (Sanctuary Cities), Schumer amendment (Bi-partisan Common Sense Coalition) (DACA + Security/Wall) or Grassley (White House Four Pillars- Wall, Border, Chain Migration, Diversity Lottery ) amendment met the threshold for further action.

The House of Representatives is currently discussing an immigration approach authored by House Judiciary Chairman Bob Goodlatte (R-VA) to determine Republican conference support. Speaker Ryan has stated that if there is majority-of-the-majority support for the Goodlatte approach, the House could move to the bill at the end of March.

March 5 is the deadline the president established in September 2017 for Congress to act on DACA. We continue to monitor this situation.

Two AAO Decisions Find That Entry Level Wages Does Not Prevent a Finding of Specialty Occupation for an H-1B Visa Classification

This year, many of the Requests of Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B Visa Lottery as well as to Amendments/Extensions/Transfer petitions questioned the applicability of an entry level wage being paid to the H-1B worker. Many of these applications were denied when USCIS failed to find that the proffered position was at the level of a specialty occupation as defined by the regulations. Primarily, USCIS found that if the H-1B worker was being paid an entry-level wage, then that application could not possibly be considered a specialty occupation requiring the minimum of Bachelor’s degree in a specific field of study.

The AAO recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018); and Matter of G-J-S-USA, Inc., ID# 1182139 (AAO Jan. 25, 2018), concluding in both cases that Level I wages are not determinate of whether a position is indeed a specialty occupation.

Most importantly, the AAO asserts that there is no inherent inconsistency between an entry-level position and a specialty occupation, and while wage levels are indeed relevant, wages do not by themselves define or change the character of the occupation. Therefore, it is pertinent that employers review their minimum requirements and the DOL Wage Guidance and Appendix D carefully when assigning a wage level on the LCA.

AAO Broadly Construes “Related Entities” in Context of Multiple H-1B Cap Cases for Same Beneficiary.

In a non-precedent decision, the AAO gives a broad interpretation for the meaning of “related entities” in the context of multiple H-1B filings for the same beneficiary. In Matter of S-S- Inc., the AAO found that the absence of a legal relationship between two or more entities does not prevent them being considered “related” for immigration purposes.

The AAO stated that the language in the regulation intended for “related entities” to be construed broadly enough to prevent to multiple companies from acting in concert to file the same petition for the same beneficiary in order to increase the individual’s chances of being selected in the H-1B lottery. The regulation’s primary purpose is to curb abuse of the random selection process: therefore, limiting its reach to only legally related entities goes against the purpose and spirit of the regulation.

Visa Bulletin: Employment –Based Categories Show Some Movement

The US department of State has released the March 2018 Visa Bulletin. The employment- based, first preference category (EB-1) will remain current for all countries. We did have baby step movement in India’s cutoff date in the employment based, second preference (EB-2) category ahead by one week. There was a greater leap for EB-2 for China with a cutoff date advance of more than two months, to December 8th, 2013. India will advance a little better in the employment-based, third preference (EB3) category with a cutoff date advance of one month, to January 1, 2007. EB-3 for China will push ahead by two months, to November 15, 2014. The cutoff date for EB-3 for the Philippines will advance by two months, to May 1, 2016.The cutoff date for EB-3 for the “other workers” category will match those of the standard EB-3 category for all countries, except China. EB-3 for “other workers” for China will advance by one month, to March 1, 2007. In the employment-based, fourth preference (EB-4) category, the cutoff date will remain current for all countries, except Mexico, El Salvador, Guatemala, and Honduras. EB-4 Mexico’s cutoff date will move up by one week, to July 1, 2016. The cutoff date for the other three countries will hold steady at December 1, 2015. For the employment-based, fifth preference (EB-5) category, the cutoff date for China will remain at July 22, 2014. EB-5 will remain current for all other countries of chargeability.

USCIS Expands Credit Card Payment Option for Fees

Starting 2/14/2018, USCIS has begun accepting accept credit card payments for filing most of its forms. The new payment option is available for the 41 fee-based forms processed at USCIS Lockbox facilities. To pay by Visa, MasterCard, American Express or Discover, applicants will need to use Form G-1450, Authorization for Credit Card Transaction (PDF, 260 KB)s.

USCIS Finalizes Guidance on Signature Requirements – With Limited Exceptions, USCIS No Longer Accepts Power of Attorney Signatures

U.S. Citizenship and Immigration Services (USCIS) announced that petitioners and applicants who seek immigration benefits must provide a valid signature on forms submitted to the agency. In an effort to protect and safeguard the nation’s immigration system and those who benefit from it, power of attorney signatures will no longer be accepted. If forms are filed by a corporation or other legal entity, they must be signed by an authorized person.

Please reach out to your Greenspoon Marder LLP Immigration & Naturalization Practice Group attorney for any further questions or concerns.