USCIS Proposes New Rule on H-1B Registration Fee Requirement

On Wednesday September 4, 2019, USCIS published a proposed rule in the Federal Register that would require payment of a $10 fee from all petitioners filing a H-1B cap-subject petition. The rule would apply to each registration submitted for the selection process, and is expected to be applicable to 2021 fiscal year cap filings. The 30-day public comment period is now open, with comments due 10/4/19 via mail or the Federal eRulemaking Portal: www.regulations.gov.

The new fee, which was excluded from the original January 2019 final rule that introduced the new online registration requirement, is expected to result in a marginal increase in costs for selected selected petitioners, and a cost savings for both unselected petitioners and the government. This is one in a series of steps toward implementing the new electronic registration system for H-1B filing. Details remain to be released about the new process, which will be in place for the April 2020 H-1B filing season.

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

BREXIT: Anticipated Changes Under New PM Boris Johnson

Mr. Boris Johnson was elected as the new PM of the UK in July 2019 after former PM, Theresa May, stepped down. Much of the angst surrounding the UK in light of the PM switch has been how Brexit would be handled.

Previously, under PM Theresa May, the UK was set to leave the EU on March 29, 2019. Theresa May’s government had plans in place in the event of a no-deal Brexit allowing free movement of EU nationals until January 2021 and offering an EU Settlement Scheme. After many failed attempts to pass a resolution, the UK leave date was delayed to October 31, 2019 with, or without, a deal.

Former PM Theresa May’s plans in the event of a no-deal Brexit included free movement until January 2021 and a grace period where EU nationals could apply for settled status up until December 31, 2020. The Government’s previous plans in the event of a no-deal Brexit, however, are now being significantly altered by the PM Boris Johnson’s Government signifying that a no-deal Brexit would include ending free movement immediately on October 31, 2019, and that the UK will absolutely leave no matter what. The Government further notes that it does not have an immigration plan in place on how a new system will impact EU national residents before and after exit day– this poses a chaotic scenario for several UK-based companies with international employees from the EU given that there are only 73 days left until the October 31, 2019 deadline.

As of now, there are no signs as to what a new immigration system would look like that will replace free movement, leaving significant unclarity as to how UK-based companies will move EU national employees into the UK after the deadline. The deadline to apply for settled status is still December 31, 2020. However, there will be many EU nationals traveling after October 31, 2019 who will not be able to establish that they have been a resident in the UK before exit day (a key factor and benefit of “free movement”). In addition to the new changes, it is unclear whether new EU arrivals will be able to work in the UK after October 31 meaning UK businesses will have no idea whether they can recruit EU nationals for openings after the exit date. The UK Home Office indicates that new plans will be announced very soon.

In light of this scenario, UK employers are encouraged to have their EU national employees, and their family members, apply for settled status under the EU Settlement Scheme. Those who have lived in the UK for extended periods of time may be able to apply for Permanent Residence or even citizenship, avoiding the requirements of the new system.

We at Graham Adair Inc. are dedicated to helping businesses support employees through Brexit and are closely monitoring the volatile Brexit changes. Please contact us at Graham Adair Inc. as we are closely connected with our UK Local Office and are open to answering questions.

USCIS and DHS Publish Final Rule on Public Charge Grounds for Inadmissibility

On Wednesday August 14, USCIS and DHS published in the Federal Register the new final rule amending the regulations by which DHS determines admissibility on “public charge” grounds. Specifically, this is a change in the rule and a clarification of the definitions of what constitute a “public charge” and “public charge benefits.” The rule will go into effect at 12:00 a.m. Eastern Time on October 15, 2019, and cases filed prior to this date will be adjudicated based on the previous guidelines. The new rule will not affect currently pending cases. If any foreign nationals have received assistance from one of the programs designated below, they should advise our office at the initiation of any nonimmigrant or immigrant process so we can evaluate if the receipt will pose a problem.

The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The agency considers the following programs as grounds for inadmissibility:

  • Supplemental security income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • State general relief or general assistance
  • Medicaid programs covering institutionalization for long term care
  • Nonemergency Medicaid
  • Supplemental nutrition and assistance program (SNAP, formerly food stamps)
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based rental assistance
  • Public Housing

The rule will also affect those in nonimmigrant status if they have received any of the aforementioned public benefits above the designated threshold (12 months within any 36-month period). If they do receive such benefits, they will no longer be eligible for an extension or change of state.

The final rule does not include receipt or potential receipt of the following benefit programs as grounds for inadmissibility:

  • Emergency medical assistance
  • Disaster relief
  • National school lunch or school breakfast programs
  • Foster care and adoption
  • Head Start
  • Child Health Insurance Program including Medicaid for Aliens under 21
  • Earned Income Tax Credit or Child Tax Credit
  • Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children
  • Public benefits received by certain international adoptees and children acquiring U.S. citizenship
  • Medicaid for pregnant women
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)

Benefits received by the applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge. The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person.

USCIS will exercise its discretionary authority, in limited circumstances, to offer an otherwise inadmissible foreign national the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

If a foreign national has received any of the public benefits listed above, we urge them to contact our office so that we can advise on the potential impact and the best possible course of action.

Staffing company compensates employees for H-1B program violations after investigation

Login Consulting Services Inc., a Southern California-based staffing and recruitment company, has paid $58,815 after an investigation by the Department of Labor found the company to be in violation of the H-1B program. Investigators discovered that the company had illegally charged visa fees to the employee, “benched” the worker, and paid another worker below the guaranteed hourly rate established in the Labor Conditions Application they had submitted.

“Employers who wish to hire guest workers must fully familiarize themselves with the H-1B foreign labor certification program. The program is there to help American companies find the highly skilled talent they need when there is a shortage of U.S. workers,” said Wage and Hour Division District Director Kimchi Bui, in Los Angeles, California. “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for lawabiding employers, and ensure no one is being paid less than they are legally owed.”

Per the Department of Labor, “U.S. Citizenship and Immigration Services has established an email address dedicated to enable individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations, and other relevant information about potential H-1B fraud or abuse. Individuals also can report allegations of H-1B violations by submitting Form WH-4 to the Division.”

Fairness for High-Skilled Immigrants Act Passes in the U.S. House of Representatives.

On Wednesday, July 11, 2019, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 with a vote of 365 to 65. The Bill was introduced by Representative Zoe Lofgren, Representative Ken Buck and 112 other House sponsors and seeks to eliminate per-country numerical limitations for employment-based immigrants and to increase the per-country numerical limitation for family-sponsored immigrants from 7% to 15%.

Currently, the wait for an employment-based green card and a family-based green card for non-immediate family members depends on an individual’s country of birth. This has resulted in significant backlogs for countries with higher numbers of employment-based green card applicants, including India and China, and for countries with higher numbers of family-based green card applicants, including the Philippines and Mexico.

Proponents of the Bill believe that reducing the green card backlog will ensure that the U.S. continues to attract the world’s top talent and will allow close relatives of U.S. citizens from oversubscribed countries to emigrate to the U.S. a lot sooner.

Senator Rand Paul introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act on the same day that the House passed the Fairness for High-Skilled Immigrants Act. Senator Paul’s proposal will, among other things, eliminate the per-country numerical limitations for employment-based immigrants, increase the number of employment-based green cards available each year, and grant spouses and children of E, H, and L visa holders work authorization. Senator Paul’s Act does not contain any family-based immigration provisions.

We will continue to monitor developments and share updates as more information becomes available.

USCIS has Updated Policy Manual in Regard to Services Provided to Public

The United States Citizenship and Immigration Services (USCIS) has updated its policy manual regarding services to the public, including general administration of certain immigration benefits, online tools and providing up-to-date information.

Notable updates include revisions to “case specific information,”  “expedited treatment” and “service request procedures.” The American Immigration Lawyers Association (AILA) has issued a 13-page response to the USCIS policy manual update.

In matters involving “case specific information,” the AILA takes issue with some field offices requiring mobile devices to be shut off. These mobile devices often allow access to case specific information. See excerpt from the AILA regarding this matter below.

“USCIS might consider a general policy requiring that all electronic devices be switched to “silent” or “vibrate” when inside a facility and further establish criteria for permissible use of such devices during interviews and appointments, such as accessing case specific information, conducting case related research, and responding to an urgent or emergency situation.” Sec. h paragraph 3.

USCIS currently has vague guidelines regarding “expedited treatment” matters. Section g. of AILA’s response would like USCIS to provide more specifics on scenarios where expedite requests will be granted. Not only would this provide clarity to applicants, but it would also cut down on requests, which in turn would save USCIS a lot of manpower in sifting through inordinate amounts of non-qualifying expedite requests.

In regard to matters involving “service request procedures,” the AILA document provides requests to improve and expedite services provided by USCIS.

Graham Adair will continue to provide updates if and when additional changes are made.

USCIS Looks to Decrease N-400 and I-485 Processing Times

The United States Citizenship and Immigration Services (USCIS) will administer a nationwide policy to decrease discrepancies in Form N-400 (Application for Naturalization) and Form I-485 (application to register for permanent residency or adjust immigrant status) processing times based on immigrant location.

USCIS has experienced an increase in processing times since the end of 2015, due to a large increase in forms during 2016 and 2017. Both years were projected to see a decrease in forms, however 2017 receipts were up 15.6% from 2016, and 2016 receipts were up 25.5% from 2015. The increased filings didn’t affect field offices equally, thus resulting in processing time discrepancies between field offices.

As a matter of reference, Nebraska Service Center Form I-485 processing times are 10-13 months compared to 15.5 to 49.5 months at the Texas Service Center. Most of the I-485’s are adjudicated in these two regional centers. The first number in both ranges is the median time it takes to complete cases and the second number is the time it takes to complete 93% of cases.

As caseloads are being shifted between field offices to reduce processing times, the USCIS could schedule applicants to appear for interviews at field offices outside of their usual jurisdiction. Applicants could also receive an interview appointment notice or other notices, such as Request for Evidence, from a field office out of their usual jurisdiction. These changes to caseload won’t affect where the applicants attend their biometrics appointments. USCIS will still direct applicants to the nearest application support center, and they should follow the instructions on any notices they receive from USCIS.

H-1B Visas Revoked In Immigration Crackdown

The government has revoked the H-1B visas of several skilled foreign workers after an incident involving Virginia-based health care staffing company Comtrix Solutions Inc. The staffing company was set to place the skilled foreign workers in American companies at the time of application but, after six months of waiting, the staffing company clients had to move on to hire other employees, and the foreign workers were left without employment. The government subsequently accused Comtrix Solutions of fraud and revoked the H-1B visas.

This round of revocations is part of U.S. Citizenship and Immigration Services’ (USCIS) recent crackdown on the use of H-1B visas, as revocations have almost doubled from 7.4% of all petitions in 2017 to 15.5% in 2018. In April, employers submitted 201,011 petitions for 85,000 H-1B visas available starting in October.

President Trump’s “Buy American and Hire American” 2017 executive order has led to an increase in H-1B investigations and stricter employer policies. As of late, the crackdown has specifically targeted consulting companies.

Additionally, a new policy was rolled out in February of 2018 requiring employers to provide additional documentation, including every contract and work site the worker will be working at, for the entire duration of the H-1B visa.

Attorney Jonathan Wasden has filed a lawsuit disputing the fraud charge against Comtrix Solutions, asserting the situation would only be fraud if the company knew the worker placements were knowingly false at the time the petitions were filed. This case will play an important role in the future of H-1B visas and potential revocations.

H-4 Spouses of H-1B Visa Holders Face Work Ban

The federal government expects to publish a rule this month that will remove the authorization to work from around 100,000 spouses of H-1B visa holders. Husbands and wives of H-1B visa holders have been allowed to work since 2015.

First proposed by Homeland Security in 2017, the rule has been repeatedly delayed. The White House’s Office of Information and Regulatory Affairs has yet to issue approval of the rule, but has until June 20 to review it. Publication of the rule triggers a public-comment period, which can last from a typical 30-60 days to upwards of 180 days.

News outlets that have spoken with H-4 holders have expressed uncertainty as to whether they will remain in the U.S. or leave, along with their families. In addition to public opinion, the rule may face legal challenges, as pushback can be expected from the many companies that benefit from the H-1B program and face the loss of top talent.

We will continue to monitor updates of this development.

Brexit Update: Visa-Free Travels From UK to EU

In light of Brexit, the EU has rolled out and approved an immigration-friendly draft law that allows UK nationals to travel to the EU without the need for a visa. The EU approved the draft law on April 04, 2019 in the midst of Brexit discussions. The approved draft law exempts UK nationals from needing a visa to enter the EU for short visits for up to ninety days, in any 180-day period, for business, tourism or to visit relatives or friends. The law does not, however, provide work authorization nor does it permit stays in the EU for longer than 90-days.

This law adds the UK to the list of countries whose nationals are exempted from needing to apply for a short-term visa. Looking into the future, after January 01, 2021, UK nationals will need to apply for ETIAS travel authorization before traveling to the EU. This law will take effect once the UK leaves the EU and is dependent on reciprocity, thus, if the UK requires EU nationals to apply for a visa, then the EU will reintroduce visa requirements for nationals of the UK seeking entry into the EU.

The application of the draft law extends to all EU member states, except Ireland, and extends to the non-EU Schengen countries, Iceland, Liechtenstein, Switzerland, and Norway. UK and Ireland nationals will continue to benefit from the 1949 Ireland Act which provides visa-free travel to Ireland and the UK, even if the UK leaves the EU with or without a deal.

We will continue to monitor updates of this development to determine whether the draft legislation will be formally adopted and published in the Official Journal of the EU.

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