On Tuesday, April 18, 2017, President Trump signed a new Executive Order that will likely impact the H-1B process in the coming months and years. The language of the Order instructs the Secretary of Homeland Security, Secretary of State, Secretary of Labor and the Attorney General to propose new rules and guidance in regards to the H-1B program to:
What does this mean for our clients? For now, there will not be an immediate impact. There was no specific time frame put on these proposed changes, so it is hard to anticipate how quickly the government will move on this. Further, for many U.S. based employers, this could result in an increase in availability of H-1Bs and the elimination of the H-1B lottery. It is not clear what would replace the lottery or how they would deal with demand for H-1Bs that exceeded the congressionally mandated numerical limits on the H-1B program. If reforms are aimed at the large Indian outsourcing businesses it could result in a significant reduction in demand for H-1B visas on an annualized basis.
From what has been telegraphed by the administration, it seems they’ll be targeting low wage and entry level positions. There will be no immediate impact as any changes will have to go through an administrative rule making process at a minimum, and some changes would likely have to go through Congress. We anticipate that the intent of the Executive Order is really directed at the large IT outsourcing companies that use significant numbers of H-1Bs every year.
Graham Adair is closely monitoring any new developments, and we will release information as it becomes available. Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, check back here for further updates and follow us on twitter for real-time updates as they become available.
On March 31, 2017, USCIS issued a policy memorandum rescinding the “Guidance memo on H1B computer related positions” set forth by Terry Way, former Nebraska Service Center Director, on December 22, 2000.
The March 31, 2017 Policy Memo supersedes the 2000 memo which USCIS deemed to no longer be an accurate articulation of USCIS policy.
In particular, the Agency took issue with the 2000 memo’s reasoning that bachelor’s degrees are commonly required for the programmer position and the programmer position generally qualifies as a specialty occupation.
Terry Way based the analysis in the memo on the 2000-2001 edition of the Occupational Outlook Handbook, unpublished decisions of the Administrative Appeals Office, and the fact that computer related positions were in transition at the time that the memo was published.
USCIS calls the 2000 memo obsolete for the following reasons:
- Computer related positions are no longer in transition and have evolved significantly since the 2000 memo was issued
- Individuals with only an associate’s degree may enter programmer occupations and it is improper to conclude that USCIS generally considers the position of programmer to qualify as a specialty occupation
- An entry level computer programmer position would not generally qualify as a position in a specialty occupation
- Petitioners cannot solely rely on the Occupational Outlook Handbook, and must provide probative evidence to establish that the Beneficiary meets at least one of the criteria listed in 8 CFR 214.2(h)(4)(iii):
- (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- (2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
- (3) The employer normally requires a degree or its equivalent for the position; or
- (4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
What this means for our clients:
More of the same. Although the 2000 memo was rescinded last week, USCIS has been moving away from the memo’s guidance for some time now. It is good that USCIS is clarifying its stance on the issue of specialty occupations in the programming field to promote uniform adjudications of H-1B petitions across service centers, but the standards set by H-1B regulations remain in place. All specialty occupations for H-1B purposes require at least a bachelor’s degree or its equivalent in the specific specialty.
Chad Graham was recently quoted in Trisha Thadani’s San Francisco Chronicle article “Big tech firms pay H-1B workers more than prevailing wage.” In the article, Chad discusses how growing tech companies utilize the H-1B visa, as well as the shortcomings of the current H-1B system.
To read the full article, click here.
Chad Graham was recently asked by ProPublica to comment on the breakdown in premium processing to expedite H-1B visas. According to Chad, the suspension of premium processing could prevent foreign workers renewing H-1Bs from traveling internationally while their applications are pending, even if their occupations require it.
To read the full article, click here.
Sam Adair was recently quoted in Ethan Baron’s Silicon Beat article “H-1B visa holders can now use S.F. startup’s AI-powered bot to switch jobs, escape ‘indentured servitude.’” In the article, Sam comments on the H-1B transfer capabilities of Visabot, a San Francisco startup’s visa processing bot.
Click here to read the full article.
Sam Adair’s article “SXSW Forced To Clarify Its Immigration Stance” was published in Forbes on March 9, 2017. In the article, Sam discusses how the recent nationwide focus on immigration issues brought attention to a controversial clause in South By Southwest’s (SXSW) performance contract. According to Sam, while the tone of the clause may appear threatening, it could actually help international artists who may be unfamiliar with U.S. immigration policies.
To read the full article, click here.
On Monday, March 6, 2017, the President signed a new Executive Order on immigration. This new Executive Order repeals the previous Executive Order of January 27, 2017 and replaces it with the following key provisions that will potentially impact our clients.
Today’s Executive Order will prohibit admission to the United States for a period of 90 days beginning March 16, 2017, citizens of the following six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq, which was previously designated, has been removed from this list. This travel ban applies to individuals who are:
- Outside of the U.S. on the effective date of the order (March 16, 2017),
- Did not have a valid visa at 5:00 p.m. eastern standard time on January 27, 2017, and
- Do not have a valid visa on the effective date of this order.
The order specifically exempts the following categories of people:
- Lawful permanent residents of the United States;
- Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
- Any foreign national holding a document other than a visa that is valid on the effective date of this order or issued at any time thereafter that permits travel to the U.S. (such as an advance parole document);
- Any dual national of a country designated (Iran, Libya, Somalia, Sudan, Syria, and Yemen) who travels to the U.S. on their passport from a non-designated country;
- Any foreign national who has been granted asylum, any refugee who has already been admitted to the United States, or anyone granted coverage under the Convention Against Torture; or
- Anyone traveling on a diplomatic or diplomatic-type visa.
This Executive Order provides for waivers to be decided by U.S. consular officers during the visa application process at U.S. consular posts abroad. It provides the same discretion to Customs and Border Protection officers interviewing applicants at a port of entry. The waivers will be decided on a case-by-case basis upon successful demonstration that denying entry would cause undue hardship, and that entry would not pose a threat to national security and would be in the national interest.
The categories under which one may apply for waiver are as follows:
- The applicant has previously been admitted to the United States for work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to re-enter the United States to resume that activity, and the denial of re-entry during the suspension period would impair that activity;
- The applicant has previously established significant contacts through entry to the United States but is outside the country on the effective date of this order for work, study, or other lawful activity;
- The applicant seeks to enter the United States for business or professional obligations and the denial of entry during the suspension period would impair those obligations;
- The applicant seeks to enter the United States to visit or reside with a spouse, child, or parent who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
- The applicant is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
- The applicant has held employment with the United States Government (or is an eligible dependent of such an employee);
- The applicant is a landed Canadian immigrant who applies for a visa at a location within Canada;
- The applicant is traveling as a United States Government-sponsored exchange visitor; or
- The applicant is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA.
What this means for our clients: If you are currently traveling on a passport from one of the designated countries and are outside of the U.S., and if you have a valid visa that was issued prior to January 27, 2017, you should be able to continue your travel. If your visa was issued after January 27, 2017 and is currently valid, you should return to the U.S. as soon as possible and before March 16, 2017.
If you have questions about whether you are covered under this travel ban, please reach out to the attorney overseeing your case or Sam Adair (firstname.lastname@example.org) for advice on next steps.
Graham Adair is closely monitoring any new developments and we will release information as it becomes available. Please check back to our website for further updates and follow us on twitter @grahamadairlaw for real-time updates as they become available.
Sam Adair was recently quoted in Marco della Cava, Elizabeth Weise and Jon Swartz’s USA Today article “Trump targets tech’s H-1B visa hiring tool,” Matt Drange’s Forbes article “Why Silicon Valley Is So Nervous About H-1B Reform,” and Caroline O’Donovan’s BuzzFeed News article “Top US Tech Companies Already Pay Some Immigrants Over $100,000.” In each piece, Sam discusses what Donald Trump’s proposed executive order for the H-1B visa could mean for Silicon Valley and other leaders in tech that often rely on the program to hire skilled workers.
Click here to read the USA Today article
Click here to read the Forbes article
Click here to read the BuzzFeed News article
On Friday January 27, 2017, President Donald Trump issued an executive order on immigration that will significantly impact some of our current and past clients. This executive order, “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” put a 120 day ban on refugee admissions from all countries. More significantly for our clients, this order also suspends the immigrant and nonimmigrant entry into the U.S. of nationals from Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen for 90 days. Furthermore, the order calls for implementing uniform screening procedures, such as in-person interviews, for all visa applicants.
For the time being, this means that any person who is a citizen of Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen should refrain from traveling outside of the U.S. There is an extreme likelihood that if you are from one of these countries, and even if you have a green card, valid visa, or advanced parole document, that you will be barred from re-entering the U.S. for 90 days.
This is an extremely disappointing move by the new administration given the many significant and positive contributions that so many of our clients, who will be impacted by this executive order, make to this country and our economy.
This is an extreme measure and the advice against traveling cannot be overstated. If you are currently outside of the U.S. you should contact the attorney overseeing your case or Sam Adair for advice on next steps. Graham Adair is closely monitoring any new developments and will release information as it becomes available. Please check back here for further updates and follow us on twitter @grahamadairlaw for real-time updates as they become available.
The U.S. Dept. of Homeland Security has released a final rule amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs. The final rule is effective January 17, 2017. The final rule clarifies and improves many policies and practices. It seeks to provide greater flexibility for high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (i.e. EB-1, EB-2, EB-3) to seek promotions, accept lateral positions, or change employers. It also increases certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers.
Some important policy clarifications and improvements include:
- H-1B extensions of stay under AC21. A qualifying labor certification or Form I-140 petition is not required to be filed 365 days before the 6-year limitation is reached in order for the individual to be eligible for an exemption under section 106(a) of AC-21; instead, the labor certification or Form I-140 would need to be filed at least 365 days before the day the exemption would take effect.
- Per country and worldwide limits. If the Visa Bulletin that was in effect on the date the H-1B petition is filed shows that the individual was subject to a per country or worldwide visa limitation, DHS may grant 3-year extension (beyond the 6-year limitation), even if the immigrant visa is available when the petition is adjudicated. In contrast, current regulations only allow an H-1B nonimmigrant to extend status in 3-year increments (beyond the 6-year limitation) if the immigrant visa unavailability exists at the time the petition is adjudicated under section 104(c) of AC21.
- I–140 Revocation. An approved I-140 petition will remain valid if a request to withdraw is received or the petitioner terminates its business 180 days or more after either the date of the petition’s approval or the date of filing of an Adjustment of Status (I-485) application.
- Automatic EAD Extensions. If the renewal is timely filed, EADs will be automatically extended. Currently, only F-1 students applying for an EAD renewal based on STEM extension benefit from automatic EAD gap-fill work authorization for timely filed extensions. However, this gap-fill provision will now be extended to other classes of EAD benefits.
- 10-day nonimmigrant grace period. Nonimmigrants have 10 days at the end of an authorized validity period, to depart the U.S. or take other actions to extend, change, or otherwise maintain lawful status.
- 60-day nonimmigrant grace period. High-skilled workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications, have a 60-day grace period (including those whose employment ceases prior to the end of the petition validity period) to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer.
- Employment Authorization for Spouses and Children of I-140 Principals. Where a person’s priority date under EB-1, EB-2, or EB-3 is not current due to per country immigrant visa limits, spouses and qualifying children may apply for work authorization, so long as they can provide “compelling circumstances.”
As mentioned, these changes are not yet in effect. We will provide additional guidance as more information on the implementation become available.