H-1B for Computer Programmers

Posted on by

The Immigration and Nationality Act allows an employer to petition for an H-1B visa on behalf of an alien beneficiary if the alien beneficiary will be working in a “specialty occupation.”  To qualify as a “specialty occupation” a job must require “theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

An employer bears the burden of proof to demonstrate that its open position requires specialized knowledge and a bachelor’s degree. Traditionally, USCIS has regarded the Occupational Outlook Handbook (OOH) as the foremost authority on job educational and skill requirements (even in spite of an OOH disclaimer that the publication is not intended for legal usage); however, an employer may submit additional supporting documentation. The evidence, in its totality, must demonstrate that a particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. If the USCIS finds the evidence insufficient it will issue a Request for Evidence (RFE) or simply deny the H-1B petition.

For several decades employers have faced varying degrees of difficulty in obtaining an H-1B visa for computer programmers and information technology (IT) professionals. Under the Trump Administration, the USCIS has cracked down on computer programmer H-1B visa applications and increased the burden of proof required for a visa to be approved. In 2017 approximately 50,000 less IT related visas were issued than in 2016.

Employers should provide additional documentation to support that a computer programmer position meets the H-1B visa qualifications. Additionally, employers may need litigation to obtain a proper ruling.

 Why are Computer Programmers in Question?

 In 2000, the NSC Director stated that the computer programmer occupation was in “transition,” which means the educational requirements and job duties were changing and establishing a clear line on H-1B eligibility was difficult.  Despite almost two decades having passed, the computer programmer occupation is still considered to be in “transition.”

The OOH states most computer programmers have a bachelor’s degree, but some employer’s hire computer programmers with an associate’s degree or no college education. Furthermore, most computer programmers have a bachelor’s degree in a computer-related field.

The level of difficulty associated with the job duties are often reflected by employer’s requiring a higher level of education. For example, a computer programmer that enters code may not be required to hold a bachelor’s degree, but a computer programmer that analyzes and repairs code may. Continue reading →

Matter of A-B- and Women Facing Domestic Violence

Posted on by

Introduction

In June 2018, former Attorney General Jeff Sessions overturned an immigration court’s decision and issued a precedential decision that makes it even more difficult for  asylum seekers to obtain asylum protection in the United States by citing fear of domestic abuse. This is also the case for asylum seekers who make asylum claims based on their fear of gang violence.

The Attorney General has authority over all immigration courts and delivered a speech, which was followed by a USCIS memo, that outlined when USCIS officers should use their discretion in asylum cases.

If a foreign national is being persecuted because of his or her race, religion, nationality, membership in a particular social group, or political opinion, then he or she may apply for asylum.

An applicant can apply for asylum without having to pay a government filing fee, but the process can take months or even years.  As a result, foreign nationals can enter the United States illegally and remain in the United States while their asylum case is pending.  This “loophole” in the immigration system has often been a criticism of the Trump Administration.

Immigration officers and judges often struggle with defining “membership in a particular social group” and the definition as changed over time.  An Obama-era precedent granted asylum to a woman based on her membership to a group that feared returning home due to domestic violence.

Asylum is becoming increasingly difficult to obtain (see USCIS and immigration court statistics), and now Mr. Sessions believes the Obama-era interpretation defines membership in a particular social group too broadly and misconstrues the proper legal application.

The Attorney General’s intervention is not uncommon and his predecessors as far back as the 1990s “have weighed in on the use of the particular social group in asylum cases.” While not unprecedented, the intervention does make it much more difficult for individuals in this context to obtain asylum due to persecution from private actors.

Continue reading →

Unlawful Presence for Students

Posted on by

Introduction

The start of a new academic year will bring thousands of foreign nationals to the United States to study at one of the nation’s many rigorous academic institutions.  The United States derives many benefits from allowing foreign nationals to study at its colleges and universities, including but not limited to, diversified classroom discussions and enriched collegiate clubs and extracurricular activities.

Unlike their American colleagues, foreign national students must maintain lawful  presence and abide by all of the United States Citizen and Immigration Services (USCIS) requirements.  Traditionally, if a student failed to meet the requirements of his or her visa, then unlawful presence would not begin to accrue until the day after the USCIS made a formal finding that a nonimmigrant status violation had occurred or an immigration judge ordered the student excluded, deported, or removed, whichever came first.

However, the USCIS has announced in its May 2018 memorandum a change in its policy for calculating when a student will begin to accrue unlawful presence. Beginning August 9, 2018, a student will begin to accrue unlawful presence the moment the student’s F-1 status has expired or the student’s admitted purpose has ended.

Continue reading →

Third-Party Worksites

Posted on by

Introduction

An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency.  For a more detailed discussion of the first requirement please see our previous articles.

The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary.

Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store.

However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite.

It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary.

Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner.

However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.

Continue reading →

Responding to H-1B Request for Evidence in the Trump Era

Posted on by

An H-1B visa is an employment visa for professional workers in specialty occupations that have at least a bachelor degree or equivalent.  Throughout the H-1B visa’s history, the United States Citizens and Immigration Services (USCIS) has been concerned that employers will abuse the H-1B visa by displacing American workers with foreign Responding to H-1B Request for Evidence in the Trump Era counterparts at lower wages.

In 2009 and 2013, the Obama Administration sought to reform the H-1B visa after a study conducted in 2008 revealed that 21% of H-1B visas were granted to applications that contained fraudulent or technical violations.  In the 2008 study, 42% of H-1B visas granted to computer professionals contained fraudulent or technical violations.

Even after the Obama Administration’s changes abuse and fraud remain a concern of the H-1B application process. In 2016, two lawsuits were filed against Disney, which alleged Disney and its staffing companies colluded to use the H-1B visa to replace American workers with foreign workers at lower wages through a series of layoffs.  The suits were dismissed in federal court after a judge found that the plaintiffs had failed to present enough evidence that would reasonably demonstrate that Disney had engaged in the alleged activity.

When Donald Trump took office he vowed to place American workers and American jobs first and end the exploitation of American labor and capital.  President Trump’s Buy American and Hire American executive order illustrates his administration’s will continue to pursue policies to carry out his campaign promises.

As part of President Trump’s Buy American and Hire American mantra his administration took another look at the H-1B visa in 2017 and altered what the USCIS may consider as evidence when reviewing an H-1B visa application.

This article explores the new evidentiary standard that will be applied, the industries most likely to be affected by the Trump administration’s new standard, and what information must be demonstrated to obtain an H-1B visa under this new standard.

Continue reading →

Employers Impacted By Immigration Changes In Trump’s First Year

Posted on by

The January 30, 2018 State of the Union became another chapter in President Trump’s ongoing campaign for America to serve its own needs and its people first.  Embodying this ideology, President Trump declared that, “we will follow two simple rules: Buy American and Hire American.”

During his first term, those two simple rules have dramatically changed the immigration process into the United States.  Although Congress has yet to pass immigration reform, President Trump has issued several executive orders that have overhauled the United States immigration system. Trump’s first year has made it more difficult for employers to sponsor or hire immigrant workers and following Trump’s State of Union employers should not expect it to become easier to hire immigrant workers during the Trump’s tenure.

Travel Ban

The President has the power to implement a travel ban if the President finds that the entry of any foreign national or class of foreign nationals would be “detrimental to the interests of the United States.”  In his first year, President Trump signed three executive orders that placed restrictions on travel and immigration into the United States by certain foreign nationals from specific countries.

The first two executive orders were enjoined – given no legal effect – by U.S. district and circuit courts.  However, the Supreme Court has never ruled on the legality of either because the President had replaced each order with an updated version.

Trump’s third travel ban was signed on September 24, 2017, and imposes travel restrictions for certain foreign nationals as a result of a worldwide review conducted by Secretary of Homeland Security. The new travel ban is different than the previous two because it is tailored to the specific conditions in each country, rather than being a blanket restriction on all immigration from a specific country. For example, business and travel visas were suspended indefinitely for immigrants from Chad, but all visas, other than student visas, were suspended for immigrants from Iran.

Trump’s third travel ban has been enjoined by district courts in Maryland and Hawaii, but the Supreme Court allowed the third travel ban to go into effect while travel ban is litigated further. Lower courts have expressed concerns that President Trump’s campaign rhetoric suggests that any travel ban, regardless of how the travel ban is phrased, would be implemented specifically to target and limit Muslim immigration. In contrast, the Trump administration has argued that the third travel ban does not target Muslims, but rather, is based on the Secretary of Homeland Security’s worldwide review.

Continue reading →

International Entrepreneur Rule Gets a Second Chance

Posted on by

(Read more about International Entrepreneur Rule in the earlier article here)

On December 1, 2017, in National Venture Capital Association v. Duke the United States District Court of the District of Columbia ruled the United States Citizenship and Immigration Services (USCIS) violated the Administration Procedure Act’s (APA) notice and comment rulemaking requirements when it decided to delay the international entrepreneurial rule (IER) without giving the public adequate notice or time to comment on its decision to delay the rule.

On January 17, 2017, three days before the end of the Obama administration, the Department of Homeland Security (DHS) published the final IER rule to allow foreign nationals who meet certain entrepreneurial standards to apply for parole, which is temporary admission into the United States to grow new companies. The rule was to set to go into effect on July 17, 2017, 180 days following its publication.

A Change In Administrations

On January 25, 2017, President Trump issued an executive order that required all agencies to reexamine its parole admission policy and ensure it was not being abused. On July 11, 2017, six months after the President’s executive order and six days before the IER became effective, the USCIS announced it would be delaying the IER until March 14, 2018 to review its compliance with the President’s executive order. The USCIS did not engage in the rulemaking process when it delayed the IER.

International Entrepreneur Rule Overview

Prior to the IER, the Secretary of Homeland Security had the authority to grant parole admission into the United States on a case-by-case basis if a foreign national had been subject to a national disaster or the foreign national could provide sufficient evidence that his or her admission into the United States would provide a significant public benefit. However, Congress had never defined a “significant public benefit” and the IER established what criteria the USCIS should use in determining if an entrepreneur would be considered a “significant public benefit.”

Then, according to the National Venture Capital Association decision, meeting the requirements did not automatically grant admission to an applicant; but rather, streamlined the agency’s [DHS] treatment of entrepreneurs. In forming the IER, the DHS had initially undergone the notice and comment proceedings under the APA, made significant changes, and delayed the final implementation of the rule until July 17, 2017, to ensure the USCIS had adequate time to allocate the resources necessary to implement the new rule without sacrificing any of its current services.

However, under President Trump’s executive order IER did not go into effect on July 17, 2017, and a lawsuit followed.

Continue reading →

National Interest Waiver

Posted on by

Employment-based visas that lead to permanent residence in the U.S., or a green card, have several different preference groups with different eligibility requirements. Most of these preference groups require a foreign national to have a full-time job offer in the United States and the filing of a labor certification application with the Department of Labor to obtain an official certification from the government agency that there is a shortage in the U.S. workforce before being able to proceed with the green card process. A foreign national generally cannot sponsor themselves.  Employers may often be hesitant to sponsor a foreign national because the process can be expensive and time-consuming.

Fortunately, there are a few exceptions.  Under the second employment-based preference category, EB-2, a foreign national would not need a specific job offer or labor certification if he or she were eligible for a National Interest Waiver (NIW). To be eligible, a foreign national must demonstrate they are (1) a member of a profession holding an advanced degree (doctorate, masters, or bachelor’s degree with five years of progressive work experience); or (2) a foreign national of “exceptional ability” whose employment will be of the “national interest.”

There are evidentiary requirements for demonstrating a foreign national’s area of work will be of national interest, but neither Congress nor UCSIS has defined national interest in an attempt to allow the law to be as flexible as possible.

Continue reading →

Diversity Visa Lottery

Posted on by

Overview

The Department of State distributes 50,000 visas through a lottery system to foreign nationals from countries with historically low rates of immigration to the United States. The Diversity Visa (DV) is meant to promote a diverse immigrant population and is not available to foreign nationals from “high admission” countries. A country is considered “high admission” if 50,000 or more people born in that country have immigrated to the United States under family or employment-based visa categories in the past five years.

The Department of State divides the world into six regions: Africa, Asia, Europe, North America, Oceania, and South America, Central America and The Caribbean. Not every country within a given geographic region satisfies the DV requirements and foreign nationals should check the latest eligibility list before applying.  The Department of State’s website lists all eligible countries and any changes for each lottery cycle.

An applicant may be residing in any country, including the United States, at the time of applying for a DV. Further, foreign nationals residing in the United States under temporary immigration status are not disqualified from entering the lottery. Consequently, a foreign national residing in the United States on a temporary visa may obtain a permanent residency through the DV lottery without having to return to his or her native country.

At the time this article is written any foreign national who meets the requirements may submit an application for the 2019 DV visa between October 3, 2017, and November 7, 2017. Each year the application period occurs once a year, for a one-month period. Any applicant who submits more than one entry in a given year will be disqualified for that year.

Once the deadline has passed, a computer randomly selects 50,000 individuals from all the applicants. No single country may obtain more than seven percent of the available DVs in a given year.

While submitting an application to the DV lottery is free, if a foreign national win the lottery he or she must pay all visa application fees. If the foreign national is ineligible to enter the United States for any reason (i.e. health or security reasons) the foreign national will be denied a DV and all visa application fees will not be refunded.

Continue reading →

Applying for a Fee Waiver

Posted on by

Overview

The U.S. Citizenship and Immigration Services (USCIS) receives a substantial portion of its funding through application fees but these fees can be a substantial barrier to certain foreign nationals and permanent residents, or green card holders. The USCIS recognizes the potential hardship and offers a fee waiver for certain application fees if an individual is able to demonstrate that he or she is unable to pay the filing fee.

All applications and forms are free and made available on the USCIS’s website. Included in the forms section of the USCIS’s website is the current filing fees. Application filing fees are updated periodically and any changes will be made available on the agency’s website. The fees were last updated on December 23, 2016.

A fee waiver – Form I-912 – is currently available for 31 applications, including Form N-600, Application for Certification of Citizenship; Form N-400, Application for Naturalization; and Form I-765, Application for Employment Authorization. Form I-912 and which forms qualify for a fee waiver are made available in the instructions PDF on the USCIS’s website.

Fee Waiver Requirements

 A fee waiver is available for an eligible form if the applicant can demonstrate any or all of the following: (1) the applicant, his/her spouse, or the head of the house household is currently receiving a means-tested benefit; (2) the applicant’s household income is at or below 150% of the Federal Poverty Guidelines at the time of filing; and (3) the applicant is currently experiencing financial hardship that prevents him or her from paying the filing fee.

Continue reading →