H-1B

Public Charge Final Rule

February 7, 2020

UPDATE: As of February 24, 2020, the public charge rule has been implemented nationwide after the Supreme Court stayed the limited state-wide injunction in Illinois against the Department of Homeland Security.  At the same time, the Department of State also began implementing its amended public charge rule, and visa applicants from abroad should prepare Form DS-5540 ahead of their visa interview in case the consular officer requests it.  For more information read the announcement on the Department of State's website.    On January 30, 2020 the USCIS announced that it will resume enforcing the Inadmissibility on Public Charge Grounds Final Rule (“Final Rule”) and begin implementing it on February 24, 2020. Foreign nationals who are applying for visas and green cards from within the United States — through a process known as “Adjustment of Status” — will be subject to the Final Rule starting on February 24, 2020.  For visa applicants who are outside of the country, the Final Rule has not yet been implemented. The Department of State announced in October 2019 to delay enforcement until they first finalized their own information collection form and changes that they would need to make to their policy manual. The Final Rule had originally become effective on October 15, 2019 but was enjoined due to litigation after lawsuits were filed to prevent the Trump Administration’s attempt to enforce the Public Charge rule, which was seen as an effort to expand the government’s ability to deny access to green cards or visas for legal immigrants who would become dependent on public assistance. On January 27, 2020, the U.S. Supreme Court lifted the injunction and allowed the Final Rule to go forward, with exception to the State of Illinois, where the Final Rule remains enjoined. This article offers information concerning the Final Public Charge Rule, what factors will be taken into consideration, and which individuals are likely to be affected by the change. Background on the Public Charge Rule Who is subject to the public charge inadmissibility ground? Unless specifically exempted by Congress, all foreign individuals seeking immigrant or nonimmigrant visas abroad are subject to the public charge inadmissibility ground, as are individuals seeking admission to the United States on immigrant or nonimmigrant visas, and individuals seeking to adjust their status. In certain cases, even lawful permanent residents returning from a trip abroad will be subject to inadmissibility determinations, depending on the circumstances. Immigrants who have been exempted by Congress from the public charge ground of inadmissibility include refugees, asylees, and Afghans and Iraqis with special immigrant visas. For a general overview and developments in this area read our previous articles here.

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New H-1B Registration Process and Practical Tips

February 3, 2020

It is no secret that the H-1B application process has undergone a number of changes over the last year, including a switch to a fully electronic registration, paying a registration fee, and changes to the lottery system. This article gives an update of what we know up to this point as well as tips for applying as successfully as possible. For a basic overview of the H-1B visa please read our previous article. Registration Process Registration for the H-1B is now submitted electronically via the USCIS portal (https://myaccount.uscis.gov/users/sign_up).  An attorney may register on behalf of an employer and should be able to manage one or more clients under that account. To register, an employer must pay a $10 registration fee at http://www.pay.gov using a debit or credit card. An employer may batch payments if they prefer to do so. Once submitted, a confirmation will appear in the portal to show that the registration is being processed. The Lottery This year, the lottery is being conducted in reverse order in an attempt to increase the number of United States master’s degree holders obtaining an H-1B visa. While historically, a lottery was first conducted for U.S. master’s degree holders, and those who were not selected were put into the larger “pool” of applicants, this year all applicants will be put into the pool, and any U.S. master’s degree holders who are not selected in the first round will be put into the pool of 20,000 slots geared specifically toward them. If an employee is selected, a notification of acceptance will appear in the portal, along with a notice of confirmation that must be printed and submitted with USCIS H-1B petition filing. The USCIS have said they will create a wait list for those who are not picked, so even after the lottery is conducted, employers should continue checking the portal. In the unlikely event that USCIS does not receive enough applicants, they will reopen registration. At this time, we do not know whether an employer will be notified if their employee has not been selected. The USCIS will provide training and guidance on how to use the registration system for those who would like it.

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H-1B for Computer Programmers

December 22, 2018

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.

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Third-Party Worksites

June 8, 2018

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.

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

April 11, 2018

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.

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H-1B for Nurses

October 31, 2016

Overview Contrary to what one may believe, most Registered Nurses (RN) or Licensed Practical Nurses (LPN) are not regarded by the government as a profession that is qualified for an H-1B visa. The primary reason lies in the educational requirement for a normal RN or LPN position - typically only two years, which fall short of the four-year college degree requirement for H-1B purposes. To be considered for an H-1B visa, one requirement is that the petitioner, or the employer, must demonstrate that the position is a “specialty occupation.” (see “Basic Overview of the H-1B Visa Qualifications and Procedures”). Generally, a “specialty occupation” can be proved by requiring at least a bachelor degree in a specific field or that the industry standard requires a specific bachelor degree. Usually, nurse manager or an advanced practice positions may qualify for H-1B visas since most of these positions require a Bachelor of Sciences (B.S.) in nursing or a Master of Science (M.S.) degree. However, it may be difficult for RNs or LPNs to be considered for H-1B visas since these positions generally do not require a bachelor’s or higher degree. Recent Developments at USCIS In 2002, legacy Immigration Naturalization Service (INS) issued a memorandum providing guidance on this issue and essentially stated that most RN positions would not qualify for an H-1B visa unless the petitioner can establish that the job offered requires at a minimum a college degree. Then, U.S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on July 11, 2014 that superseded the former 2002 INS memorandum. The 2014 memo that was later finalized in yet another memo in 2015 discusses the changing industry for nurses and that employers now increasingly expect nurses to have a college degree; however, the adjudicatory standard that USCIS uses to review H-1B applications for nurses has remained essentially unchanged. Currently, the requirements of H-1B for nursing are as below:  The position is a specialty occupation; The nurse has a degree or equivalent pursuant to H-1B regulations; The nurse has passed the foreign nurses exam (NCLEX-RN); and The nurse has passed the state licensure.When an applicant is required to prove a lawful employment before obtaining the license from the state or local authority, and the license is required to practice the profession, USCIS will approve a one-year H-1B petition for the applicant to work on obtaining the license. However, the request to extend the H-1B visa will be denied if the applicant is ultimately unable to obtain the license. 

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Matter of Simeio Solutions and its Effects on the Relocation of H-1B Workers

October 19, 2015

H-1B visas are nonimmigrant visas granted to bring a limited number of “specialty workers” to the United States each year.  To qualify as a specialty worker, a beneficiary typically needs a degree and/or specialized training.  The H-1B visa program allows American businesses to fill positions with highly-qualified foreign workers while simultaneously protecting the interests of U.S. workers. On April 9, 2015, the USCIS Administrative Appeals Office (AAO) issued its precedential decision in Matter of Simeio Solutions.  (26 I&N Dec. 542, 2015.)  This case has significant implications for H-1B workers and employers, as it changes the obligations of H-1B employers if the location of the worksite changes after the petition is filed.            The Matter of Simeio Solutions In this case, a would-be H-1B worker requested an H-1B visa at U.S. Embassy office in India, and provided information that contradicted the petition filed on his behalf.  The Embassy returned his petition to California for review, and USCIS began an investigation.  USCIS visited the address that was filed as the place of employment, and found the company had moved to a new location.  USCIS issued a Notice of Intent to Revoke (NOIR) the approved H-1B petition.  The petitioner responded with two new work locations and corresponding Labor Condition Applications (“LCAs”) as the places of employment for the beneficiary.  Both locations were outside of the Metropolitan Statistical Area (MSA) of the original petition, and both areas had higher prevailing wages.  USCIS determined (and the AAO later affirmed in the Simeio opinion) that this constituted a material change in the terms of employment which required a new or amended H-1B petition. The details of the case are much less significant that the ultimate holding.  Simeio states definitively that a qualifying relocation of the job of an H-1B beneficiary to a new geographical area of employment absolutely triggers the requirement for a new LCA and an amended H-1B petition.  Precisely what constitutes a “new area of employment” is tricky, but crucial, and will be explored in depth.

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Basic Overview of the H-1B Visa Qualifications and Procedures

September 9, 2015

Background and Basics The H-1B is a non-immigrant visa that allows United States employers to petition on behalf of a foreign national employee to work in a “specialty occupation” on a temporary basis. While the configuration of the visa program has changed over the years, the current H-1B program has been in effect since the Immigration Act of 1990. Qualifications for specialty occupations will be discussed in more detail, but are generally comprised of highly educated workers like scientists, economists, engineers, and doctors. In fact, almost two-thirds of H-1B visa applicants work in the STEM fields (science, technology, engineering, mathematics). These visas do not include workers who may qualify for an O visa (those with extraordinary ability) or P visa (entertainers and athletes). However, fashion models with “distinguished merit and ability,” as measured by prominence in the field, may qualify for H-1B visas. The goal of the H-1B visa program is to enhance the U.S. economy by bringing skilled foreign workers to fill employments gaps in fields or geographical areas where American workers are lacking. Program guidelines stipulate that hiring the foreign worker must “not adversely affect the wages and working conditions of similarly employed U.S. workers” This is one of several provisions of the program designed to protect American workers.

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Students & Cap-Gap Protection

May 22, 2014

Since 2008 an F-1 student who has a pending H-1B application at the United States Citizenship & Immigration Services (USCIS) to change status from a student to a professionally…

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