Biggest Developments in the Business Immigration Law

The Business Immigration Environment is Becoming Increasingly Restrictive for Employers and Foreign National Employees

The H-1B Classification

One of the most significant business immigration developments in 2015 was the precedential decision of Matter of Simeio Solutions, issued on April 9, 2015, by the Administrative Appeals Office. This decision overruled previous H-1B guidance issued by the U.S. Citizenship and Immigration Services, and instituted a new requirement that employers must file amended H-1B petitions whenever an H-1B employee’s job location moves outside of the metropolitan statistical area (MSA) covered by the previous H-1B petition. Recognizing that this was a radical change, theUSCIS issued final guidance in July 2015 and announced that it generally would not pursue enforcement actions against employers that did not file amended petitions for location changes that occurred prior to the issuance of Simeio; in this guidance, however, the USCIS warned that location changes after April 2015 required an amendment.

The effect is to significantly increase the administrative burden and expense associated with H-1B employees, thus making U.S. employers less competitive if they are unwilling to relocate an H-1B employee due to the added burden and expense of filing a new H-1B petition. Furthermore, inadvertent lapses in this new requirement can result in status violations that can have draconian consequences.

The F-1 Foreign Student Classification

In August 2015, a federal district court in Washington, D.C., issued a decision that invalidated the regulation that established the USCIS’s STEM (science, technology, engineering, mathematics) OPT extension process because the government had failed to comply with applicable notice and comment requirements. See Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, Civil Action No. 14-529 (D.D.C. Aug. 12, 2015). Under the OPT program, F-1 students are eligible to obtain work authorization for up to 12 months. Pursuant to the STEM OPT extension program, students can extend this work authorization by an additional 17 months if they graduate from a U.S. university with a degree in designated STEM fields, and they work for an E-Verify employer.

Recognizing that many employers and foreign national employees would be unfairly impacted by an immediate invalidation of the STEM extension program, the court established a deadline of February 2016, by which the current STEM regulation would be invalidated unless the USCIS properly promulgated a new regulation. To save the program, the U.S. Department of Homeland Security published a notice of proposed rulemaking on Oct. 19, 2015. In addition to reauthorizing the basic STEM OPT extension process, the NPRM added new requirements to the current rule. Some may benefit employers and foreign nationals, such as the proposed increase of the OPT STEM extension period from 17 months to 24 months. The NPRM also would maintain the automatic 180-day work extension that results upon the timely filing of a STEM OPT application and more clearly define “STEM field.”

The NPRM also imposes additional obligations on the sponsoring employer. For example, employers seeking to employ an F-1 STEM candidate and extend their OPT employment authorization will be required to develop a mentoring and training program for each sponsored OPT employee, and then secure approval of the sponsoring school’s designated student officer (DSO) before the USCIS approves the extension.

While the NPRM has promise, there is no guarantee that it will be finalized in the form proposed. Also, there is significant concern whether the necessary notice and comment period will be completed before the district court’s deadline in February 2016. If not, F-1 foreign nationals will lose their STEM OPT extensions authorized by the current rule, forcing employers to terminate valuable employees. Such a result will disrupt not only the lives of these foreign nationals, but also the operations of the employers that depend on them. If this occurs, the nation will lose a significant opportunity to fill badly needed STEM positions with tremendously talented individuals.

The L-1B Classification

On March 24, 2015, the USCIS also issued additional guidance for the often embattled L-1B specialized knowledge visa category. This guidance resulted from the immigration-related executive actions that President Obama announced in November 2014 to address various ongoing problems with the national immigration system. The White House pointed to a five-fold increase in L-1B denials and requests for evidence by the USCIS as evidence of the need for change. In the new guidance, the USCIS sought to provide its examiners with better rules for evaluating and adjudicating L-1B petitions.

Tasked with providing a clearer explanation of the term “specialized knowledge,” the USCIS guidance seeks to define the differences between “special” and “advanced” knowledge, the building blocks of a specialized knowledge case. Under this guidance, special knowledge is distinct or uncommon knowledge in comparison with that generally found within a particular industry or employer. Advanced knowledge is that not commonly found within the relevant industry, but also greatly developed or further along in progress, complexity and understanding than that generally found within the employer company. To assist its adjudicators, the USCIS also provided a nonexhaustive list of factors to consider when deciding specialized knowledge cases; these factors consolidated prior USCIS policy guidance, while also adding new criteria.

This guidance represents the latest effort by the USCIS to bring consistency to L-1B specialized knowledge adjudications. Prior memos and extensive agency training efforts have proved unsuccessful, so it is hard to be optimistic about this latest effort. A significant portion of the business immigration community has expressed concerns that the guidance imposes additional, more restrictive requirements, without providing examples of what cases should satisfy the specialized knowledge requirements. In this context, the list of factors to consider when making specialized knowledge determinations may merely provide adjudicators more leeway to issue RFEs and denials. USCIS adjudicators retained broad authority to request additional information, even in the face of persuasive employer statements. Given this uncertainty, the verdict on the value of this guidance will likely not arrive until more statistics addressing post-memorandum L-1B RFE and denial rates are available.

Consular Nonreviewability

On June 15, 2015, the U.S. Supreme Court issued its decision in Kerry v. Din, No. 13–1402, 576 U.S. ___ (2015), which upheld the doctrine of consular nonreviewability. Under this doctrine, a decision by a U.S. consular officer to deny a visa application is not subject to judicial review. This decision affirms the right of consular officers to deny visa applications without citing any factual basis for a decision; rather, the denying officer may refer solely to the statutory provision on which the denial rests. This decision is even more problematic in light of the DHS’s announcement that it is working on a plan to scrutinize social media posts as parts of its visa review process. Basing a visa denial on social media evidence raises concerns due to the inherent unreliability of this information. Under Kerry v. Din, a consular officer would not even have to explain what social media (or any evidence at all) formed the basis for a denial. As a result, unsuccessful applicants now have no recourse following the denial of an immigrant visa by a U.S. consular officer.

Developments that Have Improved the Climate for Business Immigration

H-4 Spousal Employment

Under certain circumstances, dependent spouses of H-1B visa holders may now apply for work authorization in the U.S. On Feb. 24, 2015, the USCIS announced that, as of May 26, 2015, it would begin accepting applications for employment authorization from qualified H-4 dependents. The spouse must be in H-4 status and married to a foreign national in valid H-1B status. To qualify for employment authorization, the H-1B spouse either must be the principal beneficiary of an approved I-140 petition, or have been granted H-1B status under AC21 sections 106(a) and (b) (essentially meaning that the H-1B visa holder has extended his or her H-1B status past the six-year limit on the basis of a pending lawful permanent residence application delayed by quota backlogs).

Preliminary Green Card Applications

In concert with the U.S. State Department, the USCIS also has made efforts to ease the backlog for filing green card applications by updating the process for determining visa availability. Specifically, each month, the DOS visa bulletin now posts two distinct charts for each visa preference category: (1) application final action dates, indicating the dates when applications may be adjudicated, and (2) dates for filing applications, indicating the earliest dates when foreign nationals are eligible to file certain permanent residence applications (AOS). This change cannot expedite approval of permanent residence applications that are pending due to quota backlogs; however, it does offer relief by allowing foreign nationals to receive immigration benefits associated with those applications faster. This includes: employment authorization and permission to travel; spousal work and travel authorization; and increased employment options due to green card portability. Additionally, the new system may improve the accuracy of predictions regarding future backlog movement.

AOS Portability

On Nov. 20, 2015, the USCIS also issued a draft policy memo that, when finalized, promises to provide long awaited guidance on how to determine whether two jobs are “same or similar” for purposes of AOS portability. The guidance clarified that USCIS examiners would reference the standard occupational classification (SOC) codes published by the U.S. Labor Department to analyze whether proposed positions qualify for AOS portability. In response to this proposal, concerns have been raised that the USCIS may rely too heavily on SOC codes for this analysis. Overall, however, the business community appears encouraged that there will finally be some guidance on how the USCIS will evaluate portability claims involving career progressions or changes to new employers. When the final memo issues, we hope to see improved predictability and consistency, both of which are critical to this area.

What Does this Mean for 2016?

Employers in 2016 are likely going to face increasingly long odds in getting cases selected in the annual H-1B cap selection process. While it is impossible to predict with precision the chances for success, information from past years does not bode well for the 2016 lottery. For the fiscal year 2014 lottery, the USCIS received approximately 172,500 petitions within its first week of filing. In 2015, that number grew to nearly 233,000 petitions. This represents about a 35 percent increase in petitions received between these two years. The 2016 H-1B lottery will likely involve even more petitions. Smart employers will plan early for alternative immigration options for important employees who may be cap casualties.

To be sure, the business community will continue to receive a potpourri of welcome and unwelcome developments until the next election. Just last week, Congress agreed on a new budget, which extended the EB-5 immigrant investor, Conrad 30, Special Immigrant Religious worker and E-Verify programs through September 2016. It remains to be seen if government will continue to make the immigration climate more favorable to the business community. If so, this likely will come at a cost of more regulations with restrictive and cumbersome requirements. Employers, therefore, must continue to make immigration compliance an important component of their risk management policies.
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