This lawsuit focuses on the government’s H-1B visa review and processing procedures.  Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections – expected to reach 25,000 visits in 2010 alone – in connection with H-1B cases.  At the same time, USCIS has kept under secret the rules and guidelines related to the review process.   The lack of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.

The lawsuit seeks the release of policy and other agency memoranda regarding H-1B adjudication and enforcement.   Considering the full denial of AILA’s earlier FOIA request, it may be expected that the government will fight this lawsuit to prevent this disclosure.  We will continue providing updates and developments on this case.  Please stay tuned.

On June 25, 2010, the government filed a Memorandum in Opposition to the complaint.    The opposition is mainly based on technical arguments.  However, the government makes also the arguments that its policy-making ability pursuant to memoranda is exempt from the Notice and Comment requirements for rulemaking and that the plaintiffs have failed to show irreparable harm if the preliminary injunction were to be granted and, most interestingly perhaps, that agency memoranda are do not have the force of regulations and are just a suggestion to adjudicators on review criteria.

Subsequently, on July 9, 2010, the plaintiffs filed a reply to the government’s Memorandum of Opposition.  In it, the plaintiffs directly address the government’s arguments, including the argument that the policy memoranda does not constitute a regulation.   Plaintiffs argue that the policy guidance may not explicitly state that it is binding; however, in spirit and practice, it actually is.

We will continue to monitor the developments in this case as it affects a large number of our readers and clients.  Furthermore, the impact of this lawsuit may be broader than just the Neufeld Memorandum as the scope of the case may expand to cover other USCIS memoranda.   If you haven’t already, please subscribe to our free weekly newsletter to receive news and updates on this and related topics.

A formal proposal has been published in the Federal Register and there is a 45-day comment period.   Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007.   For example, an I-130 petition for an alien relative will jump from $355 to $420.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees.   In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase.  We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date.   Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

Procedure and Process

Notification of AC21 Change of Employer
I-485 applicants who wish to change employer and retain their adjustment process pursuant to AC21 are advised to follow the following steps:

1. Identify only one applicant in a single e-mail. E -mails must pertain to applicants whose I-485s have been pending for 180 or more days and who are eligible for AC21 porting.
2. Send an email to: EBUPDATE.Tsc@dhs.gov.
3. On the subject line,  write “EB I-485/AC21.” (Example: EB I-485/AC21)
4. In the text of the email, provide: A-number, old employer’s name and new employer’s name.  Attach a copy of the new employer’s letter of employment. The letter must identify the following information: the new employer, the letter’s author and his/her job title, the applicant’s new job title, start date of new employment, hours per week, salary, and specific description of the duties to be performed.
5. If the applicant has more than one A-number, they should be typed on the same line separated by a “/”. (Example: All 1222333 I A444555666). If there are multiple family members, they should be typed  all on the same line separated by commas. (Example: AIII222333, A222333444, A444555666). You should also indicate which of the A-numbers is that of the principal I-485 applicant / I I-140 beneficiary.

Notification When an Applicant Has Multiple I-140s With Available Priority Dates

Notification When Applicant is Eligible for Cross-Country Chargeability

Applicants who are eligible to obtain chargeability under a different country should follow the following procedure:

1. As with the categories described above,  identify only one applicant in a single e-mail. E-mails should pertain to applicants whose I-485s are currently eligible for processing because the applicant is entitled to receive a cross-charged priority date from a qualifying family member under Section 202 of the Immigration and Nationality Act.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line, write “I-485/ CC”
4. In the text of the email,  provide A-numbers, including the A-number of the I-485 applicant who will acquire the current priority date from the qualifying family member, and the country of cross chargeability. Also include the A-number of the family member who will confer the current priority date.  If the applicant who is to receive the cross-charged priority date has more than one A-number, or if there are multiple family members,  the instructions described above under AC 21 portability apply.

Notification of Case in Need of Transfer

Applicants can also notify TSC of cases which are in need of transfer.  The procedure is as follows:

1. Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another petition relating to the I-485 applicant (such as an I-130) has a visa available.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line,  write “Transfer”.
4. In the text of the email, provide A-numbers or receipt numbers and the office to which the I-485 should be transferred. If the applicant has more than one A-number, or if there are multiple family members please follow the instructions described above under the AC 21 portability instructions.

Conclusion
TSC’s pilot notification program is a great idea; however, its success will depend on how well TSC will respond to legitimate notifications send to them via the new email address and how well TSC will advise applicants who use the notification tool of the status and progress of their request.  We will continue monitoring this pilot program and using it with selected clients who can benefit from it and will provide further updates on the pilot program’s usefulness.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

First, U.S. consular posts in Canada are increasingly refusing to issue visas under INA 221(g) in cases where the H-1B visa applicant has a foreign (non-U.S.) degree and who does not have a previous H-1B stamp issued by the U.S. consulate in their home country.  This practice is dictated mainly by a concern about increasing fraud with foreign diplomas.

Second, U.S. consulates in Canada generally discourage TCNs from applying at Canadian U.S. consular posts if they last entered the U.S. in visitor status.

While these announcements are not change in policy, it is important that we share them with our clients and readers as we encounter, on a daily basis, a number of inquiries about the feasibility of obtaining a U.S. visa stamp in Canada.  These notes should certainly provide examples of cases where a visa application should not be submitted in Canada.  The notes do not seem to include Mexico, although we suspect that the U.S. consulates in Mexico may trend similarly to their counterparts in Canada.

Brief Background on Labor Certification Substitutions

Until July 16, 2007, relevant DOL and USCIS rules permitted an employer to “substitute” the beneficiary of an already approved labor certification.  As a result, in a number of labor certifications, approved before July 16, 2007, there may be more than one beneficiaries, more than one of which may be awaiting a visa number to become available and to be able to adjust status to a permanent resident.

Factual Background of the AAO Decision

The facts of the case underlying the recent AAO decision are as follows:  a company filed a labor certification on behalf of an Employee A.   The labor certification was approved and the employer filed and secured approval of a Form I-140 for the benefit of Employee A.   Employee A subsequently filed adjustment of status application and waits for a visa number to become available.

After Employee A’s I-140 is approved and after Employee A’s I-485 is pending for more than 180 days, making Employee A eligible for AC21 portability, the employer decides that it no longer wishes to support Employee A’s permanent residency application and withdraws Employee A’s approved I-140.  At the same time, the employer notifies USCIS that it wishes to substitute the beneficiary of its approved labor certification with Employee B.  Subsequently, the employer obtains approval of I-140 on behalf of Employee B and Employee B is able to adjust her status in the U.S. to permanent resident, while Employee A is still awaiting for a visa number.

AAO Decision – Only One Person Can Be Beneficiary of the Labor Certification

The AAO, after reviewing congressional intent and USCIS memoranda on the subject, concludes that it is impossible that Congress has intended that more than one beneficiary can obtain a permanent residency based on one labor certification.  As a result, it held that Employee A, even though she is eligible for AC21 portability and even though that she was the initial labor certification beneficiary, is not eligible for adjustment of status because Employee B has already become permanent resident on the basis of the same labor certification.

Who is Affected and Conclusion

This decision does not affect a large percentage of the currently pending adjustment of status applications.  However, those substituted beneficiaries who are currently waiting for a visa number, may be affected very negatively by this decision.  Many substituted labor certification beneficiaries wait for a visa number in the comfort that their application is portable under AC21 even if their employer has substituted them out of their labor certification.   However, the danger is that USCIS will look at the procedure as a “race to adjust status” whereby the substituted beneficiary who adjust status first gets the benefit of the labor certification while everybody else is in danger of adjustment of status denial.

In a letter dated March 19, 2010 addressed to the USCIS Director, AILA puts forward a renewed call for rescission of the Neufeld Memorandum by explaining the unintended and burdensome consequences of the Neufeld Memo.  The AILA letter discusses the economic impact of the Neufeld Memo on a number of H-1B petitioners.  Also, the letter discusses the undesired and unintended (according to AILA) impact of the Neufeld Memo on a number of industries:

• physicians – since many states prohibit the physician to work directly for a hospital, many physicians are unable to obtain H-1B under the Neufeld Memo employer-employee relationship standard because they cannot, by law, be sponsored by the employer where they will actually work.
• government contractors – many government contractors operate on a purely third-party worksite placement system, and for many of these contractors, the Neufeld Memo precludes hiring H-1B workers.
• H-1B entrepreneurs/job creators – the Neufeld Memo would also prevent H-1B visas to be issued to foreign entrepreneurs (and job creators) who have some ownership interest in their U.S. company.
• IT consulting companies – meeting the Neufeld Memo obligations also impacts IT consulting companies, which have very useful in helping larger companies set-up projects quickly and with the right staffing.

The AILA letter concludes that the Neufeld Memo should be rescinded because of its negative impact on a number of industries and the fact that the de facto rulemaking is done in violation of the Administrative Procedures Act.

More Amendments Will Be Required

The proposed draft contemplates that an H-1B amendment filing will be required for ANY material change in employment.  The instructions provide as an example of material change in employment a change on primary job duties or change in the geographic location of the job.    Currently, H-1B petitions do not always have to be amended when there is a change in the geographic location of the job.   Under current guidance, a valid Labor Condition Application (LCA) is required for such geographic location job change.

Under the proposed Form I-129, an H-1B amendment, in addition to LCA filing, will be required for any job change with respect to geographic location.  While this is unlikely to affect many employers who employ their H-1B workers onsite; the proposed change will be very burdensome to consulting companies and companies with roving employees.

Furthermore, the requirement of filing H-1B amendments for geographic location job changes will create another level of uncertainty associated with the H-1B amendment process.  The cost (filing fees and preparation expenses) of having to prepare such amendments is also likely to be significant and impact consulting and roving-employee companies.

Export License Acknowledgement

The draft revised Form I-129 requires a deemed export license acknowledgment.   Certain H-1B, L-1 and O-1A workers must have a “Deemed Export License” issued by the Department of Commerce to be eligible for employment pursuant to H-1B, L-1 or O-1A status.   Accordingly, the employer must submit evidence that a review of the deemed export license requirements has been completed (under 15 C.F.R. 734.2).

If a deemed export license is required, a copy of the Department of Commerce approved license must be supplied.  Alternatively, if a deemed export license is not required, the employer will have to indicate whether the technology with which the foreign worker will be engaged is subject to Export Administration Regulations (EAR) and identify the Export Control Classification Number (ECCN) of the technology in which the beneficiary will have access to.

Evidence of Valid Status Required

The draft instructions also indicate that evidence of valid status will  be required as initial evidence with any Form I-129 petition.   USCIS will require, for all change or extension of status petitions, copies of the last two paystubs and Form W-2 in addition to Form I-94 and Form I-797 approval notice to support that the beneficiary has maintained a valid status.

Third-party Worksite Attestations

In cases where the worker will be placed at a third-party worksite, the revised Form I-129 requires certain attestations – name of the company where the worker will be placed, the work address and a contact person.  Although changes to the language may be necessary due to apparent misuse of terms, the petitioning employer will also have to attest that the worker will receive at least the prevailing wage or the offered wage (same under current H-1B regulations).

H-1B Worker Will Have to Sign Data Collection Supplement

Under the revised form, the H-1B worker will be required to sign the Data Collection Supplement.  The purpose of this is to attest that the worker has accepted the terms of the job offer, including offsite placement and the possibility of relocation.  Currently, the employee does not have to sign or otherwise acknowledge any portion of the H-1B filing paperwork.

Duplicate Forms Required

The proposed instructions also require that all of the forms and supporting evidence be submitted in duplicate.  Currently, duplicates are necessary for petitions requesting consular processing.   However, since each H-1B worker is, at some point of their H-1B period, likely to apply for a visa at a U.S. consulate abroad, this requirement is certainly helpful to eliminate visa processing delays associated with lack of information in the consular service database due to lack of duplicate copy.

It is our office’s practice to almost always submit duplicate copies of the petitions and all supporting evidence, so this change should not affect our practice.

Conclusion

The proposed changes to Form I-129 are fairly significant and create a number of additional requirements and burdens on at least some, if not all, employers using Form I-129 to petition for foreign workers.  Our office will remain involved in this comment period and we will provide updates on this proposed Form I-129 draft and any developments related to it.  Please consider subscribing to our free weekly newsletter to receive email updates on this and related immigration law developments.

Washington has been busy for the past few months with health care, wars and the economic crisis.  Not surprisingly, immigration reform has not been high on the President’s agenda.

A pair of senators trying to put together a comprehensive immigration bill showed their outline to President Barack Obama Thursday and asked his help in recruiting additional Senate backers. But with a full plate already and elections looming, it was unclear how involved the White House plans to get on the issue.

According to the Wall Street Journal, while President Obama remains “fully committed” to immigration reform, his administration has taken a more hands-off approach and has left Congress to propose the outline of the reform plans and to “sell” it on Capitol Hill.

The Schumer/Graham plan, proposed by Senators Charles Schumer (D-NY) and Linsay Graham (R-SC), was presented to the President.  However, Sen. Graham is looking for another Republican sponsor, but has been unable to find one.  Senator McCain (R-AZ) who supported a similar plan when President Bush proposed it, has not been willing to sign on.

The Schumer/Graham Plan Outline

While the Senators have not released their plan formally,  it may include many of the building blocks from the last failed effort, including a path to citizenship for those here illegally, now estimated at 10.8 million people; a guest worker program; and, in a new twist, a mandatory biometric identification card for workers to stem the flow of illegal workers into the country in future years.

Immigration Reform – Slow Movement

In this political climate, it seems that immigration reform, if it happens, will move forward very slowly.   The President has seemingly delegated to Congress finding support for the immigration reform, and the current political gridlock in Congress will not help.   We will provide to monitor the current state of the immigration reform from our offices in Washington, DC, and provide further updates.   To stay up-to-date on this and other immigration topics, please consider subscribing to our free weekly immigration newsletter.