Green Cards

The USCIS announced earlier this week that almost 275,000 registrations were submitted by U.S. employers for the 85,000 available lottery spots. This number was an increase of over 33% when compared to last years 201,000 filings. This increase is attributed to the new electronic registration process as well as the robust economy (remember that time only a few weeks ago). Of the 275,000 registrations 46% were for individuals with a US graduate degree. The period for filing completed petitions opened on April 1 and will end on July 1, 2020. For individuals that need to take advantage of the cap-gap rules, the full 90 day filing window is not applicable and those petitions must be filed prior to the expiration of the OPT EAD. Given the realities of COVID-19, and the number of lay-offs occurring, it is unlikely that all persons selected in the lottery will have petitions filed for them which will then open up the opportunity for those not originally selected to then be selected and possibly at a time when the economy is in a better state.

A Federal Court in DC has handed the USCIS a stinging defeat saying that its employer-employee definition and practice of issuing shortened approval notices is illegal. Congrats to attorney Jonathan Wasden for his fighting this battle. Read a copy of the decision here. If you have an H-1b petition that was illegally shortened by the USCIS, we may be able to obtain relief for you via this case. Please email me directly at mfh@hammondlawgroup.com We will work with Mr. Wasden to have your case added to this litigation, if appropriate.

On March 23, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum adopting the Administrative Appeals Office (AAO) decision in Matter of S-Inc., which looked at the issue of multiple H-1B cap filings by “related entities.” In Matter of S-Inc., the AAO decided that the definition of related entities is not conclusive to those entities that are related by ownership and control. Rather, the AAO concluded that related entities include “those who submit multiple petitions for the same beneficiary for substantially the same job.” Moreover, the AAO decision explained that the following factors are pertinent in determining whether companies filing H-1B petitions are related: familial ties, proximity of location, leadership structures, employment history, similar work assignments, and substantially similar supporting documentation. In issuing their decision, the AAO looked at a case in which two distinct companies filed separate H-1B cap petitions to employ the same beneficiary in the substantively same job, as a Programmer Analyst, and would be performing comparable duties for the same end-client. The AAO concluded that since they were intending to employ the Beneficiary with the same end-client and the Beneficiary would be performing “essentially” the same duties, the companies were therefore related. AAO then looked at whether the two petitioners could demonstrate a legitimate business need to file more than one H-1B petition for the same beneficiary. The AAO clarified that to help determine a petitioner’s “legitimate business need,” they will examine the underlying job opportunity and each job opportunity must be “bona fide, be available to the beneficiary, and be materially distinct.” Therefore, USCIS will now start to deny or revoke the H-1B approval of cap-subject petitions filed by “related entities” for the same beneficiary absent a legitimate business need.