The USCIS has announced that premium processing will return in phases throughout June. Below is a chart to help you see when your petition will be eligible: JUNE 1st: -All I-140’s can be premium processing JUNE 8th: -H-1b transfers filed before June 8th can be upgraded -H-1b extensions filed before June 8th can be upgraded -H-1b cap exempt entities filed before June 8th can be upgraded -Non H-1b I-129 petitions (TN, L-1) filed before June 8th can be upgraded. E-3 still not eligible for premium processing JUNE 15: -h-1b’s that are cap exempt entities, regardless of original filing date, can be premium processed -H-1b’s for physicians under J-1 waiver JUNE 22nd: -All I-129’s can be premium processed (including cap cases, H-1b transfers that were filed after June 8th
Yesterday, the USCIS was handed another defeat at the hands of a Federal Judge, this time from Atlanta. In a case that echoed prior decisions from other Federal Courts, the Court ruled that the USCIS' practice and policy over the past 10+ years relative to H-1b adjudications was unlawful. The decision struck at the interpretation of employer-employee and the itinerary requirement which had resulted in the issuance of shortened approval notices. A copy of the full decision can be read here In even better news, the USCIS conceded defeat in only what can be imagined as the scene from the Wizard of Oz when it was proclaimed "Ding Dong the Witch is dead" and they entered into a settlement agreement. This settlement agreement provides for the following: 1. The USCIS will rescind the 2018 Contracts and itinerary memo 2. The USCIS will stop applying the current itinerary language A portion of the settlement agreement states that they will not apply the Neufeld memo but, this may be more limited than it is being reported. What does this mean practically ? 1. There should be no more shortened approval notices limited by the duration of the WO/JO/SOW. 2. End client letters or other documentation should not be routinely required but, the USCIS may continue to ask for this type of documentation to prove the existence of a job that meets the specialty occupation standards 3. The USCIS will not automatically re-open previously shortened cases and issue full approval notices but, you can go into Federal Court and force this action. As a result of these actions, we can expect the USCIS to issue new regulations but, given the amount of time it takes for regulations to be finalized, these will likely be completed by the Administration that wins in Nov. A [...]
As the White House is contemplating placing a moratorium on the issuance of H-1b visas and the issuance of OPT STEM work permits, it may be helpful for the WH to check DOL data. If they do, they will learn that the unemployment rate of IT professionals, which make up a large percentage of H-1b workers and OPT STEM workers has not been impacted significantly by COVID-19. The unemployment rate for IT professionals was at 2.8% in April. It is true that 30+ million Americans are currently out of work due to the current pandemic, but, the impact on the IT space is nominal. IF the WH cares enough about the economy to actually check out the facts, they will drop their ill-conceived plan that attacks STEM jobs and will instead focus on other areas. For the data, check out the NFAP policy brief.
The USCIS has pleaded to Congress for additional funding due to the implications of COVID-19. Guess they figure everyone else's hand is out, why not theirs. They have stated that if they do not receive the additional funding, they will add a 10% service charge to applications. Maybe they should consider restoring the premium processing service which generates $1440.00 per petition ? Or maybe they should make their processing of cases more efficient and cost-effective eg. they can stop requesting the annual report for publicly traded cos.; having to receive, scan in and store what is often a 1000+ page document is unnecessary. Or maybe they should stop issuing RFE's at a rate that is 4x greater than under any other administration. Or maybe they should stop issuing 3 mo. H-1b approval notices when the law supports the issuance of a 3 yr. approval thus eliminating literally tens of thousands of unnecessary filings ? Or maybe they should stop denying H-1b petitions where the law does not support such a decision; as they lose case after case in Federal Court, surely the money they are paying out to the winning plaintiffs and the costs to defend these arbitrary and capricious decisions add up. But, hey those are just my thoughts; I'm no budget expert. Asking Congress for a handout or charging your customer that you are failing to serve is another route to take.
When President Trump issued his Executive Order last month suspending the issuance of green cards for 60 days, he included a statement promising that all legal visa programs would be reviewed. It is common knowledge that the Trump Administration does not support legal immigration and has been trying to restrict business visas since he took office and the H-1b visa has been a top target. U.S. employers who use the H-1b visa to supplement its workforce have been anxiously waiting the next EO. A letter from 4 Republican Senators has been released by Politico and it provides a wish list including the elimination of the OPT and STEM OPT programs, the elimination of an investor visa and the elimination of new H-1b visas bringing into doubt this year's cap cases among others. The idea that the unemployment rate of restaurant workers is relevant to the employment of STEM workers is nonsense and I would guess that each of these 4 Senators, are well aware of the idiocy of their claims however, all politicians know how to take advantage of a crisis to push an agenda that they could not have otherwise pursued. Earlier this week, Forbes ran an article discussing possible restrictions that could be coming. As of now, an EO has not been released so the content of and the consequences are mere speculation but, we have a glimpse at the wish list and it is ugly.
Several Senators have announced that they have proposed a bi-partisan bill in the Senate that would provide a short term increase in the number of immigrant visas available for Medical Doctors and RN's. Given the current climate, there are a limited number of bills that stand a chance to be approved but, given the bi-partisan nature of this proposal and the current shortage of healthcare workers more exacerbated by the COVID-19 virus, it is possible that it could pass. We will provide updates as they become available. If you are a healthcare employer, we would strongly encourage you to reach out to your Senators and express your support.
Today, President Trump issued an Executive Order that would suspend the issuance of immigrant visas (green cards) for a period of 60 days. The EO only applies to persons obtaining an immigrant visa from abroad and contains exemptions for a number of categories including healthcare workers. The exemption for healthcare workers may apply only to those entering the US specifically to combat COVID-19 but, that is not clear. With the on-going closure of US Consulates abroad and with immigrant visa numbers exhausted (retrogressed) in many categories until Oct 1, 2020, this EO has very little, if any, effect on employment based immigration. The EO does contain a foreboding announcement that within 30 days, an additional EO may be issued to address non-immigrant visas. Given this Administration's open disdain for the H-1b and L-1 programs and the repeated efforts to circumvent the current regulations and statutes, this may be an opportunity for them to achieve their goal of reducing legal immigration, just in time for the election.
Last week, the USCIS was met with another Federal lawsuit claiming that they are failing to properly follow the law when adjudicating H-1b cases filed on behalf of market research analysts. A successful outcome could provide assistance for others; such as business analysts, systems analysts, telcom, and finance occupations where the USCIS has questioned whether they meet the specialty occupation standards. This lawsuit was backed by the American Immigration Council and more information can be found here.
Many of our clients who are legally working in the US and paying taxes have inquired as to whether or not receipt of the 1 time payments under the CARES Act i.e. $1200 would be considered the receipt of public benefits and subject them to a finding of being a public charge ? The short answer is no. The American Immigration Lawyers Association (AILA) has provided a more detailed opinion below: On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion dollar economic recovery package. The package offers relief to state and local governments, individuals, small and large businesses, and hospitals affected by the 2019 novel coronavirus (COVID-19) pandemic. In particular, the CARES Act provides for the issuance of one-time payments, called recovery rebates, (or commonly known as “stimulus checks”) to help individuals recover from the economic impacts of the COVID-19 pandemic. Eligible individuals with an adjusted gross income up to $75,000 can receive a one-time payment of $1,200. Married couples filing a joint tax return are eligible to receive a payment of $2,400, as long as their adjusted gross income is less than $150,000. Eligible individuals can also receive an additional $500 for each eligible child under the age of 17. The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS final rule on inadmissibility on public charge grounds is clear that tax credits are not taken into account for the purpose of a public charge determination. DHS indicates in its final rule that only public benefits as defined in 8 CFR 212.21(b) will be considered in the public charge inadmissibility determination. 8 CFR 212.21(b) defines a public benefit to include means-tested programs like Medicaid and cash assistance for [...]
As many hospitals in the US are at their breaking point due to the spread of COVID-19, some relief may be available from international physicians and RN's but, they are often being blocked by restrictive immigration policies. Check out this recent story from the New York Times.