During a time of tremendous IT talent shortage, one has to wonder what is motivating the White House and the USCIS to curb the immigration of legal H-1b workers. The Wall Street Journal recently discussed the severity of the shortage.
The USCIS has released the new forms that seek information to comply with the new public charge rule. Refer to Part 6 of the I-129 form here. The new forms must be used for all filings as of Oct 15, 2019. It's amazing how quickly the USCIS delivered with the threat of another Federal Judge chiding them and telling them to "get your act together" ! Update as of 10-11-2019, multiple Federal Courts have blocked the implementation of the Public Charge rule and the enw forms.
The Public Charge rule goes into effect on Oct 15, 2019 and most in the business immigration arena expected to feel little to no effect however, the USCIS has yet to publish the new forms to be used and as a result, cases that use the I-129 (H,L,O, etc); I-539 (dependents); and, the I-485 (permanent residency) can not be filed after Fri Oct 11th (Mon. Oct 14th is a Federal Holiday) . The USCIS web-site has posted the following "On Aug. 14, 2019, DHS published a final rule on the public charge ground of inadmissibility (see section 212(a)(4) of the Immigration and Nationality Act). The final rule becomes effective Oct. 15, 2019. What to Know About Sending Us Your Form The current edition of the form, dated 1/31/2019 •We will accept the current edition of this form if it is postmarked on or before Oct. 14. •We will not accept it if it is postmarked on or after Oct. 15. The updated edition of the form On or after Oct. 15, we will accept only an updated edition that will be linked to this page. " Yesterday, the American Immigration Lawyers Association (AILA) filed a federal lawsuit seeking to enjoin the USCIS from refusing to accept the current forms until they have released the new forms. More updates to follow.
HLG attorneys, Matt Minor and Anthony Zarate will be attending the ITServe Synergy 2019 conference in Chicago on Oct 17th and 18th. Stop by and see them if you are attending. HLG partner, Mike Hammond will be a panelist discussing H-1b RFE's as part of the Friday educational sessions.
In an admission that surprises no one, documents which the USCIS was forced to release under FOIA litigation confirms that the USCIS was ordered by the Trump Administration to increase the denials of H-1b visas and were advised that no legal or regulatory authority was needed to support the denials. The full story is published in Forbes with links to the incriminating documents. These documents are expected to be at the front and center of all federal litigation brought by U.S. employers seeking to overturn arbitrary and capricious denials. It is also expected that charges of bad faith will be brought.
On Thursday, the Senate bill designed to eliminate the per country limits for green card cases failed again. This time, it was blocked by Senator Perdue from Georgia. The current concern centers around the negative impact that the bill would have on the recruitment of international RN's from the Philippines. It is expected that Senator Perdue and Senator Lee will try and work out a compromise to protect this important industry. Whether or not a compromise can be achieved is unknown at this time but, it is believed by many to be closer to passage than it has in the past. More insight onto the current state of this bill can be found at the WSJ. If you would like to follow the bill using the official Congressional web-site, you can access that here.
The Department of State (DOS) has released the October Visa Bulletin This is the first bulletin of the new fiscal year and is eagerly anticipated to see how far dates will advance forward. Unfortunately, this bulletin disappointed as dates did not even return to dates available in July. In addition, the DOS made predictions for the coming months and indicated slow movement for many of the retrogressed categories. On the positive side, EB1 is current for all practical purposes for All Other Countries and EB2 and EB3 are both current and expected to remain that way. The USCIS announced that it would honor the Date for Filing chart for the purposes of filing I-485 cases in October which is good news for many.
Today, the USCIS has announced additional information regarding the April 2020 (FY 2021) H-1b cap lottery electronic registration program that was first announced in January of 2019. The proposed rule will be published on Sept 4th and can be viewed here. The comment period will last 30 days and our firm expects to submit comments on behalf of our clients. We applaud the USCIS on taking steps to modernize its processes and allow for electronic registration for the H-1b cap lottery. We will provide a summary of the proposed rule later this week after the rule is published and reviewed.
Once again, the Buy American, Hire American (BAHA) policy of President Trump which has resulted in higher rates of denials for professional IT workers has had unintended (or maybe not) consequences which has resulted in IT jobs leaving the US and going to Canada. Check out this recent summary on Law 360.
It is being reported by Forbes, that ICE has now started site investigations of OPT STEM workers to verify that their employment is in compliance with USCIS regulations and policy. The 2 primary questions they are likely to address are: 1. Is the student being paid at least a Level 1 prevailing wage ? and 2. Is the student being provided training by their employer in accordance with the training program (I-983) submitted to the school and the USCIS ? As an employer, now may be a good time to audit your OPT STEM workforce and insure that you are in compliance.