COULD PRES. TRUMP REPLACE THE H-1B LOTTERY WITH A PRIORITIZATION SYSTEM BASED ON SALARY?

One interesting legal question is whether the Trump administration could change the way that H-1B cap-subject petitions are allocated.  Under the current system, if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cap petitions that are filed during the first week of April. 

There is no Congressional authority for the H-1B lottery.  One federal court has said that USCIS’ implementation of an H-1B lottery is reasonable because Congress did not instruct the USCIS what to do if the H-1B cap when oversubscribed.  This case, Walker Macy v. USCIS, was just decided earlier this spring and is now on appeal. 

The Trump administration says that it seeks reform to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”  Could the Trump administration attempt H-1B reform by replacing the H-1B lottery with an H-1B prioritization system based on the “most-skilled or highest-paid petition beneficiaries?”

My read is that it cannot.  As noted in the Walker Macy case, “when Congress is silent about a particular agency (or judicial) interpretation for a long period of time after that interpretation while repeated amendments have been passed, this demonstrates legislative acquiescence to the interpretation.”  In other words, the fact that the USCIS has long been using an H-1B lottery is compelling. 

The random process of the H-1B lottery is also fundamentally fair since it treats all timely -filed H-1B petitions identically.  Surprising to some, Congress has not spoken on the need to prioritize the “most-skilled or highest-paid petition beneficiaries”.  In fact, Congress has set forth a different standard. 

An H-1B is appropriate if a US employer is paying at least the prevailing wage of the occupational classification.  There is nothing in the Congressional statute that favors employers who pay a greater wage.  Therefore, it is dubious whether the Trump administration can implement this change to the H-1B lottery without Congressional action.

WHAT TRUMP CAN AND CANNOT DO TO THE H-1B

The US legal and legislative system framework is one checks and balances.  The legislative branch – the Senate and House of Representatives – creates and passes law, which in most instances must also be signed by a President. 

The executive branch, which now is headed by President Trump, is tasked with administering US federal law.  The President typically works through agencies and departments in order to administer the law.  For instance, the Department of Homeland Security administers laws concerning, among other things, US immigration.  The executive branch’s authority is limited by the underlying law that is passed by Congress. 

(As an aside, the President’s authority to administer law is also limited by the third branch of government—the judiciary.  In the short Trump presidency, we have seen several instances where the judiciary has not backed down from exercising their authority and limiting President Trump’s executive action.)

The scope of an underlying Congressional law is what limits the President.  Accordingly, there are some things that President Trump can consider to do, and other things that he probably cannot do.

Here is our list of H-1B-related changes that President Trump can probably because these actions probably do not exceed the underlying Congressional statute.

• Revoke H-4 / EAD authorization.  This rule was put in by President Obama’s administration.  
• Revoke prior Guidance Memoranda that is favorable to the H-1B program.  In fact, he has already started down this path by revoking a 17 year old memorandum on the approvability of Computer Programmers.
• Increase H-1B employer or employee site visits.  Site visits are clearly within Presidential authority.  Again, the USCIS has recently released a press release notifying US employers of increased site visits.
• Increase obtuse/harassing RFEs and NOIDs.  The President has indicated to DHS that it would like to see DHS use all its power to interpret rules against H-1B users.
• Delay Consular approvals under a cloak of “background checks”.  The President generally has wide latitude to process or delay visa approvals.

Our next post will address whether the Trump administration could change the H-1B lottery to a system whereby H-1B lottery slots were awarded based on another criterion, such as the salary offered to the H-1B worker.

USCIS RECEIVES 199,000 H-1B CAP PETITIONS

USCIS announced on April 17, 2017, that it has received 199,000 H-1B cap-subject petitions, which is about 20% fewer than the 236,000 H-1B cap-subject petitions that were received in 2016 and the 233,000 that were received in 2015.  USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 43% of their H-1B cap filings to be H-1B cap winners.

As announced on March 3, USCIS has temporarily suspended premium processing for all H-1B petitions, including cap-exempt petitions, for up to six months.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Amend the H-1B petition to notify the USCIS of the filing of a new LCA and/or geographic change in employment;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second, contemporaneous part-time H-1B position. 

NOTIFICATION OF NON-ACCEPTANCE OF G-28

USCIS had begun notifying applicants and petitioners when their attorney’s Form G-28 has not been accepted.

The G-28 form is filed by the attorney with the case to notify the USCIS that the applicant or petitioner has a lawyer and that the lawyer should be notified of any updates on the case.

Previously, when USCIS did not accept Form G-28, neither the attorney nor the client was notified of the rejection. The immigration application or petition was simply processed without an attorney on the case.

The American Immigration Lawyers Association raised this issue with USCIS on several occasions, but it was not until the past year that USCIS advised that it was planning to start notifying applicants or petitioners when the G-28 was rejected.

On March 7, 2017, USCIS announced that it has added the following language to receipt notices when a G-28 was not accepted with an application or petition:

A valid G-28 was NOT received with your case. If you wish to be represented, please contact your attorney or accredited representative to submit follow-up G-28 to the USCIS location where your case is pending. For more information on filing G-28, please visit http://www.uscis.gov/forms/filing-your-form-g-28.

The receipt notices that include the above language will only be issued for cases that were filed at a lockbox facility. Cases that are directly filed with a local office will not contain the G-28 notice.

MAY 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

The Department of State has just issued the May 2017 Visa Bulletin.  This is the eight Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

May 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08FEB13	22JUN08	C	C
3rd	15MAR17	01OCT14	25MAR05	15MAR17	01JAN13

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional one month.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date again moved up, but only a few weeks. The China EB-3 again date progressed about six weeks.  This was a smaller progression than the last few Visa Bulletins.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many historical Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India moved up about one day, which is the first one day progression that I can recall.  EB-3 India stayed the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly four more months.  The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, and 2012 EB-3 visas in about 6 months.  This is even more positive than we expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

USCIS LIMITS ENTRY-LEVEL H-1Bs FOR IT WORKERS; ANNOUNCES ADDITIONAL WORKSITE ENFORCEMENT

The USCIS has issued a Policy Memorandum that will likely lead to denial of Computer-related positions where the employer uses a Level 1 OES wage.  Accordingly, MU Law recommends that all clients use at least Level Two OES wages, or use alternative wage surveys.  The new Policy Memorandum takes immediate effect and will be used for all H-1B petitions: H-1B cap, H-1B extensions, H-1B transfers, and H-1B amendments.   

The March 31, 2017 Policy Memorandum rescinds a seventeen-year-old December 22, 2000 Policy Memorandum, issued by Nebraska Service Center then-Director Terry Way.  There is little doubt that the new Policy Memorandum is a direct result of immigration restrictionists in the USCIS who feel emboldened by the new Trump presidency.  It remains to be seen how restrictive USCIS officers will be as they interpret forthcoming computer H-1B petitions.

At virtually the same time, USCIS also has issued additional measures aimed at perceived abuses in the H-1B program.  The April 3, 2017 press release says that these site visits will focus on:

• Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
• H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and 
• Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

LAST CHANCE FOR H-1B CAP PETITIONS

The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Friday April 7, 2015.  Below are some key points to keep in mind about this year’s H-1B cap:

-The USCIS makes no accommodation for delays caused by couriers.  Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 3, which is the first day that H-1B petitions are accepted.

-Premium Processing Service (PPS) has been suspended, starting April 3, 2017.  The suspension may last for six months.  The suspension includes all H-1B petition filings, such as H-1B cap cases, H-1B amendments, H-1B transfers, and H-1B extensions.

-In 2016, H-1B lottery results were not finalized until June.  It may even take the USCIS longer than in past years to notify all H-1B cap winners and losers. 

H-1B CAP SUPPLY AND DEMAND V. UNEMPLOYMENT RATE

In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing.  It would be 264 days before the H-1B cap was reached.  In 2010, it took 300 days until the H-1B cap was reached.  In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached.  Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, each year since 2013, mirroring the low unemployment rate.

















The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.

Why?  Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates.  If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.

UPDATE: AILA CONFIRMS NO NEW POLICY CHANGE FOR TN-1 ADVANCE PRACTICE NURSES

Yesterday we posted about a new problem, US CBP officers were denying advance practice nurses’ applications for TN-1 visas.  The reports said that at least one US CBP officer was quoting a “change in policy”.  AILA has now confirmed that there is no policy change.  The law remains:  advance practice nurses qualify for TN-1 visas.

In our blog post, we called on US CBP quickly to clarify whether there was or was not a policy change. To this extent, US CBP acted swiftly and should be commended for their quick action.

DO ADVANCE PRACTICE NURSES QUALIFY FOR THE TN-1 ?

There is a mystery afoot at the northern border.  Last week reputable news organizations, such as the CBC, reported that advance practice nurses were being told that they no longer qualified for the TN-1 visa at the Canadian-Michigan border. 

The TN-1 visa is a visa authorized under NAFTA.  All of the jobs on the NAFTA occupations list are eligible for TN-1 visas.  The NAFTA list is purposely vague.  It does not list job descriptions for the occupations.  Any rational job description includes advance practice nurses under the registered nurse domain.  For instance, the State of Michigan law on registered nursing, includes advance practice nurses as a subset of registered nurse.  Advance Practice nurses have been using the TN-1 for 20+ years.

US Customs and Border Protection has been silent on the issue.  Immigration attorneys are unsure if the denials are based on one rouge officer’s mistaken understanding of law, or if it is a policy-wide decision.

Either answer is problematic.  If it is a rogue officer, then the US CBP ought to acknowledge their error, re-train the officer, and announce that advance practice nurses are eligible for the TN-1.  

If not, the administration ought to explain the rationale behind its policy-decision.  The administration’s own Department of Labor says that for US workers, ”job opportunities for advanced practice registered nurses are likely to be excellent.”  Protectionism may be a valid policy argument in some areas, but plainly not for advance practice nurses, who are the forefront of treating American patients. 

MU’S MARIA SCHNEIDER NAMED TO CINCINNATI BAR ASSOCIATION BOARD OF TRUSTEES

MU Law is proud to announce that MU Law's Maria Schneider has been named to the Board of Trustees of the Cincinnati Bar Association (CBA).  Schneider’s two-year term will begin on May 1, 2017.  She will be officially inducted at the CBA’s Annual Meeting on April 27, 2017.

Schneider founded, chaired, and now Vice Chairs the CBA’s Immigration Practice Group.  Twice, under Attorney Schneider’s direction, the Immigration Practice Group won the CBA’s Ingenuity Award.  Schneider’s cover article on President Trump’s Executive Orders on immigration will be featured in the CBA Report in April 2017.

The CBA will reach its’ 150^th Anniversary in January 2022.  The CBA Board will focus on “150 Prime,” a five-year strategically eruptive and positively disruptive plan to prepare, engage, envision, and motivate success representing attorneys in the Greater Cincinnati area.  The CBA has 3800 members throughout the Greater Cincinnati community.

H-1B CAP: PAST AND FUTURE DEMAND

This year’s H-1B filing date of April 1, 2017 is coming fast.  MU Law predicts that H-1B petitioners certainly will file in excess of 200,000 petitions during the H-1B cap window of April 1-7, 2017.  Last year’s record filing total of 240,000 may even be exceeded, although we have had reports of reduced demand this year.

When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over three times as many H-1B petitions as slots available.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

The H-1B is usually associated with IT positons.  Most of the H-1B slots are used by IT professionals.  Many healthcare professions also qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016
H-1B 2017 (FY 2018)	85,000	April 1, 2017

APRIL 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

The Department of State has just issued the April 2017 Visa Bulletin.  This is the seventh Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

April 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15JAN13	22JUN08	C	C
3rd	15FEB17	15AUG14	24MAR05	15FEB17	15SEP12

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional two months.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date again moved up one month. The China EB-3 again date progressed nearly six months, just as it did in the March 217 Visa Bulletin.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India moved up about 3 weeks, while EB-3 India stayed essentially the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly six more months.  The Philippine EB-3 number essentially cleaned out most of the 2010, 2011, and 2012 EB-3 visas in less than 6  months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

PRESIDENT TRUMP’S NEW EXECUTIVE ORDERS

On Monday, March 6, 2017, President Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”   This Executive Order will go into effect on Thursday, March 16, 2017.  Among other provisions, the Executive Order states individuals from six designated countries who are outside the United States and do not currently have a valid visa are not eligible to travel to the United States for 90 days. 

• Iran
• Libya
• Somalia
• Sudan
• Syria
• Yemen

Please note that Iraq has been removed from the list of countries effected by this Executive Order.  This Executive Order does not apply to:

• lawful permanent residents (green card holders)
• dual nationals who travel to the US on a passport issued by the non-designated country
• individuals who hold a valid visa on the effective date of the Order.  No visas will be revoked.
• foreign nationals traveling on diplomatic visas
• individuals granted asylum or refugee status in the US before the effective date of the order

The US Department of Homeland Security and US Department of State have discretionary authority to issue visas on a case-by-case basis to nationals of the six named countries when denial of entry would cause undue hardship. 

Nationals from countries not named above can travel abroad but should expect additional delays and scrutiny at the airport when re-entering. Please note that the situation is fluid and may change at any time.  If you have any questions, please contact our office.

USCIS SUSPENDING H-1 PREMIUM PROCESSING, STARTING APRIL 3

USCIS will no longer accept Premium Processing Service (PPS) filings for any H-1B petition, starting April 3, 2017.  USCIS says that the suspension could last for 6 months.   PPS will not be available for H-1B cap cases, H-1B cap-exempt cases, H-1B extensions, H-1B amendments, or any other type of H-1B petition.

USCIS claims that by suspending the PPS program for H-1B petitions, it will help them reduce overall H-1B processing times.  

Here is the full press release:

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.
While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.
We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:

1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
2. We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.
We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

• Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
• Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark. 

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GRASSLEY H-1 BILL INTRODUCED IN THE HOUSE

The H-1B and L-1 Visa Reform Act of 2017, which was proposed recently in the Senate by Sens. Grassley (R-IA) and Durbin (D-IL) has now been offered in the House.  The text of the House version of the bill has not yet been made public but it is expected to mirror the Senate version of the bill.  The House version has four co-sponsors, Bill Pascrell, Jr. (D-NJ), Dave Brat (R-VA), Ro Khanna (D-CA), and Paul Gosar (R-AZ).

The Senate version of the bill has yet to attract many co-sponsors – no Senators have co-sponsored it since the initial four co-sponsors were announced on January 20.  This is not surprising.  The 2015 version of the bill only ever attracted six Senators co-sponsorship.  One of which, Jeff Sessions, is no longer in the Senate and is now the embattled Attorney General.

Nonetheless, Sen. Grassley has long been a foe of the H-1B visa.  While his version of the bill may not get passed into law, it would not be surprising if many of the ideas and concepts that underlie the bill make up a future revision to the H-1B visa.

The press release offered by the four House members says that the bill would modify the H-1B and L-1 visa programs by:

• Requiring employers to make a good faith effort to recruit and hire American workers before bringing in foreign workers and prohibits employers from replacing American workers with H-1B and L-1 workers or giving preference to H-1B visa holders when they are filling open positions.
• Modifying existing H-1B wage requirements, and establishes wage requirements for L-1 workers.
• Prohibiting employers from outsourcing H-1B and L-1 visa holders to other sites unless the employer obtains a waiver which is available only in limited circumstances when the rights of American workers are protected.
• Giving more authority to the Departments of Homeland Security and Labor to investigate fraud and abuse in the H-1B and L-1 programs by requiring the two departments to audit employers and share information, ensuring visa petitions are more effectively scrutinized.
• Prohibiting companies from hiring H-1B employees if they employ more than 50 people and more than 50% of their employees are H-1B and L-1 visa holders.
• Creating a new H-1B visa allocation system that gives top priority to workers who have earned advanced science, technology, engineering or mathematics (STEM) degrees from U.S. institutions.
• Increasing penalties on those who violate the law, and provides visa holders with a list of rights before they enter the U.S. to ensure they are better protected against mistreatment or underpayment of wages.