7 May 2018
Category News Room
7 May 2018,

H-1B Lottery/Cap Update

H-1B filing season for Fiscal Year 2019 officially concluded on April 6, 2018. USCIS announced that it held the official lottery on April 11 and determined which cases will be accepted and rejected. USCIS reported that it received over 190,000 regular and Master’s cap petitions during the five-day filing period.

We have been monitoring our firm bank account for acceptance of filing fee checks and have noticed significant activity in the Master’s cap filings. At present, 60.5% of our Master’s cap filings have been receipted. We are still waiting for our regular cap cases to start receiving formal receipts.

As in years past, we expect that in the next two to four weeks USCIS will announce it has mailed all receipts; those not receipted by that time are expected to be rejected by USCIS.

Given early indications from the Master’s cap, we expect that more than 50% of those who applied will be accepted. We will provide more details as they become available. Please know that the moment we confirm that a case has been receipted, we notify both the employer and employee to put an end to any speculation.

H-4 EAD Closer to Being Eliminated

USCIS has indicated that it is getting closer to eliminating the H-4 EAD. In a letter to the Senate Judiciary Committee dated April 4, USCIS indicated that it is moving towards proposing regulatory changes to eliminate the H-4 EAD for certain spouses of H-1B holders, pursuant to President Trump’s “Buy American, Hire American” executive order. The Department of Homeland Security has not yet said when this regulation will be issued, but has stated that there will be an opportunity to provide feedback during a notice and comment period.

The letter also mentions other proposed changes to the H-1B program and L-1B site visits, as well as the cancellation of the International Entrepreneur Rule. We are closely monitoring these proposed changes and will provide updates as they become available.

Third Judge Rules Against Rescission of DACA

On April 24, a third federal judge rejected the Trump administration’s justification for rescinding President Obama’s Deferred Action for Childhood Arrivals executive order, or DACA. Judge John D. Bates of Federal District Court for the District of Columbia said in his decision that the Department of Homeland Security’s legal explanation for rescinding DACA was unpersuasive, as it failed to adequately explain the conclusion that the program was unlawful. He further stated that if DHS does not provide a better explanation for the rescission within 90 days, the entire DACA program will be restored. Under the previous judges’ decisions, USCIS was only required to accept DACA renewals; this third ruling would require USCIS to resume accepting initial DACA applications as well as renewals. DHS stated that it would continue its fight to rescind DACA, and recently several states have joined together to sue the federal government to seek an end to DACA. We will continue to monitor the legal challenges to DACA and will provide updates as they become available.

Litigation May Be the Answer

It has been over fifteen months since the Trump administration took office, and in that time the President has issued more than six executive orders affecting immigration. Despite this activity from the executive branch, Congress has been virtually silent on immigration, having passed no legislation of consequence during this period.

Fifteen months is enough to time see how our system has changed. It’s not a radical shift – the law is still the law and the law has not been changed. However, we are seeing a substantial shift in areas where USCIS and CBP officers hold greatest discretion to interpret the law, whether at a Port of Entry, at a service center, or in determining the award of a visa. These changes are particularly obvious in the increased number of Requests for Evidence (RFE) in last year’s H-1B cap filing season, and the denial of roughly 20% of those cases that received an RFE. To put this into perspective, in Managing Partner David Brown’s prior twenty years of practice, he had experienced only one denial of an H-1B cap case. While we have adjusted our approach to respond to the types of questions USCIS is now asking, we must ask ourselves, “when is enough, enough?”

In the case of H-1B cases, we clearly articulate arguments demonstrating that a case meets the regulatory requirements to qualify for an H-1B, such as the complexity of a role or that the industry requires a degree for a position, but we are still seeing these cases denied. Invariably, USCIS fails to mention in their RFE key evidence that we provided that proves our case, or they hang on to language they find appealing. For example, regarding a specific engineering position, the Department of Labor’s Occupational Outlook Handbook states, “Most engineering positions require a Bachelor’s degree, but some do not.” The statement that “some positions require a Bachelor’s degree” is then interpreted by USCIS in their denial in the following manner: “The Occupational Outlook Handbook confirms that when reviewing the position of engineer ‘some do not’ require a degree, so there is no evidence to suggest a degree is a common hiring requirement.” Cherry-picking a misleading phrase that betrays the true meaning of the full statement is both intellectually dishonest and fraudulent in nature. In other instances, a Department of Labor publication may confirm that 96% of individuals in a certain position hold a Bachelor’s degree or higher – to which USCIS responds that such a figure is misleading as it doesn’t confirm what percentage holds a degree in the subject we claim is related to the position. Put another way, the 96% of people in engineering positions who hold a degree could all hold degrees in art, history, or English, rather than a relevant engineering discipline.

In years past, on the rare occasion we encountered such clearly erroneous decisions, we used to reach out to the specific USCIS Service Center where the case was processed to explain how the adjudicating officer made a mistake and didn’t properly interpret the regulations. We got traction with these complaints and some erroneous decisions were overturned upon review. But recently, we have not had a single instance where a supervisor has re-reviewed such a decision and chose to overturn it. This is an implicit signal that USCIS either no longer cares to get things right, or are intentionally doing things wrong. Either possibility is problematic, but the second is of gravest concern.

While we are still getting well over 90% of our cases approved, we are concerned that this cancer of erroneous decisions could spread. A whole cadre of adjudicators are learning to apply incorrect standards to cases, and in that way, they are making their own law as they continue to restrict what types of petitions are accepted under the H-1B program. Given this trend, it is time not only to appeal such decisions to the USCIS Administrative Appeals Office (AAO), but also appeal to the courts. Under the Administrative Procedure Act, employers have a direct court action based on the administrative record when USCIS abuses its discretion. What we are witnessing now is a clear pattern of abuse – USCIS choosing to ignore relevant facts or to read facts dishonestly. For those companies directly impacted by such inappropriate behavior, a court decision will correct the original harm, and may inoculate them from further harm by filing future cases with a copy of the relevant decision. In the big picture, it may take multiple federal court actions and AAO filings for USCIS to be brought back into the light. But going to court may be our only option to reverse this worrying trend before these abuses become the new status quo for USCIS.

May 2018 Visa Bulletin

The Department of State has released the upcoming May 2018 visa bulletin. The April 2018 visa bulletin was the first to indicate a backlog for EB-1 China and India, and the priority dates for these categories remain the same for May, at January 1, 2012. EB-2 China moves forward one month to September 1, 2014, while EB-2 India remains the same at December 22, 2008. EB-3 India moves forward three months to May 1, 2008, while EB-3 China and EB-3 Philippines remain at June 1, 2015 and January 1, 2017, respectively. All other EB-1, EB-2, and EB-3 categories remain current.

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **

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