H-1B Cap Season – Deadline FAST Approaching
The 2018 H-1B Cap season is well underway. With an anticipated filing date of March 30th, we are quickly approaching the deadline to initiate new cap cases. If employers still have individuals who need H-1Bs, or are unsure if a foreign national might qualify for an H-1B, please contact us and we will review the case to determine whether an H-1B cap petition should be filed.
Please Bear With Us
The next ten business days are the busiest days of the year for our practice specialty and our firm. We have been working hard over the last two months to prepare H-1B cases to file against this year’s cap, and these cases have a firm filing deadline of April 6th. As a result, during the next two weeks our focus will be on H-1B cases. While we will continue to move forward with other cases, you may experience a brief lag in getting an email response or receiving a drafted document. Thank you for your patience and understanding during this hectic season, as we strive to provide the best legal services possible to our clients during H-1B season and year-round. Our regular workflow on other cases will resume after April 6th.
New Memo Regarding Third-party Worksites
On February 22nd, USCIS issued a new policy memorandum regarding H-1B petitions involving third-party worksites. The stated purpose of the memo, as with most recent USCIS policy changes, is to protect U.S. workers. The memo directly applies to employers who place their employees at a third-party worksite; however, certain parts of the memo discussing itineraries also apply to employees working from home in addition to an employer location, or at two different employer locations.
With regard to third-party worksites, the employer must show in the H-1B petition that sufficient specialty occupation work will be available to the employee throughout the duration of the H-1B, and that the employer will maintain an employer-employee relationship. To meet these requirements, the memo suggests that employers provide contracts and work orders to demonstrate sufficient specialty occupation work. However, if these by themselves are too general or vague, the employer must provide additional information such as evidence of actual work assignments, statements of work, or a letter signed by the end client with a detailed description that demonstrates that the position is a specialty occupation. The memo concludes that if sufficient evidence of a specific work assignment is not submitted, USCIS may deny the petition.
Regarding itineraries, the memo makes it clear that an itinerary must be provided for any employee who will be working at more than one location. This includes multiple employer worksites as well as employees who work from home in addition to an employer location. The itinerary must include, at a minimum, “the dates and locations of the services to be provided.” If the employer has additional details, including dates of each engagement, addresses of the employer, contact information for the locations where services will be performed, or corroborating evidence of the above, USCIS encourages the employer to provide this information, as it will strengthen the petition. USCIS states that if sufficient evidence supporting the itinerary is not provided, they may deny the petition.
Finally, USCIS states that, with regard to the validity period of the approved petition, they have the discretion to limit the approval period to only the length of time that has been sufficiently demonstrated to include non-speculative specialty occupation work – in other words, if you can’t both explain what the employee will do and show that there is sufficient work like that for the entire period requested, they will limit the approval to a shorter timeframe.
In conclusion, this memo will affect any employer who has more than one worksite, and particularly those who utilize third-party worksites. We want to limit the impact of this memo as much as possible. The best way to do so is to avoid having multiple worksites when feasible. If an employer has multiple locations, they should consider placing the employee at only one site, and this is possible if travel to the other offices is under 60 days per year. For those who place employees at third-party worksites, the employer should consider whether the employee can work a majority of the time at the employer site and visit the client site no more than 60 days in a year. If third-party worksite placement cannot be avoided, the employer should have a clear itinerary indicating dates at each worksite, all available evidence of control of the worker, and the above-noted evidence of the availability of specialty occupation work.
You can read the full memo regarding third-party worksites here.
Updates on DACA
March 5th marked the Trump administration’s deadline for congressional action on the Deferred Action for Childhood Arrivals program, or DACA. On September 5th, 2017, the administration announced that it was ending the program, which was put in place by President Obama in 2012 and has since granted work authorization and protection from deportation to nearly 800,000 individuals brought to the United States as children. In seeking to end DACA, the administration announced that Congress had until March 5th, 2018 to enact legislation that would continue to protect DREAMers or the program would cease. Since that time, several pieces of legislation have been introduced in both houses of Congress, but none has received enough support to pass.
Although the March 5th deadline has passed, DACA continues to remain in place due to two federal court rulings protecting the program. The Trump administration has appealed both rulings, and on February 26th, the U.S. Supreme Court announced that it would not take up the case until it was heard by an appeals court. As of now, it is expected that DACA will remain in effect until the fall, if not longer, however, only individuals who have previously received DACA benefits may apply to extend them.
Enforcement Priorities Ended
One of President Trump’s first executive orders after taking office was to end the enforcement priorities put in place by the Obama administration. Under President Obama, top priorities for removal were: 1) Individuals considered to be threats to national security or public safety, including those with criminal convictions; 2) Undocumented individuals who had recently crossed the border; and 3) Individuals who had re-entered the country after being deported. Under the Trump administration, these priorities have been eliminated, and ICE no longer exempts groups of removable immigrants from enforcement. In effect, this means that any and all undocumented immigrants are targets for deportation, even if they have been in the United States for many years, have U.S.-born children, or have never had an encounter with law enforcement. Further, prosecutorial discretion will not be regularly exercised in immigration court, meaning that even if the details of an individual’s case suggest that they should be given lenience, the government may not take those factors into consideration in making case decisions.
The end of enforcement priorities has led to an increase in arrests and deportations of noncitizens. Further, ICE has grouped individuals with criminal convictions together with those who have charges pending or who have committed non-violent crimes, leading to a broadening of the term “criminal.” The end of enforcement priorities is causing a fear of law enforcement within the immigrant community, a waste of law enforcement resources on non-violent offenders, and the separation of families.
April 2018 Visa Bulletin
The Department of State has released the Visa Bulletin for April 2018. For the first time this year, EB-1 India and EB-1 China are backlogged, with a January 1st, 2012 final action date for each. This is significantly earlier than the prediction that the backlog would come closer to this summer, though the State Department indicated that if there is a decline in the extremely high demand for these E1 numbers, there could be movement in this date prior to the end of the fiscal year. EB-2 China moved forward to August 1st, 2014, while EB-2 India only moved forward a week to December 22nd, 2008. EB-3 China also moved forward to June 1st, 2015, and EB-3 India moved forward one month to February 1st, 2008. EB-3 Philippines moved forward two months to January 1st, 2017. 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 **