As you know, we’ve been tracking the progress of immigration processing changes since the start of the Trump administration and doing our best to separate fact from fiction given the multitude of announcements and statements related to our immigration system. This has been a challenge to say the least, and it seems that every time we hit send on our monthly News Alert, something important is announced that requires our review and explanation. We are in this position again because the news keeps coming and is often without meaningful content or guidance. Below are three important updates that we are tracking.
For those of you I’ve spoken with, you know that we’re tracking regulatory and guidance changes and are constantly incorporating new best practices into our workflow. These adjustments are happening literally every week. In the 20 years I’ve been doing this, I’ve never seen anything quite like it.
As it relates to H-1Bs, when we embarked on the H-1B Cap filing season, there were last-minute announcements related to President Trump’s Buy American, Hire American executive order (“BAHA”), but it wasn’t immediately clear how they related directly to H-1B filings. There was a fair bit of chiding and hyperbole in the text of BAHA, but no clear policy guidance. It also included an agency memo that highlighted that computer programmers were not necessarily H-1B eligible, which wasn’t a surprise. Now, that Cap season is nearing the end, the impact of BAHA is becoming clearer. We’ve seen a number of new types of Request for Additional Evidence (RFE) issued and overall an increase in RFE activity.
Every year, USCIS runs the H-1B lottery to select cases counted against the H-1B Cap. As USCIS has become increasingly backlogged over the last several years they have gotten slower and slower in processing these cases. In 2015, the vast majority of H-1Bs had been adjudicated prior to the statutory start date of October 1. We were lucky in that all of our cases were approved prior to October 1 and our RFE rate was approximately 3%, meaning 97% of our cases filed were simply approved. Last year, USCIS slowed considerably and we saw a percentage of H-1Bs take until past October 1 to be adjudicated. Complicating the timing approval of these applications is the RFE. We saw 14% of cases receive an RFE in 2016, which helped push things later. We saw 17% of our cases take longer than the October 1 deadline, with some cases taking until December to be approved. There is a correlation at play here – the longer USCIS takes to process Cap filings, the more likely they are to ask questions by way of an RFE.
Each year, USCIS accepts more than the statutory allowance of 85,000 cases because they know that they will deny a certain percentage of cases. In other words, they accept more than 100,000 cases believing that they will deny at least 15,000 cases to get back down to the statutory allowance of 85,000. As we get to the end of a Cap season, USCIS seems to more clearly recognize that it risks approving more cases than its statutory allowance permits, which results in more RFEs in what we believe is an attempt to cull those cases remaining. To a certain extent, we expect more RFEs when the Cap filing review takes longer. Obviously an increase of 11% in RFEs is significant, but it is not unusual considering how slow USCIS was in 2016. However, delay with processing can’t be the only rationale for the increase we’ve seen this year. As of today, our RFE rate for H-1B filings has hit a remarkable 42% of cases filed! After benchmarking our outcome with other firms and reviewing recent reporting on RFE statistics, it appears that this is a consistent trend. Further, we’ve only seen 50% of our cases approved to date, when we would usually have expected all cases approved, or worst case at least 80-90%.
Clearly this H-1B season has not unfolded in the usual manner. There are a variety of reasons for this including too much work and a freeze on hiring, which clearly contribute to the backlog. On some level, much of this is self-inflicted by the unnecessary RFEs we’ve been seeing in the last few years. If USCIS spends time asking questions, it is adding additional work to its already challenging mission. Clearly these issues alone don’t create a tripling of RFEs within a year, and so we look to the BAHA Executive Order and the new computer programmer guidance, which are at the root of the bulk of our increase in RFEs. Unfortunately, there are already reports that these new RFE types are leading to denials of cases. While we see these RFEs as baseless and unnecessary, USCIS officers view them as important and relevant questions. We’ve come up with very direct and strong responses to these new RFE types and we are now again shifting our best practices to ensure future filings seek to avoid these types of questions in the future.
What this experience does tell us is that there is no bulletproof case – we will need to expect that cases filed, no matter how well-briefed or supported, may receive questions from USCIS and that all RFEs must be taken seriously or the potential for a negative decision is high. We are confident that we will ultimately prevail in every case we file (we’ve only had one H-1B denial in over 5,000 filings; it is currently under appeal). In seeing the recent denials, it appears that USCIS is at times choosing to not accept the facts provided, and instead requires that we respond with clear evidence and argument that adjudicators cannot reasonably disagree with. These responses oftentimes take more time and energy than the original H-1B filing given the scrutiny USCIS is now applying to these cases.
We are sharing this information with our clients to ensure you all gain a better perspective of how this H-1 Cap season is different from years prior and how we are adjusting for future filings with USCIS. At the same time, we hope that our clients understand that this is an unusual time for our area of law. This, in addition to adjusting to changes in the procedure and guidance, we are now grappling with a significant increase in our workload without advance warning or true legislative change. While we appreciate that every client wants their case filed as soon as possible, we’ve been intentionally cautious while making case decisions so that we may adjust to how USCIS is reviewing RFE responses. This cautiousness allows us to tweak our responses according to the latest information. In short, we’re doing the best we can to respond to what is essentially a second H-1B cap season that we didn’t expect to happen. If you have a concern about a particular case we are working on, please don’t hesitate to reach out to us, but please know that our goal in every case is to work diligently and examine every option and argument to achieve an approval. We are committed to doing this for every client we serve.
In an executive briefing session with AILA, senior USCIS leadership unofficially announced that they planned to resume all H-1B premium processing on Tuesday, October 3, 2017. We are awaiting a formal announcement but in the meantime, if you have an H-1B extension or change of employer application pending with USCIS and you wish it to be upgraded to premium processing, please let the attorney or paralegal you are working with know about your interest in upgrading the filing.
This is another of these little changes that doesn’t immediately get traction because it seems like just a regular government request on the surface and then it becomes a much bigger deal once it breaks. On September 18, 2017, by notice in the Federal Register, USCIS indicated it is now updating it file retention strategy to come of age in the digital world. As the process of immigration applications has gotten exceedingly more complex and USCIS now relies on other data from other sources, they are now publishing standards on the type of information that goes into an immigration file and how they will maintain it. Previously, they maintained paper files and could scan documents into their system for ease of reference/use. As part of this new framework related to what goes in a USCIS file, the announcement included a reference to keeping “social media handles and aliases, associated identifiable information, and search results.” This brief phrase has been interpreted to mean by some that USCIS will now examine an individual’s search history if they are requesting USCIS benefits, or that they will be unlocking individual social media accounts.
While we always have a concern with policy and privacy considerations, especially given the anti-immigrant approach exhibited by the current administration, on the face of it, this appears to be a normal regulatory move. It has long been expected that USCIS may examine social media content to ensure security concerns are not an issue and that as a routine, applicants in the future may be subject to some type of social media screening. In any event, if someone is seeking asylum currently in this country and there are public posts that are detrimental to the individual’s application, we would expect those would be used by USCIS to challenge an application. In this Federal Register announcement they are simply confirming that they are making a policy in how they store this information in the applicant file. The obvious and more important question is when will the government care about social media information? This is something that has yet to be determined. We will wait for more details on what DHS and DOS policy is in requesting this information from applicants and how these agencies will then examine and weigh such information.
On September 24, President Trump issued a Presidential Proclamation regarding restrictions on travel to the United States for foreign nationals of certain countries. This proclamation was issued in response to a review by the Department of Homeland Security pursuant to President Trump’s executive order of March 6, 2017. This review was to determine which countries were cooperating in information-sharing with the United States and what additional information is needed from countries in order to assess whether certain foreign nationals seeking to enter the country pose a threat to the national security of the United States.
The most significant part of this presidential proclamation is its guidance regarding travel restrictions for foreign nationals covered by the president’s “travel ban.” It maintains restrictions on certain foreign nationals from Iran, Syria, Libya, Yemen, and Somalia. It adds restrictions to certain foreign nationals from Chad, North Korea, and Venezuela. It lifts all restrictions on foreign nationals from Sudan. Below is a country-by-country breakdown of the travel restrictions for each country (a table of the restrictions may be found here).
The travel restrictions will apply to all foreign nationals from the listed countries who do not currently possess a valid visa and to those who are currently applying for a visa. It is immediately applicable to foreign nationals from the previously restricted countries who do not have a bona fide connection with a close family member or entity within the United States. It will apply to all foreign nationals, including those with a bona fide connection, starting on October 18. The restrictions are considered to be indefinite.
The presidential proclamation has clarified that there are certain foreign nationals to whom the travel restrictions will not apply. It shall not apply to: lawful permanent residents; foreign nationals who have been admitted or paroled into the U.S. on or after September 24; foreign nationals who possess a valid document other than a visa (such as Advance Parole) which permits them to travel to the U.S. and seek admission; dual nationals traveling on a non-United States passport; foreign nationals who are traveling on diplomatic visas (other than certain Venezuelan officials); asylees, refugees already admitted to the United States, and other foreign nationals present in the United States under a form of humanitarian relief. Additionally, the Department of State has assured that valid visas will not be revoked, and it will not cancel previously scheduled visa appointments for foreign nationals from the listed countries.
Finally, the presidential proclamation does allow for discretionary waivers to be granted under limited circumstances. In order to be granted a waiver, a foreign national must show that denying entry would cause him or her undue hardship; his or her entry would not pose a threat to the national security or public safety of the United States; and his or her entry is in the national interest.
The presidential proclamation also requires the Department of Homeland Security, the Secretary of State, and the Attorney General to periodically review the travel restrictions, and lift or expand them as they believe necessary. With the announcement of this new text the Supreme Court suspended the existing Travel Ban case and asked litigants to update their briefings to incorporate this new policy. We now expect this new policy to receive direct scrutiny from the Supreme Court and if necessary they or a lower court will likely be asked to stay the implementation of this new ban. We will continue to update as noteworthy changes occur.
** 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 **