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Going, going gone: USCIS no longer accepting H-1B visa petitions for FY21

The registration and random selection period for new H-1B visas under the fiscal year 2021 quota limitation is over.

On March 31, 2020, the US Citizenship and Immigration Services (USCIS) completed the random selection of new H-1B registrants and updated their online database for employers and attorneys listing selections.

USCIS now needs to receive, starting April 1, 2020, the Department of Labor certified labor condition application and visa petition for each selected registrant within 90 days or less. The agency has not announced any extension of this deadline in response to COVID-19 pandemic. While USCIS has announced extensions of deadlines in many other situations and there remains the possibility that this deadline too might be extended in the future, it is best to prepare and file well before the current deadline.

H-1B quota background

The H-1B is one of the most commonly used visas for US employers of foreign professionals. In 1990, the US Congress, for the first time, imposed quota limits on the number of new H-1B visa petitions that the government would grant each fiscal year, setting the number at 65,000. 

Quota limits were not reached in the years immediately after 1990, but began to be a problem in the mid-90’s as the US economy expanded and the demand for foreign professionals by US employers increased. Congress increased the supply of new H-1B visa petitions to meet the country’s needs, but only temporarily. By the time the temporary increase expired, the US economy was suffering from the tech bubble burst of 2000 and the aftermath of September 11, 2001. New H-1Bs remained readily available.

However in 2004 quota limits on new H-1Bs began to be a problem again. On October 1, 2004, the very first day of fiscal year 2005, the FY05 quota was exhausted.  Congress responded by creating an additional 20,000 slots but limited their availability to those with graduate degrees from US universities.

The increase helped, but was insufficient to meet the needs of US employers. In each of the subsequent fiscal years, the quota was exhausted more and more quickly.  For fiscal year 2008, more petitions were received on the first day than the quota permitted, and the same was true in fiscal year 2009.

Fiscal years 2010, 2011 and 2012 broke with the historical pattern. Although the quota was used up, the same economic climate that limited job opportunities generally also impacted job opportunities for H-1B workers.  As a result, for those fiscal years, USCIS continued to accept new H-1Bs until December, January and November, respectively. 

By fiscal year 2013, the historical pattern resumed and US employer demand for new H-1B workers far outstripped the limited supply allocated by Congress. For many years now, the number of petitions received in the first five business days was so much greater than the quota that the likelihood of selection was less than 50 percent, making it hard for employers and foreign professionals to plan for the future.

For fiscal year 2021, USCIS implemented a new registration system that required employers and attorneys to create accounts and register prospective H-1B employees in March 2020. The agency’s random selection was done from this pool of registrants.

The limited supply of new H-1B visas is inadequate to meet demand. The problem that we have experienced for more than a decade continues to this day, with Congress failing to take the action needed to increase the number of new H-1B visa petitions to meet the needs of American employers. The result has been a shifting of many jobs to other countries, with resulting loss of revenue and business opportunity for the US.

What to do now

Although no new H-1B petitions will be accepted, there are still a number of solutions available to employers and foreign professionals. 

‘Old’ H-1Bs are quota-exempt

Note that only new H-1B petitions are subject to quota limits. A foreign professional granted H-1B status under the quota already is generally exempt from quota limits. This can be true if changing employers or changing from other visa status. For example, a former H-1B visa worker attending US university on F-1 student visa status may be eligible to return to H-1B status without being subject to new quota limits.

Exempt employers

Petitions by some employers are exempt. These are generally government, academic institutions and related research organizations.

Other visas available

There are a number of other visas that US employers may consider as alternatives to the H-1B. 

  • F-1 STEM OPT.  Some foreign students may be able to extend their pre- or post-graduation employment authorization. The list of STEM degrees that offer the chance of an additional 24 months of post-graduation employment authorization beyond the normal 12 months was recently expanded. 
  • Free Trade Agreement TN/H-1B1/E-3.  Citizens of Canada, Mexico, Chile, Singapore and Australia may want to consider free trade visa benefits available by treaty only to citizens of those countries.
  • H-3/J-1.  Training visas are a solution for some. While H-3 authorize only incidental productive work for what is primarily classroom-type training, the J-1 permits on-the-job training involving regular productive work.
  • Extraordinary-Ability Nonimmigrants.  For individuals who can document their extraordinary ability and have job offers using those skills, the O-1 visa is not subject to numerical limitations.
  • EB1A Extraordinary-Ability Immigrants.  Similar to the O-1, but without the requirement of a sponsoring employer. 
  • EB1B Outstanding Professors and Researchers Immigrants. Universities use this to sponsor qualified professors and researchers to immigrate. Other employers use this for qualified researchers.
  • EB2 and EB3 Professional Immigrants.  This is how employers sponsor most professionals to immigrate to the US.

There are many other nonimmigrant and immigrant visas that may be available.  Immigrant visas are subject to quota limits based in part on place of birth, with people born in mainland China and India often experiencing longer waiting times. The requirements for each solution vary from the H-1B, so employers and foreign nationals are well advised to consult their Dentons attorney to determine eligibility for these benefits.

Other countries

Quota limits in past years have driven the jobs offered by many employers offshore and this year is no exception. A number of the countries around the world where our law firm and clients do business have rules for the employment of foreign nationals that are as or even more generous than those offered by the US. 

Employing a candidate abroad, rather than losing a needed skill set, is an option for many employers. Where proximity to a US facility is desired, employers often consider near-shoring in Canada or Mexico.  Dentons is the world’s largest law firm and our global network of offices uniquely positions us to help guide employers through all of the options.

Next fiscal year

And there is always next year when the USCIS will begin to accept new H-1B registration for jobs starting October 1, 2021, under the fiscal year 2022 quota.

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Going, going gone: USCIS no longer accepting H-1B visa petitions for FY21

March 20, 2020, US immigration updates regarding border closures, employment verification completion, premium processing, and signature requirements

Several important announcements were made on March 20 by different US immigration-related agencies. For the full article please read Dentons client alert here.

Dentons will continue to monitor these issue and for the new developments, please visit COVID-19 (Coronavirus) hub. Please contact your Dentons lawyer if you have any questions.

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March 20, 2020, US immigration updates regarding border closures, employment verification completion, premium processing, and signature requirements

H-1B: The Buck Stops Where?

Who can pay the cost of the H-1B is a recurring question. And the US Department of Labor provides the answer.

The short answer is: the employer. However, like most legal questions, the more detailed answer is more complicated.

It is that time of year again—H-1B filing season. Employers, recent graduates, and professionals overseas are starting to prepare for the annual filing of new H-1B visa petitions to authorize professionals from other countries to be employed in the US.

The process is expensive. There are government filing fees and attorney’s fees, charges for expert evaluations of foreign education and/or experience and charges for translations. For some, there may also be costs associated with relocation, transportation, accompanying family members, etc. Even generous employers often question whether some of the expenses can be lawfully paid the employee himself or herself, or which of the expenses the employer may recoup if the employee leaves employment.

The DOL’s Wage and Hour Division issued Fact Sheet #62H, “What are the rules concerning deductions from an H-1B worker’s pay?,” in 2009. The DOL’s position is that there are certain expenses that can never be deducted from an employee’s pay. In pertinent part, these include:

  • The US Citizenship and Immigration Services training and processing fee;
  • The USCIS fraud protection and detection fee;
  • The USCIS optional premium processing fee;
  • A penalty for the workers failure to complete the full employment period authorized by the approved H-1B;
  • Any expenses, including attorney fees, directly related to the filing of the Form ETA 7035E labor condition attestation; and
  • Any deduction that would reduce the worker’s pay below the required wage rate, which is stated on the Form ETA 7035E.

The DOL does identify some expenses that can be paid by either the employer or the employee. Of course deductions required by law (e.g., income tax) can be made. Deductions authorized by the employee also are permissible, but only if:

  • There is a voluntary, written authorization by the employee;
  • For a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging that was not incurred while traveling on the employer’s business;
  • For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
  • The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

It is important to note that the US Citizenship and Immigration Services guidance in this area is much less comprehensive than the DOL. USCIS provides clear guidance on their position with respect to the various USCIS filing fees. While some may consider the differences as creating a grey area to justify allocating certain expenses to employees, conservative employers will want to minimize exposure to potential liability and the specter of a government enforcement action or civil suit by a disgruntled employee. Following the DOL’s guidance is the best practice.

Employers should review their employee handbooks, employment agreements, offer letters and collateral materials to ensure that they are in compliance with the DOL framework.

The full text of Fact Sheet #62H is available on the DOL website.

For more information about H-1B visa requirements or other questions regarding hiring the best and brightest from around the world, please contact the authors or your regular Dentons lawyer.

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H-1B: The Buck Stops Where?

New important dates for H-1B employers: March 1, 20 and 31

The US Citizenship and Immigration Services agency announced on January 9, that the initial H-1B petition registration period will be from March 1 to March 20, 2020, and that USCIS expects to notify employers whose registrations have been selected no later than March 31, 2020. The agency also provided new information about the H-1B cap-subject petition registration process.  

Petitioners must register using an online account. As of this writing, USCIS has not provided any details regarding the registration portal or ways to register an account, but has indicated that it will post the date employers may start setting up accounts on its website. 

Petitioners must electronically submit a separate registration request for each individual it seeks to petition for a cap-subject H-1B. No more than one registration may be submitted for the same individual by the same petitioner, or all registrations for that individual will be disregarded. 

USCIS will deliver lottery results by sending notices electronically and inform petitioners to file an H-1B cap-subject petition on behalf of the named individual within the filing period indicated on the notice. The notifications will be added to the registration accounts, and the account holders will receive notification via email or text message stating that an action has been added to their account. 

Petitioners should start the preparation process now by evaluating potential H-1B candidates to make sure that they are qualified to receive the visa if selected. Please contact your Dentons lawyer if you have any questions. 

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New important dates for H-1B employers: March 1, 20 and 31

New H-1B Registration Starts March 1, 2020

Hire American/Buy American policy used to benefit the government

In a move under the Hire American/Buy American Executive Order touted as aiding US employers, the US Citizenship and Immigration Services in November actually placed an extra burden on US employers sponsoring H-1B professional workers. The only real winner from this change is the US government—not American employers or workers.

The old rule

In the past, employers filed H-1B petitions with filing fees and the USCIS would then randomly select petitions up to the limited quota available. The agency had to deal with more than twice as many petitions as the quota allowed. It took the USCIS three months on average to return unselected petitions and the filing fees paid by employers, at considerable expense to the government.

The new rule

Under the new rule, the USCIS has increased both the fees employers pay and the steps employers must take. Now employers seeking to file H-1B, cap-subject petitions for the 2021 fiscal year will be required to first register and pay a non-refundable $10-per-petition registration fee.

A separate registration must be submitted for each H-1B requested. The registration must be completed between March 1 and March 20, 2020. Petitioners will receive electronic notification that USCIS has accepted the registration for processing. As before, employers are not permitted to submit more than one registration for a single employee in a fiscal year.

The USCIS will then run a random selection process on the registrations received and will notify petitioners whose registrations were selected. The petitioner will then have up to 90 days to file a full petition with supporting documents and all of the usual filing fees.   

Dentons insights

Imposing additional fees and procedures on US employers benefits no one but the government.

While employers will find out sooner than under the old rule if an employee’s petition is selected, that is no guarantee the petition will be ultimately granted. To the contrary, the increasingly conservative positions being taken by USCIS adjudicators in evaluating petitions—a process without legislative or regulatory approval—make denial more likely than ever.

And early notice of selection for the lucky few means earlier notice of non-selection for the majority of registrations. That is particularly bad news for most F-1 visa foreign students.

The old rule allowed continued employment of certain F-1 students whose authorization otherwise ended. Known as a “cap-gap extension,” this rule provided that a pending H-1B petition for a foreign student with OPT or STEM OPT ending before September 30 acted to extend employment authorization until September 30 or the date that the employer receives notice that the H-1B petition is not selected, whichever is earlier. Such rejection notices were usually not received until mid-June or later, which benefited many employers and students. Under the new rule, unselected registrations will not enjoy cap-gap benefits and employers will lose more workers sooner.

We also expect that US employers will see even longer USCIS-processing times for selected H-1B petitions.

In the past, the USCIS began processing petitions after the selection process was completed—usually mid-April—yet the agency would still be sending out petition approvals and denials into October. Under the new process, the USCIS says registrations will be selected by the beginning of April and employers will have 90 days to file. With some petitions filed as much as three months later under the new rule, it seems likely employers will sometimes see USCIS processing completed in December, or 90 days later than now.

The government claims this new registration process will dramatically streamline processing by reducing paperwork and data exchange, and will result in an overall cost savings to US employers. In fact, the real beneficiary of the new process is the agency itself.

By limiting the number of petitions eligible to file, the USCIS reduces its own workload. It will not have to deal with sending out rejection notices and returning unselected petition packages. Government efficiency is a good thing, but better without the pretense that the change helps Americans.

US employers will continue to bear the cost of recruiting and making offers to more prospective hires than they will ultimately be allowed to employ. They will still have to pay lawyers to evaluate jobs offered and candidate qualifications to make sure registrations are only done for qualified cases. The fact that some forms will not need to be typed or documents copied will save employers some money, but only on the clerical aspects of the process.

As with any new rule, there are clouds of uncertainty. Employers, candidates and lawyers must be prepared for last-minute process changes. The USCIS already announced that it will soon release more information regarding the new registration. And there is always the possibility that a court decision will ban the implementation of this new process and we will have to revert back to previous practices.

Dentons will continue to monitor this issue. Please contact your Dentons lawyer if you have any questions.

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New H-1B Registration Starts March 1, 2020

Final rule amending regulations governing EB5 program increases minimum investment amounts, gives USCIS sole authority to designate targeted employment areas

USCIS has issued new regulations that makes changes to important provisions of the employment-based fifth preference (EB5) immigrant investor visa program. The changes will require that ongoing EB5 investment projects review, and likely modify, their business plans, economic analyses and legal documents (e.g., private placement memoranda, subscription agreements) to reflect the new requirements.

Effective date

The new regulations apply to all EB5 petitions received by USCIS on or after November 21, 2019. There is expected to be a rush of new EB5 investments and petitions filed with USCIS before November 21, 2019, as petitioners seek to avoid the increased investment requirement.

Required investment will increase

The minimum investment required to qualify for EB5 will generally increase to $1.8 million from $1 million. The required minimum investment required for investments made in targeted employment areas will increase to $900,000 from $500,000.

In addition, the required minimum investment will increase in future years to adjust for inflation.

This change will decrease the number of immigrant investors interested in investing in America. The number of new jobs created through EB5 for American workers will decrease by at least 50%. American businesses seeking financing through EB5 will find it harder to obtain such investment, but will need to attracted fewer individual EB5 investors to raise the same amount of investment.

As noted above, the increased investment requirement apply only to EB5 petitions received by the USCIS on or after November 21, 2019. There is no increase for individuals, whose petitions are approved, or pending, prior to that date.

Changes to targeted employment areas

Under current law, the power to designate targeted employment areas (TEAs) is held by each state. The new regulations will strip the states of this power and give USCIS sole authority to designate a TEA. This change is likely to (1) increase the time it takes to receive a TEA designation and (2) decrease the likelihood of receiving a TEA designation. 

Under current regulations, TEAs must be comprised of census areas that are contiguous to each other. Under amended regulations, all of the census areas must be directly contiguous to the census area where the EB5 job creating business is located. The impact of this change will be to greatly restrict the number of locations that qualify as a TEA.

As a result of this change, it will be harder for projects in the US to attract EB5 investors and fewer parts of the US will be able to create jobs for American workers using EB5 funds.

A TEA is a census area whose rate of unemployment exceeds the US national average by 150 percent or more. In addition, two or more contiguous areas whose combined unemployment rate hits that benchmark can be designated a TEA. The latter is affected under the new rule, which takes the authority to designate that group away from the state government and gives it to USCIS, while at the same time limiting what census areas can be combined into the group.

Priority date retention

US law limits the number of people who can immigrate each year through EB5. The limited supply of EB5 visas is allocated in part based on the date the EB5 petition was received (priority date). Under current regulations, if an EB5 investment materially changed or an immigrant wanted to change investments after the petition was granted, the immigrant investor might lose that priority date and their immigration would be delayed. The new regulations preserve the original priority date for investors with multiple approved EB5 petitions.

This is a positive change that will help a small subset of EB5 immigrants to avoid even longer immigration waiting times when their investment plans change over time.

In general

The EB5 immigrant investor program was created in 1990. EB5 grants resident status to investors and their accompanying immediate family members, provided they satisfy a number of requirements which, for the most part, remain unchanged by the new regulations. The final rule does not, for example, change the requirements that:

  • An EB5 investor create at least 10 full-time equivalent (FTE) jobs for US workers.
  • The jobs must either be created before the petition is filed or the investor must submit a comprehensive business plan that shows the jobs will be created before the conditional basis of resident status is removed.
  • The investor show that the source of the invested funds is “lawful.”
  • The invested funds be at risk in an active commercial business located in the US.

For more information

The full text of the final rule was published in the Federal Register and is available online, click here to read.

For more information, please contact your lawyer at Dentons or the authors.

Matt Schulz and Mengci Shao are members of Dentons Global Mobility Practice and are based in the firm’s Silicon Valley office.

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Final rule amending regulations governing EB5 program increases minimum investment amounts, gives USCIS sole authority to designate targeted employment areas

Cannabis in the United States and its implications in naturalization applications

In response to requests from state and local officials for clarification and adjustment of United States Citizenship and Immigration Services policies negatively impacting the legal immigration status of individuals who work or have worked in the legal cannabis industry, USCIS has updated its Policy Manual—but has not retreated from its position that cannabis-related activities will likely bar a lawful permanent resident of the US from naturalization, even if such activities take place in a state that has legalized cannabis. For a deep dive into the updated manual—including cannabis-related activities which, while not grounds for deportation may still be grounds for inadmissibility if the LPR travels abroad and attempts to re-enter the US—please click here.

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Cannabis in the United States and its implications in naturalization applications

Verifying work authorization under USCIS’ OPT cap-gap rule

There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap” because it is intended to fill the gap between the date the OPT (optional practical training) period would otherwise expire and the date that the new H-1B employment authorization starts.

The H-1B allows employers to temporarily employ a foreign national in a specialty occupation. The US Citizenship and Immigration Services (USCIS) grants H-1B status. There is a limit, or “cap,” on the number of individuals who can receive H-1B status, and H-1B employment generally begins on October 1, the start of the federal government’s fiscal year. 

OPT is an employment authorization for F-1 international students who have completed their studies. Typically, the OPT is granted for 12 months. STEM majors working for eligible employers may qualify for extensions totaling an additional 24 months. At the completion of the study program or the end of OPT, F-1 students have a 60-day grace period to take the steps necessary to either maintain their legal status or depart the US. For the non-STEM majors, that means their OPT status expires well before the October 1 start date of H-1B, hence the “cap-gap.”

To deal with this situation, USCIS’ OPT cap-gap rule automatically extends an eligible F-1 student’s status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the US during the “gap.”

The cap-gap extension applies if all three of the following conditions are met:

  • An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. Note: A petition requesting consular process does not qualify.
  • The H-1B petition asks for an October 1 start date.
  • The student’s status, including any applicable grace period, ends between April and September 30. 

How the OPT cap-gap protection is triggered by different events during the H-1B process

  • When an H-1B petition on behalf of the student has been filed with USCIS but not yet receipted, the student’s employment authorization automatically extends to June 1. While the extension is automatic, students can request from their school’s office of international students office an updated Form I-20 to serve as proof of legal status.
  • While the H-1B is pending with USCIS for processing, the student’s employment authorization automatically extends to September 30. Again, the student may, but is not required to, obtain an updated Form I-20 from the international students’ office. 

If USCIS denies the H-1B, or if the H-1B petition is returned as “not selected,” then there is no longer any cap-gap employment authorization. If the F-1 student’s OPT already expired, then the student has 60 days to depart the US or take other steps to maintain lawful status.

Employers are advised to request updated Form I-20s from their employees on OPT status as proof of valid work authorization, and to take note of the expiration dates.   

Note that if the student’s OPT expires before April 1 and the student is already in the 60-day grace period when the H-1B is filed, the cap-gap only extends the F-1 status, not OPT employment authorization. The student may remain in the US, but without OPT work authorization. 

Employers must verify the employment authorization for all employees in the US. Failure to do so may result in monetary penalties against the employer. Please contact Dentons for more information. 

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Verifying work authorization under USCIS’ OPT cap-gap rule

DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Last week, the Department of Homeland Security (DHS) published the final rule amending regulations governing H-1B cap-subject petitions. For a detailed discussion of the proposed rule, see our recent blog post here. The final rule, however, makes some changes different from those set out in the proposed rule.

No online registration for FY 2020 H-1B cap season

Though suggested in the proposed rule, the final rule clearly states that an online registration requirement will not be implemented for the FY 2020 cap season. The agency explains that before implementation, it wants to complete user testing and other evaluative tools to ensure the system and process are fully functional. Employers should be ready in 2020 for the FY 2021 H-1B cap season, when the process change will likely take place. US Citizenship and Immigration Services (USCIS) will announce the implementation in advance of the cap season in which it will implement the requirement.

Changing the order of the H-1B lottery selection for the FY 2020 H-1B cap season

Currently, H-1B cap-subject petitions filed under the advanced degree cap are selected first, and unselected petitions get a second bite at the apple—an opportunity to compete, along with the regular cap petitions, for one of the 65,000 visas available for workers holding bachelor’s degrees. The final rule reverses this order. Effective April 1, 2019, USCIS will first select 65,000 petitions from all submissions, including both regular and advanced degree petitions. USCIS will then run a second lottery to select enough qualifying petitions to meet the 20,000 cap exemption for individuals with advanced degrees from US institutions. DHS states that the change will increase the chances of H-1Bs being awarded to individuals with US master’s degrees or higher by up to 16%, or 5,340 workers. Time will tell. Why DHS thinks random holders of US master’s degrees will better serve American competitiveness than will holders of bachelors’ degrees in targeted fields of study, such as STEM, or who otherwise meet the goals articulated in President Trump’s April 2017 executive order directing an interdepartmental review of the H-1B visa program, was not addressed in the final rule.

Dentons analysis

Employers need to submit full H-1B cap-subject petitions during the first week of April. Please contact your lawyer now to be fully prepared.   

Meanwhile, Dentons will continue to closely monitor any changes to the regulations surrounding the H-1B program, particular regarding the pre-registration requirement, and update you as needed.

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DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Does USCIS interpret its regulations consistently and correctly?

Non-immigration case before SCOTUS could change immigration law

In December of last year, the US Supreme Court agreed to review Kisor v. Wilkie, a case that could have a major impact on immigration law. At issue is the degree of deference a court must accord an agency’s interpretation of its own ambiguous regulation.

How much deference courts should afford agencies in interpreting their own regulations is a central question in administrative law. It determines how much an agency is allowed to stray from the original wording of a regulation it promulgates before it becomes necessary to issue a new regulation.  

It is dangerous to grant agencies unfettered discretion based on the assumption that their personnel will wisely and fairly carry out their duties. Changing presidential administrations often result in new agency directors and the likelihood that political beliefs will change how existing regulations are interpreted.  

If an agency seeking to revise a regulation follows the legal requirements of the Administrative Procedure Act (APA), there will be notice of proposed rulemaking and a comment period to identify any issues. There’s also a published regulatory history from which to glean meaning and intent. Too often, however, federal agencies, rather than comply with the APA, seek to regulate through policy interpretation memoranda.

On its face, Kisor v. Wilkie has nothing to do with immigration law. In 2006, James Kisor a Vietnam War veteran reopened a claim for disability benefits, citing new evidence that supported a diagnosis of PTSD. While the Department of Veterans Affairs (VA) agreed with the diagnosis and approved the 2006 claim, it declined to grant him retroactive benefits based on his initial 1983 claim, asserting that he had failed to present “relevant” service records required under VA regulations governing reconsideration of benefits claims. The Court of Appeals for the Federal Circuit deferred to the VA’s interpretation of its own regulation and found in the agency’s favor.

In the context of immigration, the US Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security (DHS), is the federal agency that oversees lawful immigration to the United States. Under current case law, significant deference is granted to USCIS’ interpretation of its own regulations. This deference has allowed the agency to change certain visa programs over time, often without issuing new regulations but instead relying on policy memoranda to implement what increasingly seems to be an agenda driven by White House politics rather than good policy.

For example, President Donald Trump’s “Buy American, Hire American” 2017 executive order, which, among other things, directed DHS, in coordination with other agencies, to review immigration-related policies, led to USCIS modifying many of its immigration policies in 2017 and in 2018, oftentimes by the mere publication of a memo or a press release rather than by going through the APA’s required process. Dentons’ immigration team covered several of these:

  • In October 2017, USCIS issued a policy memorandum reversing the burden of proof and eliminating the prior practice of deferring to previous approvals in the adjudication of petitions to renew H, L and other non-immigrant visas. The idea was that USCIS would accept the original determination as correct and would not review all the visa requirements again. With the elimination of this practice, visa holders merely petitioning for an extension now have to prove every criteria applicable to their visa category, even though USCIS already decided that they met such criteria. Effectively, extensions now require the same level of documentation as the original petition. This change has led to extensions being denied, thus creating confusion among alien workers.
  • In April 2018, USCIS updated its webpage for Optional Practical Training Extension for STEM Students (STEM OPT), providing that the training experience of STEM OPT workers may not be conducted at the place of business or worksite of the employer’s clients or customers.
  • In May 2018, the USCIS changed the way it calculates the accrual of unlawful presence for nonimmigrant students and exchange visitors (F, J and M visas, including F-2, J-2 and M-2 dependents). The changes increased the likelihood that individuals in these nonimmigrant visa categories would have problems with future immigration benefits. (See our previous posting “Stricter unlawful presence rules for foreign students and exchange visitors”).
  • In May 2018, USCIS revised its Policy Manual, announcing it would no longer count the jobs created for US workers through tenant occupancy of EB5 properties, which effectively reduced the amount of immigrant investor funds available to create jobs for US workers. (See our previous posting “No more EB5 job creation through tenant-occupancy models: New USCIS policy reduces availability of immigrant investor funds to create jobs for American”).
  • In November 2018, USCIS published a new policy memorandum explaining how to calculate the 12 months of employment abroad, a key requirement under the L-1 intracompany transfer visa program. (See our previous posting “How to count to 12: USCIS clarifies L1A visa requirements”).
  • In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. If adopted, the proposed rule is expected to become effective in the first half of 2019 and would impact all of the more than 100,000 individuals currently holding an H-4 employment authorization document. (See our previous posting “Proposed end of H-4 employment authorization likely to affect over 100,000 families”).

While USCIS’ frequent and often far-reaching policy changes created lots of business for lawyers in 2018, the agency’s unpredictability and inconsistent application of the law has created a tremendous burden on US employers and their foreign-national employees and families, as well as for US business developers seeking foreign investment and foreign investors and families.  

Critics of the deference principle have argued that it effectively allows agencies such as the USCIS to write overbroad and substantively vague rules with the expectation that they can fill in any gaps later using interpretive rules, unchecked by notice and comments. They are urging the Supreme Court to reverse the current precedent favoring judicial deference, which would force USCIS to issue clearer and more detailed regulations, thus providing  more agency transparency and accountability. The Supreme Court will hear Kisor v. Wilkie in the spring—oral arguments have not yet been scheduled—and will likely make a ruling later this year.

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Does USCIS interpret its regulations consistently and correctly?