A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, December 11, 2018

USCIS Clarifies L-1 Visa Foreign Employment Requirement

One of the many requirements of the international company transferee L-1 visa is for the beneficiary to have worked at least one continuous year out of the past three for the petitioner or an affiliate in another country. This employment abroad must be in an executive, managerial, or "specialized knowledge" capacity. The beneficiary's past three years of employment is scrutinized to see if this is met. There has been confusion about how this "one-in-three" rule applies.  Back in March, USCIS already issued a memo on this same issue in regards to the EB-1C immigrant visa petition. Recently, USCIS has issued another memo, this time in regards to the L-1 nonimmigrant work visa petition.

If the employee has been working outside of the U.S. for the petitioner, the one-year requirement is usually counted from the three years before the date of filing for the L-1 petition. It is not interrupted by business or pleasure trips to the U.S. (typically B-1, B-2 visas). However, these days spent in America do not count toward filling the one year period, and an equal amount of time must be spent working to cover them.

The confusion arises when an L-1 visa worker is already present in the U.S. when the L-1 application is filed.  In this situation, when should the 3-year clock begin and end?

Specifically, the one-year period is adjusted if the beneficiary was sponsored by a petitioner to work in the U.S. with a nonimmigrant work visa, such as H-1B or E-2. If the beneficiary worked for the same petitioner in such status leading up to the L-1 petition filing, then the three years looked at will be from the period right before the start of such employment (usually the date of admission). For example, if the employee worked for the petitioning company in the U.S. from 2017 to 2018 in H-1B status, then USCIS will look at 2014 to 2017 for L-1 foreign requirements. This adjustment does not apply to those working for the petitioner in a dependent status such as L-2 or F-1 OPT. For these cases, the three-year period would be counted from the date of filing like the rest of the cases.

Interruptions can, however, occur from periods of the L-1A worker (1) not working while in the States or (2) working for another employer in the States. As the L-1 requirements include a continuous one-year period, these breaks can determine whether or not an applicant qualifies for L-1 status. This also means having a break lasting over two years will render the beneficiary ineligible for L-1 status. 

This memo provide some clarification to the L-1 visa requirements.  Employers and L-1 workers should mind the changes and avoid breaking the one-year continuous employment requirement. The takeaway is to avoid breaks of employment with the L-1 visa employer for two years or longer.

Monday, December 3, 2018

Proposed H-1B Registration System Favors Advanced Degree Holders

An electronic H-1B registration system has been proposed by the Department of Homeland Security (DHS) that would alter the yearly lottery selection process.

Each petitioner would first need to register online with USCIS during a designated period before the lottery selection process. They would provide basic information such as company name, address, and FEIN, the job title, company representative information, the beneficiary's personal and educational information, and attorney information. After this registration period, USCIS would then randomly select registered beneficiaries to fill the regular degree (65,000) and Master degree (20,000) caps. If less individuals have registered than the cap allows, then the registration period will be extended until the cap is met. If not, registration is closed and those that have been selected will be instructed to send in their completed H-1B applications during certain filing windows. Those that had registered but were not randomly chosen are still put on standby to be selected in the event that USCIS determines more are needed to meet the caps.

The current process has everybody spending time and resources to compile tens of thousands of complete H-1B applications before USCIS randomly sele
cts H-1B applications toward the cap. A large portion of these applications will not even be selected for processing. This proposed change is clearly to reduce paperwork on both the petitioner's and USCIS' end by having random selection take place before whole applications are sent in. The DHS estimates a total savings of $47.3 million to $75.5 million for unselected petitioners. Also, filing window periods would stagger the influx of applications, an improvement over the current yearly surge of applications leading up to April 1st. 

The way the regular and master caps are filled would also be changed. Currently, those with an advanced degree are chosen for the 20,000 Master's cap first. Those that are not chosen are then considered in the 65,000 regular cap pool. The proposal would reverse this -- advanced degree holders would be considered in the regular cap pool and then the Master's cap pool. Statistically, this increases the chances that applicants with advanced degrees from U.S. institutions will be selected for a H-1B visa.

While the reduced paperwork would be welcome, there is one glaring issue with this proposal. The current system already has instances of a petitioner using connected companies or divisions to put in multiple H-1B applications for the same employee. By simplifying requirements to become eligible for selection, the DHS would be making it easier for unscrupulous petitioners to flood the system with applications. The DHS does try to address this in its proposal. The requirement to register would include a mandatory attestation stating that there is a bona fide job offer and H-1B petition if selected. Still, this would require adequate monitoring and enforcement to have a meaningful effect.

Monday, November 19, 2018

37% Increase in Immigration Application Denials

USCIS has released data on immigration application denial rates in recent years. The data, which CATO institute organized in their blog, shows a 37% increase in application denials from 2017 (8.3% denial) to 2018 (11.3% denial). Looking at the years 2016 to 2018, one can observe this upward trend especially in the most popular categories. Higher denial rates of immigration applications, reflecting the more restrictive immigration policy under the Trump Administration, deter foreign nationals from filing for U.S. visas and other immigration benefits. For example, the U.S. State Department reported a 17% decline in the number of F-1 visas issued to foreign students in FY2016. 



Generally, denial rates have risen in almost every category. Specifically, the I-129 Nonimmigrant Worker petition denials increased from 16.8% in 2016 to 22.6% in 2018. This includes the popular H-1B work visa, which allows an employer to sponsor hi-tech and professional workers. Many foreign workers rely on H-1B visas to stay in the U.S. The current denial rate means more than 1 in 5 will likely go out of status, meaning they must stop working and leave the country.

Form I-765 Employment Authorization Document (EAD) denials increased from 6.0% in 2016 to 9.6% in 2018. An EAD allows the holder to work legally and is granted through many different conditions. For examples, EADs are commonly requested by students in Optional Practical Training (OPT) and those pending Adjustment of Status (Form I-485). Without this document, foreigners cannot work legally and may be forced to depart the U.S.

The most dramatic difference is observed in I-131 Advanced Parole documents, which are needed for foreign nationals to reenter the U.S. after international travel. Denials jumped from 8.3 percent in 2016 to 18.1 percent in 2018. Also, denials for I-539 Applications to Extend/Change Nonimmigrant Status rose from 15.6% in 2016 to 17.5% in 2018. Not only is it more difficult to gain legal status, but also to keep or change it.

It is also now more difficult to become an immigrant in the U.S. There are various ways one can be sponsored to apply for legal permanent residence, and all have increased denial rates. The denial rate for I-485 Employment-Based Adjustment to Permanent Residence rose slightly from 5.9% in 2016 to 7.9% in 2018, while the I-140 Immigration Petition for Workers increased from 6.3% in 2016 to 8.6% in 2018. Family-Based Adjustment of Status denials increased from 11.8% to 13%.  I-129F fiancĂ©(e) visa denial rates grew substantially from 13.6% in 2016 to 21.8% in 2017, remaining at 21% in 2018.  It has also become more difficult for citizens and immigrants to petition for their relatives.

These statistics are unsurprising. Over the course of the current administration, USCIS has gradually tightened its policies. Adjudication standards have been tightened significantly, and rules and requirements have been toughened. In addition to foreign students, we are also losing hi-tech and skilled workers to other countries, resulting in long-term social and economic loss to the U.S.









Friday, November 16, 2018

December 2018 Visa Bulletin: EB-3 and EB-2 India Close








December's visa bulletin sees slight advancements in most notably the EB-1 and EB-2 categories. All EB-1 categories remain retrogressed. Family categories also advance slightly, particularly in the F-1 category.

India's EB-3 and EB-2 have similar cutoff days now.  Similar to what has happened to Chinese applicants, downgrading from EB-2 to EB-3 is a real possibility now for Indian applicants to speed up the application process.

EB-1 India, China, Mexico, Philippines, Other Countries - advance 3 months.
EB-2 China advances 6 weeks;  EB-2 India advances 1 week.
EB-3 India advances 2 months; EB-3 China and Philippines advance 1 week.

Family 1st India, China, Other Countries - advance 6 weeks.



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AD: Dates for Final Action (Approval)              FD: Dates for Filing Applications Only

      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
08/08/2011
08/08/2011
08/08/2011
08/01/1997
02/15/2007
FD
03/08/201203/08/201203/08/201204/22/1999
02/15/2008
F2A
AD
10/08/2016
10/08/2016
10/08/2016
09/22/2016
10/08/2016
FD
12/01/2017
12/01/2017
12/01/2017
12/01/2017
12/01/2017
F2B
AD
02/15/2012
02/15/2012
02/15/2012
06/08/1997
06/08/2007
FD
03/22/2014
03/22/2014
03/22/2014
08/01/1997
12/15/2007
F3
AD
08/01/2006
08/01/2006
08/01/2006
12/22/1995
07/08/1995
FD
01/08/2007
01/08/2007
01/08/2007
10/08/1999
06/01/1997
F4
AD
04/22/2005
04/22/2005
06/08/2004
02/08/1998
07/15/1995
FD
02/01/2006
02/01/2006
01/01/2005
09/15/1998
04/22/1997

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)
   
Employment
Other Countries
China
El Salvador
Guatemala
Honduras
India
Mexico
Philippines

Vietnam
EB1
AD
      07/01/2017
   09/01/2016
07/01/2017
  09/01/2016
07/01/2017
07/01/2017
07/01/2017
FD
06/01/2018
10/01/2017
06/01/2018
10/01/2017
06/01/2018
06/01/2018
C
EB2
AD
 C
07/01/2015
C
  04/01/2009
C
C
        C
FD
C
09/08/2015
C
05/22/2009
C
C
C
EB3
AD
C
06/08/2015
C
03/01/2009
C
06/15/2017
C
FD
C
12/01/2015
C
01/01/2010
C
08/01/2017
C
Other Workers
  AD
C
06/01/2007
          C
03/01/2009
C
06/15/2017
C
FD
C
06/01/2008
C
01/01/2010
C
08/01/2017
C
EB4
AD
C
C
02/22/2016
C
01/01/2017
C
C
FD
C
C
05/01/2016
C
C
C
C
EB5
AD
C
08/22/2014
C
C
C
C
05/01/2016
FD
C
10/01/2014
C
C
C
C
C









1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)    
5th: Employment Creation (Investors)