Upcoming H-1B Online Registration Will Have Fees

A newly proposed rule by USCIS will implement a fee for each registration of a CAP-subject H-1B petition under the upcoming electronic registration system. As was announced months earlier, a preliminary electronic registration period is set to be implemented for H-1B cap season petitioners. It is part of a overhaul of the H-1B cap filing system, which aims to reduce administrative burden and lower costs.

The Office of Budget and Management completed review of the "Fee for Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens" rule earlier this week. The text of this rule is not yet available to the public. A notice of proposed rulemaking should soon appear in the federal register for public feedback.

Any registration fees imposed will be additional to the regular filing fees for H-1B petitions.

A group business organizations and other related parties have also sent a letter to the new USCIS director requesting for more clarifications of the online registration system such as the actual implementation date. 

September 2019 Visa Bulletin: EB1 India Unavailable, EB1 China Retrogresses 2.5 yrs

In September, there are some major movements in the Employment visa categories. 

EB-1 China retrogresses 2.5 years to January 1, 2014.
EB-1 India becomes UNAVAILABLE.
EB-1 Other Countries, Mexico, Philippines advance 1 year and 3 months to October 1, 2017.
EB-3 China retrogresses 2 years to January 1, 2014.
EB-3 India retrogresses 6 months to July 1, 2015.

Family 1st Other Countries advance 6 months
Family 1st Philippines advances 4 monthsFamily 2A remains CURRENT for all countries.  

Spouses and minor children of green card holders may apply for adjustment of status in September. 

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

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	01/01/2013	01/01/2013	01/01/2013	08/01/1996	06/01/2008
	FD	05/01/2013	05/01/2013	05/01/2013	11/08/1999	12/01/2008
F2A	AD	C	C	C	C	C
	FD	07/01/2019	07/01/2019	07/01/2019	07/01/2019	07/01/2019
F2B	AD	06/01/2014	06/01/2014	06/01/2014	07/01/1998	08/01/2008
	FD	10/15/2014	10/15/2014	10/15/2014	03/01/1999	02/01/2009
F3	AD	09/01/2007	09/01/2007	09/01/2007	12/01/1995	02/01/1998
	FD	01/22/2008	01/22/2008	01/22/2008	07/15/2000	08/01/1998
F4	AD	11/01/2006	11/01/2006	09/22/2004	01/01/1997	07/01/1998
	FD	03/08/2007	03/08/2007	05/22/2005	12/22/1998	01/01/1999

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	10/01/2017	01/01/2014	10/01/2017	U	10/01/2017	10/01/2017	10/01/2017
	FD	09/01/2018	10/01/2017	09/01/2018	10/01/2017	09/01/2018	09/01/2018	C
EB2	AD	01/01/2018	01/01/2017	01/01/2018	05/08/2009	01/01/2018	01/01/2018	01/01/2018
	FD	C	06/01/2017	C	06/01/2009	C	C	C
EB3	AD	07/01/2016	01/01/2014	07/01/2016	07/01/20 05	07/01/2016	07/01/2016	07/01/2016
	FD	C	06/01/2016	C	04/01/2010	C	C	C
Other Workers	AD	07/01/2016	11/22/2007	07/01/2016	07/01/2005	07/01/2016	07/01/2016	07/01/2016
	FD	C	06/01/2008	C	04/01/2010	C	C	C
EB4	AD	U	U	U	U	U	U	U
	FD	C	C	09/01/2016	C	C	C	C
EB5	AD	C	10/22/2014	C	09/01/2017	C	C	10/22/2014
	FD	C	11/22/2014	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)

Indian Marriage Fraud? Arya Samaj

The Department of State has been denying nonimmigrant visa applications for certain Indian spouses on the grounds of marriage fraud. The marriages of these denied cases are of the Arya Samaj reform movement. The weddings do not have the same rigorous rituals as the traditional weddings in India. Couples are able to sign their own marriage certificates and become legally married in some Indian states. The wedding can also be done en masse. They are simpler and can be done more quickly than the popular traditional Indian wedding.

DOS carefully looks at Arya Samaj marriages, as couples could easily misuse the marriage process to  gain U.S. immigration benefits. The spousal relationship opens up immigration benefits available only to dependents of a principal applicant. Some "couples" marry solely to gain these benefits, which is illegal. DOS policy has been to recognize marriages that were legal where they were held. In cases like these, however, officers can still use discretion to deny these applications if they find the marriage to be fraudulent. Principal applicants can even have their visa revoked for alien smuggling.

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Indians genuinely entering their marriage through Arya Samaj weddings should take extra steps to prevent allegations of fraud. Clear evidence should be provided with applications, including an explanation for why the couple opted not to undergo a traditional wedding.  If needed, couples should first obtain advice from legal counsel to ensure a smooth application process. 

Stricter Public Benefits Requirements for U.S. Green Card and Visa Applicants

Individuals who have received public benefits before may become ineligible to apply for U.S. green card and other visa status.

The final rule for stricter public charge inadmissibility laws has been announced by the Department of Homeland Security (DHS) and will become effective in two months.  Intending immigrants as well as non-immigrant visa holders are both subject to the new requirements.

The "public charge" inadmissibility grounds prevents a foreigner from attaining a visa or admission to the country if he/she will likely rely heavily on government assistance programs. These currently include:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF) and General Assistance
• The Supplemental Nutrition Assistance Program (SNAP) ("food stamps")
• Most forms of Medicaid
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance, and public housing
• Temporary Assistance for Needy Families (TANF) cash assistance
• State and local General Assistance programs

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The definition of public charge has been expanded to cover more kinds of public benefits. Specifically, cash benefits for income, most forms of Medicaid, some housing programs, long-term institutionalized care (at government's expense), and Nutritional Assistance Program (SNAP).

Furthermore, a public charge is now defined as someone who has received at least one public benefit in 12 months over 36 months. Multiple public benefits in one month will add to the 12 months. For example, two benefits in one month will count together as two months worth of benefits.

Nonimmigrants looking to extend or change their status will also be subject to public charge determination. USCIS will no longer consider whether a visa applicant is likely to receive public benefits in the future. They will look at any 36 months since the alien obtained their current status and count if 12 months worth of public benefits were received, as explained above.

Certain groups are exempt from the public charge rule. Those in the U.S. armed forces under active duty or Ready Reserve are exempt, including their spouse and children. Some international adoptees and children with U.S. citizen parents are not counted as public charges. Medicaid for aliens under 21 and pregnant women does not count toward public benefits under public charge. Medicaid benefits for school-based and emergency medical services also do not count. Humanitarian-based immigration programs for refugees, asylees, and certain kinds of victims are also not included.

Another notable change is the addition of public charge bonds for adjustment of status applicants. USCIS can now offer a foreigner inadmissible on public charge grounds the chance to post a bond in the minimum amount of $8,100. The rule also gives USCIS discretion to offer and cancel public charge bonds.

The final rule goes into effect on October 15th. It will be applied only to applications received on or after this day. 

Visa Bulletin Predictions July 2019 and beyond

Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim provides his insights on the trends, movements, predictions, etc., regarding the usage of immigrant visa numbers.  The following are his most important insights following the publication of the August 2019 visa bulletin.

EB-1, EB-2, EB-3, and EB-3 Other Workers categories have had unpredictable and high demand since late May. Charlie has confirmed that August 2019 final action dates will be imposed on EB-3 categories for part of July. This is to ensure that visa numbers do not go over annual limits for certain countries due to the significant increase in demand. Charlie also warns applicants that similar actions could be taken to control EB-1 and EB-2 categories if demand in these categories continue to rise. It is not likely that Final Action Dates will return to what they were in July for the start of the new fiscal year.  

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The final action date for EB-1 worldwide (China included) will retrogress to July 1, 2016 for August 2019. EB-1 India remains at January 1, 2015.

Overall, employment-based categories have had soaring demand for visas. 1,800 numbers were used in the EB-2 category through May 21, 2019. Another 1,300 was used in the short period between May 22^nd and May 31^st. Projected demand also appears high. Final action dates for August have been confirmed for all countries under EB-2. India's will be May 2, 2009. The rest of the world will have January 1, 2017 as a EB-2 final action date in August.

EB-3 demand has skyrocketed since April. After the first week of July, EB-3 already used the equivalent of 36% of the numbers used for the whole month of June. Numbers are approaching the worldwide annual limit, with many countries close to or hitting their annual limit. Future number use has been limited because of this. Those seeking to file their I-485 to legally remain in the U.S. could be affected by limitation of future numbers. 

The Final Action Date for EB-3 Other Workers for China remains November 22, 2007. It is unclear whether EB-3 Vietnam and EB-3 Philippines will become current in October 2019. EB-3 worldwide has a final action date of July 1, 2016 for August 2019. EB-3 India's final action date will further regress to January 1, 2006.

EB-4 India is expected to remain current through the rest of the fiscal year. All other countries except El Salvador, Guatemala, and Honduras and Mexico remain current.

Charlie states that EB-5 India and Vietnam will not become current in October. Both countries retrogressed to October 15, 2014, according to the August visa bulletin. They will not be current in October and are expected to have Final Action Dates throughout the near future.

F-2A action dates will remain current for all countries, likely through September, provided there is no sudden spike in demand. When demand eventually catches up, however, the final action date is predicted to be in 2017 or 2018.

H-1B "Specialty Occupation" Denials - How to Avoid them

Many H-1B employers and workers alike have experienced denials of their applications based on failure to meet the regulatory requirement of "specialty occupation."   This requirement is one of many legal requirements that employers and foreign workers must meet in order to obtain H-1B working status.

Congress created the H-1B visa program to recruit technical workers that America needs to fill various professional occupations such as architects, accountant, computer engineers, etc.  Qualified foreign workers may have up to 6 years of nonimmigrant status to work in the U.S. To successfully obtain H-1B visa status, applicants must prove that the underlying position meets the statutory requirements of "specialty occupation". The Immigration and Nationality Act defines specialty occupation as requiring:

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a            minimum for entry into the occupation in the United States.

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Federal regulation 8 C.F.R. § 214.2(h)(4)(iii)(A) adds that the position must meet one of four requirements to qualify as a specialty occupation: 

1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement;

2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; 

3) The employer normally requires a degree or its equivalent for the position; or

4) The nature of the specific duties is so specialized and complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree.

These definitions and requirements can be confusing and also circular in nature. In recent years, USCIS has severely tightened the interpretation of these requirements, resulting in higher number of denials.  The following are some common reasons for denials and tips for avoiding them.

Inconsistencies:  Inconsistent information is one of the leading reasons for denying any immigration petition.  Inconsistent facts such as job descriptions destroy the credibility of the parties and make it more likely for USCIS to deny a case.  Oftentimes the parties did not intend to put down inconsistent or incorrect information; they simply did not have the correct information or failed to make an effort to collect the right information.  Sometimes it is better not to put down any information if you are not sure that it is correct.  

Deficient Job Duties: A related problem is that employers sometimes put down disorganized listings of job duties which do not support a finding of specialty occupation.  Rather than putting down 20 or 30 isolated technical duty, petitioners should sit down with the employees and project managers to organize and filter the job duties to something coherent and understandable.  Sometimes employers simply copy the job duties from DOL's literature, hoping that they would meet the legal requirements.  In fact, use of generic requirements draw suspicion from the examiners.  The legal requirement is that the employer should put down the specific job duties of a particular H-1B position.

Not Matching LCA:  Certification of the Labor Condition Application (LCA) by the DOL is a prerequisite for the H-1B petition. The LCA contains relevant information including the job title, job location and salary information.  Employers sometimes put down job information in the LCA that does not match the actual position in the H-1B petition.  For example, the position is a software testing or Q.A. position but the employer classifies it as a software developer position, again thinking that it would increase the chances for approval.  However USCIS would actually deny such a petition on the basis that the LCA does not support the H-1B petition.  

Speculative Employment:  This issue is not directly related to the job duties or nature.  Rather, USCIS argues that if the employer cannot prove that there is sufficient work for the employee to do, then there is no proof that specialty occupation exists to support the H-1B petition.  This is a common problem for IT consulting firms.  They have a client who needs the technical services of one of their employees. However, this client refuses to provide any support letter or agreement to prove the existence of such an engagement.  Consequently, USCIS denies the H-1B petition based on "speculative employment."    Another scenario is that the IT firm may have a contract to place an employee to work at a client site for only six months, which is subject to extension until project completion.  In this situation, USCIS may deny the case or approve it only for 6 months. To avoid such a result, employers should provide secondary evidence to prove the existence and duration of the project engagement. 

In sum, H-1B applicants must pay more attention to their applications in today's tough adjudication environment.  With careful planning, sufficient evidence and proper legal counsel, it is still possible to get your H-1B petition approved!

New Rule to increase minimum EB-5 investments to $800K and $1.9 million

The employment-based investor visa, or EB-5 visa, will be undergoing significant changes as shown in a final rule published by USCIS on Wednesday.  These changes, which will take effect on November 21, 2019, are meant to update the visa requirements to account for inflation and procedural changes, which have not been addressed since 1993.

The EB-5 visa is intended to encourage foreign investors to bring capital investment and create jobs in the U.S. The visa allows for permanent residence with conditions, which can be removed two years later. Job creation requirements remain the same -- investors must create at least 10 full-time jobs for qualified workers in the U.S or help a troubled business maintain its number of employees.  Jobs created for the investor or his family members do not count.  

Capital investment requirements have undergone significant changes. An investor can invest capital in certain economically depressed areas targeted by the government called Targeted Employment Areas (TEA).  The minimum investment required for TEA by investors is being raised from $500,000 to $900,000.

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TEA can refer to rural areas or areas with high unemployment rates, both of which would benefit greatly from economic investment. TEA definition has been narrowed to cities and towns outside of metropolitan statistical areas (MSA, or areas of high population density and close economic ties). Technical changes have also been made to the TEA definition to better identify economically distressed communities.  DHS will also take over from the States the responsibility of designating specific areas to be TEAs.  The TEA investments are usually facilitated through specific business entities called "regional centers," which invest in projects located in targeted areas. As of July 8, 2019, there are 880 regional centers approved by the USCIS.

On the other hand, an investor can invest funds directly in other parts of the U.S. economy.  The minimum investment for non-TEA will also increase, from $1 million to $1.8 million.

Petitions filed before 11/21/2019 will be held to the old minimum investments and those filed on or after 11/21/2019 must follow the increased minimum investments. According to the final rule, these amounts will continue to change every five years to adjust for inflation.

The procedure to removing conditions on EB-5 permanent residence has changed. Dependent children that reached the age of 21 or married during their conditional residence, as well as dependent spouses that divorced from the principal investor during this time, must file Form I-829 separately. They will no longer have to option to be included in the principal investor's I-829 petition.

Investors will also be able to keep priority dates for previously approved EB-5 petitions when they file a new one.