President's Next Move on H-1B Foreign Workers?

Since President Trump's executive order that blocked immigration from overseas for 60 days, there has been plenty of speculation on what the next order will entail.

Many predict that H-1B, H-2B, L-1, and J-1 visas will almost certainly be targeted. Entry will probably be temporarily blocked for the above workers/trainees who do not yet have their stamped visa. Exceptions could be made for reasons relating to the COVID-19 pandemic, likely for medical workers. It is unclear how visa-holders already in the country would be affected, though it is unlikely such a rule would affect existing approved or pending petitions.

In April, President Trump issued an order suspending immigration from overseas countries for 60 days.  Last month, the President also ordered a ban of issuing visas to Chinese students who have ties with universities in China that advocate the government's military policy.  Rumors from various sources suggest that Trump's next move will focus on non-immigrant visa categories and F-1 students' practical training programs.  

H-1B cases from this CAP season are also probable targets. A bar as described above would complicate entry for new H-1B workers set to work in FY 2021. Some say that these restrictions could last from 90 days up to 180 days. If not announced on mid-June, it is expected that the order will come by the end of the month.

Possible regulatory changes further down the road could affect employment under F-1 OPT and H-4 visas. H-4 employment authorization has been a target for termination for a while now. The STEM OPT extension to F-1 student's post-completion OPT could also be eliminated. Employment authorization could also be rescinded for refugees, asylees, and temporary protected status (TPS) holders. The H-1B program in general will likely be a target of regulation change as well, possibly through heightened requirements and fees.

This is all uncertain and based on rumors and speculation. Still, anyone with a visa mentioned above should take precautionary action, such as entering the country as soon as possible.  If you are eligible to file for an extension or change of status (e.g., H-1B), H-4 EAD, etc, you should act now.   It is also wise to have a plan regarding your immigration filings, as well as a backup plan should things didn't go as planned. It is more important than ever to seek advice of an experienced immigration attorney to evaluate your options.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Top Iranian table tennis player denied extraordinary ability visa

A top Iranian ping pong player was denied an extraordinary ability alien visa by the USCIS, and the decision was upheld by a U.S. federal district court.   In order to obtain an EB-1(a) extraordinary ability visa, a petitioner must have won a single major, international recognized award (e.g. a Nobel prize) or, alternatively, produce evidence establishing that he meets at least three of the 10 listed criteria in the regulation.  Here the Iranian player Norrozi was found to have met only two of the 10 listed criteria. Specifically, although Norrozi was found to have won “lesser nationally or internationally recognized prizes or awards” and held “membership in associations”, he failed to demonstrate that (1) he had held “a leading or critical role” for his past participation in tournaments, and (2) there was published material about him in professional or major trade publications or other major media.

Leading or Critical Role

            Norrozi participated in a highly selective process to obtain membership on the Iranian national table tennis team to participate in the Olympics.  He had to compete with the best table tennis players in this country in a national tournament and became the national champion before he was selected.  In fact, he was the only player that was selected to be on the national team.  Norrozi argued that the highly selective process and the fact that he is the only team player representing his country clearly indicates that he was playing ping pong in a leading or critical role.  However, the USCIS takes the position that “to play a critical or leading role on a team presupposes making leadership contributions in relation to one’s teammates” but Norrozi had no teammates.  The federal court found the conclusion reasonable.

Published Material about the Player

            Norrozi also presented numerous news articles to support his position that there were published materials about him as a table tennis player.  However, both the USCIS and the court observed that the articles submitted are mostly about the Iranian Table Tennis Team and only mention Norrozi briefly.  In order to meet the “published material” criterion, the regulations require that published material must be about the petitioner relating to his work in the field, but not just about his employer or a related organization.   Hence, Norrozi also failed to meet this criteria.

Overall Merits Determination

            As part of the new adjudication standards implemented by USCIS following the Ninth Circuit Court of Appeals’ decision in Kazarian, the government must also conduct a final merits determination to decide if the petitioner should be granted an extraordinary ability visa.  This is the second step of the adjudication process.  A determination is made based on the totality of the evidence whether the petitioner has established that she belongs to a small percentage of individuals who have risen to the top of their field of endeavor; and that she has sustained national or international acclaim as recognition of her achievements.  Here, Norrozi ranks 284^th in the world in table tennis, which places him in the 17^th percentile of all ranked players.  He also finished in 65^th place in the 2008 Olympic table-tennis competition.  Although his accomplishments are indeed impressive, both the USCIS and the court concluded that he does not belong to that small percentage of top table tennis players to qualify for an extraordinary ability visa. 

Conclusion

            This is actually the second petition filed by Mr. Norrozi.  His first petition was initially approved by the USCIS but was subsequently reopened for review after the government noticed that the attorney who handled his petition had filed a large number of extraordinary ability cases from Iran.  The first petition was eventually denied under the new Kazarian standard.  Mr. Norrozi’s case highlights the reality that the extraordinary ability visa is granted only to a small percentage of individuals who have risen to the very top of their field of endeavor.   Under the new USCIS policy, even if a petitioner has satisfied three of the 10 enumerated criteria, an adjudication officer may still conclude that she failed the final merits determination and deny her petition. 

December 2012 Visa Bulletin: Family categories advance, Employment 5th China may no longer be current

In December, most family sponsored visa categories advance nicely. For examples, Family 1^st move forward by one month for China, India and the “Other Countries”, and by three months for the Philippines to October 8, 1997.  Family 2A for China, India, Philippines and “Other Countries”; and Family 2B for China, India “Other Countries” all advance five weeks. 

On the Employment side, all EB-2 categories are current except India, which remains unchanged, and China, which moves forward by seven weeks. What is significant is that the State Department predicts that EB-5 China may no longer be current during the second half of the fiscal year.  Demand for investment visas from Chinese nationals has been very high in recent years.  Please see the tables below for details:

Family	Other Countries	CHINA	INDIA	MEXICO	PHILIPPINES
F1	01DEC05	01DEC05	01DEC05	01JUL93	08OCT97
F2A	22AUG10	22AUG10	22AUG10	01AUG10	22AUG10
F2B	15NOV04	15NOV04	15NOV04	01NOV92	22MAR02
F3	08JUN02	08JUN02	08JUN02	01MAR93	01AUG92
F4	01APR01	01APR01	01APR01	22JUL96	22MAR89

1st: Unmarried Sons and Daughters of Citizens (about 23,000 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 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	CHINA	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22OCT07	01SEP04	C	C
3rd	22DEC06	01JUL06	01NOV02	22DEC06	15AUG06
Other Workers	22DEC06	01JUL03	01NOV02	22DEC06	15AUG06
4th	C	C	C	C	C
5th	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)

New Form I-140 published for employment-based immigrant petition

A new Form I-140 has been recently published by USCIS, available at USCIS.gov.  Editions dated Jan. 06, 2010, and later will be accepted until Dec. 30, 2012 only.

2014 Diversity Immigrant Visa Program

The 2014 Diversity Immigrant Visa Program (DV-2014) will begin accepting applications at noon, October 2, 2012.  The Diversity Visa Program, also known as visa lottery, is mandated by Congress to allocate immigrant visas to people from countries with historically low rates of immigration to the U.S. For Fiscal Year 2014, 50,000 diversity visas (DV) will be available for natives of countries who have not sent more than 50,000 immigrants to the U.S over the past five years.  Winners are selected randomly by computer.

Native Country Requirement

Natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years:

Bangladesh, Brazil, Canada, China(mainland-born), Columbia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Although people born in mainland China are not eligible to apply, those who were born in Hong Kong SAR, Macau SAR, and Taiwan are eligible for DV-2014. Natives of Guatemala are now eligible for DV-2014 too.  Besides, natives from other countries including Singapore, Cambodia, Malaysia, Japan, Thailand, Indonesia, etc. are also eligible for selection.

Exceptions to the Native Country Requirement

Even if a person’s native country is not eligible for visa lottery, there are two other ways that the person may qualify to apply.  First, if this person’s spouse was born in an eligible country, than the person may also apply based on the spouse’s native country.  Secondly, if an applicant was born in an ineligible country such as China, but his or her parents were born in an eligible country such as Taiwan and they were not residing in China at the time of applicant’s birth, then the applicant is also eligible to apply.

Education and Work Experience Requirement

In addition to the country requirement, there is also an education and work experience requirement for  DV-2014.  An applicant must either have a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

Persons in the U.S. and Persons who already applied for Immigration

If a person owns other type of visa which allows him or her to reside in U.S. legally, he or she may still apply for DV-2014 in the U.S.  Even those people who have already applied for other types of immigrant visa (e.g., family based or employment based immigrant visa) may also submit an application under Diversity Visa program.

Who may apply and who to include in a family

For a married couple, if both husband and wife are qualified, they may each submit one application in order to increase the chances of being selected. Which family members should be included in the application?  The application must list the applicant’s spouse and all living unmarried children under the age of 21, including step-children and legally adopted children.  Even if a family member has no intention to immigrate, he or she must be included in the application form. The only exception is that the family member is a U.S. citizen or green card holder.

When and how to submit an entry

Entries for the DV-2014 DV program must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 2, 2012, and noon, Eastern Daylight Time (EDT) (GMT-4), Saturday, November 3, 2012. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Do not wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 3, 2012.

Importance of following instructions

The DV program makes visas available to persons meeting simple but strict requirements.  Applicants should carefully follow the program instructions to fill-out the application form and submit all required photographs.  Entries not following the official instructions and requirements will be rejected and disqualified.  Furthermore, DHS is technologically capable of identifying fraudulent entries, illegal entries or multiple entries. After an application is submitted, a unique confirmation number is generated.  This number should be kept in a safe place for future reference.

When and how to find out the results

Beginning May 1, 2013, applicants will be able to check the status of their DV-2014 entries online.  Visit www.dvlottery.state.gov, click on Entrant Status Check, and enter the unique confirmation number and personal information. Entrant Status Check will be the only means through which applicants may check the status of their applications.  It will also provide instructions to the winners of the visa lottery how to proceed with the application process, and also notify them of their appointments for their immigrant visa interview. Therefore, it is very important for an applicant to keep the confirmation number.

October 2012 Visa Bulletin: Employment 2nd Preference Major Retrogression

The Visa Bulletin for October 2012 is disappointing to many foreign nationals who have pending employment based petitions, especially those from India and China.  Employment-based, second preference (EB2) India has retrogressed to a cutoff date of September 1, 2004, and EB2 China to July 15, 2007 due to the large number of pending adjustment of status applications before the USCIS.  This is far worse that what was previously predicted by the State Department.  “Other Countries” in the EB2 category are still not current, but it is expected that may change soon.

On the family side, F1 continues to move forward slowly. F2A moves forward by three weeks to June 1, 2010 for China, India, Philippines, and “Other Countries”.  F2B remain unchanged for most countries except Mexico and Philippines.  Please see below for details:

Family	Other Countries	China	India	Mexico	Philippines
F1	8-Oct-05	8-Oct-05	8-Oct-05	15-Jun-93	1-Apr-96
F2A	1-Jun-10	1-Jun-10	1-Jun-10	15-May-10	1-Jun-10
F2B	15-Sep-04	15-Sep-04	15-Sep-04	1-Oct-92	22-Jan-02
F3	22-May-02	22-May-02	22-May-02	8-Feb-93	22-Jul-92
F4	15-Mar-01	15-Feb-01	15-Mar-01	22-Jun-96	8-Feb-89

1st: Unmarried Sons and Daughters of Citizens (about 23,000 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 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	China	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	1-Jan-12	15-Jul-07	1-Sep-04	1-Jan-12	1-Jan-12
3rd	22-Oct-06	8-Feb-06	15-Oct-02	22-Oct-06	1-Aug-06
Other Workers	22-Oct-06	22-Jun-03	15-Oct-02	22-Oct-06	1-Aug-06
4th	C	C	C	C	C
5th	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)