NOVEMBER / DECEMBER 2019

Employers Beware

Social Security Administration
Resumes Issuance of "No-Match" Letters

The Social Security Administration (SSA) has resumed issuing no-match letters. No-match letters state that a certain number of wage reports for name and SSN combinations do not match SSA records. Employers should be mindful that SSA no-match letters can potentially lead to issues related to immigration enforcement, including an ICE audit to ensure I-9 compliance. In conjunction with the increase in enforcement actions under the current administration as well as greater sharing of data information among agencies, SSA no-match letters should be taken seriously.

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Visa Bulletin

EB-1 Preference Categories Still Backlogged;
DOS Provides Explanation and Projections

Those foreign nationals who have approved employment-based first preference (EB-1) petitions are wondering, why is the category still backlogged when historically the category "re-sets" and becomes current on October 1 with the start of the new U.S. fiscal year? For Indian nationals, the backlog is particularly troublesome because there have been no firm estimates on how long they can expect to wait although some calculate the wait could be upwards of 10 years!

The following is an explanation and some projections for the coming years from the Department of State. Normally, there are low levels of demand that allows for thousands of unused visa numbers from the EB-4 and EB-5 categories to become available for use in the EB-1 category. Not only have those numbers not been available in recent years, the high demand for numbers has required the application of "Final Action Dates" for all countries, and the dates for China and India have retrogressed during the past year. For FY2020, DOS does not expect that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future. Moreover, DOS predicts that there will not be any movement for EB-1 India until January 2020 at the earliest.

There are currently some 17,000 EB-1 India applicants who were interviewed, adjudicated, and now waiting for a visa to become available. Potential upgrades from EB-2 India could make EB-1 India backlogs worse. As for EB-1 China, the priority date advanced three months from October to November but that could slow down.

Because EB-1 China and EB-1 India will be subject to their per country limits in the foreseeable future, the only possibility of more rapid movement in these categories is if demand for visas in EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) falls below that which is allowed under the overall statutory annual limit. (Latest reports from USCIS, in fact, show significantly lower demand.) If this low-demand trend continues, EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) could potentially return to "current" around April 2020, and as a result EB-1 India, and possibly China, would benefit from the "otherwise unused numbers" which would allow the Final Action Date to advance at a faster pace for those two countries.

While in the past, DOS was able to wait until closer to the end of the fiscal year to redistribute the otherwise unused worldwide numbers in other preference categories, allowing the India and China categories to advance, high demand in EB-3 and EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam), prevented these categories for China and India from advancing as they had historically. The result is significant pending demand particularly for India.

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Refugee Ceiling is Set at
18,000 for Fiscal Year 2020

Donald Trump announced that the U.S. is authorized to admit a maximum of 18,000 refugees in FY2020, citing "ongoing security and humanitarian crisis on our border and the massive asylum backlog, which now includes nearly one million individuals."

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USCIS Formally Proposes
H-1B Registration Process

USCIS published a proposed rule that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS for the H-1B cap selection process. Comments were due October 4, 2019. USCIS has not yet announced whether it intends to implement the H-1B registration process for the upcoming FY2021 H-1B cap filing season, which begins on April 1, 2020, but it is expected.

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New Presidential Proclamation Requires
Mandatory Insurance for Entering Immigrants

On October 4, 2019, President Trump issued a Presidential Proclamation suspending the entry of immigrants who do not have approved health coverage or the ability to pay for foreseeable medical issues within 30 days of entering the United States. This means that outside of very limited exceptions, any nonresident applying for an immigrant visa on or after November 3, 2019, must demonstrate to a consular officer at the time of interview that he or she will be covered by approved health insurance within 30 days of entry or have the financial resources to pay for foreseeable medical costs. According to DOS, inability to meet this requirement will result in the denial of the visa application.

The required insurance can be provided by an employer or be purchased individually, and it can be for catastrophic or short-term coverage. However, immigrants would not be able to obtain a visa if they use the Affordable Care Act's (ACA) subsidies when purchasing coverage. According to the Proclamation, the new requirement will not apply to foreign nationals who already hold immigrant visas, or to asylum seekers, refugees, children of U.S. citizens living overseas or holders of special visas for Iraqi and Afghan nationals. Although the Proclamation becomes effective on November 3, it is unclear how, if at all, the DHS and DOS will update their processes or procedures to further implement its provisions.

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USCIS Has Increased Bureaucracy for U.S. Companies Seeking Needed Foreign Personnel

Not only has USCIS increased the red tape and bureaucracy for U.S. companies sponsoring foreign workers, but USCIS Acting Director Ken Cuccinelli boasts about it! It's the latest example of Administration officials lauding efforts to make it more difficult for employers to obtain what economists often consider to be a company's most valuable resource — talent. In an October press release, Mr. Cuccinelli and USCIS describe the increased bureaucracy facing businesses in positive terms and the fulfillment of a mission of "safeguarding our nation's immigration system and making sure that only those who are eligible for a benefit receive it." They add: "USCIS is vigorous in its efforts to detect and deter immigration fraud, using a variety of vetting and screening processes to confirm an applicant's identity and eligibility. The agency also conducts site visits, interviews applicants, and requests evidence for benefits that offer individuals status in the United States." Translation: USCIS has made it more difficult for employers to gain approval for high-skilled foreign nationals and others, both through denials and requests for burdensome additional documentation.

In addition to increased denial rates — 50% higher for several IT service companies and up to 24% overall in 2019 — expensive and time-consuming Requests for Evidence (RFEs) reached an unprecedented level of 60% in the first quarter of FY 2019. The percentage of completed H-1B cases with an RFE has doubled between FY 2016 and FY 2019.

Government documents received through a Freedom of Information Act request reveal:

• USCIS adjudicators were directed to restrict approvals of H-1B petitions without the legal or regulatory authority to justify those decisions.
• USCIS encouraged adjudicators to demand more information from employers, leading to such requests being made in 40% to 60% of H-1B cases.
• USCIS changed the standard for what qualifies as a "specialty occupation" for an H-1B visa holder — without any change in the law or regulation. While initially used to deny H-1B status to computer programmers, the USCIS document states the new USCIS policy is "Applicable to Many Occupations."
• USCIS adjudicators have taken the unusual step of approving H-1B status for periods of very short duration.
• USCIS now often requires — without a new law or regulation — a company to list every contract on which an H-1B visa holder will work during a three-year period to prove a "valid employer-employee relationship." This was not done previously, and companies consider it unduly burdensome and out of touch with how businesses operate in a modern economy.

Many companies have resorted to lawsuits in federal court against USCIS to gain approvals for employees they have identified as valuable. Indeed, a record number of denials have been overturned on appeal, suggesting that the administration has been wrongfully rejecting qualified applicants for these coveted visas for high-skilled immigrants.

By increasing the many hurdles that employers must negotiate so that their foreign personnel can work in the United States — veiled under the cloak of trumped-up claims of increased workload and fraud referrals — USCIS is making it harder for American companies to recruit and retain global talent and at the same time creating more work for itself and further growing the immigration bureaucracy. Moreover, there is a great human toll. Many visa holders who have lived in the United States for years are suddenly vulnerable because they may not qualify for a visa that they have received many times in the past.

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Unaccompanied Alien Children

USCIS Announces Policy
to Limit Minor UAC Asylum Seekers

On May 31, 2019, USCIS announced a policy limiting USCIS asylum jurisdiction over applicants previously determined to be "unaccompanied alien children" (UAC). The memo reversed a 2013 policy, often referred to as the "Kim memo," that specified that USCIS took jurisdiction over asylum applications filed by applicants who had previously been determined by ICE or CBP to be "unaccompanied alien children." Once a child was designated as unaccompanied, the child's status remained in place from the time the child was apprehended at the border to the end of immigration court proceedings.

The new policy was adopted without advance notice or opportunity for public comment and requires asylum officers to re-determine whether an asylum applicant who had already been found to be an "unaccompanied alien child" continues to meet the statutory definition of that term on the date of filing for asylum. This means that asylum applicants who submitted their filing after they had turned 18, or after reunifying with a parent or legal guardian, face the prospect of having USCIS refuse to decide their asylum applications, even those filed long ago. These asylum applicants would be forced to raise their claims only in an adversarial immigration court hearing.

On July 1, 2019, plaintiffs filed a complaint in U.S. District Court for the District of Maryland challenging this new policy. On October 15, the U.S. district court granted a preliminary injunction. The injunction adopts the terms of the previous restraining order issued in this case, providing assurance that USCIS must continue to abide by its 2013 policy until the conclusion of litigation or further order of the court.

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ICE Conducting On-Site Inspections
for F-1 STEM OPT Employment

There have been recent reports that ICE has started to conduct on-site inspections for STEM Optional Practical Training (OPT) employment. According to DHS's Study in the States website, an on-site visit will address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third party worksites. Under ICE guidelines, site visits should be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student's Form I-983.

To qualify for a STEM OPT extension, the student and the employer must complete Form I-983, providing specific information about the training program and agreeing to notify the designated school official (DSO) if there are any material changes to the training program. In addition, the Form I-983 must be repeatedly updated with the student's progress in the training program. However, the I-983 is not included with the application for STEM OPT, and as a result, it is generally not reviewed by USCIS or ICE at all (unless requested by USCIS via a Request for Evidence (RFE)).

Employers and students are advised to carefully review the I-983 and instructions, and update it as needed. Moreover, both the employer and the student should be familiar with the content of the I-983, and be prepared to describe the training opportunity to the ICE officer.

Even without a site visit, compliance is extremely important. The I-983 creates obligations certified by both the student and the employer. Violations could result in termination of student status, or impact future adjudications if USCIS or consular officers note discrepancies between the I-983 and online bios or résumés submitted. There are also reports that the Vermont Service Center has started asking STEM OPT employers to email the I-983 plan as part of work authorization adjudication.

As with any site visit, front-line employees, such as security officers or administrative staff, should ask the ICE officer for a business card, and ask the officer to wait until a designated person at the worksite is called. The ICE officer may want to tour the worksite; best practice is to have the officer accompanied by the designated person on site.

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Border Tent Courts

DHS has erected tent structures in Laredo and Brownsville, Texas, where individuals subjected to the Migrant Protection Protocols, commonly known as the Remain in Mexico Program, will have their cases heard via video teleconference by an immigration judge in another location. A group of Democratic leaders in the House of Representatives sent a letter to the DHS and DOJ Inspectors General calling for an investigation of the use of tent facilities to adjudicate immigration hearings via video teleconference for asylum seekers subject to the "Remain in Mexico" program.

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Venezuelan Passports Automatically Extended
for Five Years Beyond Expiration Date

On June 7, 2019, the National Assembly of Venezuela published a decree automatically extending the validity of Venezuelan passports for an additional five years from their printed date of expiration. While DOS has recognized this extension of passport validity for visa issuance and other consular purposes, CBP has not made a public formal announcement. The following steps should be taken by Venezuelan nationals impacted by this extension:

• If you have an expired Venezuelan passport and are planning to leave the U.S. and return, check with the CBP office at the airport (at deferred inspection) where you are entering the U.S. (port of entry) to confirm that the port of entry is aware of this policy, because there has been no formal, public announcement by CBP.
• Print off and travel with a copy of the State Department Media Note, which states that "Customs and Border Protection will likewise recognize the passports covered by this decree."
• The automatic extension of Venezuelan passports has been recognized by numerous other countries, including Canada, Spain, and several Latin American countries. Before leaving the U.S. for another country, confirm that any third country to which you will be traveling recognizes the expired passport.

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Courts Enjoin DHS
Public Charge Rule

On October 11, 2019, the U.S. District Court of the Southern District of New York enjoined and restrained DHS and USCIS from "enforcing, applying, or treating as effective" the DHS Public Charge Final Rule. The rule was slated to go into effect on October 15, 2019. In addition, the court specifically enjoined the government from implementing the use of any new or updated forms whose submission would be required under the Final Rule, including Forms I-129, I-485, I-539, I-864, I-864 EZ, I-944, and I-945. USCIS has removed the new/revised forms from its website. Another, more limited injunction was issued by a U.S. district court in California, as well as one in the Eastern District of Washington; the latter lawsuit includes 14 states.

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Understanding State Department's
Interim Final Rule on Public Charge

On October 11, 2019, DOS issued an interim final rule amending DOS regulations regarding how consular officers will determine whether a nonresident is ineligible for a visa because he or she is likely to become a public charge. Although the DHS final rule on public charge was enjoined from implementation on October 11, 2019, the DOS rule took effect on October 15, 2019. Sources have reported that DOS will not implement the rule until the new Form Public Charge Questionnaire, has been published by DHS. Moreover, DOS has not yet updated its Foreign Affairs Manual (FAM) to reflect the new public charge determination rules.

The overall standard for determining whether an individual is more likely than not to become a public charge in both the DOS and the now enjoined DHS rule is based on a totality of the circumstances approach, which considers at a minimum the applicant's age, health, family status, assets, resources, financial status, education, and skills. DOS has designated several exemptions and exclusions to the public charge analysis. Some exemptions are blanket exemptions based on statute and some are purely regulatory and pertain to exemptions for certain classes of individuals receiving public benefits. It should be noted that in practice, DOS has not utilized the public charge analysis on a wide scale for nonimmigrants.

It is hard to know how DOS's latest attempt at implementing the public charge rule will be. In addition to various lawsuits seeking the delayed implementation of the DHS rule, it is unclear whether one of the existing lawsuits will be amended or if another lawsuit will be filed challenging the implementation of the rule that were set to mimic DHS's now enjoined rule.

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Following Up with USCIS

How to Navigate the USCIS Contact Center

Foreign nationals who need assistance at a local USCIS field office or who want to follow up with USCIS on their pending cases, especially when the case is long pending, are advised to use the USCIS Contact Center. The following is advice on how to navigate the system, which is inherently difficult, either for creating a case inquiry or reaching a live person to request an InfoPass appointment.

As background, USCIS phased out online, self-scheduling of InfoPass appointments and replaced it with a new program for scheduling InfoPass appointments at local USCIS field offices, called the Information Modernization Program (InfoMod). InfoMod requires individuals to schedule InfoPass appointments by calling the USCIS Contact Center via the 1-800 number (1-800-375-5283). InfoPass appointments are most often used for proof of status, advance parole requests, I-551 stamps, DACA issues, ELIS application needs, Parole in Place (PIP), and proof of satisfactory departure.

The USCIS Contact Center provides escalating levels of service to handle inquiries of increasing complexity, primarily through an Interactive Voice Response system and a multi-tiered level of live assistance. When contacting the USCIS Contact Center, it is important to decide beforehand who will make the call in order to successfully complete an inquiry.

Tier 1 (Contract employee): Tier 1 is the first level of live assistance. Tier 1 staff members, who are contract employees, provide basic case-specific and general non–case-specific information. Tier 1 employees may speak with applicants, petitioners, and attorneys with a G-28 on record.

Tier 2 (USCIS Officer/Supervisor): If Tier 1 is unable to completely resolve an inquiry, the call may be transferred to Tier 2 to be answered by a USCIS officer. Tier 2 staff may speak with applicants, petitioner, and attorneys with a G-28 on record. Callers may, at any time, request to have a call directed to a supervisor (Tier 2). If the wait is more than 20 or 30 minutes, the system will require that a callback number be provided so the officer can call later.

Note that upon reaching a live person, he or she will not know what you are calling about, regardless of what option you selected, and you will have to repeat all the information you already provided including the receipt number, name of applicant/petitioner, date of birth, and/or address on file.

If your case was escalated to Tier 2, you will receive a call back from a USCIS officer typically that same day, although during heavy call periods, it can take as long as 24–72 hours. (Callbacks have been reported as being received after normal business hours and on weekends).

The USCIS officer will then hopefully schedule an InfoPass appointment.

The following are some tips on using the USCIS Contact Center:

• Patience, Patience, Patience!
• It is best to call in the morning to ensure that a callback from USCIS is received during standard business hours. On some days when call volumes are heavy, USCIS. Tier 1 employees will not be allowed to transfer calls to Tier 2 officers after a certain time of day.
• Make sure you will be available all day so that you are available when USCIS makes its callback to you. If you miss the first callback, USCIS will make two further attempts to call, and will suspend trying to reach you after the third try.
• It is a good idea to provide your cell phone number if you believe you will step away from your desk while waiting for a callback. (Note that USCIS does not currently provide call-back options to phone numbers with extensions, so you will need to provide a direct line.)
• Live help from a USCIS representative is available Monday through Friday from 8 a.m. to 8 p.m. Eastern Time, except on federal holidays.

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Special Immigrant Visas

Afghans and Iraqis File Lawsuit Alleging
Long Processing Delays of SIV Applications

A district court issued a memo stating that the government's delays in the processing and adjudication of the Special Immigrant Visa (SIV) applications and members of the class are unreasonable and ordered that the government submit a plan for promptly processing and adjudicating the applications of current class members.

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USCIS Changes "Foreign National"
to "Alien" in Policy Manual

The INA (Immigration and Nationality Act), which was signed into law in 1952, defines "any person not a citizen or national of the United States" as an "alien." That term, however, is widely viewed as offensive and over the course of the last 50 years has been replaced in government memoranda and elsewhere with the term "foreign national." In a gratuitous gesture, USCIS just released a technical update to its Policy Manual, replacing all instances of the term "foreign national" with "alien." Objective commentators view this as a continuation of the Administration's campaign to demean foreign nationals.

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