Author: Huddleston Law Group

About Huddleston Law Group

Huddleston Law Group provides comprehensive immigration services to businesses, individuals, and families.

    On February 22,2018, USCIS published a memo updating its policies for H-1B petitions filed for employees who will work at a third-party worksite.  The memo focuses on the petitioner-vendor-client relationship common to the IT industry, in which the petitioning employer contracts the H-1B worker to an end-client at a worksite through a vendor intermediary. It also focuses on situations where the H-1B petitioner places the worker directly with a client.  Prior to the memo, USCIS required evidence corroborating the specialized nature of the employment and the employer-employee relationship only on a case-by-case basis.  The new memo, drafted pursuant to President Trump’s Buy American, Hire American Executive Order, requires corroborating evidence for every third-party placement. That evidence can include contracts (to prove that the H-1B petitioner will maintain an employer-employee relationship with the H-1B worker throughout the validity period), work orders, evidence of actual work assignments, a letter signed by an authorized official of each ultimate end-client where the H-1B work will actually work, and an itinerary of placements.

    H-1B petitioning employers placing employees with third-parties, including those filing cap-subject H-1B petitions this April, will need to include the recommended evidence or risk denial of their petitions. Additionally, companies serving as third-party placements for H-1B workers can expect to receive requests from  petitioning employers describing the work being completed by and relationship with the H-1B workers and will need to ensure the accuracy of that requested information prior to signing off on it.

    The memo is available here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf

     

    0

    HLG founder Brent Huddleston enjoyed speaking about immigration concerns in real estate transactions at the Texas Association of REALTORS® 2018 Winter Meeting last week. From the event recap:

    “At the International Forum, immigration attorney Brent Huddleston explained the impact of immigration status on property transactions. Huddleston gave an overview of different visa types, including EB-5 investor visas that were the subject of questions from Texas REALTORS® in attendance. He also advised that recipients of Deferred Action for Childhood Arrivals (DACA), or Dreamers, should designate power of attorney to a person with legal status in the country to handle any property transactions should they be deported.”

    A great organization and event with excellent questions from the participants!

    0

    The filing window for Cap-Subject H-1B petitions for Fiscal Year 2019 will open on April 1, 2018.  Petitions filed later than the first week of the filing period are unlikely to be considered, so employers with a need for H-1B workers should contact their attorney as soon as possible to begin preparing these petitions and composing a Plan B for employees not selected in the expected lottery.  We also expect additional preparation time will be necessary due to heightened scrutiny for the H-1B program brought on by the 2017 “Buy American, Hire American” executive order. Early assessment of options and strategy will be essential.

    Over the last five years, the 85,000 petition Cap (65,000 for regular petitions and 20,000 for U.S. Master’s degree petitions) has been reached within the first week of the filing period.  For FY 2018, approximately 199,000 H-1B petitions were filed during the first week. USCIS used a computer-generated random process to select the 85,000 petitions eligible for adjudication, leaving only a 36% chance of selection.  Petitions not selected in the Cap lottery are returned with filing fees, and unsuccessful applicants must wait until the next April to apply again or find an alternative route to employment authorization.

    The 2019 Fiscal Year runs from October 1, 2018 to September 30, 2019.  Employers will be able to submit new H-1B petitions to USCIS beginning April 1, 2018 (six months before the start of the 2019 Fiscal Year).  Approved beneficiaries can begin their H-1B employment on October 1, 2018.  If, as we expect, the Cap is reached during the first week of the filing period, any petitions received after the first week of the filing period will not be considered, and any petitions not selected in the lottery will be returned.

    Early discussions with your immigration attorney can identify alternatives to the H-1B route, potential roadblocks in the preparation of an H-1B petition, and contingency plans in the event of an unsuccessful lottery.

    Assessing Your Cap-Subject H-1B Needs

    H-1B visas are available for specialty occupations requiring a bachelor’s degree or its equivalent.  For current or transferring employees, employers should consider the following to determine potential FY 2019 H-1B applicants:

    • Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need to change status to an H-1B;
    • Determine whether any TN employees (NAFTA professionals) or H-1B1 employees (citizens of Chile or Singapore) might want to an H-1B to be eligible to apply for adjustment of status to permanent residence;
    • Review those employees with expiring O visas (renewable in only one year increments rather than the three year increments available to H-1B visa holders);
    • Check whether your transferring employees who currently hold H-1B status have already been counted against the Cap (note that any employee transferring over from an employer exempt from the H-1B Cap may now be subject to the Cap);
    • Consider whether you employ someone in L-1B status who might need to switch to an H-1B to gain an additional year of status.

    Cap-Exempt Circumstances

    Employers or beneficiaries in the following categories may be exempt from the 85,000 numerical limit:

    • Higher education institutions and related non-profits;
    • Non-profit or government research organizations;
    • Beneficiaries who have held H-1B status in the last six years, but have not exhausted their entire six-year period of stay.

    Please contact us if you’d like to discuss your H-1B hiring needs. The earlier we hear from you, the more time we have to evaluate, plan, and develop strategies for success. 

    0

    HLG’s founder Brent Huddleston spoke last month at the American Immigration Lawyers Association (“AILA”) Texas, Oklahoma, & New Mexico Chapter Fall Conference. He is the AILA liaison to the U.S. Customs and Border Protection (“CBP”) office at DFW Airport (the third-busiest airport in the world), and shared insights gained in that role with Conference attendees.  CBP policies change frequently and are often enforced differently from port to port, so Brent is happy to have an inside look at entry and enforcement trends and issues at DFW Airport, to share that with his clients and colleagues, and to bring their concerns to CBP.

    0

    Beginning 10/1/17, USCIS will begin phasing in in-person interviews for employment-based adjustment of status applications (I-485 applications filed with/after I-140 petitions). Previously in-person interviews were waived for these applicants due to the thorough background checks they undergo and the low incidence of fraud in employment-based cases.

    The new interview requirement will apply even to multinational executives and managers and will likely cause adjudication delays for all employment-based applicants.

    USCIS says the change was implemented in compliance with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

    0

    HLG’s founder Brent Huddleston spoke last week at the 45th Annual Legal Issues in Museum Administration Conference, sharing solutions to immigration challenges facing some of the country’s top museums. We regularly counsel museums looking to hire world class talent, and Brent was honored to be able to share his experience.

    To learn more about the Conference, please see the schedule and faculty here: https://www.ali-cle.org/index.cfm?fuseaction=courses.course&course_code=CY005

    0

    In a flurry of memoranda and press releases issued right before and during the filing window for this year’s H-1B cap lottery, U.S. Citizenship and Immigration Services and the U.S. Department of Labor announced efforts to curtail perceived fraud and abuse in the H-1B program.

    On March 31, USCIS issued a policy memorandum clarifying that entry-level computer programmer positions do not generally qualify as “specialty occupations” as required by the H-1B visa category.  This memorandum supersedes the prior “Terry Way” memorandum, which provided a basis for arguing that such positions should qualify as specialty occupations.  In light of the new memorandum, computer programmer positions offered at an entry-level “Level 1” wage are unlikely to qualify for H-1B treatment.

    Three days later, USCIS issued a press release announcing efforts to identify potential fraud in the H-1B program via targeted site visits.  The site visits will focus on 1. Cases where USCIS cannot validate the H-1B petitioner’s basic business information, 2. Companies (called H-1B dependent employers) which employ a high ratio of H-1B employees, and 3. Companies filing H-1B petitions for employees to work off-site at another company’s location.

    Then on April 5, the Department of Labor issued a press release announcing its commitment to “protect[ing] U.S. workers from H-1B program discrimination.”  DOL says it will focus on “rigorously” using its authority to investigate possible H-1B program violators and will also consider changing the Labor Condition Application, a DOL-administered component of the H-1B application process, to provide improved transparency.

    These efforts likely reflect the current administration’s focus on reforming the H-1B program.  On the campaign trail, President Trump vowed to “end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program.”  That the changes were announced immediately prior to and during the H-1B filing window that opened on April 1 means they may affect already-filed H-1B petitions.

    Huddleston Law Group regularly counsels clients regarding the H-1B visa program.  Please contact us if you would like to discuss these issues further.

    The USCIS Policy Memorandum, Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions,” is available at: https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

    The USCIS Press Release, Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse, is available at: https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse

    The DOL Press Release, US Department of Labor Announces Plans to Protect American Workers from H-1B Program Discrimination,” is available at: https://www.dol.gov/newsroom/releases/eta/eta20170404-0

     

    0