Legal Blogs and Updates

USCIS Announced Plan to Bolster the H-1B Registration Process to Reduce the Possibility of Misuse and Fraud in the System

As we reported in a previous newsletter, in the FY2024 H-1B registration, United States Citizenship and Immigration Services (USCIS) received 758,994 eligible H-1B registrations, up dramatically from last year’s 474,421 registrations.  Of the FY2024 registrations, only 110,791 were selected for adjudication through the H-1B lottery, or about 11%.  Shockingly, 408,891 registration applications were filed for individuals on whose behalf multiple employers submitted a registration, a 147% increase in multiple registrations from last year.  This situation led to widespread allegations of fraud and calls for USCIS to take action.

In a June 29, 2023, letter to the American Immigration Lawyers Association (AILA), USCIS acknowledged the importance of sustaining the integrity of the H-1B program and indicated it had taken appropriate action.  Specifically, USCIS stated that it had undertaken an extensive fraud investigation, has denied petitions and revoked approvals where fraud was found and is in the process of initiating law enforcement referrals for criminal prosecution. Further, the agency stated it intends to propose changes to its regulations to reduce the chances of fraud going forward.

The denial of petitions and revocation where fraud was found may make additional H visas available in a second round of H-1B lottery selection.  Contact us with questions related to H-1B visas and a potential second-round lottery selection in 2023.

Business Leaders Facing Labor Shortages Appeal to President Biden

In a letter to President Biden, the American Business Immigration Coalition (ABIC), a group of 126 business leaders and employers, called for the President to “expand a special category of immigration permits for individuals who can fill positions where labor shortages exist.”  The ABIC letter included representatives from the construction, manufacturing, agriculture, landscaping, and restaurant industries, all of which rely heavily on immigrant labor. The ABIC contends that, due to acute labor shortages, the US continues to have 10.5 million unfilled jobs. 

The ABIC pointed out that labor shortages are particularly acute in livestock industries, such as dairy, where the calls for immigration reform are especially loud.  As one industry representative stated, cows need to be milked every day.  Because Americans are apparently unwilling to perform the work, the representative stated, the dairy industry has become increasingly reliant on undocumented labor.

The ABIC is not alone in requesting relief.   Indiana Governor Eric Holcomb and Utah Governor Spencer Cox recently co-authored a Washington Post op-ed in which they wrote:  “To help us do our jobs as governors, we call on Congress to end its two-decade standoff on setting immigration policy- one of its most basic duties.”

Understanding Why Many US-Educated Foreign Students Don’t Stay in the US to Work

Hundreds of thousands of students from all over the world come to the US each year to study at American colleges and universities.  The vast majority graduate with highly specialized degrees that are needed by US employers to fill labor shortages.  Yet, because of restrictive immigration policies, only 11% of those who get a bachelor’s degree end up staying, notwithstanding a strong desire to remain in the US.  Meanwhile, countries like Canada, the UK, and Australia are poaching these US-educated individuals.  Recently, Boston’s WBUR reported on the situation, blaming it squarely on the immense difficulties faced by foreign graduates and US employers when they attempt to secure H-1B status.

Contact us with questions about obtaining H-1B status for hire.

DOS Posts a Disappointing August 2023 Visa Bulletin

The August 2023 Visa Bulletin posted by the Department of State (DOS) includes backlogs in the Employment-Based Preference Categories (EB-1, EB-2, and EB-3), some of which are new.  Worldwide for EB-1 is now retrogressed to August 1, 2023; EB-1 is also retrogressed to February 1, 2022, for Chinese nationals and January 1, 2012, for Indian nationals.  Worldwide for EB-2 is now backlogged to April 1, 2022, and worldwide for EB-3 is backlogged to May 1, 2020.

Contact us with questions related to backlogs in the Employment-Based Preference Categories.

I-9 Record-Keeping and the End of COVID-19 Flexibilities

During the COVID-19 pandemic, employers were afforded temporary flexibilities with respect to I-9 compliance.  Specifically, they were permitted to remotely inspect I-9 documents, whereas, pre-COVID, employers were required to physically inspect I-9 documents in person.  Known as “I-9 flexibilities,” this dispensation ends on July 31, 2023.  Employees whose documents were previously inspected remotely must complete in-person physical documentation inspections by August 30, 2023.

For your reference, we have attached a helpful flyer that explains the changes.  Please call us if you have questions.

Limited Use of Virtual Review of I-9 Documents Permitted by DHS for E-Verify Employers Only

On Tuesday, July 25, 2023, the Department of Homeland Security (DHS) published a final rule creating a framework under which the DHS Secretary would authorize (starting August 1, 2023) alternative document examination procedures, i.e., virtual review rather than physical examination of the documents.  At least for the immediate future, the alternative procedures will be limited to E-Verify participants in good standing.  Under the alternative (virtual) procedure:

• The employee will transmit a copy of the documents to the employer;
• The employer will examine the documents;
• The employer will conduct a live video interaction with the employee presenting the documents to ensure that the documentation reasonably appears to be genuine and related to the employee. At this time, the employee will present the documents again; and
• The employer will indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for re-verification, as applicable (a new version of the Form I-9 will be published on August 1, 2023); and
• The employer must retain a clear and legible copy of the documentation (front and back if it’s two-sided)

As always, this must be done within three (3) business days of the first day of employment.  An E-Verify employer is not required to use the virtual procedure, but if it chooses to offer the alternative procedure to some employees at an E-Verify hiring site, the employer must do so consistently for all employees at that site.  However, an E-Verify employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic.

It is important to remember that whether or not the virtual procedure is used, employers will be required to create an E-Verify case for each employee. 

Contact us with any questions about the virtual review of I-9 documentation.

Court Finds USCIS Has Authority to Require Employers to File Amended H-1B Petitions Due to Change in Employment Location

ITServe, a trade association representing companies that provide information-technology services to clients, sued United States Citizenship and Immigration Services (USCIS), arguing that its Policy Memorandum No. 602-0120 was unlawful.  That Policy Memorandum, among other things, required updated petitions whenever a sponsoring employer moves an H-1B worker to a different worksite.  According to ITServe, USCIS lacked statutory authority to impose this requirement.  The D.C. Circuit Court of Appeals disagreed.  In a decision dated June 27, 2023, the court found in ITServe v. DHS that because USCIS may consider Labor Conditions Application (LCA)-related issues, it may require new or amended petitions corresponding to changes in the place of employment that necessitate the filing of new LCAs. Because the attestations made in the LCA remain in effect throughout the term of authorized employment, policing compliance with its terms constitutes “administration and enforcement” authorized by the Immigration and Nationality Act.

Contact us with questions about the ramifications of changes in H-1B employment.

Guidance Issued by USCIS on Requests to Reschedule Biometric Services Appointments

In furtherance of its goal to improve customer service, USCIS has launched a new self-service tool allowing benefit requestors, and their attorneys and accredited representatives, to reschedule most biometrics services appointments before the date of the appointment.  Previously, requests to reschedule biometrics appointments could only be made by calling the USCIS Contact Center.  With the new tool, individuals who create a USCIS online account can request appointments electronically without having to call the Contact Center. 

USCIS is also issuing guidance in the USCIS Policy Manual to explain that it may consider an untimely request to reschedule a biometrics services appointment for “good cause.”  Good cause exists when the rescheduled request provides sufficient reason for the benefit requestor’s inability to appear on the scheduled date. Sufficient reasons may include, but are not limited to:

• Illness, medical appointment, or hospitalization;
• Previously planned travel;
• Significant life events such as a wedding, funeral, or graduation ceremony;
• Inability to obtain transportation to the appointment location;
• Inability to obtain leave from employment or caregiver responsibilities; and
• Late delivered or undelivered biometric services appointment notice.

USCIS only accepts untimely rescheduling requests made to the USCIS Contact Center.

Contact us with questions about biometrics services appointments.

United States Citizenship and Immigration Services Expands myProgress Tool to Form I-765 and Form I-131

The myProgress tool permits applicants to get personalized estimates of their wait times for major milestones in their case, including their final case decision.  The tool is currently available for Form N-400, Application for Naturalization; Form I-90, Application to Replace Permanent Residence Card; and Form I-130, Petition for Alien Relative.  On July 12, 2023, USCIS announced that myProgress is being expanded to include Form I-765 and Form I-131.

To view estimated case timelines, applicants must first create a USCIS online account and select their pending application. Until their case has a decision, myProgress will display the estimated wait times along with a checkmark beside three milestones as they are completed:

• The application is received;
• A biometric services appointment (if required) has been completed; and
• A decision on the pending case has been rendered.

USCIS reminds customers that, while estimates are based on historical patterns of cases with similar specifics, they are not a guarantee of speed, cannot take into consideration all possible unique application processing delays, and may underestimate the true processing time.

Contact us with questions about accessing myProgress.

Customs and Border Protection Announces Electronic System for Travelers Authorization Ineligibility for Nationals of Visa Waiver Program (VWP) Countries Who Have Been Present in Cuba

On January 12, 2021, the US Secretary of State designated Cuba as a State Sponsor of Terrorism (SST), making individuals who have been present in Cuba on or after this date ineligible for travel under the VWP.  On July 6, 2023, the US Department of Homeland Security updated the Electronic System for Travelers Authorization (ESTA) application form and ESTA Mobile Application to reflect this change.  If an ESTA has already been approved and it is later determined that the traveler has been present in Cuba, the ESTA will be revoked, and travelers will be notified through the ESTA Mobile Application or Customs and Border Protection (CBP)’s ESTA website. There is a limited exception for military personnel and full-time government employees of Visa Waiver Program (VWP) countries who were present in Cuba to carry out official duties.  There are no exceptions for individuals present in Cuba on behalf of international organizations or for dual nationality individuals with nationalities in both a VWP country and Cuba.

CBP has stressed that travel to the US is not barred for affected travelers; rather, such travelers must apply for a nonimmigrant visa from a US embassy or consulate.  Contact us with questions about travel.

New Laws Remove Obstacles for DACA Recipients Who Want to Become Police Officers

 NBC News reports (https://www.nbcnews.com/news/new-laws-remove-obstacles-daca-recipients-want-become-police-officers-rcna93493) that some police departments around the US are struggling to recruit and retain police officers are looking to a previously untapped pool of applicants:  Deferred Action for Childhood Arrivals (DACA) recipients.  As a result, some states, including California and Colorado, have passed laws permitting noncitizens who are authorized to work in the US to become police officers, making DACA recipients eligible to apply.  For example, California’s bill, SB 960, which was signed into law in September 2022, removed a state law provision stating that a person had to be a citizen to be a peace officer. The bill replaced that requirement with a requirement providing that peace officers must be legally authorized to work in the US.  Other states, including New Jersey, are now considering similar measures. 

Contact us with questions about DACA.