Legal Blogs and Updates

Record Demand in FY2024 H-1B Lottery Filings Leads to Fraud Investigation

The United States Citizenship and Immigration Services (USCIS) announced that for FY2024, it 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 filed were for individuals on whose behalf multiple employers submitted a registration, a 147% increase in multiple registrations from last year. 

This situation demonstrates that the H-1B system doesn’t meet legitimate employer demand and is vulnerable to exploitation.  In its announcement, USCIS stated that the increased number of eligible registrations for beneficiaries with multiple eligible registrations has raised “serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the beneficiary,” thereby increasing the chances of selection.

According to a Wall Street Journal article dated April 28, 2023, the Biden Administration has, in fact, found evidence that several dozen unnamed small technology companies have colluded to artificially increase the chances that their prospective foreign hires will obtain H-1B status this year by making multiple filings. USCIS stated that while it is not technically illegal for multiple companies to submit visa applications on behalf of one foreign national, companies submitting applications must attest that they have a real job for the applicant should they obtain H-1B status. 

If employers successfully obtain H-1B status and then quickly contract employees out to third-parties, or lay off an employee in H-1B status so that they can switch companies, the employers have committed fraud.  According to an individual familiar with the situation, some of the offending technology companies were potentially set up with the express purpose of submitting duplicate visa entries.  Based on its investigation, USCIS has referred the companies to law enforcement for potential criminal prosecution.

While some of the duplicate entries might have been selected for adjudication, officials hope to disqualify visa applicants if sponsoring employers committed fraud to boost their chances.  If enough of those applications are rejected, it is possible that USCIS will run a second lottery.

Contact us with questions related to H-1B visas.

Additional Recruitment Requirements Applicable to Employers Who Have Made a Layoff of Workers When Filing for PERM

For employers who file PERM labor certification applications on behalf of foreign employees, layoffs give rise to special recruiting requirements.  Where an employer has laid off US workers within six months in the same or a related occupation in the area of intended employment immediately preceding the filing of a PERM application, the employer must have “notified and considered” all potentially qualified laid-off US workers. 

These requirements raise a number of legal issues including:  How must the notification be made, who is potentially qualified, and what is a similar or related occupation in which a layoff occurred? 

Contact us with questions about these requirements.

Department of Homeland Security Ends COVID-19 Flexibility for Form I-9, Employment Eligibility

In March 2020, at the onset of the COVID-19 pandemic, the Department of Homeland Security (DHS) announced that it would permit virtual review of I-9 documents. This exception is set to expire on July 31, 2023. US Immigration and Customs Enforcement (ICE) recently announced that employers must complete in-person physical document inspections for employees whose documents were inspected by August 30, 2024.

However, permanent virtual inspection may be permitted in the future.  In August 2022, DHS requested that public comment on a Notice of Proposed Rulemaking seeking input on this possibility may produce a permanent option Exactly how long it will take and what it will look like remains unclear. Until any additional guidance is released, employers must continue to abide by the current rules and requirements. A client flyer on I-9 Record-Keeping and the End of COVID Flexibilities is here. 

Contact us with any questions that you may have about I-9 compliance.

Office of the Citizenship and Immigration Service Ombudsman Publishes Tips on How F-1 Students Seeking Optional Practical Training Can Avoid Delays

The Office of the Citizenship and Immigration Service Ombudsman (CIS Ombudsman) recently published tips to help F-1 students seeking Optional Practical Training (OPT) to avoid processing delays with their Form I-765, Application for Employment Authorization.  The list of six tips includes:

• Check the USCIS website for updates before you submit Form I-765;
• Make sure the Form I-20, Certification of Eligibility for Nonimmigrant Student Status, is signed, dated, and endorsed for employment authorization;
• Apply online;
• Submit your Form I-765 within 30 days or 60 days of the date issued by the DSO on Form I-20;
• Submit a properly completed Form I-20 together with Form I-765 at the same time; and
• If you move, update your mailing address with both USCIS and the US Postal Service.

Immigration Customs and Enforcement Issues Broadcast Message on Department of State’s Ability to Issue F & M Student Visas up to 365 Days in Advance

In a broadcast message dated May 2, 2023, Immigration Customs and Enforcement (ICE) acknowledged that, in February 2023, the Department of State (DOS) had updated guidance, providing that officers can now issue an F or M student visa up to 365 days in advance of an international student’s program start date.  However, ICE pointed out students can only enter the US 30 days before the program start date listed on their I-20.  Students who attempt to enter the US more than 30 days before their program start date may be found inadmissible by US Customs and Border Protection (CBP).  ICE advises students and school officials to confirm the following prior to arrival at a US port-of-entry:

• Students have an active I-901 SEVIS fee payment on the Form I-20 they are traveling under.
• The name of the school on Form I-20 matches the name of the school on the visa.
• Student financial information remains up-to-date in SEVIS.
• Students do not attempt to enter the United States more than 30 days in advance of their Program Start Date.

Finally, the ICE broadcast message includes a reminder that effective June 17, 2023, the cost for student and exchange visitor visas will increase from $160 to $185.

Contact us with questions about student visas.

Client Flyer:  How to Correct Errors on I-94

Form I-94 is the electronic record of admission to the US.  Errors on Form I-94 are common; the attached flyer explains how to correct them.  If you have questions about this, call us.  

Customs and Border Protection Terminates COVID-19 Vaccine Requirement for Certain Noncitizens Entering the Canadian and Mexican Borders, and for Air Passengers From Any Country

Effective May 12, 2023, CBP lifted the temporary travel restrictions under which non-US citizens, who are neither US nationals nor LPRs, were required to be fully vaccinated against COVID-19 to be processed for entry at land ports (including ferry terminals) along the Canadian and Mexican borders.

On the same day, CBP rescinded the COVID-19 vaccine requirement for all air travelers arriving in the US from any foreign country.

Contact us with questions about travel and the COVID-19 vaccine requirement.

Customs and Border Protection Proposes Adding a Third Gender Marker to the Trusted Traveler Program Applications

CBP has proposed revisions to the applications for CBP’s Trusted Traveler Programs (SENTRI, FAST, and Global Entry) to add a third gender marker, “X” for applicants identifying as non-binary, intersex, and/or gender nonconforming (in addition to the existing “male” and “female” gender markers). This revision aligns the programs with DOS’s passport options. CBP published a 30-day notice and request for comments, due May 30, 2023.

Contact us with questions about the Trusted Traveler Programs.

New Technology May Reduce Time Required for Administrative Processing

In upholding its national security responsibilities, the DOS may delay a decision on a visa application to investigate an applicant further.  Recently, the DOS adopted new technology and enhanced coordination between federal agencies (especially the National Vetting Center) to reduce the number of visa applications requiring administrative processing.  Since October 2022, the DOS states, most cases that would have previously required additional administrative processing were resolved immediately without additional, time-consuming handling.

Contact us with questions about administrative processing problems in the visa processing context.

According to Forbes, Economists Say Increasing Immigration Will Reduce Inflation

Forbes reports that economists say that one of the most effective options to reduce inflation is to increase immigration, which can be done by expanding employment-based immigration.  Economists agree that a lack of immigrants can contribute to inflation and harm Americans by reducing their purchasing power.  April 2023’s economic news highlights US employers’ need for more workers, including an unemployment rate that fell to 3.4% and the addition of over 250,000 new jobs.  Historically low unemployment, coupled with a fall in immigration experienced during the Trump era, has kept pressure on wages and played a part in inflation.  “It is well-established,” Forbes wrote, “immigrants fill labor shortages, promote economic growth, and stimulate entrepreneurship and innovation.”

The Forbes article can be found here.