Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

The purpose of this blog is to draw attention to two little know legal concepts, which must either be preserved or introduced through the proposed rule entitled Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. They are concepts worthy of promotion since they would greatly benefit delayed green card applicants, especially with respect to extending H-1B status beyond the six years and freezing the age of a child under the Child Status Protection Act under a new I-140 petition. While there are many other proposals in need of repair and improvement, I focus on these two since I have dwelt on them with passion in past blogs, here and here, and now is a time to advocate for their inclusion in the proposed rule.

This rule when finalized will provide relief to skilled immigrants who are presently on nonimmigrant visas and are caught in the crushing employment-based backlogs. The centerpiece of this rule would allow beneficiaries of approved employment based immigration visa petitions, known as I-140 petitions, to apply for an employment authorization document (EAD), although it has disappointed many by setting stringent criteria, which would deter most from taking advantage of it. This has been addressed in my prior blog – Allowing Early Adjustment Filing in Proposed Rule Impacting Skilled Workers Would Give Big Boost to Delayed Green Card Applicants. Those who are disappointed must continue to forcefully advocate so that EADs can be granted to deserving beneficiaries of approved I-140 petitions less restrictively in the final rule.

Preserving the Ability Of H-1B To Seek H-1B Extension Based On Other Spouse’s Labor Certification

The American Competitiveness in the 21st Century Act (AC 21) allows for an extension of H-1B visa status beyond the statutory time limitation of six years for those who cannot obtain a green card within this period. There are two pivotal provisions. AC 21 §106(a) allows for one year H-1B extensions beyond the sixth year if a labor certification application or I-140 petition was filed at least one year prior to the last day of the alien’s authorized admission in H-1B status. Under second provision, AC 21 §104(c), the beneficiary of an approved I-140 petition can seek an H-1B extension for three additional years if it can be demonstrated that he or she is eligible for permanent residence but for the per country limitation.

The proposed rule seeks to provide this benefit only to the principal beneficiary and not to the spouse, assuming both are in H-1B status. While it is true that the other spouse who is not the direct beneficiary of a labor certification or I-140 petition can change status from H-1B to H-4 status, and seek an EAD as an H-4 spouse under the recently promulgated rule that allows for this, experience has shown that this can be a long process. Changing from H-1B to H-4 status can take several months, and there would also be additional delays in receiving the EAD. Even if the H-1B spouse proceeds overseas to apply for an H-4 visa, it would take at least 90 days before the H-4 spouse can obtain the EAD after being admitted into the US in that status. It is thus more convenient for the spouse who is also in H-1B status to continue to extend that H-1B status, and not disrupt his or her employment.

The rationale for not allowing a spouse who is also on an H-1B visa to use the other spouse’s labor certification or I-140 petition is not very convincing. The preamble discusses AC 21 §104(c), which limits H-1B nonimmigrant status beyond the six-years to the ‘beneficiary of a petition filed under section 204(a) of [the INA] for a preference status under paragraph (1), (2), or (3) of section 203(b) [of the INA].” According to DHS’s logic, INA §203(b) applies only to principal beneficiaries, but not to derivative beneficiaries who are separately addressed in INA §203(d). The preamble also emphasizes that §104(c) refers to “the beneficiary” in the singular. The DHS uses this same logic to deprive the other H-1B spouse from extending H-1B status one year at a time based on the other spouse’s labor certification or I-140 petition filed 365 days prior under AC 21 106(a).

Unlike AC 21 104(c), which the DHS focused on, there is a clearer basis in AC 21 106(a) to allow an H-1B spouse to seek a one year extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

  1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), 
  2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). 

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of a labor certification or an I-140 petition, and 365 days or more had passed since the filing of a labor certification application or the I-140 petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). The term “any application for labor certification” was absent in the original version of AC 21§106(a). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or I-140 petition and the H-1B nonimmigrant’s current employment. This is now fortunately preserved in the proposed rule, but there is no reason to also not allow a spouse to use “any” application for labor certification, which could be the labor certification filed on behalf of the other spouse.

With regards to the absence of INA §203(d) in AC21 §104(c) or §106(a), does this suggest that that only the principal spouse can immigrate under INA §203(b) and the derivative needs INA §203(d)? But INA 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent. Thus, the derivative spouse still immigrates under INA 203(b).” INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

In conclusion, there is a very good argument under AC 21 §106(a) that the H-1B spouse can use “any” labor certification, which includes the labor certification filed on behalf of the other spouse, to seek an additional one year H-1B extension. Furthermore, there is also an equally good argument, applicable under both AC 21 §106(a) and §104(c), that the exclusion of the mention of INA §203(d) is not fatal as a derivative spouse also ultimately immigrates under INA §203(b). The fact that “beneficiary” is mentioned in the singular and not in the plural should also not undermine support for the notion that any beneficiary, either as principal or spouse, can qualify for an AC 21 H-1B extension who is capable of immigrating under a labor certification or I-140 petition, or both. DHS must interpret existing ameliorative provisions in AC 21 that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On a separate note, there is also no need to penalize an H-1B worker from availing from an AC 21 H-1B extension if s/he fails to file an adjustment application or make an application for an immigrant visa within 1 year of availability. If the rule allows an H-1B extension based on a labor certification or I-140 petition filed by another employer, it may take some time for the new employer to obtain another labor certification and I-140 approval. The exception provided in the rule for failure to file within 1 year should include this circumstance, where the applicant is waiting for another labor certification and I-140 petition through a new employer.

Freezing The Age Of A Child Under The Child Status Protection Act Even Through A New Petition

 One of the bright spots in the proposed rule at 8 CFR §204.5 is to clarify that even if an I-140 petition is revoked by the employer, the priority date of that I-140 petition can still be used if a new employer files another I-140 petition. Even if the earlier I-140 petition is not revoked, and the same employer wishes to upgrade from an EB-3 I-140 to an EB-2 I-140 petition, the priority date of the earlier EB-3 I-140 petition can still be retained. The ability to retain an old priority date always existed in the rule, but the proposed rule also clarifies that retention of the priority date is further permissible when an employer revokes a petition or goes out of business.

The key issue is whether the new I-140 petition would be able to continue to protect the age of the child under the CSPA even if it is filed after the child has turned 21. We assume that the prior I-140 petition froze the age of the child under the CSPA age protection formula because it was filed prior to the child turning 21, the date became current, and an I-485 adjustment application was filed within one year of visa availability. There are many beneficiaries under this scenario, including the class of 2007 adjustment applicants whose priority dates under the India EB-3 have not become current after they retrogressed in August 2007.Alternative, we assume that when the priority date of the earlier I-140 becomes current, it would still potentially be able to protect the age of the child. At issue is whether the new I-140 petition continues to protect the age of the child.

The CSPA, as codified in INA 203(h), applies to the “applicable” petition, and without further clarification it may be difficult to bootstrap the new I-140 onto the “applicable” prior I-140 petition, which is no longer being utilized but was filed before the child’s 21st birthday. There is room to interpret the term “applicable” petition to include the new I-140 petition, especially since the new I-140 petition recaptured the priority date of the old I-140 petition. This should be made explicit in the final rule where the new I-140 petition is considered the “applicable” petition for purposes of protecting the age of the child under the old petition. If an old I-140 petition revoked by an employer can be used for purposes of preserving the priority date in a new petition, port to another employer or seek an AC 21 H-1B extension, it should also be preserved for preserving the age of a child under the CSPA. Similarly, even if the I-140 petition is not revoked, a new I-140 petition, filed either by the same or new employer should be able to freeze the age of the child if the old I-140 petition was able to do so.


 It is important that everyone impacted by this rule should strive to improve it by submitting comments. We will continue to blog on this rule with the goal of providing stakeholders with good ideas for comments. While there is no guarantee that the DHS will incorporate all good and worthy ideas, it is important to continue to float such ideas as they can never really die, and have the potential to be included in other rules or even subsequently through legislation. The deadline for submitting comments to this proposed rule is February 29, 2016.


Perspectives On Immigration In 2016 Through My Crystal Ball

2016 portends to be an action packed year on immigration. While we continue to watch Donald Trump touting his absurd proposal to  temporarily ban Muslims, we can feel assured that it will likely not go anywhere. This is not the first time that America has witnessed such extreme anti-immigrant sentiments. It happened before in the mid-1800s when the Know Nothing party directed its ire against Irish Catholics, and later on in that century when the Know Nothings faded,  other anti-immigrant demagogues railed against the inferiority of  Jews and Southern European immigrants.

These earlier demagogues preceding Trump included Samuel Morse,  well known as the inventor of the telegraph and Morse code, who like Trump does with Muslim immigrants warned against Catholic immigrants whom he thought would be more loyal to the Pope:

How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines should suddenly be thrown into our society and not produce turbulence and excess? Can one throw mud into pure water and not disturb its clearness?

A leading sociologist of his time in the late 19th century Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.”

The good news is that all of these anti-immigrant movements soon became irrelevant, and one does not need a crystal ball to predict that Trump, regardless of his current rise in the polls,  will also be relegated to the trash bin of history.

This week, the Supreme Court agreed to hear the challenge to the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) programs. The key issue is whether the President overstepped his powers provided to him in the INA by deferring the removal of a class of people who are in the United States in an undocumented capacity or not. My crystal ball reveals that the majority of justices in the Supreme Court will agree with the President. It is well acknowledged that the Executive Branch does have authority to prioritize on who should be removed from the country, given the limited funding that Congress gives it every year. Even if the Supreme Court required briefing on another question – whether the President is required to “take Care that the laws be faithfully executed” under Article II, Sec. 3 of the Constitution – it is hard to imaging a Supreme Court ruling that would require the President to enforce the law against each and every of the 11 million or more who are not authorized to remain in the United States.  At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States.  Even at the historically high levels of removal under President Obama who has been termed by many as the Deporter in Chief, some 400,000 per year were removed, which amounts to only 3-4% of the total undocumented population.   The government also exercises prosecutorial discretion in criminal matters, and no one bats an eyelid,  and has also developed guidelines regarding prioritizing enforcement with respect to states that have legalized marijuana. Accordingly, it is difficult to see how the President can be forced to take a different position with respect to immigration enforcement.

The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. During the presidencies of Ronald Reagan and George H. Bush, significant number of family members of recipients of the 1986 legalization program were allowed to remain in the United States through executive actions.  Even if the law suit alleges that the President does not have authority, now is a good time to remind critics about Justice Jackson’s famous concurrent opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), which held that the President may act within a “twilight zone” in which he may have concurrent authority with Congress. Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that President Truman could not seize a steel mill to resolve a labor dispute without Congressional authorization, the executive branch under the recent immigration actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Through the Immigration Accountability Executive Actions, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. INA 103(a)(1) charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien..”  INA  212(d)(5), which Congress also enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.”  Incidentally, parole can also be used to allow promising entrepreneurs to come to the United States and establish startups, although this and many other executive actions to help businesses have not been attacked in the law suit. Moreover, INA 274A(h)(3) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. It should be noted though that the Fifth Circuit Court of Appeals in upholding the preliminary injunction noted that this provision did not provide authority for the President to issue work authorization under DAPA.   In terms of employment authorization issuance, Congress has rarely spoken on this except via INA § 274A(h)(3), so that many instances of employment authorization issuance are purely an act of executive discretion justified by that one statutory provision. If the Supreme Court limits the President’s authority under INA 274A(h)(3), it could jeopardize many other immigration programs under which work authorization is issued through this provision. Furthermore, INA 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”

Another more recent case that cuts in favor of President Obama is  Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), which  articulated:

“[a] principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their   families,  for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.”

Another key issue is whether states should be even permitted to sue the federal government on immigration enforcement policy. If President Obama loses, it would then be an open invitation for any cantankerous state politician to bring a law suit against the federal government over an immigration policy that he or she dislikes. The ability of a state to harass the federal government could be endless. For instance,  a state could sue the federal government for granting deferred action to other groups of non-citizens, such as victims of domestic violence or crime victims or widows and widowers of US citizens, like the federal government has done in the past. These sorts of challenges from states would undermine the long established doctrine that immigration policy is within the purview of the federal government and Congress, and that the federal government has that discretion with respect to enforcement, as upheld in Arizona v. United States. Another concern for upholding preemption of federal immigration law from interference by states is the concern about the relationship between immigration and foreign affairs. See Toll v. Moreno, 458 U.S. 1 (1982); Hines v. Davidowitz, 312 U.S. 52 (1941).  If a state were allowed to sue each time the federal government issued a policy and blocked it, this would upset the long acknowledged preemption doctrine relating to immigration. If there is a disagreement in how the Executive Branch implements immigration policy, it is for Congress to intervene by changing the law rather than for states like Texas to file a law suit.

Ultimately, Justice Kennedy will most likely cast the deciding vote in upholding DAPA, but my crystal ball hints that other justices from the conservative wing such as Justice Roberts may concur, due to their abhorrence on broadening the standing doctrine under Massachusetts v. EPA, which was essentially a liberal decision that gave Massachusetts standing to force the EPA to issue a rule to regulate greenhouse gases. On a personal note, it is highly abhorrent to equate the harm caused by pollutants with the supposed harm caused by immigrants, who will more likely benefit than harm the state through their tax dollars and many other contributions.

On the business immigration front, things do not look so bright unfortunately. The H-1B cap filing season will again take place this April 2016, and the cap will surely be hit within the first five days of April, and Congress will not lift a finger to increase the cap. Indeed, it will be fortunate if it does not lift that finger since the current mood in Congress is to restrict the H-1B, along with the L-1 visa programs, even further. It is better to have the H-1B program in place as is, as further restrictions could also affect those who are already in H-1B status, and it would be harder for them to seek H-1B extensions through their employers under a new law.

Regarding forward movement in the employment-based dates, although the filing dates for the EB-2 and EB-3 for India and China have remained the same when they were abruptly pulled back on September 25, 2015, the December 2015 Visa Bulletin  predicted the following:

China: Forward movement of this date during FY-2015 has resulted in a dramatic increase in demand. Little, if any movement is likely during the coming months.

India: Up to eight months.

EB-2 China actually did creep forward in February from 01FEB12 to 01MAR12, when the above-quoted predictions said there would be “Little, if any movement”, and EB-2 India has already advanced more than a year from 01JUN07 in December to 01AUG08 in February despite being predicted to move only “Up to eight months”, so the predictions may have been a bit overly pessimistic.  My crystal ball predicts some forward movement over the remainder of the year,  but alas, with regards to the movement in the filing dates, my crystal ball has become cloudy as it fails to understand the logic of the government in not moving the filing dates correspondingly forward. Perhaps, the Mehta v. DOL lawsuit will force the government to provide some clarity, or the government will some day realize that it can move the filing dates substantially forward based on its historic broad interpretation of visa availability under INA 245(a)(3). But for now my crystal ball fails me, which is most unfortunate, as skilled immigrants who are legally in the United States deserve more clarity than anyone else.


The H-1B and L-1 Punitive Super Fee Rears its Ugly Head Again

By Cyrus D. Mehta and Michelle S. Velasco

Last December, Congress passed the Consolidated Appropriations Act (Public Law 114-113) (“Omnibus Bill”) that set up the government’s budget until October 2016.  It is one of Congress’s basic tasks to create the budget for the government – something it has failed to do without rancorous debate, shutdowns, threats of shutdowns, and political rigmaroles in the past five years.  The passage of the recent bill was not immune to controversy as it only passed after close-to-deadline negotiations with new House Speaker Paul Ryan.  And as is par for the course in large spending bills, lurking within the nearly 1000 page bill were pork barrel projects and controversial amendments.  The full text of the bill is available here, but what concerns us lies at Section 411, entitled “9-11 Response and Biometric Entry-Exit Fee,” and which includes the following language:

  • TEMPORARY L-1 VISA FEE INCREASE.—Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)), including an application for an extension of such status, shall be increased by $4,500 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) of such Act.
  • TEMPORARY H-1B VISA FEE INCREASE.—Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)), including an application for an extension of such status, shall be increased by $4,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act.

In essentials, this confusingly worded section boils down to an increase in the H-1B and L-1 petition fees for certain employers who have 50 or more employees, more than 50% of whom are in H-1B or L-1 status.  The provision not only reintroduces the super fee from Public Law 111-230 that sunset on September 30, 2015, but it doubled that super fee!  However, unlike Public Law 111-230, These extra fees will be used to fund healthcare for 9/11 first responders and a new system to track entries and exits using travelers’ biometric data.  What left many immigration attorneys and businesses scratching their heads was the bill’s language that left many things unclear: Should employers should pay the super fee right away because the statute says “beginning on the date of the enactment of this section…”?  Would the super fee apply to extensions of status because the statute says “including an application for an extension of such status”?  Are fraud fees now also required in extension of status petitions?

It took nearly a month, but on January 12, 2016 USCIS finally issued its interpretation of the statute in a website announcement that as of January 12, 2016 USCIS began accepting the super fee for eligible H-1B and L-1 petitions.  The announcement included some helpful clarifications:

  • The fee is applicable only for initial or transfer filings, not to extensions of status.
  • The super fee was not required for petitions filed prior to January 12, 2016.
  • The fraud fee is not required in extensions.

However, as of writing this blog, USCIS has yet to revise the Form I-129 and Form I-129S.  Outside of this announcement there are no other instructions on the USCIS website, and its page on H and L filing fees has not been updated.  Nevertheless, USCIS provides only a 30-day grace period post the January 12 announcement where USCIS will merely RFE for missing fees.  After February 11, 2016, USCIS will reject petitions with missing fees.

We accordingly provide the following practice pointers for employers affected by the new super fee to minimize the likelihood of RFEs and rejections or other processing delays:

  • Employers should carefully complete the Form I-129, in particular Section 1, Numbers 1.d. and 1.d.1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (page 19 of the 36-page I-129 form) and Numbers 4.a and 4.b of the L-1 supplement (page 22 of the 36-page I-129 form).
  • Employers ought to make a careful count of their employees and their nonimmigrant statuses.
  • When possible, employers should send filing fees in separate checks. In the event USCIS has received extra fees, it will simply return those extra checks to the employer without delaying the process.  This way, employers can avoid RFEs or rejections of their petitions.

Given the severe increase in fees, employers affected by the change will have to reevaluate the business costs of filing these petitions.  Once totaled, the filing fees can be exorbitant.  An initial or transfer H-1B filing for affected employers will total $6325 in filing fees alone: ($325 basic filing fee; $500 fraud fee; $1500 ACWIA fee; $4000 super fee).  Tack on the premium processing fee and the filing fees alone will total $7550!  For initial L-1 filings, the total filing fee would be $5325 in regular processing ($325 basic filing fee; $500 fraud fee; $4500 super fee).  Meanwhile, other employers would pay anywhere from $825 to $2325 for initial H-1Bs and only $825 for initial L-1 petitions.  The difference in costs is striking.  Indeed, by enacting this super fee targeted at larger companies with nonimmigrant workforces, the U.S. has cemented its anti-immigrant and anti-business stance particularly with respect to India-based technology companies who are disproportionately affected by the punitive fees.  Though it is a nation built on the backs of immigrants and their entrepreneurial spirit, the U.S. can’t seem to reconcile its claim as the greatest country in the world with the spread of hypocritical and unjustifiable fear of foreign worker takeovers.

It is clear that this severe increase in fees has been aimed against India-based companies to punish them, without giving any thought to the fact that most of corporate America relies on them to run business efficiently, which in turn benefits the American consumer.  It is this very business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” readily provides.  By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  Such a business model is also consistent with free trade, which the U.S. promotes vehemently to other countries (including the protection of intellectual property rights of its pharmaceutical companies that keep lifesaving drugs high), but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

It is not necessarily the case that H-1B employees who work in the United States through these IT firms are taking jobs out of the United States.  That has been the prevailing rhetoric, but the benefits that IT consulting firms and their H-1B workers provide by way of productivity gains, resulting in an increase in jobs elsewhere and a lowering of costs to the consumer, is often overlooked.  As a recent Times of India editorial put it bluntly:

These workers are not feeding off the American economy, they are contributing to its innovation and productivity.  Jobs are no nation’s monopoly; if Indians work hard and well they are not breaching any globally mandated caste system.  Indian companies pay taxes and create jobs in the US too.  These controversies are not new.  But an effective counter to America’s Indophobia remains to be found.

The current rhetoric ultimately results in disparaging H-1B workers from India who are also here to work hard and pursue the American dream.  It also affects H-1B adjudications, resulting in extra scrutiny, and denials of H-1B extension visa requests that hitherto were easily granted.  While many recognize and justifiably condemn the absurd anti-immigrant rhetoric of Donald Trump, punitive efforts against India-based companies, resulting in stricter H-1B visa adjudications of individual workers who are waiting for years in the crushing India employment-based second and third preference backlogs, must also be recognized as xenophobic.  It is only then that anti-immigrant rhetoric, in the guise of protecting U.S. workers, will be acknowledged and the media, politicians and others who currently freely engage in this will get less of a free pass.

(This blog is for informational purposes only, and should not be relied upon as a substitute for legal advice)

Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers Would Give Big Boost to Delayed Green Card Applicants

A proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” has disappointed beneficiaries of I-140 employment-based immigration visa petitions who are caught in the crushing employment-based preferences. Everyone was waiting with bated breath about how the rule would allow beneficiaries to apply for an employment authorization document (EAD) based on an approved I-140 petitions. The proposed rule was announced on New Year’s Eve, December 31, 2015,  but the balloon hastily deflated well before New Year. EADs would be issued in a very niggardly manner. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s detailed summary, but suggests that the DHS also consider adding a rule to allow early filing of an I-485 adjustment application. Including a rule that would allow early filing of an I-485 application, along with some of the ameliorative provisions in the proposed rule, would truly make the rule positively impactful to those who are seeking relief.

Under the proposed rule, DHS will provide EADs to beneficiaries in the United States on E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status if they can demonstrate compelling circumstances. While compelling circumstances have not been defined in the rule, DHS has suggested that they include serious illness and disabilities, employer retaliation, other substantial harm to the applicant and significant disruption to the employer. Regarding what may constitute significant disruption; DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid. The EAD will be renewed if such compelling circumstances continue to be met, or if the beneficiary’s priority date is within one year of the official cut-off date.

As a result of these stringent standards, very few I-140 beneficiaries will be able to take advantage of this EAD provision. Furthermore, in order to keep the existing I-140 petition valid, the sponsoring employer must continue to offer the position to the beneficiary. While the recipient of an EAD can engage in open market employment, he or she must intend to work for the sponsoring employer upon the issuance of permanent residency. It is hoped that the final rule will provide a broader basis for beneficiaries of approved I-140 petitions to obtain EADs without needing to show compelling circumstances. INA 274A(h)(3) provides broad authorization to the DHS to issue work authorization to any non-citizen. While there is broad authority in the INA to issue an EAD, it is difficult to conceptualize how such a beneficiary may be able to port to another employer without a pending I-485 application. INA 204(j) requires an I-485 application to be pending for more than 180 days before a worker can change jobs in a same or similar occupational classification, while still keeping the I-140 petition and underlying labor certification intact.  On the other hand, a new employer can re-sponsor a worker if he or she has an EAD through a new I-140 petition, while retaining the priority date of the old petition, upon which the worker can consular process for the immigrant visa if not in a valid nonimmigrant status at the time the final action date becomes current.

Although the centerpiece proposal is disappointing, there are some bright spots. I-140 petitions that have been approved for at least 180 days would not be subject to automatic revocation due to a business closure or withdrawal by the employer. DHS has invoked its discretion under INA 205 to retain an I-140 even if an employer withdraws it or the business closes. This assurance would allow workers who have pending I-485 applications for 180 days or more to safely exercise job portability under INA 204(j), although this dispensation is not possible if USCIS revokes the I-140 based on a prior error. Even those without pending I-485 applications could take advantage of this provision to obtain H-1B extensions beyond six years under the American Competitiveness in the 21stCentury Act (AC 21). They would also be able to keep their priority dates if a new employer files another I-140 petition.

The proposed rule would also allow workers whose jobs are terminated a grace period of 60 days if they are holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status. There will also be automatic extensions of an EAD for 180 days, but will take away the mandatory processing time for an EAD within 90 days.

Notwithstanding the stingy circumstances under which the DHS proposes to issue EADs to beneficiaries of approved I-140 petitions, the proposed rule could be salvaged, and truly resurrected, if workers can file early I-485 adjustment of status applications. While the proposed rule has not touched upon this, the DHS must revisit the innovation that was made in the October 2015 Visa Bulletin by creating a filing date and a final adjudication date. Although the filing dates got substantially pulled back in the EB-2 for India and China shortly before the new visa bulletin took effect on October 1, resulting in a lawsuit, DHS has a chance to redeem itself through this rule to truly benefit high skilled workers.

INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa is “immediately available” to the applicant. The Department of State (DOS) has historically never advanced priority dates based on certitude that a visa would actually be available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin  a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who filed in April 2012  would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Another example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007)  . It was obvious that these applicants would not receive their green cards during that time frame. The DOS  then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007, also known as the class of 2007,  are still waiting today.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the DOS, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. The Visa Bulletin in its new reincarnation, notwithstanding the pulling back of the filing dates prior to October 1, 2015,  now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. While it is acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever, DOS and DHS can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, the proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).

The author has proposed the following amendments to 8 C.F.R. § 245.1(g)(1) in the past with Gary Endelman (who has since become an Immigration Judge), shown here in bold, that would expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“final action date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (‘filing date”) without reference to the final action date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current final adjudication date.An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

If early adjustment filing consistent with INA 245(a)(3) is included in the final rule, imagine how many more workers will benefit from it. Having an actual rule in place, as proposed, will prevent the shenanigans that obstructionists in the USCIS have engaged in by arbitrarily holding back the filing date, and in recent months, not even recognizing it for purposes of filing I-485 applications.   While an EAD of an approved I-140 will also be beneficial, being able to port off a pending adjustment application under INA 204(j) would allow the retention of the earlier I-140 petition (and underlying labor certification), without the need for an employer to file a new labor certification and I-140 petition. The filing of the I-485 application would also be able to protect a child from aging out under the Child Status Protection Act, which an EAD off an approved I-140 would not be able to do. Folks whose filing date would not be current could still take advantage of the EAD based on an approved I-140, but for those who can file an early I-485, they would incur many more benefits, including the ability to exercise true portability and eventually adjust to permanent residence in the United States.