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Suspension of Premium Processing: Another Attack On the H-1B Program

The Trump administration has restricted the H-1B program by making it harder for employers to obtain an approval. It has done this without changing the law through Congress or amending any rule.  Routine H-1B visa petitions that were previously approvable are now subject to difficult to overcome Requests for Evidence. Even after valiantly submitting evidence to overcome an RFE, the H-B petition is more susceptible to being denied.  The USCIS has also announced that it will initiate removal proceedings in case an extension request is denied and the underlying H-1B status previously expired, further harassing H-1B workers who have remained lawfully in the United States until the point their H-1B request is denied under needless heightened scrutiny.  It is thus no surprise that businesses are loudly complaining on Labor Day that they are hurting because they are struggling to fill the jobs they need with foreign workers.

To rub further salt in the wound, USICS announced on August 28, 2018, that it was  extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. These suspensions are expected to last until Feb. 19, 2019. Premium processing service provides expedited processing for a specific list of employment-based immigrant and nonimmigrant petitions upon paying an additional fee. This list has always included the H-1B petition.

The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (except for filings by certain cap exempt employers).

The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

The USCIS has specifically indicated that the suspension does not apply to:

  1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
  2. Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
    1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
    2. Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

The reasoning behind the extension and expansion of the suspension of premium processing, according to the USCIS, is to help it to reduce overall H-1B processing times by allowing it to:

  • Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
  • Be responsive to petitions with time-sensitive start dates; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

This may be the official position of USCIS, but it is no coincidence that  continuing the suspension as well as expanding it nicely fits into the administration’s objective to further restrict the H-1B visa program pursuant to “Buy American and Hire American” Executive Order No. 13788. BAHA has been deployed as a justification to restrict legal immigration for the purpose of protecting American workers. However, this rationale makes no sense in a full employment economy when businesses are hurting because they cannot hire foreign workers. Therefore, the only other possible rationale to restrict legal immigration is to advance white nationalism, which is what Trump promised and continues to promise to his base of supporters.

The extension of the previously suspended premium processing for H-1B cap cases means that employers who were expecting foreign nationals to start their jobs on October 1, 2018 may no longer be able to do so if the H-1B petition is not approved. This renders the H-1B visa program virtually useless. Employers had to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April 2018 to be considered in the H-1B visa lottery. Since USCIS received 190,098 H-1B cases earlier this year, which exceeded the maximum 85,000 H-1B visas that can be issued, more applications got rejected rather than accepted under the H-1B lottery this year. Those H-1B petitions that got selected are susceptible to receiving an RFE and a possible denial under the new heightened scrutiny policy.  Moreover,  there are many cases that have not been adjudicated since they were filed in early April 2018, and without premium processing, employers will likely not be able to hire the H-1B worker on October 1, 2018 even though the job offer was made more than six months ago and the petition is potentially approvable. Students who are working for the employer under F-1 Cap Gap Optional Practical Training will have to stop on October 1, 2018 unless the change of status request from F-1 to H-1B is approved on or before that date.

The expansion of the suspension of premium processing means that those H-1B visa holders who are changing employers will not be able to get the assurance of an approval when they make the switch. Although an H-1B worker can port to a new job without waiting for the approval, so long as the employment starts after the new employer has filed the H-1B petition and request for extension of status, both employers and H-1B workers would like the security of an approval before they start their new jobs. The expansion of the suspension of premium processing will hinder mobility of H-1B workers. This in turn will hinder competitiveness and will also inhibit skilled H-1B workers from improving career prospects and getting better compensation, resulting in an adverse impact on US competitiveness in the long run. The suspension of premium processing further feeds into the USCIS’s new removal policy. If an H-1B worker takes a chance to port to a new employer, and if that petition, along with the extension of status request, is subsequently denied after several months of delay due to lack of premium processing, this person could be at risk of receiving a Notice to Appear and will be placed in removal proceedings.

Furthermore, an employer is required to request an amendment of the H-1B petition if the worker is being sent to a new worksite that was not contemplated in the original H-1B petition. The suspension of premium processing for amending an H-1B petition also creates further uncertainty as to the fate of the amendment request that may be challenged and denied under the heightened scrutiny being given to such petitions under the Trump administration.

The only saving grace is that premium processing has not been suspended for extension requests with the same employer. Still, caution is advised since premium processing is only allowed if  box 2.b in Part 2 relating to “Continuation of previously approved employment without change with the same employer ” is checked. If box 2.c is checked – “Change in previously approved employment” – then premium processing will not be allowed. The instructions to Form I-129 state that box 2.c should be checked when there is a non-material change in the employment such as a change in job title but without a material change in duties. There are bound to be non-material changes to the job duties, including salary increases, at the time of filing any H-1B extension request.  Till now, USCIS has not paid close attention to whether box 2.b or 2.c is checked, since a non-material change in the job could still be considered  a “[c]ontinuation of previously approved employment.” Otherwise, if the change was material, then an amendment must have been filed prior to the expiration of the H-1B validity period.  However, as a commentator to this blog has astutely suggested,  one can now expect the Nebraska Service Center to pay closer attention to these meaningless distinctions in order to play “gotcha” and deny premium processing if 2.b rather than 2.c was checked. It is hoped that the NSC will consider non-material changes as a continuation of previously approved employment, but one should not bank on reason these days when the mindset of the Trump administration is to restrict immigration!    Cap exempt employers can also avail of premium processing, but they are few in comparison to the overall population of employers who file H-1B petitions. Premium processing for other visa categories has not been suspended. While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. However, USCIS very grudgingly accepts expedited requests.

The USCIS has been suspending premium processing with greater frequency in recent times. It did so last on April 3, 2017 and resumed it again on September 18, 2017. USCIS again suspended premium processing for H-1B cap cases on April 2, 2018, and has now extended the suspension to February 11,  2019, in addition to expanding the suspension to other types of H-1B filings. Premium processing generates fees, which can result in more transformation through efficiency, and so by suspending premium processing USCIS is killing the goose that lays the golden egg. The USCIS wants to process other cases more quickly, but it would make more sense to accept premium processing so that it can add more staff to process all cases as efficiently as possible. Ironically, USICS has also announced an increase in the premium processing fee from $1225 to $1410. The justification for this increase is that it “represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.” Thus, this increase is to keep up with inflation rather than generate revenues, and USCIS will still lose revenues as a result of the suspension of premium processing for many types of H-1B filings.

If the USCIS excessively delays the adjudication of H-1B visa petitions due to lack of premium processing, one possible solution is to file mandamus actions to compel the USCIS to make a decision. If the administration is faced with thousands of such actions, it will realize that it is less costly to process cases quickly, and even restore premium processing completely, rather than get bogged down in a deluge of mandamus actions against it.

 

NO-WIN IMMIGRATION POLICY: DENYING H-1B EXTENSIONS TO SKILLED WORKERS FROM INDIA SO THAT THEY SELF-DEPORT

There are many people born in India, and to a lesser extent China, who have been patiently waiting for over a decade for their green cards. They have complied with all immigration formalities and the only thing holding them back is an available visa. The law allows them to continue working on extended H-1B visas while they wait legally in the United States. President Trump, in the name of protecting US workers, wants to send these skilled workers home to wait for their green cards. This is consistent with the Trump administration’s goal to destabilize the immigration system – from the travel ban aimed at Muslims to depriving skilled workers on H-1B visas to remain in their jobs and contribute to the United States.

A McClatchy press report  has sent shock waves within the backlogged H-1B community, as well as alarmed employers who sponsor skilled foreign workers for visas and green cards, attorneys and all people concerned about fairness. The report cites credible sources within the Department of Homeland Security who say that they are drafting a proposal to restrict H-1B visa extensions beyond the six-year limitation, which would result in the “self-deportation” of tech workers, thus opening up jobs for Americans in furtherance of President Trump’s Buy American Hire American Executive Order. Such a move is completely counter intuitive as these H-1B workers have all been beneficiaries of approved labor certification applications that resulted in unsuccessful attempts at locating qualified US workers to perform these specialized duties.

There are reportedly more than 1 million H-1B visa holders in the country, mainly from India, that have been waiting for green cards for more than a decade. Although the H-1B visa’s maximum duration is 6 years, those who are caught in the green card backlogs can apply for either a 3-year extension or a 1-year extension under the American Competitiveness in the 21st Century Act (AC21).

The DHS is specifically looking to reinterpret Section 104(c) of AC21, which provides for a 3-year extension of H-1B visas beyond the 6-year limitation. In order to be eligible for a 3-year extension under 104(c), the H-1B visa holder must be the beneficiary of an approved employment-based I-140 petition and must also demonstrate eligibility for adjustment of status but for the visa not being available as a result of the per country limitation. Section 104(c), however, states that the beneficiary of an I-140 petition “may apply” and the Attorney General (and by extension the DHS) “may grant” such an H-1B extension.

Since the enactment into law in 2000, prior administrations under Presidents Clinton, Bush and Obama have routinely granted 3-year H-1B extensions under 104(c). Even if the statute indicates that the government “may grant” the extension, such discretion cannot be used to arbitrarily deny H-1B visa extensions and thus eviscerate Congressional intent. The purpose of Section 104(c) was to provide relief to those in H-1B visa status who are caught in the employment-based backlogs as a result of the per-country limitation. India and China are the two countries where the per country limit within the employment-based second and third preferences have been oversubscribed. The extended H-1B visa has provided a lifeline to skilled workers who are otherwise eligible for green cards but for their priority dates not being current.

When a statutory provision bestows discretion through words such as “may grant,” such discretion cannot be exercised in an arbitrary and capricious manner. The Supreme Court’s opinion in Judulang v. Holder, 565 U. S. ____ (2011) has provided parameters under which a government agency may exercise discretion in the immigration context relating to a waiver under Section 212(c). The following interesting discussion is worth noting:

This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A).  The scope of our review under this standard is “narrow”; as we have often recog­nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency deci­sions—or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency pro­vide reasoned explanation for its action”).  The BIA has flunked that test here. By hinging a de­portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner.

. . . .

The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi­gration laws or the appropriate operation of the immigra­tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.

The key in determining whether denying a 3-year H-1B extension is arbitrary is “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Is the DHS proposal to restrict 3-year H-1B extensions based on “relevant factors” or is it planning to disfavor a class of noncitizens through the mere flipping of a coin? The DHS’s proposal will likely fail under this test as 104(c)’s plain language requires the government to grant the extension so long as the prerequisites have been met. This means that so long as one who is in H-1B status is the beneficiary of an approved I-140, and the priority dates is not yet current, this person should be granted a 3-year extension.  Even justifying the “self-deportation” of hundreds of thousands to protect US workers under the BAHA Executive Order is no excuse. BAHA was not around when AC21 was enacted in 2000.  If the DHS seems to reinterpret 104(c) in light of BAHA, this decision can be challenged as it is contrary to the plain meaning of 104(c) as well as Congressional intent. The concern under INA § 212(a)(5) that US workers be protected was already met through the labor certification or by seeking an exemption of it through the national interest waiver. The imposition of BAHA should not upend the carefully crafted statutory structure enacted by Congress over the years.

Moreover, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared that federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if H-1B visa extensions are denied under President Trump’s interpretation of AC21 provisions pursuant to the BAHA Executive Order, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

The title to 104(c) “One-Time Protection Under Per Country Ceiling” does not mean that it empowers the Trump administration to restrict its application to a one-time 3-year extension. The title can clarify an ambiguous statute but shouldn’t be used to contradict the text of the statute. In this case, the text of 104(c) clearly states that three year extensions can be granted indefinitely until the “alien’s application for adjustment of status has been processed and a decision made thereon.” See  Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n.14 (1981) (the title of an Act cannot enlarge or confer powers); INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (the title of a statute or section can aid in resolving an ambiguity in the legislation’s text).

The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers  that took effect on January 17, 2017 further restrains the government’s ability to restrict H-1B extensions under 104(c).  Current 8 CFR § 214.2(h)(13)(iii)(E)(i), which implements 104(c),  does not appear to give broad discretion and pertains more to granting discretion with respect to the validity period, as follows:

Validity periods. USCIS may grant validity periods for petitions approved under this paragraph in increments of up to 3 years for as long as the alien remains eligible for this exemption.

 This suggests that if the priority date is likely to become current imminently, the USCIS may shorten the time period of the H-1B extension to less than 3 years. The USCIS may also shorten the validity period if it is planning to revoke an approved I-140 petition if it believes it was previously erroneously granted. These sorts of discretion would pass muster and could have been contemplated under 104(c) when Congress said that the DHS “may grant” the extension. On the other hand, a new rule that would wholesale preclude the granting of a 3-year H-1B extension would be a completely erroneous reading of 104(c) and should certainly invite a lawsuit to challenge the Trump administration’s capricious interpretation. Even an H-1B worker, rather than an employer, should be able to sue as plaintiff  following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, 134 S.Ct. 1377 (2014), which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects. See also Mantena v. Johnson, 809 F.3d 721 (2015) and Kurupati v. USCIS, 775 F.3d 1255 (2014). The proposal appears to be based on pure xenophobia by the Trump administration to curb legal immigration of legitimate skilled workers from India and China who have been waiting for years in the green card backlogs. It does not protect American workers as the labor market has already been tested. Trump’s animus towards immigrants can also be cited in a future court challenge, as was successfully done in court challenges against the travel ban where Trump’s utterances and tweets against Muslims were invoked. Trump’s animus was further evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy –  white nationalism, which can be used to show bad faith if the USCIS starts denying 3-year H-1B extensions.

The Trump administration will have less scope to play mischief with the ability to seek a 1-year H-1B extension under Section 106(a) and (b) of AC21.  Section 106(b) states that the Attorney General “shall” extend H-1B status in increments of 1 year provided a labor certification or I-140 was filed one year prior to the final year in H-1B status, and until the labor certification, I-140 or adjustment of status is denied.  It is not the case that 104(c) is surplusage, as contended by an activist  organization that supports backlogged H-1B visa holders, and so one who qualifies under 104(c) will also be eligible for the grant of a 1-year extension under section 106.  104(c) allows for longer extensions and removes the need to file for extensions every year, and so it is clearly providing an additional benefit. 8 CFR §§ 214.2(h)(13)(iii)(D)(2) and (10), the rules that implement 106(a) and (b), give further support to this position as they both contemplate an approved I-140 petition while an H-1B beneficiary seeks a 1-year extension beyond the sixth year.  The widely held view is that either section can be applicable when its own conditions are met.  There are some cases where only 104(c) is available (where the labor certification was filed in the sixth year or final year of H-1B status and the I-140 is approved in that year), some cases where only 106(a)-(b) is available (where the labor cert or I-140  filed one year before the 6th year is still pending or where the priority date is current), and some cases where both are available but 104(c) gives greater benefits. Even when both are available, at times, for strategic reasons, one may wish to still seek an H-1B extension for 1 year under 106(b) if the priority date will become current at the time of adjudication of the extension request.   Nothing in the text or logic of the statute indicates that 106(a)-(b) ceases to become available, when it otherwise would be, simply because 104(c) is also available.

While the need of the hour is to oppose any arbitrary changes in interpreting 104(c), the ultimate goal is to reduce the green card backlogs. AC21 is a mere band-aid that provides relief to H-1B workers in a hopelessly broken immigration system that keeps them from getting green cards for years on end. HR 392 is one vehicle through which the backlogs can get reduced through elimination of per country limits. Still, HR 392 is not the magical elixir as backlogs will likely remain, but they will be far less. In fact, all will likely face a few years of backlogs if the per country limits are eliminated. If we can also hope for the unitary counting of derivatives in addition to HR 392, that will completely drain the employment-based system of backlogs. While all this is wishful thinking under a Trump administration, it never hurts to strive for a sensible winning immigration reform for the good of the country. Until backlogs are completely eliminated, the ability of skilled workers to remain in the US and extend H-1B status should never be taken away through policies inspired by white nationalism and xenophobia under the Trump administration. This can be the only explanation for attacking immigration in a full employment economy and BAHA is only thinly veiled nativism. In conclusion, just because a statute says “may” does not mean that the Trump administration can capriciously defeat the will of Congress by denying H-1B extensions to hundreds of thousands of Indians so that they may self-deport – an action that is a no-win for the United States or the foreign national skilled worker. Fortunately, there is enough protection in the AC21 law that will make it very hard for the Trump administration to see the light of the day with such a loser immigration policy.