Tag Archive for: EB Backlogs

Cyrus Mehta

Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born,  but the Biden Administration Can Provide Relief

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, news of layoffs at the likes of Twitter, Meta, and Amazon have contributed to broader fears that the United States is entering a recession. In last week’s blog, we provided suggestions for how terminated workers can maintain their nonimmigrant status and potentially even pursue permanent residency. The layoffs at Twitter have also shown that it was mainly workers whose H-1B visas were tied to Twitter that have stayed on and abided by the unreasonable ultimatums of Elon Musk. This has given credence to the notion that H-1B workers are akin to indentured laborers especially those who are caught in the never ending green card backlogs. We follow up on the previous blog by providing some suggestions that the Biden administration can follow to allow nonimmigrant workers who have been laid off to remain in the U.S, and even if they are not terminated,  they should not be required to cling on to their job at all costs.

First, the Biden administration could extend the 60-day grace period to allow nonimmigrant workers additional time to find alternate employment after being impacted by a layoff. As discussed in prior blogs, 8 CFR § 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN nonimmigrant workers a grace period of 60 days after a cessation of their employment. Workers who are able to find new employment within 60 days will be able to remain in the U.S. and maintain their nonimmigrant status, but this period may not allow sufficient time for job hunting, especially if layoffs and hiring freezes become more widespread. By extending the 60-day grace period, the Biden administration would allow terminated workers more time to find new employment in the U.S. The 60-day grace period is a relatively new concept, having been introduced in a final rule that went into effect on January 17, 2017. Before this rule was enacted, nonimmigrant workers did not benefit from any grace period, and had to immediately leave the U.S. if their employment was terminated to avoid being considered in violation of their nonimmigrant status. Because the 60-day grace period was itself created by a rule, the Biden administration could easily promulgate a new rule extending the grace period to 180 days, for example, or even longer. To avoid Administrative Procedure Act (APA) challenges, though, the administration would likely have to follow the strictures of the notice and comment rulemaking process rather than bypassing them under the good cause exception. Notice and comment rulemaking takes time, however, and the relief of an extended grace period might not arrive quickly enough for workers who have already lost their jobs or are laid off in the near future.

The next suggestion is to make clear when the 60 day grace period starts. Many workers are placed on severance or garden leave. The 60 day grace period should start at the end of the severance period. However, a June 2020 USCIS Policy Memo has muddied the waters somewhat. In this memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would seem that the grace period starts when the H-1B worker is no longer in productive status even though they may be paid their full salary during the severance or nonproductive period. The USCIS should clarify that an H-1B worker continues to maintain status so long as the employer-employee relationship has not terminated.

The USCIS also gives officers discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

Instead of all this muddled guidance and mixed messaging, the USCIS should provide straightforward clarification regarding when H-1B status ends, and clearly indicate that H-1B workers who are still maintaining an employer-employee relationship after being given notice ought to be considered in status until the relationship ends.

Another step that the Biden administration can employ to aid laid off nonimmigrant workers is the expeditious issuance of employment authorization documents (EADs) that would allow nonimmigrants to continue working in the United States for a new employer. Under 8 CFR § 204.5(p), an EAD may be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. “Compelling circumstances” have never been precisely defined, but DHS suggested some examples of compelling circumstances in the preamble to the high skilled worker rule, which include serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid are examples of scenarios that might constitute significant disruption to the employer. Historically, USCIS has rarely issued EADs under compelling circumstances. Given the precarious situation that nonimmigrant workers who are impacted by layoffs will find themselves in, the Biden administration could instruct USCIS to employ this authority to generously grant EADs to individuals who have lost their jobs. Nonimmigrant workers who are laid off will be forced to uproot their lives on very short notice if they cannot find new employment within 60 days. Many nonimmigrant workers have lived and been employed in the United States for many years. Some have U.S. citizen children and spouses who have also built careers in the United States. Such individuals will face serious hardship if they are forced to abandon their lives in the United States and return to the countries of which they are citizens, a devastating situation that should be interpreted to readily constitute compelling circumstances.

The Biden administration can also utilize a provision at 8 CFR § 214.1(c)(4), which affords USCIS the discretion to accept an untimely filing if “the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; [t]he alien has not otherwise violated his or her nonimmigrant status; [t]he alien remains a bona fide nonimmigrant; and [t]he alien is not the subject of deportation proceedings”. A nonimmigrant worker whose employer was unable to timely file a petition on his behalf due to a layoff could credibly assert that his uncertain employment situation constituted extraordinary circumstances. If the layoff was the result of a recession or general economic difficulties, it should be demonstrable that the resultant delay of filing the H-1B petition beyond the grace period was not the fault of either the petitioner or the beneficiary. By generously applying this discretionary authority, the USCIS can assist nonimmigrants whose ability to seek a timely extension of status is impacted by a termination.

Ideally, a legislative solution would relieve the immense immigrant visa backlog, which would prevent beneficiaries of I-140 petitions from remaining in a nonimmigrant visa status for years until they can file adjustment of status applications. Proposals for legislative solutions include the recapture of wasted visa numbers from previous years and the allocation of additional visas to backlogged categories. Although Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), a case we have discussed in a previous blog, previously struck the idea down, Congress could assert that INA § 203(d) requires the unitary counting of family members. Even the Administration could contradict Wang v. Blinken if it had chutzpah through a rule or policy memo under the Brand X doctrine (thus overruling the case everywhere except in the DC Circuit), but this is hard to imagine as it recently successfully contested the plaintiff’s contention of unitary counting in that case. Another legislative proposal is to eliminate the per country limits, but even if that passes, there will still be backlogs although not as terrible right now which could be over a 100 years for Indian born beneficiaries.  Of course, finding a legislative solution is easier said than done in a polarized Congress, which will get even more polarized in 2023 when the Republicans take control of the House and the Democrats take control of the Senate. The GOP is too obsessed about border security before making any deal on immigration reform. There is also an urgency to prioritize on a legislative solution for DACA recipients as it is expected that the Supreme Court will uphold the lower courts that have found that DACA is not authorized by the INA. Unless by some stroke of luck the lame duck Congress can cobble together a deal to bring relief to backlogged beneficiaries based on the many proposals on the table, the Biden administration should focus on administrative solutions to bring relief to terminated nonimmigrant workers, who stand to suffer the most in the face of layoffs and economic woes.

Existing Indian born H-1B workers in the employment based green card backlogs who get terminated are  far worse off than others. But for the backlogs they may have already had their green cards or become US citizens. Indian born beneficiaries whose labor certifications were filed after April 1, 2012 are still caught in the backlogs and have remained in H-1B status while their contemporaries born in other countries have become US citizens.  Making tweaks in existing policies such as extending the 60-day grace period, issuing EADs based on a more generous interpretation of compelling circumstances, and giving more  discretionary authority to accept untimely filings under 8 CFR § 214.1(c)(4)  can provide some small amelioration to terminated nonimmigrant workers, especially those who are caught in the never ending green card backlogs.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the US Even If Rejected in the H-1B Lottery

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By Cyrus D. Mehta and Kaitlyn Box*

On January 21, 2021, the Biden administration announced a series of actions aimed at attracting and retaining STEM students and workers to the United States. Among the most significant provisions, the U.S. Department of Homeland Security (DHS) has added 22 new fields to the STEM optional practical training (OPT) program to “enhance the contributions of nonimmigrant students studying” in STEM fields and to “support the growth of the U.S. economy and innovation.” The additions include a number of new and emerging fields, including bioenergy, cloud computing, climate science, business analytics, and financial analytics, to name only a few. Nursing, among other significant science-related fields, was not included in the list. Additionally, DHS has updated its guidance to clarify how individuals with advanced degrees in STEM fields, as well as STEM entrepreneurs, can self-sponsor for green cards through the national interest waiver (NIW).

Furthermore, DHS also updated its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability in the fields of science, arts, education, business, or athletics. For the first time, the update provides examples of evidence that might satisfy the criteria, focusing on the complex nature of the supporting evidence in STEM-related petitions. For instance, under the published material criterion,  USCIS will accept a transcript of professional or major audio or video coverage of the beneficiary and the beneficiary’s work.  Regarding the critical  role criterion, the contribution by a founder of a startup might also qualify. Certain doctoral dissertation awards and Ph.D. scholarships  will also be accepted under the receipt of national or international award criterion. The update “also emphasizes that, if a petitioner demonstrates that a particular criterion does not readily apply to their occupation, they may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition”, and provides examples of comparable evidence that could be submitted by individuals in STEM fields.

The Department of State (DOS) guidance will also provide for an extension of J-1 status for undergraduate and graduate students in STEM fields to facilitate additional academic training for periods of up to 36 months. The extension applies to the 2021-22 and 2022-23 academic years.

Taken together, these updates will alleviate some of the uncertainty employers and STEM workers face in contending with the H-1B cap. Research has shown that the OPT program benefits the U.S. economy and is important in the creation of job opportunities, so the Biden administration should take all possible measures to encourage foreign students to utilize the program. Expanding STEM OPT fields, as well as allowing students to work in the U.S. for three years pursuant to STEM OPT, are good first steps.

In the time afforded them by the STEM OPT program, students can potentially be entered in the H-1B lottery three to four times. Each year as more petitioners register under the lottery, the chances of being selected become correspondingly less.  Even if individuals are unlucky enough to never be selected, they could potentially utilize the new O-1A guidance to obtain O classification. As discussed above, USCIS has broadened the evidentiary standards for O visas, including allowing online publications or videos to qualify as “published material”, which provides enhanced flexibility that may allow more STEM workers to qualify.

Potential for New Green Card Opportunities

For individuals from many countries, the PERM labor certification process can be completed for some during their time in STEM OPT, allowing them to obtain an employment-based green card.  Unfortunately, those born in India or China will not be able to benefit from this strategy due to enormous green card backlogs in the employment-based second and employment-based third preferences. However, certain individuals who were born in India or China with STEM degrees could try to obtain permanent residence through the employment-based first preference if they demonstrate extraordinary ability under EB-1A classification. Although the DHS has updated its guidance to make it easier for STEM graduates to obtain permanent residence through the national interest waiver, this category is of limited use to talented students who were born in India due to the decade plus long crushing backlogs in the employment-based second preference.  The employment-based first preference is current for India unlike the employment-based second and third preferences for India. Since the evidentiary standards for O-1 visas have been broadened in the USCIS Policy Manual, the same should hold true for the EB-1A category as the legal standards for O-1A and EB-1 are the same. In addition, while we applaud the Biden administration for broadening the O-1A evidentiary standards, we urge the administration to do away with the final merits analysis  under EB-1A in addition to broadening the EB-1A evidentiary standards. The final merits analysis rightfully does not exist for evaluating an O-1A petition, so it should not exist  under the EB-1A either, or for that matter any employment based green card category. Under the final merits determination (see our Curse of Kazarian  blog), the USCIS arbitrarily  denies meritorious EB-1A petitions on a purely subjective and arbitrary basis even when the petitioner has readily met 3 or more out of the 10 criteria.

Consistent with this Administration’s goal of removing barriers to legal immigration under President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, the policy makers at the White House and DHS who fashioned these initiatives should be commended for removing obstacles for talented noncitizens to remain and contribute to the US in the face of inaction by the US Congress. This is a good first step but a lot more can be done.

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

∗ Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

FAQ Relating to Skilled Workers in the Green Card Backlogs during COVID-19

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Skilled workers caught in the employment-based backlogs face great uncertainty during the COVID-19 crisis. They have to continue to work for employers who have sponsored them green cards while maintaining H-1B status. As explained in my previous FAQ relating to changes in working conditions for H-1B workers, the DOL rules do not provide much flexibility to employers who may be forced to cut wages or furlough employees in order to preserve jobs. If an H-1B worker’s position is terminated, he or she has a 60 day grace period to leave the US or to change to another status.  This FAQ focuses on immigration issues facing foreign nationals who are waiting for their green cards while in H-1B status, although some may also be in L-1 status. They are mainly born in India, and as a result of the “per country limits” in the employment-based first, second and third preferences, they have faced disproportionate waiting times (going into decades) when compared to those born in other countries. But for their country of birth, they would have been green card holders, or even US citizens, by now, and would not be facing peril during COVID-19 with respect to their immigration prospects.

1. My employer can no longer afford to employ staff and terminated me yesterday. I am in H-1B status and am also the beneficiary of an I-140 petition in the employment-based second preference. I was born in India and have a January 1, 2013 priority date. While I am in the 60 day grace period, can I request an employment authorization document (EAD) under “compelling circumstances?”

An Obama era regulation entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” was promulgated  to provide modest relief to high skilled workers born mainly in India and China who were caught in the crushing backlogs in the employment-based preferences.

One significant provision in this regulation provides an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions 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.

It appears from the discussion in the preamble to the regulation that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically underserved areas may also be able to demonstrate compelling circumstances.

Notwithstanding the various examples of compelling circumstances provided in the preamble to the rule, the plain language at 8 CFR 204.5(p) (iii) simply states:

USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization

Anecdotal evidence suggests that USCIS has been very niggardly in issuing EADs under compelling circumstances since the promulgation of the rule in the fading days of Obama’s presidency in January 2017. Unemployment in itself may not be a basis as stated in the preamble, but one can try to argue compelling circumstances in the COVID-19 period more forcefully. When making a case for compelling circumstances, it should be argued, that the plain language of the regulation takes precedence over the preamble or the government’s subjective interpretation of the term. Until there are formal administrative interpretations, the term “compelling circumstances” is like a blank canvass, which can be colored by any credible and reasonable argument by the applicant. Still, one cannot bank on the USCIS issuing an EAD under compelling circumstances as a result of unemployment even during the COVID-19 period. Something more in addition to unemployment should be shown in order to make a convincing argument for compelling circumstances.

2. How long will I be able to stay in the US if I am given a work authorization under “compelling circumstances”, and how can I still get a green card?

The EAD may be renewed on an annual basis if such compelling circumstances continue to be met, even if it is a different sort of compelling circumstance from the initial, or if the beneficiary’s priority date under the I-140 petition is within one year of the official cut-off date.

How will this work? The job offer supporting the I-140 petition must still be valid. In other words, there is no legal basis under the final rule to port to another job on a standalone I-140 petition. If the employer withdraws the job offer supporting the I-140 petition, the beneficiary could have another employer offer a position, and sponsor the beneficiary through a new labor certification and I-140 petition. The priority date from the old I-140 petition can be recaptured.

Unless the beneficiary is maintaining a valid nonimmigrant status (or can seek the exemption under either INA 245(i) or 245(k)), he or she will not be able adjust status in the United States and would need to process the immigrant visa at an overseas US consulate. The beneficiary’s stay under a compelling circumstances EAD will be considered lawful presence, and will not trigger the 3 or 10 year bars upon departure. Alternatively, the beneficiary can leave and return to the United States in a nonimmigrant status such as an H-1B, and then file for adjustment of status here. The rule, unfortunately, does not provide for routine travel through advance parole while on a compelling circumstances EAD.

3. Will my spouse and teenage child be able to also get a compelling circumstances EAD?

Yes. Derivative family members can also apply for the EAD concurrently with the principal beneficiary of the I-140 petition, but they will only be issued the EAD after the principal family member is first granted the EAD. They too must be in nonimmigrant status at the time of filing the initial application.

4. I have a pending I-485 application, although the final action date in the State Department Visa Bulletin is not current this month. My employer can no longer afford to employ me and is in the process of shutting down the business.

If the Form I-485 application has been pending for 180 days or more, you can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak during the COVID-19 era.

 5. My employer cannot afford to employ me during the COVID-19 period and has terminated my employment in H-1B status, but still wants to continue to sponsor me for the green card hoping that the economic situation will change for the better by the time my priority date becomes current. I have not yet filed for adjustment of status.

Since the employment-based green card sponsorship is based on a prospective position, your employer can still continue with the I-140. If you leave for India within the 60 day grace period after cessation of employment and have not options to remain in H-1B status through another employer or change status, you can ultimately process the immigrant visa at a US consulate overseas upon your priority date becoming current. Given the current wait times in the employment-based first, second and third preferences for India, it may take many years, even decades, before you can get back to the US as a permanent resident. However, your employer will still be able to file an H-1B petition on your behalf in the future to bring you back before you obtain the green card. This H-1B petition will not be counted against the H-1B cap as you have been previously counted against the cap, and you will be entitled to three year extensions beyond the 6 year H-1B limitation.

6. Since there are no flights to India at this time, how can I depart the US within the 60 day grace period?

You could try requesting a change of status to B-2 visitor status before the end of the 60 day grace period by filing Form I-539, and asking for an additional six months in that status. Although you are the beneficiary of the an I-140 immigrant visa petition, which must be disclosed on Form I-539, the fact that you intend to ultimately apply for permanent residence should not conflict with your request for a change of status to B-2 if you can demonstrate your genuine inability to depart the US and that it will take a long time before you even become eligible for a green card. Furthermore, you can also argue that your intention is to apply for an immigrant visa at the US Consulate before you can come to the US as a permanent resident.

 7. I am in my sixth year of H-1B status with an approved I-140 petition. If the employer who filed the I-140 petition no longer wishes to employ me now or in the future, how can I still take advantage of this I-140 petition and get a green card through another employer?

If another employer files a new labor certification and I-140 petition on your behalf, the priority date of the original I-140 petition can still be retained even if the former employer withdraws the petition. Since you have already been counted under a prior H-1B cap, the new employer can file another H-1B petition so that you can reenter the US in H-1B status. You will be eligible for 3 year extensions beyond the six year limitation of the H-1B visa until your priority date becomes current.

8. Will President Trump’s latest green card ban impact me or my family?

President Trump’s Proclamation will ban people seeking immigrant visas at a US Consulate for 60 days from April 23, 2020. Therefore, it will not impact those who are already in the US and seeking permanent residence through adjustment of status. Even if you depart the US to process for an immigrant visa at a US Consulate, the ban will not apply to one who was in the US on the effective date of the Proclamation, which was April 23, 2020. The Proclamation will nevertheless ban derivative family members who are processing for immigrant visas at a US consulate even if the principal applicant adjusted status in the US unless they were in the US on April 23, 2020.

 

Cyrus Mehta

Musings on the October 2019 State Department Visa Bulletin in Light of the Fairness for High Skilled Immigrants Act

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The State Department Visa Bulletin for October 2019 reflects forward movement as anticipated with the beginning of the federal fiscal year, except for the employment-based first preference (EB-1). It also does not look promising for many EB categories involving India.  According to Charlie Oppenheim, there is normally full recovery or almost full recovery of the Final Action Dates from the previous year. Low level of demand would allow for thousands of unused numbers from the EB-4 and EB-5 of the previous year to become available for use in the EB-1.  Those numbers unfortunately have not been available in recent years, and the high demand for numbers has required the application of Final Action Dates for all countries, and the dates for China and India have actually retrogressed during the past year in EB-1. Mr. Oppenheim forecasts for the upcoming fiscal year that there is no expectation that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future, and he further anticipates that both EB-1 India and EB-1 China will be subject to their minimum statutory limits of (approximately) 2,803 visa numbers for at least the first half of fiscal year (FY) 2020.

Mr. Oppenheim also reminds AILA members that for planning purposes they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. He further predicts that there will not be any movement for EB-1 India until January 2020 at the earliest. There has been little movement in the EB-2 and EB-3 for India as well as the EB-5. On the other hand, the EB-2 and EB-3 for the rest of the world have become current. The Family 2A continues to remain a bright spot and is current for all countries.

In another interesting development, USCIS has designated the filing charts for both family-sponsored and employment-based preference cases for October 2019. For the F2A category, there is a cutoff date listed on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. USCIS has indicated that applicants in the F2A category may file using the Final Action Dates chart for October 2019. T

This is development is most welcome. One who is caught in the India EB-5 retrogression can nevertheless file an I-485 adjustment of status application under the EB-5 Filing Dates, which is current for India. By filing an I-485 application, the applicant can obtain employment authorization and travel permission while waiting for permanent residence in the United States. Despite the broader use of Filing Dates from October 2019, it is odd that the USCIS does not allow the freezing of the age of the child under the Child Status Protection Act based on the Filing Date being current rather than the Final Action Date. As explained in a prior blog, if the Filing Date cannot be used under the CSPA, a child would still be able to file an I-485 application under the Filing Date, but if the child ages out before the Final Action Date become current, the I-485  application of the child will get denied and this will put the child in serious jeopardy.

It is really disappointing that the EB-1, which was designed to attract persons of extraordinary ability, outstanding professors and researchers and high level multinational executives and managers has gotten jammed. EB-1 for India will now likely suffer the same fate as EB-2 and EB-3 for India. However, since I-485 applications can be filed based on the Filing Dates, an EB-1 with a priority date up to March 15, 2017 can file an I-485 application although the EB-1 India Final Action Date is an abysmal January 1, 2015. This is why HR 1044 , Fairness for High Skilled Immigrants Act, is awaited with so much anticipation by India and China born beneficiaries. The bill will eliminate the country caps.  After it passed the House with an overwhelming majority on February 7, 2019, a similar version, S. 386, did not go through the Senate on September 19, 2019 through unanimous consent. Senator Perdue objected, and the bill’s sponsor Senator Lee has indicated that he is trying to work with Perdue to address his concerns. On the other hand, those not born in India and China were pleased that the bill has not pass. While it will shorten the backlogs for those from India and China, people from the rest of the world claim that they will all of a sudden be subject to backlogs in the EB-2, EB-3 and EB-5.

As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only about 330,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the EB-2, those born in India have to wait for decades, and one study estimates the wait time to be 150 years!

HR 1044/S. 386 has unfortunately led to divisiveness in immigrant communities and even among immigration attorneys. If enacted, this bill would eliminate the per-country numerical limitation for all employment-based immigrants, and increase the per-country limitation for all family-sponsored immigrants from seven percent to 15 percent. One significant feature of this bill that distinguishes it from prior versions of this legislation is a “do no harm” provision. This provision states that no one who is the beneficiary of an employment-based immigrant visa petition approved before the bill’s enactment shall receive a visa later than if the bill had never been enacted. Notably, the “do no harm” provision only applies to employment-based immigrants and does not apply to family-sponsored immigrants.  The Senate version also includes a set-aside provision for no fewer than 5,000 visas for shortage occupations, as defined in 20 C.F.R. 656.5(a), which would include nurses and physical therapists, for Fiscal Years 2020-2028. It also retains the H-1B internet posting requirement proposed in the Grassley Amendment to S. 386, with some change. Specifically, the H-1B internet posting requirements will not apply to an H-1B nonimmigrant who has been counted against the H-1B cap and is not eligible for a full 6-year period or an H-1B nonimmigrant authorized for portability under INA 214(n). It also retains the “do no harm” provision for all EB petitions approved on the date of enactment and the three-year transition period for EB-2 and EB-3 immigrants, but does not include EB-5 immigrants in the transition period.

Notwithstanding the “do no harm” provision, there are fears that people born in all countries who apply after enactment will be subject to wait times, especially in the EB-2 and EB-3, which are now current for the rest of the world. While there is no way to accurately estimate the long term effect on wait  times, a Wall Street Journal article cites a forthcoming analysis from the Migration Policy Institute indicating that “depending on the type of green card, the delay could be between 2.9 and 13.5 years.” This estimate, which has not been published,  does not take into consideration the recently introduced “do no harm” provisions or the carve outs for nurses.  AILA is not aware of a comprehensive, independent, and publicly available analysis regarding how the House and Senate versions of the Fairness for High-Skilled Immigrants Act of 2019 would impact both the current employment-based and family-sponsored immigrant visa queues as well as future immigration flows.

The 1965 Immigration Act, which eliminated the national origin quotas of the 1924 Act, is justly celebrated as a civil rights measure that opened up the United States to global migration for the first time. The intention was to set the same percentages of caps for all countries.  As a result of the limited supply of visas each year, and the increased demand from India and China, it has again indirectly created a national origins quota, where people from certain countries do not have the same opportunities as others to immigrate to the US. If you are from Mexico or the Philippines, the family-based quotas delay permanent migration to the United States to such an extent that it is virtually blocked. The categories might just as well not exist for most people. If you are from China or India with an advanced degree, the implosion of the EB-2 and EB-3 categories does not regulate your coming permanently to the United States; it makes it functionally impossible. Why should a country like India with a population of over a billion that sends many more skilled people to the US and are also in demand by US employers for those skills be subject to the same 7% per country limitation as Iceland that has 320,000 people?  India, for example, is indeed a continent like Europe or Africa, with great diversity in religions. In addition to Hindus, there are millions of Muslims and Christians along with Sikhs, Buddhists, Jains, Jews and Zoroastrians. Besides Hindi and English as official languages, there are 22 regional languages. Still, each country within Europe gets 7% of the visas while India gets only 7%. So the contention that US will lose diversity if country caps are lifted can also be rebutted, though what is the most important consideration is whether demand for skills disproportionately from India are being fairly allocated under the per country limitations. They are not. The purpose of the 1965 Immigration Act was undoubtedly noble, but due to ossified per country limits over the years has led to invidious discrimination against Indians and Chinese, which essentially amounts to national origin discrimination that the 1965 Immigration Act sought to abolish.

The immigration system as it exists today is a mess and the status quo is unacceptable. The bill is not at all perfect, but it at least aims to eliminate the invidious discrimination that has befallen Indians and Chinese in the EB categories. The easy passage of H.R. 1044 in the House in an otherwise political polarized environment, just like its predecessor HR 3012 in 2011,   shows that there is concern about the unfairness and imbalance in the system towards certain countries. Things may work out better than expected if H.R. 1044 became law, though, and the fears of the critics may be exaggerated and overwrought. No published analysis has taken into consideration the “do no harm” and carve out provisions.   We have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because the American Competitiveness in the 21st Century Act, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand  outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today.  The restrictionist organizations like CIS and FAIR know this, which is why they are opposing the passage of the bill. It is paradoxical that immigration attorneys who oppose this bill are on the same bandwagon as CIS and FAIR without fully well knowing the impact of the bills.

Even if H.R. 1044 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness. As noted, there is no credible data as yet that opponents of the bill have cited to support the waiting times that will ensue for others under the bill. Still, we are aware of the atrociously long existing waiting times that the current system imposes on Indians.  It is cruel to let someone languish for 70 years in the backlogs and then for their child to also languish for another 70 years.  Under the current system, all EB-1s are already in waiting lines. Chinese, Vietnamese and Indians are also in waiting lines under EB-5. The EB-4 is currently unavailable for the whole world. The question is whether to kill H.R. 1044, and let Indians continue to languish for the rest of their lives and their children also continue to languish for their lives  too (as it takes 150 years), or let is pass in order to provide relief to while continuing to reform the system with better solutions.  While clearly not perfect, H.R. 1044 ought to be viewed as a down payment for further improvements in the system. H.R. 1044 would have at least gotten rid of the country limits, which over time, inadvertently result in national origin discrimination. There is no moral justification in preserving country per limits as it hinders the ability of employers to hire people with the best skills, regardless of the country they come from.   In the event that  immigrants are made to wait under the new system, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the overall visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities.

The best solution is to do away with overall visa caps and country caps altogether. Let the market and employers determine who comes to the US based on their skills. The law already sets baseline standards such as a test of the labor market at the prevailing wage, or whether the person can seek an exemption by virtue of being extraordinary or working in the national interest. Quotas are thus superfluous and unnecessary.  Removing all visa caps, on the other hand,  is admittedly politically unrealistic. Then how about increasing the overall visa limits under each EB category, and also have a safety valve where the cap can increase if there is even more demand? If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to employment-based immigrants, Congress may wish to exempt certain people from the numbers such as graduates with STEM degrees and some who qualify under EB-1 or the National Interest Waiver under EB-2, or better still, to not count dependent members separately. Another idea is to allow the filing of I-485 adjustment of status applications even if the priority date is not current. Yet another idea is to grant deferred action and employment authorization to deserving beneficiaries affected by the imbalance in the immigration system.   All of these ideas have been explored in The Tyranny of Priority Dates that was published in 2011 and followed by How President Obama Can Erase Immigrant Visa Backlogs with a Stroke of a Pen in 2012, which provided for ways the administration could bring about reform without going through Congress. Since the publication of these articles, some ideas whether through uncanny coincidence or by accident came into fruition under the prior Obama administration such as the dual chart visa bulletin (that provides for a modest early adjustment filing), employment authorization under compelling circumstances and granting deferred action for certain non-citizens under DACA. In an ideal world, the same sort of deferred action could be given to children of backlogged beneficiaries who may age out.   There is only so much that can be attained through administrative measures, and they are also vulnerable to court challenges as we have seen with DACA and STEM OPT. If Congress steps in to specifically eliminate the counting of depravities and the filing of early I-485 applications, they can result in dramatic relief for those caught in the backlogs.  All this will be preferable to HR 1044, but it has not materialized despite failed attempts over several years. S. 744 and the I Square Act provided for more comprehensive fixes, but they have fallen by the wayside.  So can HR 1044 move ahead for now while there is a chance, while we all relentlessly continue to fight for further fixes please?

 

 

Cyrus Mehta

Don’t Forget Skilled Workers Who May Have to Wait For A Few Centuries Before Getting the Green Card

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Hillary Clinton’s acceptance speech was so warm and embracing of immigrants when compared to Donald Trump’s acceptance speech a week earlier. These were some of her key remarks on immigration:

We will not build a wall. Instead, we will build an economy where everyone who wants a good-paying job can get one. And we’ll build a path to citizenship for millions of immigrants who are already contributing to our economy. We will not ban a religion. We will work with all Americans and our allies to fight terrorism.

I believe that when we have millions of hardworking immigrants contributing to our economy, it would be self-defeating and inhumane to kick them out.

Comprehensive immigration reform will grow our economy and keep families together – and it’s the right thing to do.

Compare these words to Trump’s speech when he only spoke about how immigrants would bring doom and gloom, and thundered that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

All this is so refreshing and noble when Clinton speaks about building a path to citizenship for millions of immigrants, enacting comprehensive immigration reform and not profiling a group of immigrants solely because of their religion. However, not a word was said about skilled immigrants who are already in the pipeline for a green card, but for the fact that their priority dates have not yet become current. Most of these skilled immigrants were born in India and China who are caught in endless backlogs because of a limited supply of green cards each year set by Congress in 1990, and further stymied by annual caps for each country. We hope that Clinton also would include these immigrants in her forthcoming speeches referencing immigration, who have always been legal and are employed in good paying jobs, as part of comprehensive immigration reform.

David Bier at the Cato Institute has emerged as a fresh and new scholarly voice on immigration. It has always been known that an individual who got sponsored by an employer today in the India employment-based third preference (EB-3) would need to wait for about 60 years before he or she got the green card. In Bier’s new report, No One Knows How Long Legal Immigrants Will Have To Wait, he calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” Ironically, if these workers, by some stroke of luck were able to file I-485 applications in the past, such as the class of 2007 adjustment applicants, their children whose age was artificially frozen below 21 under the Child Status Protection Act will be mature adults before they can immigrate with their parents as “derivative children”. On the other hand, if a child’s age could not be frozen through the filing of an adjustment of status application in past years when the priority date may have become current, they will not be able to remain “derivative children” under the CSPA in the unlikely event that their parents may qualify for green cards in their life time and if the children are still alive.

It is readily obvious that Congress needs to infuse a greater supply of green cards each year in the EB categories, and even lift the country limits, as countries like India and China get more adversely impacted than Lithuania or Finland. While it is desirable that Congress fix this problem immediately, we know that Congress is mostly paralyzed at present. However, one should at least be giving these unfortunate skilled workers top priority in any comprehensive immigration deal if Clinton becomes president and can achieve her stated goal to implement reform within the first 100 days of her presidency. Trump, on the other hand, with his America first policy may be more inclined to curb legal immigration rather than fix it, leave alone expanding it.

While different groups of immigrants justly advocate for expanded immigration benefits, it is important that they all remain united. It may be tempting for skilled legal workers to only seek immigration reform for their group as they have been legal while undocumented immigrants broke the law. However, it is not that undocumented people choose to remain undocumented. They too want to become legal but the current immigration system does not provide adequate pathways for different categories of immigrants to become legal and get onto a pathway to permanent residence. And for those who are here legally and on the pathway to permanent residence, they have to wait impossibly for decades, and now Bier shockingly speculates that it may be centuries. Legal skilled workers, many of whom are on H-1B visas, should not be jettisoned because it has become fashionable to think that they away jobs from US workers. They compliment the US workforce, and most have gone through the labor certification process that required their employers to first test the US labor market before proceeding with their green card applications. Once they get green cards, there will be a surge of entrepreneurial talent in the nation’s economic blood stream.  Finally, immigrants already in the US should not pull up the drawbridge behind them and block new H-1B workers. It is important for fresh and talented immigrants to come to the US to achieve their dreams. All we need is an immigration system that has many more pathways to America and is consistent with the needs of the nation in the 21st century.

The present immigration system is broken and can be likened to a terminally ill patient who is suffering from multiple organ failure. The goal for treating such a patient is not just to repair one organ, such as the heart, and leave the other organs in a state of disrepair. This approach will certainly not nurse the patient back to health. All the vital organs in the patient must be revived at the same time. The same holds true for our immigration system, which is like a terminally ill patient. All its components, like body organs, must be repaired. This includes but is not limited to more visas for skilled immigrants and entrepreneurs, faster pathways for loved ones to unite with their family in the US, more opportunities for investors and essential workers, and also a path for the 11 million undocumented to legalize their status. We must also not forget to reform the system for those seeking refuge in America from persecution and other kinds of crimes such as trafficking and sexual violence, and provide more waivers for those who would otherwise be deportable if they have ties with the US or can demonstrate rehabilitation. While Clinton’s message for immigrants is positive and upbeat, she must remember to include all affected immigrant groups, especially legal skilled workers who have been hopelessly waiting for their green cards.