By: Hannah Rae Welbourn

From banning workers from entering and starting their employment in the United States, to changing decades-old processes right before leaving office, it’s no secret that the prior administration made many attempts to restrict the H-1B process. And even having ushered in a new administration this year, there has still been conflict; in a recent post, we discussed the lawsuit filed by more than 500 H-1B visa applicants against the Department of Homeland Security, one of the latest examples in a pattern of lawsuits over the past few years. Below are some further insights into a few more cases in which difficulty in the H-1B process led to lawsuits.

InspectionXpert Corporation v. Cuccinelli

An employer seeking to hire a Quality Engineer at their company challenged an H-1B petition denial in April 2018, asserting that the agency did not have grounds to deny it. USCIS had claimed that the position offered did not qualify as a specialty occupation, as the degree required was in “Mechanical Engineering, Computer Science, or a related technical or engineering field.” The agency asserted that engineering as a whole was too broad of a field, and thus denied the petition. A federal judge rejected that argument, ruling that the position was in fact a specialty occupation, regardless of the fact that multiple subspecialties of engineering could qualify a potential candidate.

MadKudu Inc., et al. v. USCIS

This 2020 lawsuit challenged a USCIS adjudication practice that determined whether or not market research analyst jobs qualify as specialty occupations. The plaintiff also claimed that USCIS had misinterpreted the Occupational Outlook Handbook, a source published by the Department of Labor’s Bureau of Labor Statistics that provides information on hundreds of different types of jobs available in the United States. The agency’s misinterpretation led to H-1B petitions being inaccurately denied, the plaintiff argued. USCIS had denied at least 66 market research analyst petitions in the preceding three years. A federal judge granted the employers class certification in the lawsuit, providing a path forward in future matters.

Acquia Inc, et al., v. USCIS

A group of seven employers filed a suit against the agency in March 2021, claiming that USCIS had unlawfully and arbitrarily rejected their H-1B petitions. The petitions, filed after October 1, 2020, were rejected solely because the beneficiary’s start date also fell after October 1. However, there was no legal basis for the agency to do so, as there are no laws stating that employment must start exactly on October 1st and not a day later. The lawsuit was ultimately dismissed by the employers after USCIS agreed to correct their error.

Humane Society Of New York et al v. Mayorkas et al.

In May of this year, a lawsuit was filed by a group of nonprofit organizations and trade groups challenging a Trump-era rule that favored higher-paying jobs in the H-1B selection process, replacing the random, computer-generated lottery system that has been used for decades. Additionally, the plaintiffs claimed that former acting Secretary of Homeland Security Chad Wolf did not have the authority to issue the new rule, as he was not appointed by the correct line of succession. While the rule was originally to go into effect in March, the Biden administration pushed its start date to December to further test and develop the changes.

By Dillan Wright

Attorneys and H-1B petitioning companies recently managed to gain more ground in the ongoing battle over specialty occupation definitions. Following a series of lawsuits, a settlement was reached in a case against USCIS, and as a result, the role of ‘Market Research Analyst’ must now be recognized as a specialized occupation when considering candidates for an H-1B visa, courts say.

Before this ruling, USCIS had been blanketly denying candidates on the basis that the role was not in fact a specialty occupation.

The success of this lawsuit is not without precedent. Just last December, USCIS was forced to recognize ‘Computer Programmer’ as a specialized occupation (Ambiguous Language: USCIS Loses Appeal against Tech Company | Park Evaluations) as a result of a previous lawsuit.

As was the case after that initial victory, the hope for US employers, and those representing them, is that these rulings will push USCIS to reconsider their policies in which hundreds of candidates may be denied work visas based on the organization’s current interpretation of what constitutes a specialized occupation.

By: Hannah Rae Welbourn

Around 100,000 green cards, or Permanent Resident Cards, are at risk of going to waste as a result of slower, pandemic-related processing times. This is on top of a preexisting backlog.

A closer look at the numbers reveals that roughly 90% of those eligible for these at-risk green cards are currently on employment-based temporary visas, and although they are already living and working in the United States, they continue to face wait times that can last up to decades—a result of the high demand for visas for technology workers from India, combined with the cap placed on the country.

But why are there so many visas available right now anyway? The answer is that any unused family-based green cards from the previous year carry over to the cap on employment-based green cards the following year. Due to the initial Covid-19 outbreak last year, which led to further immigration restrictions implemented by the Trump administration, very few family-based green cards were able to be used.

They can only carry over once, though. If they aren’t used as employment-based cards, they are gone forever—and time is running out.

The Biden administration has until the end of the month to issue these 100,000 green cards, a feat that may be too challenging for USCIS. The agency faced a drop in funding last year (as it is a fee-funded agency, and far fewer people were able to apply due to the pandemic) and are still recovering from it, contributing to these slower processing times. Additionally, a new director of USCIS was just appointed last month.

One potential solution proposed by democrats in Congress is to allow the green cards to be carried back over, reverting them to those eligible under family-based immigration. However, prospective applicants already here on temporary work visas would not be able to benefit from that, leading to potential decade-long setbacks for many workers.

With the current obstacles in place—including sluggish processing, country-based quotas, and what many immigration advocates are calling a lack of urgency from the Biden Administration—and no apparent talks of any forthcoming changes that might fast-track the process, the likelihood of salvaging the evaporating green card opportunities grows smaller by the day.

Follow Park Evaluations on LinkedIn for updates on the latest in Business Immigration.

By Dillan Wright

Intro

With the withdrawal of US forces and subsequently rapid Taliban takeover of Afghanistan, there is a present and obvious need for clarity on the part of USCIS regarding the steps Afghani residents must take in order to take refuge in the United States. We will examine USCIS’s initial response to the crisis and offer a glance at how some organizations have responded in kind.

USCIS’s Response

USCIS last updated their policies for Afghani refugees on August 26, 2021, shortly after the closure of the US embassy in Kabul. Their site offers a comprehensive breakdown of how to achieve “parole”, including steps on how to apply, directions on waiving application fees, and a list of necessary documentation that must be submitted. They also detail what steps must be taken by the candidate if they are granted parole, such as completing the form “Form DS-160, Application for a Nonimmigrant Visa”, as well as possible next steps for candidates once they arrive in the United States.

Responses to USCIS’s Policies

Some organizations, such as the American Immigration Lawyers Association (AILA), have raised concerns over certain aspects of USCIS’s current application policies for Afghani refugees. For example, in a letter to USCIS’s director, the AILA primarily states their concerns over certain policies which are causing delays in the application process as well as over how application fees are being handled.

 

Going Forward

There have been no further updates made by USICS since August 26, 2021. Groups like the AILA have suggested several revisions to USCIS to make this process easier on potential appliers. These would include measures such as increasing staff at the Dallas Lockbox to place an emphasis on Humanitarian Parole applications, allowing families to file as a single unit to reduce costs, and allowing family members to sign documentation on behalf of their family members who are fleeing the country.

By: Rachel Horner 

 

The DHS  officially rescinded a proposed rule from the Trump Administration which aimed to eliminate the duration of status for those on F-1 and J-1 visas (namely international students and journalists).  

 

The duration of status allowed foreign nationals under said visas to enter the country for a set period of time, ranging from a few weeks to years (depending on the length of the program); however, under the proposal, the maximum time allotted to stay would be either two or four years, depending on the country. This would have proven detrimental for many scholars whose academic programs are time-sensitive or go beyond the maximum two to four years. 

 

DHS reported they received over 32,000 comments on the controversies and pitfalls of the proposal. For one, instead of determining the length of the program at the time of their application interview with a consular officer, applicants would find out the length of their program after a U.S. Customs and Border Protection officer’s evaluation, and received confirmation afterwards from the DHS on the approved program length. The determination itself would be based on the visa overstay rate of the application’s country, as well as if the applicant’s citizenship is on the State Sponsors of Terrorism list. What’s more, in addition to now dealing with time-sensitive programs under inflexible deadlines, those whose programs changed timelines (common for academic programs) or lasted over their set date would have to apply for US visa extensions, which are costly and not guaranteed. 

 

After the elimination of the proposed rule, even more welcome news came in the following week. USCIS announced that those on F-1 visas do not need to submit multiple applications to extend their non-immigrant status. Originally, F-1 applicants had to maintain their status 30 days before the start of their program. However, with increasing backlogs, those looking to change to an F-1 visa had to file possibly multiple extensions (a B-2 or “bridge application”) in the meantime to ensure they maintained status in order to avoid the waiting period for the approval of an F-1 visa, which could last over a year. Under the new rule, USCIS will grant an F-1 visa status on the day the application is approved, eliminating the need for extensions which ensure there is no “gap” in immigration status.  

 

The elimination of the extension will also mitigate the issue of dependents on H-1B visas who are “aging out.” Previously, once a dependent turned 21, they would no longer be able to claim dependency and would need to file for a change of status to an F-1 visa to continue their studies in the United States. With the elimination of the need for B-2 status to cover the gap as they undergo this change, they will no longer need to worry about the lengthy extension fees and timeline previously required for an F-1 visa.  

By: Hannah Welbourn

A second round of H-1B seekers has been selected to submit their petitions for the highly sought-after visa.

This is the second year in a row that USCIS has conducted a second lottery, releasing a statement Thursday reading: “We recently determined that we needed to select additional registrations to reach the FY 2022 numerical allocations.”

Last year’s decision to make another round of selections was largely affected by the initial COVID-19 outbreak, as many who were offered employment early in the year were not able to be hired as a result of the pandemic. The Trump Administration’s travel ban also impacted the decision, as many who had been initially selected were then unable to get into the US.

Following this year’s initial selections, more than 500 H-1B visa applicants filed a lawsuit against the Department of Homeland Security. Those suing were not selected in the 2022 H-1B visa lottery and claim that a loophole in the registration process allowed for multiple–and often phony–employers to register on a single applicant’s behalf.

The plaintiff is calling to eliminate the loophole in the previous administration’s online registration system, wherein there is no limit on the number of employers that can apply on behalf of a single beneficiary; multiple companies can register the same individual.

Because of this, a new industry of consulting firms began profiting off applicants who could pay them to register multiple times under different employers. The lawsuit states that there doesn’t even need to be a legitimate job offer on the table from these employers, and it’s unlikely that USCIS would be able to investigate every single one of these instances.

Since a lottery system determines who is selected to submit H-1B petitions, those who had fraudulent registrations under numerous employers had a higher chance of being selected and thus had an unfair advantage.

By: Hannah Welbourn

 

With his first year in office officially halfway through, President Joe Biden has made it clear that one of the administration’s biggest goals regarding immigration is to promote naturalization.

 

Earlier this month, the Department of Homeland Security announced a campaign aimed at recruiting new citizens and making the naturalization process more accessible. The campaign is headed by the Biden-appointed Interagency Working Group on Promoting Naturalization (also referred to as the Naturalization Working Group or NWG) and is in accordance with the executive order Biden enacted in February, which included calls to shorten naturalization processing times, reduce the naturalization fee, and reinstate a fee waiver. The executive order also called upon the NGW to develop welcoming and inclusive strategies that eliminate fear and restore trust in the legal immigration system.

 

The campaign includes several community outreach initiatives–on community, state, and federal levels–aimed toward lawful permanent residents (LPRs) and those still early in the immigration process. The goal is to educate immigrants on the resources available for becoming citizens, as well as break down Trump-era barriers to these services. The outreach initiatives are also intended to build community for those on the path to citizenship, along with efforts to ensure the equity of underserved communities.

 

The NWG is considering expanding the number of languages that citizenship study materials are printed in. This would make these documents more accessible to immigrants from different countries, as currently, they are only available in Spanish, Chinese, Arabic, Tagalog, Korean, and Vietnamese. Additionally, the group is focused on making educational materials available to immigrants, including a glossary of legal terms used in forms throughout the naturalization process.

 

Shortly after the campaign was announced, Biden hosted a naturalization ceremony–the first held on White House grounds since the 2020 Republican National Convention–and 21 new citizens were officially sworn in. The president thanked these new citizens, adding: “All of you represent how immigration has always been essential to America. We’re constantly renewing ourselves.”

 

Furthermore, the president has made it clear that he is also focused on Dreamers, those who arrived as children and are protected under the Obama-era DACA (Deferred Action for Childhood Arrivals) program. While it is still unclear whether DACA funding will be included in the Democrat’s $3.5 trillion budget reconciliation measure, Biden has urged Congress to preserve the program and create a pathway to citizenship, which it does not currently include.

 

President Biden is certainly still trying to deliver on the initiatives he set early on in his term and the recent developments seem to be a step in the right direction.

 

Check back for more updates!

By: Rachel Horner 

 

Over the past year and a half, Park worked to build a proprietary software to facilitate the process of tracking PERM recruitment. We can now officially announce the PERM Portal is ready for not only our internal team to use, but our clients as well! We are excited to add the PERM Portal to our roster of PERM-related services (which you can read more about here). 

 

Park Evaluations’ Head Evaluator and Case Manager, Howard Borenstein, will be hosting a webinar on Wednesday, July 28, at 1 P.M. EST, during which members of our team will provide an exclusive demo of Park’s new proprietary PERM Portal case tracking system and how easy it will make your case process, from request to delivery. In addition, Howard will delve into key points regarding the PERM recruitment process, including the importance of a strong PERM advertising campaign and the potential benefits of a PERM-based expert opinion letter. Attendees will be able to ask questions during and after the webinar using the chat feature. We can’t wait to have you join us and show all of our helpful tools for the PERM process!

By Ryan Mernin

In a previous post, the team at Park Evaluations offered some insight into the L-1A visa and its basic criteria, as well as how an expert letter from Park could help meet USCIS’ various challenges. Here, we will take a deeper dive into the various definitions of managerial capacity and the hidden nuances therein.

Managerial Capacities: Personnel, Functional, Executive

Much has been said of the coveted and rather more difficult to obtain L-1A visa. Like its counterpart, the L-1B, this is ideal for a more senior employee transferring from an affiliate abroad to the office of the petitioner in the U.S.

Whereas most candidates will apply using the standard “personnel manager,” otherwise known as “managerial capacity” criteria as laid out by USCIS, there are slightly altered sets of criteria for executives and for managers who are not directly managing subordinate employees in their departments. In gathering resources for a petition, it is important to select the appropriate definition and to provide a suitable analysis that matches the agency’s requirements.

Personnel Managers

The most frequently used definition of managerial capacity in L-1A visa filings is that of a Personnel Manager, who is primarily distinguished from both lower-level employees and functional managers – discussed below – by the responsibility to directly manage subordinate professionals. As per the exact USCIS criteria, anyone using this definition should directly oversee professional level employees, or people with at least a Bachelor’s degree. There are four criteria in this case, which may be summarized as:

The first of these – management of a department or specific unit of the business – can be rather difficult to pin down; as much as today’s corporations may love to cobble together baroque organizational charts, not every person in charge of managing people and specific tasks will find that their role is clearly articulated in the top-level structuring of the company. It is often the job of the attorney (as well as the team of experts at Park) to appropriately qualify the work overseen by the candidate as belonging to a specific business component. Likewise, the fourth criterion requires that candidates be able to describe not only the high-level strategy and business development work incumbent on their role, but also the direction and support they provide to their subordinates in carrying out the productive work of their department.

Functional Managers

The Functional Manager definition comes with a slightly different set of criteria, paraphrased below, but is typically used in cases where, in either the U.S. or foreign position, the candidate is not directly managing their subordinate employees:

There is, you will observe, very similar to the previous definition. Indeed, it is still required that the business component (or “essential function” in this case) be comprised of subordinate employees carrying out its day-to-day productive tasks. The difference, however, is that Functional Managers are not responsible for directly supervising this work, though they still maintain their high-level responsibilities in terms of ensuring that the function is successfully managed. A bit nitpicky, perhaps, but a definition which can be very useful for L-1A beneficiaries who cannot demonstrate that they managed direct reports.

Executives

This one is more straightforward: is the candidate an executive at the company? This does, however, still come with its own unique set of criteria which must be met, regardless of job title. These are:

This definition stands somewhat alone, and clearer, maintains a higher threshold than the other two. This should be used only for the most senior-level employees at an organization, who would themselves be responsible for profitability, growth, and other strategic indicators.

In Summary

It should be noted that a given case can mix-and-match these definitions for the U.S. and foreign positions, and that it is quite often the case that an employee who abroad operated as a personnel manager might come to the U.S. to take on a new role managing an essential function, without direct reports. At Park, we’re always happy to consult on a given case, and work with our experts to ensure that these arguments are effectively applied – both in the petition and the accompanying L-1A expert letter.

To request an L-1A expert letter, email [email protected].

By: Rachel Horner
 
As the end of June quickly approaches, PERM applicants should keep in mind if their Prevailing Wage Determination (PWD) expires on the 30th. In this instances, candidates must begin some portion of the PERM recruitment process before the June 30th deadline. Beginning July 1st, the data used for the prevailing wage resets, placing the validity of the position itself in jeopardy. But the good news is, as long as even one step in the PERM recruitment process begins prior to the prevailing wage’s expiration, the DOL will honor that wage for the entire advertising campaign. We talk about this—and more—in our blog posts Top 5 Things to Remember for a Successful PERM Advertising Campaign and How an Expert Opinion Letter for PERM Could Potentially Prevent an Audit from the DOL.
 
If you are looking to start your campaign before the expiration date, there is still time! Park’s Advertising team has extensive experience dealing with PERM cases, and is knowledgeable about time constraints, pitfalls, nuances, and more; and they can leverage this knowledge to help facilitate the process of your application and get it done diligently and efficiently. To request help with PERM Advertising, email [email protected], and look out for our upcoming newsletter covering all things PERM!

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