Government Shutdown Impact on USCIS Processes

January 3, 2019

The partial U.S. government shut down began on December 22, 2018 will last until Congress passes a funding bill and President Trump signs it. This partial shut down, however, will not affect the employment of “essential employees” (i.e. law enforcement), the “already funded” services and “fee based” services.

Most of immigration services fall under the later two categories, therefore will see limited impacts from this partial shutdown (i.e. all Premium Processing services) However, some USCIS programs operate based on appropriated funds, including E-Verify and EB-5 Immigrant Investor and Regional Central Program. These programs may be suspended or otherwise impacted by a shutdown. We will provide further updates about the impact of a shutdown on these particular programs following announcements by USCIS.

While visa processing at U.S. Consulates abroad is fee-based, the US State Department may see a slowdown or even cessation of these services due to backlogs created within the department until funding legislation is passed. Should you have further concern, please do not hesitate to contact your corresponding attorney.

Cap Gap for Students Without a Rejection or Decision

May 15, 2017

USCIS announced on May 3, 2017, that data entry for FY2018 has been completed and that petitions not selected in lottery would begin to be returned. However, it may take several weeks for all unselected petitions to be returned. In the interim, for those cases where neither a receipt nor a rejection notice has been received, students may continue to benefit from an automatic cap-gap extension until a rejection notice is received. Once such a notice is received, a student has the standard 60-day grace period starting from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Impact of “Hire American” Provision in New Executive Order Remains to Be Seen

April 24, 2017

On April 18, 2017, President Trump signed his latest Executive Order “Buy American and Hire American.” The American Immigration Lawyers Association (AILA) observed that while today’s announcement reflects the administration’s desire to move toward reforms to the H-1B program, there will be no immediate changes or impacts on H-1Bs. Simply put, it appears that the agencies are asked to review policies related to all visa programs and recommend changes to root out “fraud and abuse,” and to propose additional reforms so that H-1B visas are awarded to the most skilled or highest-paid applicants.

AILA President William A. Stock said, “Today’s announcement brings to mind a famous phrase from Shakespeare’s MacBeth: ‘full of sound and fury, signifying nothing.’ While the agencies are being asked to undertake a review of the H-1B program, the reality is that many of the changes contemplated by the administration will require legislative action, or at minimum, the lengthy rulemaking process. Rather than ‘sound and fury,’ what we really need is President Trump and Congress to work together on immigration reform that will bring our legal immigration system into the twenty-first century, so we have a system that works for us all.”

Stock continued: “Our immigration system is critical to all geographic and industry sectors, not just Silicon Valley. H-1B workers help transform state and local economies across the nation, from Boise, ID, to Raleigh, NC, Des Moines, IA, and Lincoln, NE. H-1B workers are vital to our healthcare system, and to our manufacturing and energy industries. Any reforms proposed by the Trump Administration as a result of this Executive Order should be based on facts and data, not innuendo and anecdote, and must ensure that our immigration system, including the H-1B program, remain viable tools for U.S. businesses seeking to build and maintain a globally competitive workforce.”

AILA Doc. No. 17041850

For the complete executive order please see Buy-American-Hire-American

Analysis of Mar. 31st Policy Memo on “Computer Programmer”

April 20, 2017

The policy memo issued on March 31, 2017 clarifies USCIS’s approach to determining whether the position of “Computer Programmer” is deemed a “specialty occupation” that would be eligible for an H-1B visa. The new memo rescinds the December 22, 2000 memorandum titled “Guidance memo on H-1B computer related positions” issued to Nebraska Service Center employees by then-director, Terry Way.

In light of the significant evolution of the high-tech industry since 2000, the Terry Way memo has now become somewhat obsolete. Therefore, as described in the current Occupational Outlook Handbook, Computer Programmers, especially those in entry-level positions, may not be considered to be employed in a “specialty occupation” because a bachelor’s degree in a specific field may not be required for the position. The new memo supports the proposition that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skills that are more complex and specialized.

According to information and cases within the legal community, for at least the past several years, USCIS has not taken the approach that a “Computer Programmer” is a slam-dunk H-1B. The new memo would appear to offer transparency and clarity regarding the approach USCIS has taken on these cases for the past several years. However, the true test of this memo will be in how it is actually interpreted by adjudicators in the field, especially over the next few months as H-1Bs are adjudicated.

AILA Doc. No. 17040334