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

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

March 4, 2017

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. USCIS will notify the public before resuming premium processing for H-1B petitions.

The temporary suspension applies to all H-1B petitions filed for FY18, including regular cap, master’s advanced degree cap, and cap-exempt petitions. During the suspension period, USCIS will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms.

Under certain extreme circumstances, petitioners may submit a request to expedite an H-1B petition.
This temporary suspension will help to reduce overall H-1B processing times.
Please go to USCIS website for full article or click on the link:

DHS Publishes Final International Entrepreneur Rule

January 17, 2017

The Department of Homeland Security (DHS) today published a final rule to improve the ability of certain promising start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and job creation.

Under this final rule, DHS may use its “parole” authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation. The new rule is effective July 17, 2017, which is 180 days after its publication in the Federal Register.

DHS estimates that 2,940 entrepreneurs will be eligible under this rule annually. Eligible entrepreneurs may be granted a stay of up to 30 months, with the possibility to extend the period by up to 30 additional months if they meet certain criteria, in the discretion of DHS.

Under this final rule, eligibility may be extended to up to three entrepreneurs per start-up entity, as well as spouses and children. Entrepreneurs granted stays will be eligible to work only for their start-up business. Their spouses may apply for work authorization in the United States, but their children will not be eligible.

An applicant would need to demonstrate that he or she meets the following criteria to be considered under this rule:

  • The applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
  • The applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.
  • The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
    • Showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
    • Showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or
    • Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.