Author Archives: Andrew Wood

Updated Processing Times

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Updated Processing Times for USCIS

USCIS updated the processing times it is taking for applications. There are some glaringly slow processing times. These are dates that reflect statistics from January 31, 2016. If you have an Extension or Change of Status for H-1B cases, you will be waiting many months, no matter whether it is in California’s or Vermont’s Service Center. The slow pace of H-1B extension processing times has been problematic over the past few months and is the source of much ire from companies, employees, and lawyers. It is essentially demanding the $1,225 fee for premium processing. U visa processing time has just frozen in May of 2014.

If you have a petition pending at the Potomac Service Center – you know that because your receipt number begins with the string ‘YSC’- you will not know your processing time. Petitions that are pending at the Potomac Service Center do not have published processing times and you cannot check their status on the case status checker online.

Recognizing that many of their employment authorization petitions are pushing 90 days, USCIS is issuing transfer notices and spreading the work load.

Increasing Asylum Ceiling

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White House Considering Asylum for Syrians

There are proposals to increase the Asylum cap, a topic this blog briefly covered this week. The president requests the asylum ceiling on each year and Congress signs off on that number. The cap this year is 70,000. This includes asylum grants in immigration court and affirmative asylum cases that USCIS hears.

The White House announced this week that it would welcome 10,000 Syrian refugees this upcoming year. The plight of Syrian, Afghani, Iraqi, and refugees from other countries in the Levant has been headline news for months, as civil wars and internal strife have predominated in those nations in recent years. Syria’s civil war has been particularly devastating. People have been deracinated from their homes, livelihoods, and communities. Migrants have been escaping to Southern Europe through the Mediterranean in immense numbers over recent months, often to tragic ends. Their resettlement has become an intensely divisive issue in the European Union. Some countries in the EU are staunchly against resettlement in their own countries or doing it in limited numbers.

To accommodate taking in more Syrians, proposals are suggested for increasing the asylum cap to 85,000 for Fiscal Year 2016 and 100,000 for Fiscal Year 2017. The increase is criticized for being an increase and it is lambasted for not doing enough to relieve the overall crisis. Very few Syrians have received asylum in the United States since the civil war began. General bad conditions (such as civil war, disease, famine) are not bases for asylum. Syria has been accorded TPS status.

DACA In State College Tuition

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A judge in Maricopa County Arizona ruled on May 5 that immigrants granted deferred deportation status are eligible for in-state college tuition. This is a state court decision that will save thousands of dollars for DREAMers attending Maricopa County Community Colleges. Arizona is often the arena for contentious immigration litigation and legislation. Maricopa County is also the home of famed anti-immigration  Sheriff Joe Arapaio. This ruling could set a precedent for other schools and other states to level in-state tuition for their students with deferred action.

The basis of Superior Court Judge Arthur Anderson’s decision is that federal law determines who is lawfully present in the United States. Arizona has a voter-enacted law, Proposition 300, which demands that individuals seeking a federal, state, or local public benefit must submit specific documentation to prove lawful presence in the United States. There are also prohibitions from Arizona’s controversial SB1070 law, which was largely but not entirety stricken down by the United States Supreme Court.

The DREAMers have been clamoring for comprehensive immigration reform that will grant them a pathway to citizenship, as long as they meet certain requirements. Their argument is that they were brought to the United States as young children and have grown up knowing themselves to be Americans. Many DREAMers are unaware of their status until they start applying for colleges and realize that they do not qualify for scholarships and federal benefits because of their status.

Deferred action is not immigration status that grants green cards or a path to citizenship. It is a temporary allowance of authorized stay without many benefits. Individuals can obtain work authorization. Deferred Action for Childhood Arrivals (DACA) was announced on June 15, 2012 and is available for periods of two years. Expanded DACA and Deferred Action for Parents of Americans (DAPA) are being challenged by 26 states in Texas v. United States. The case is currently awaiting a decision in the Fifth Circuit after a federal judge in Texas blocked implementation of the programs because they were announced without following the Administrative Procedural Act’s Notice-and-Comment.

L-1B Visa News

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L-1B Visa Denials

 

The National Foundation of American Policy reported last week that the denial rate for L-1B petitions has reached a historic high of 35% for Fiscal Year 2014. This is an increase from 30% in FY 2012 and 34% in Fiscal Year 2013. While those numbers seem consistent, 35% is a stark contrast from the 6% denial rate from FY 2006.

 

The L-1B visa is an opportunity for multinational companies to transfer high-skilled employees from their overseas locations to the United States. There are certain requirements that must be met. The employee (1) must have been employed for a qualifying organization abroad for one continuous year in the past three years and (2) be seeking to perform a specialized knowledge position with the qualifying organization in the United States. The employer (1) must have the requisite relationship with the foreign company and (2) be engaged in or it must engage in business as a US employer with another country through the qualifying organization. The visa is an important tool for companies that are seeking US locations and would like to fortify their US operations with institutional knowledge.

 

The report contains some shocking statistics. 56% of employees transferring from India were denied between 2012-2014, more than four times the denial rate of 13% for employees from other countries in that time period. Nationals from other countries were also above that 13% rate, but Canadians only had a 4% denial. The increase in denials is especially consternating because there has not been a change in the L-1B regulations.

 

The White House announced that a guidance memo on L-1B visas will be released this week. L-1B guidance has been mentioned for years and was part of the executive actions announced in November. The guidance memo was released on March 24, 2015.

 

The Law Offices of Andrew Wood is committed to facilitating job-creating companies and employers who are growing the US economy. L-1 visas are an important aspect of that. In a global economy, we recognize that companies need employment visas to compete globally. Employment-based green cards are notoriously difficult, making non-immigrant visas the practical option. Given that L-1 and H-1B non-immigrant visas are the two practical means that companies have for retaining international nonimmigrant employees, guidance will be timely.

 

H-1B Visa 2015 Statistics

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Figure 2: Process of Obtaining an H-1B Visa

The Office of Foreign Labor Certification released statistics for the first quarter of the 2015 Fiscal Year (starting October 1) on the whole range of employment based certification for foreign workers. A function of the Department of Labor, the FLC is tasked with certifying the H-1B visa labor conditions and permanent employment labor certifications.

 

The statistics for the first three months of the fiscal year reveal that over 80,000 H-1B applications were received, the overwhelming majority of which are in the computers realm – Computer Systems Analysts, Software Developers, Programmers, and other Computer Occupations dominate the list of certified positions. There is also nothing surprising about the states leading the way in H-1B applications: California, Texas, and New York are the top three states. Pennsylvania is eighth. Also revealing is that 176,259 positions were requested for certification and over 95% of those requests were certified. H1-B season picks up in full force over the next few months, as applications received on April 1 can be processed for October 1 starting dates (new fiscal year, when the cap of 65,000 + 20,000 starts fresh).

 

The Department of Labor is involved in the immigration and visitation of foreign workers for two important reasons. The first is to protect qualified American workers from losing jobs to foreign workers. The second is to ensure that the foreign workers are paid at the prevailing or actual wage, to guard against wage depression for American workers and protect foreign workers from being underpaid. The employer must make a prevailing wage determination and attest to paying the foreign worker at or above that wage in the labor condition agreement, which must be certified by the Department of Labor before the H-1B visa petition can be filed.