UPDATE: YSC Case Status Check Works
If you have a case with a receipt number that begins with the three letter string – YSC – your case is now trackable online. YSC denotes the Potomac Service Center, which is a new service center adjudicating immigration petitions. Cases have been under review there but case status check online has not been available. It is now available for a YSC receipt.
India Files Complaint Against USA:
Complaint Over Special Fees and H-1B Cap
India is alleging the United States is engaged in unfair trade practices in the World Trade Organization. The suit is on two bases: the H-1B cap of 65,000 and 20,000 and the enhanced fees that Congress recently slapped on large companies with over 50% of their employees on H-1B or L-1 visas. The case is at the World Trade Organization because India is alleging that the United States has violated trade rules with recently implemented special fees and with the 65,000 cap. The World Trade Organization is the forum where unfair trade restrictions are decided as unfair or fair.
The Cap
The H-1B visa’s lifespan has been governed by a cap, which has historically been larger but has settled in at 65,000 for over a decade. A supplementary 20,000 visas were added for US Master’s graduates. The cap is not exactly 65,000. It is even less, when considering special agreements that the US has with Chile and Singapore. The trade agreement stipulates that 1,400 H-1B visas are allocated for Chilean nationals and 5,4000 H-1B visas belong to nationals of Singapore. For beneficiary nationals of other countries, that means the cap is actually 58,200. Additionally, that is only the cap. A cap is a ceiling not a floor. The US is not required to grant 65,000 cap-subject H-1B visas. It can grant fewer than that.
The US has two arguments against the cap and special allocation of visas for Chile and Singapore. The first is the recent creation of the 20,000 visas for US Master’s graduates. The second is cap-exempt visas, which are reserved for academic, research, and sometimes medical purposes.
Enhanced Visa Fees
In December 2015, an Omnibus Bill was passed that contained some financially harsh provisions against large firms that employ H-1B and L-1 visa holders. While much of the focus in the bill’s germination stage focused on Syrian refugees and the Visa Waiver Program, provisions against these large firms snuck in and have been instituted. For firms that have at least 50 employees, of whom 50% are in H-1B or L-1 status, there is an additional $4,000 fee for every H-1B and $4,500 L-1 initial and extension application. The previous fee of $2,000 was sui generis.
H-1B applications can be expensive for employers. A base filing fee of $325 is required for every application. Depending on the circumstances of the application, a Fraud Prevention and Detection fee of $500 is applied. An ACWIA fee of $750 or $1,500 may be required. H-1B extension and change of status applications are taking such an excruciatingly long time to adjudicate that premium processing is being constructively required. Premium processing requires $1,225. These fees accumulate, especially for multiple workers, escalating fees for every application.
The complaint at the World Trade Organization alleges that this enhanced visa fee is an unfair trade restriction. It is expected that the World Trade Organization will take a year to make a decision at least.
Multiple H-1B Petitions Are NOT Allowed for Same Beneficiary
Much of the US immigration system is a competitive ecosystem. There are a limited number of immigrant visas available each year by category, country, and preference. That is the reason why if you, as a US citizen, sponsor your sister for an immigrant visa, she will not have her Green Card for 15 years. That is why the Employment-Based 2nd preference for India is backed up to 2008, causing Indian nationals to be in H-1B status for 12 years. There are only 10,000 U visas available per fiscal year, causing a backlog of years. Asylum numbers are also limited. The Diversity Visa has a 55,000 per year restriction.
The major restriction in employment-based nonimmigrant visas is the H-1B visa. For some H-1B applicants and petitioners, the lottery system is not a worry. Some H-1B applications are “cap-exempt.” These are reserved mostly for universities. However, the lottery and the cap are a reality for many H-1B applicants and petitioners. Companies provisionally hire employees, on the hope that their petition is selected in the lottery. Last year 233,000 applications were submitted for 85,000 slots.
Given this ultra-competitive ecosystem, employers or employees may look to loopholes to enhance their chances. The Vermont Service Center has emphasized that multiple petitions are prohibited. The law is very clear: “An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A) . . . [F]iling more than one H-1B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.”
This applies to related entities, as well. It cannot be that Parent Company Alpha and Subsidiary Company Beta apply for Beneficiary Omega unless there is a legitimate business need. If this kind of manipulation is detected by USCIS, it reserves the right to revoke a visa, issue a notice of intent to deny, or notice of intent to revoke a petition. USCIS takes this very seriously, as filing multiple petitions for the same beneficiary is an unfair advantage.
The H-1B cap was not always at 65,000 with the 20,000 for the Master’s cap. In the late 1990s and early 2000s, the cap was in excess of 100,000.
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ICE Raids in January
The Washington Post reported last week that the Obama Administration is planning to direct Immigration and Customs Enforcement (ICE) to conduct raids on individuals who have orders of removal against them in absentia. The individuals are mostly from Central America and because their orders are in absentia, their cases for relief have not been heard by an immigration judge. Immigration and Customs Enforcement is an agency with the Department of Homeland Security, and it is responsible for securing the United States internally. Part of those responsibilities include seeking out individuals who are not authorized to be present in the United States.
The individuals targeted for removal have final orders against them, but in absentia means that for whatever reason, the immigration judge placed an order of removal against them when they were not present at their hearings. They may not even know that an order of removal is placed against them. The move by the Obama Administration seems to take a stark contrast to its recent years on the subject of unauthorized migrants. In 2012, an executive order for Deferred Action enabled millions of “Dreamers” to gain temporary legal stay. In 2014, additional executive actions sought to expand Deferred Action to more migrants without status, though their legality is currently being contested in courts. Before those executive actions, however, the Obama Administration was removing individuals at record rates.
Given that the presidential elections are less than a year away and primary season is just about to kick off, each action that the Obama Administration takes on immigration will have consequences in the election and for the candidates.