Issue 132 September 2019

USCIS Publishes Proposed H-1B Registration Fee Rule

USCIS is proposing to require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS for the H-1B cap selection process.  As a reminder, beginning with fiscal year 2021 H-1B cap-subject petitions, USCIS is expected to implement an electronic registration requirement, which will require petitioners seeking to file H-1B petitions subject to the cap to first electronically register with USCIS during a designated registration period.  USCIS is proposing a registration fee to recover some of the costs that are associated with implementing and maintaining the H-1B electronic registration system.  USCIS will accept comments on the proposed regulation until October 4, 2019.

Details: USCIS announcement, https://www.uscis.gov/news/alerts/dhs-proposes-minimal-registration-fee-petitioners-seeking-file-h-1b-cap-subject-petitions; Notice of proposed rulemaking, https://www.federalregister.gov/documents/2019/09/04/2019-18962/registration-fee-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

Continue to Use "Expiring" I-9 Form Until Further Notice, USCIS Says

U.S. Citizenship and Immigration Service (USCIS) has announced that until further notice, employers should continue using the Form I-9 (Employment Eligibility Verification) currently available on I-9 Central, even after the August 31, 2019, expiration date has passed.

Details: USCIS announcement (scroll to 08/27/19), https://www.uscis.gov/i-9-central/whats-new; I-9 Central, https://www.uscis.gov/i-9-central; I-9 form and instructions, https://www.uscis.gov/i-9%20

USCIS Issues Guidance on Discretionary Employment Authorization for Foreign Nationals Paroled Into the United States

U.S. Citizenship and Immigration Service (USCIS) recently issued policy guidance on its discretion to grant employment authorization to foreign nationals paroled into the United States, including those who are otherwise inadmissible.

The agency noted that employment authorization for such parolees is not automatic and thatthe agency "will only consider employment authorization for parolees when, based on the facts and circumstances of each individual case, USCIS finds that a favorable exercise of discretion is warranted." The policy guidance includes a list of positive and negative factors an officer may consider when "balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion."

USCIS said the policy update does not affect individuals paroled into the United States under the International Entrepreneur Rule. Such parolees are authorized to work based on their parole under current Department of Homeland Security regulations governing the International Entrepreneur parole program.

Details: USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-issues-guidance-discretionary-employment-authorization-parolees; USCIS policy alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20190819-EmploymentAuthorizationForParolees.pdf; USCIS policy manual, Chapter 2—Parolees, https://www.uscis.gov/policy-manual/volume-10-part-b-chapter-2

State Department Releases October Visa Bulletin

The Department of State's Visa Bulletin for October 2019 shows both advances and retrogressions in Final Action Dates and Dates for Filing for employment-based categories.

USCIS announced that applicants in all employment-based preference categories may use the Dates for Filing chart. Since Vietnam is not listed on the Dates for Filing chart, adjustment applicants from Vietnam should use the worldwide dates.

Final Action Dates for all countries except for China and India in the EB-1 category will advance to April 22, 2018, returning to the July bulletin cut-off dates, as expected, while Dates for Filing for all countries except China and India in the EB-1 category will advance to July 1, 2019.

For both Final Action Dates and Dates for Filing, all countries except for China and India in EB-2 and EB-3 categories will become current.

For India and China, there will be significant advances in the Final Action Dates for the EB-3 category, while China will retrogress by two years in the EB-2 category. Dates for Filing for China will also advance in the EB-3 category and retrogress in the EB-2 category. Dates for Filing for India will advance by a month in the EB-2 category, and retrogress slightly in the EB-3 category.

Details: Visa Bulletin for October 2019, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-october-2019.html

ICE Is Conducting Site Visits to STEM OPT Employers

According to reports, new site visits are underway by U.S. Immigration and Customs Enforcement (ICE) to question foreign students and company managers on optional practical training (OPT) in the fields of science, technology, engineering, and mathematics (STEM). The site visits are pursuant to a rule on STEM OPT published in May 2016.

The Department of Homeland Security (DHS) noted that the new provision allows DHS to perform site visits to employer locations that train STEM OPT students. DHS said its intent during such site visits is "to confirm that information reported on the student's Form I-983 concerning the training opportunity is accurate, while not placing an unnecessary burden on employers." DHS will provide notice to an employer at least 48 hours before any site visit "unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. In these cases, DHS reserves the right to conduct a site visit without notice."

Among other things, DHS said that as part of a site visit, it may confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program, and ask the employer to provide the evidence used to assess wages of similarly situated U.S. workers.

Details: DHS information on STEM OPT employer site visits, https://studyinthestates.dhs.gov/employer-site-visits; May 2016 STEM OPT regulation, https://www.federalregister.gov/documents/2016/03/11/2016-04828/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and; news report, https://www.federalregister.gov/documents/2016/03/11/2016-04828/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and

Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case

The U.S. District Court for the District of Columbia recently granted summary judgment for plaintiffs and denied defendants' motion to dismiss in an H-1B case, RELX, Inc. v. Baran. The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, U.S. Citizenship and Immigration Services (USCIS); the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis' H-1B petition on behalf of the data analyst.

The government responded to the H-1B petition with a request for evidence (RFE) related to whether the data analyst position was a specialty occupation, finally denying the petition after LexisNexis sent documentation. Plaintiffs filed suit, but shortly before they filed their opening motion, the government reopened the petition without notifying defendants or providing a reason. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had reopened the case.

Among other things, the court noted that an agency's failure to set forth its reasons for a decision constitutes arbitrary and capricious action, and the court must undo the agency action. The court also noted that the government issued an RFE requesting nearly identical information as it did when it last reviewed the petition. Also, upon imminent expiration of the data analyst's F-1 visa, she would have lost her job and been required to leave the United States for an extended period of time, thus causing "significant hardship," the court observed. Because the agency failed to request any new information when it attempted to reopen the petition, the court found the circumstances of the reopening "highly suspect and contrary to the regulations." Finding that the LexisNexis position was "a distinct occupation which required a specialized course of study," as supported by a "mountain of evidence" that "more than meets the preponderance of the evidence standard," the court concluded that the agency's decision to deny the H-1B petition was not based on a consideration of the relevant factors, was a clear error of judgment, and that USCIS "acted arbitrarily, capriciously, and abused its discretion in denying employer's petition for H-1B visa status" on behalf of the data analyst.

Details: Case text, https://casetext.com/case/relx-inc-v-baran