Hot Topics in Business Immigration

By Lisa Locke, Megan Dziura, and Marina Boulos

March 14, 2019

April 2019 marks the two-year anniversary of Buy American and Hire American1 (BAHA), one of several
Presidential Executive Orders that directed the Department of Homeland Security (DHS) and other
agencies to propose or revise immigration rules and guidance in the interest of US workers and national
security. BAHA specifically called for proposals to reform the H-1B visa program for temporary
employment in occupations that normally require at least a bachelor’s degree in a specific specialty "to
help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." A
new DHS rule2 is projected to increase the number of advanced degree-holders selected in the annual H-
1B lottery by up to 16%. However, most of the reforms to date are spelled out in several new and
revised policies announced by US Citizenship and Immigration Services (USCIS), the DHS agency that
processes requests for immigration benefits such as work authorization and citizenship. While
stakeholders debate the reforms’ sustained impact on the US workforce and economy, foreign national
workers and the US employers that require their skills must contend with an increasingly stringent and
adversarial immigration system.

DHS Policy Changes in the Trump Era

In October 2017, USCIS rescinded a 2004 policy that directed USCIS officers generally to defer to prior
determinations of eligibility when adjudicating nonimmigrant extension petitions (e.g., H-1B, L-1)
involving the same parties and underlying facts. In practice, deference allowed US employers to make
long-range plans with reasonable assurance that USCIS would approve their extension petitions. In its
memorandum3 announcing the new policy which took immediate effect, USCIS argued not only that
deference improperly shifted the burden of proving eligibility from the employer to USCIS, but also that
the retrieval and review of prior petitions – ostensibly, to verify assertions made in the new petition or
validate the prior approval – imposed an administrative burden. The end of deference, coupled with
USCIS’s March 2017 pronouncement 4 that petitioners may no longer rely on Department of Labor
statistical data to prove that computer programmers are eligible for H-1B classification, has contributed
to drastic changes in adjudication rates. According to data published by the National Foundation for
American Policy,5 H-1B denials increased by 41% from the third to the fourth quarter of FY 2017 while
the H-1B Request for Evidence (RFE) rate increased from 23% to 69% in the fourth quarter of FY 2017.

Not only are extension petitions subject to greater scrutiny, but USCIS officers have been emboldened to
outright deny filings that do not establish eligibility by way of a policy6 that “restores to the adjudicator
full discretion” to decide whether to issue an RFE or a Notice of Intent to Deny (NOID) in a pending

1 Executive Order 13788 of April 18, 2017. 84 Fed. Reg. 2039 (April 21, 2017).
2 84 Fed. Reg. 888 (Jan. 31, 2019).
3 Rescission of Guidance Regarding Deference to Prior Determinations of eligibility in the Adjudication of Petitions

for Extension of Nonimmigrant Status, USCIS PM-602-0151, October 23, 2017.

4 Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions,” USCIS, PM-602-0142,

March 31, 2017.

5“H-1B Denials and Requests for Evidence Increase under the Trump Administration.” National Foundation for

American Policy, July 2018. https://nfap.com/wp-content/uploads/2018/07/H-1B-Denial-and-RFE-Increase.NFAP-

Policy-Brief.July-2018.pdf.
6 Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Filed Manual (AFM) Chapter 10.5(a), Chapter

10.5(b), USCIS PM-602-0163, July 2018

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 Hot Topics in Business Immigration

By Lisa Locke, Megan Dziura, and Marina Boulos

March 14, 2019

matter. RFEs and NOIDs can be powerful, mutually beneficial, cooperative tools that not only serve to
alert petitioners and applicants to possible case deficiencies but also may reveal knowledge gaps within
the agency. They allow petitioners and applicants to dialogue with an officer already familiar with the
case, and they are more efficient and cost-effective (for the customer and the agency) than the appeals
process. The new policy, which took effect in September 2018, effectively reverses a prior policy which
carved out a narrow exception to the general rule that RFEs and NOIDs should be issued unless the
alleged deficiency could not possibly be cured by the submission of additional evidence, such as when a
daughter turns 21 and no longer meets the legal definition of a child eligible for derivative immigration
status. USCIS may also deny without RFE or NOID if supporting evidence required by law is missing from
the filing.
In June 2018, USCIS announced plans to expand its issuance of Notices to Appear (NTA), an enforcement
tool that charges foreign nationals with being removable from the US and compels them to attend a
hearing on the matter before an Immigration Judge. Under the updated policy,7 USCIS will issue an NTA
upon denial of an immigration benefit if the denial leaves the foreign national without lawful
immigration status or otherwise lawful presence. Also, Lawful Permanent Residents (LPR) applying for
naturalization may receive NTAs if USCIS determines that the applicant was inadmissible when they
adjusted to or were admitted in LPR status. The policy, which took effect in October 2018, does not
currently govern employment-based petitions.
The announcement signaled the agency’s commitment to furthering the White House’s agenda, if not an
identity crisis. While USCIS has always been authorized to issue NTAs, it shares that responsibility with
two law enforcement agencies, Immigrations and Customs Enforcement and Customs and Border
Protection, and it is unclear how USCIS will manage the expansion and competently perform its primary
function of adjudicating immigration benefits. Significantly, USCIS was forced to postpone
implementation of the policy for several months until it could finalize related operational guidance.
Recent USCIS reforms also affect students and exchange visitors in F, J, and M nonimmigrant visa status
who, under prior USCIS policy, did not accrue unlawful presence until USCIS or an Immigration Judge
issued a formal finding of a status violation. However, under a superseding USCIS policy8 which took
immediate effect on August 9, 2018, unlawful presence now accrues from the date a status violation
occurs. In other words, all days between a violation and the finding of a violation are counted as days
unlawfully present. This is significant because, after 180 days or one year of unlawful presence, a
nonimmigrant may be barred from the US for a period of three or ten years, respectively. Moreover, the
new policy does not clearly exclude minor or technical violations (though certain violations can be
overcome by applying for reinstatement). Given the complexity of the rules for maintaining lawful F, J,
or M status, a student might never suspect that she has violated her status until she applies for a new
immigration benefit, months or years later, and is denied.
Work-authorized students are particularly susceptible to the new unlawful presence policy because
USCIS has also reversed course in its application of Optional Practical Training (OPT) (student
employment) regulations, putting students at risk of unintentionally working more or under different

7 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving
Inadmissible and Deportable Aliens, USCIS, PM-602-0050.1, June 28, 2018.
8 Accrual of Unlawful Presence and F, J, and M Nonimmigrants, USCIS, PM-602-1060.1, August 9, 2018.

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 Hot Topics in Business Immigration

By Lisa Locke, Megan Dziura, and Marina Boulos

March 14, 2019

terms than OPT rules might allow. Notably, the shift was observed in RFEs and denial notices issued in
specific cases rather than a policy pronouncement.

Administrative Delays and Visa Backlogs

On March 12, 2019, USCIS resumed accepting requests for Premium Processing for all H-1B petitions
following a lengthy suspension of the service for all but a narrow subset of H-1B cases. Until then, US
employers willing to pay the fee for USCIS’s expediting service, which guarantees a decision or other
substantive action within 15 days, instead waited up to 11 months for critical workers. The processing
delays even exceeded a commonly relied-upon rule that grants up to 240-days of interim work
authorization to certain foreign nationals. H-1B workers eligible to change employers upon the filing of
“port” petitions for new employment faced the prospect of unemployment since their former employer
almost certainly would not rehire them if the new petition failed. Meanwhile, new hires outside the US
had to find other job opportunities outside the US or simply wait for a decision. In response to an
American Immigration Lawyers Association policy brief9 analyzing USCIS data, more than 85 House
Democrats recently signed a letter10 asking USCIS Director L. Francis Cissna to examine and report on the
relationship between USCIS’s implemented reforms and its growing backlog.

Unlike administrative processing delays, immigrant visa backlogs (for US Permanent Resident status) are
created by a law that limits the number of immigrant visas issued annually and, further, may limit the
percentage of visas issued annually to immigrants from any one country. While many intending family-
based immigrants have long-faced lifetime waits for “green cards,” an Indian professional once could
reasonably expect a 10-year wait for an employment-based green card. However, a 2018 CATO
Institute11 study of data released by USCIS projected a 150-year wait for Indian immigrants qualifying
based on advanced degrees. Since, by law, intending immigrants currently working temporarily in the US
cannot even apply for permanent residence (this would allow them an alternative basis to apply for
work that is neither job- nor employer-specific while they await their green card) until an immigrant visa
number is currently or imminently available to them, they must continue to maintain nonimmigrant visa
status. Consequently, the workers and their employers must prepare to remain subject to the impacts of
the above-discussed policies for an extended period.

Family Matters

US employers know that workers generally do not make business decisions in a vacuum and, in the case
of foreign nationals, employers often play a pivotal role, helping workers’ families acclimate to and
maintain lawful status in the US. The policies discussed in this article may apply uniformly to workers

9 AILA Policy Brief: USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration. AILA
InfoNet Doc. No. 19012834. (Posted Jan. 30, 2019). https://www.aila.org/infonet/aila-policy-brief-uscis-processing-
delays.
10 Feb. 12, 2019, published on AILA InfoNet at Doc. No. 19021231 (posted Feb. 12, 2019).

https://www.aila.org/cissna.
11 David Bier, “150-Year Wait for Indian Immigrants with Advanced Degrees.” The Cato Institute, June 8, 2018.

https://www.cato.org/blog/150-year-wait-indian-immigrants-advanced-degrees.

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 Hot Topics in Business Immigration

By Lisa Locke, Megan Dziura, and Marina Boulos

March 14, 2019

and family members or may exempt one group or the other. For example, although the above-discussed
NTA policy does not currently impact employment-based petitions, it has been implemented for denied
Forms I-539, the application used primarily by spouses and children seeking to qualify as dependents
(e.g., H-4, L-2) of foreign national workers.

Significantly, the Office of Management and Budget is currently reviewing a new rule that will likely
eliminate the eligibility of certain H-4 nonimmigrants for employment authorization. According to DHS
data, USCIS has granted approximately 90,000 EADs to H-4 spouses across the country, and a study by
Forbes suggests that about 75% of those EADs are in use.12 Though this rule could have a huge impact
on the country (the Forbes study found that most H-4 EAD holders, like their H-1B spouses, are highly
educated and highly skilled), OMB review is only the first step in the long rulemaking process. Until the
final rule takes effect, those in H-4 status, eligible to file an EAD application, may continue to do so.

Employers are encouraged to keep abreast of immigration laws, policies, and procedures impacting their
employees’ households. Not only do these issues bear on employee morale and performance but
provide an opportunity for employers to demonstrate their consideration of their employees’ best
interests.

The above discussion provides a general overview of recent developments in immigration law that are
still being studied, interpreted, and even litigated by stakeholders, and does not constitute legal advice.
Readers should consult with competent immigration counsel for advice about their unique
circumstances.
Lisa Locke, Meagan Dziura and Marina Boulos are attorneys at Reston-based Goel & Anderson, LLC
where they counsel employers and foreign national workers navigating the ever-changing business
immigration landscape.

12Ike Brannon, “At What Cost: Assessing the High Cost of Removing H-4 Visa Holder from the American
Workforce,” Forbes, March 5, 2019. https://www.forbes.com/sites/ikebrannon/2019/03/05/at-what-cost-
assessing-the-high-cost-of-removing-h-4-visa-holders-from-the-american-workforce/#2e9ebb103d61.