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Posts Tagged ‘Visa’

Hooray! My Employee’s H-1B Visa Was Finally Approved! Now Why Am I Getting This Revocation Notice?

Posted on: June 19th, 2019

By: Ken Levine

For the past two years, USCIS has ramped up revocations of approved H-1B petitions. While there are no reliable government statistics, word of mouth in the immigration legal field, as well as increased federal litigation concerning H-1B revocations, clearly underscores the existence of this trend.

Under 8 C.F.R. 214.2(h)(11) USCIS must satisfy at least one of the below criteria in order to initiate H-1B revocation proceedings:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition; or (2) The statement of facts contained in the petition was not true and correct; or (3) The petitioner violated terms and conditions of the approved petition; or (4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or (5) The approval of the petition violated paragraph (h) of this section or involved gross error.

In particular, USCIS has taken to stretching the bounds of “gross error” criteria to justify revocation of petitions for occupations that USCIS now believes do not merit recognition as a specialty occupation. An example of this approach can be found in the Service’s increased attempts to revoke approved H-1B petitions for Systems Analyst or Market Research Analyst positions.

As well, USCIS has substantially increased scrutiny on H-1B workers in the information technology field. Employers in the IT field must be especially diligent in filing amendments when there are changes to the terms of the position or location of employment. Even minor position changes that come to light through a USCIS audit can easily trigger an H-1B revocation notice.

DOES AN EMPLOYER HAVE ANY DEFENSES TO AN H-1B REVOCATION?

The regulations allow for an employer one opportunity to rebut the basis of a USCIS revocation. USCIS must send a summary outlining the specific reasons why revocation has been initiated.  Employers are then given 30 days to file a response. If the response is deemed persuasive then USCIS will uphold the validity of the approval.  Otherwise, USCIS will formally revoke the petition.

However, just because a petition has been revoked does not mean the matter must end there. Employers who believe that the Service’s decision to revoke their H-1B petition was unwarranted should strongly consider challenging the revocation in Federal Court. Federal Judges are reluctant to afford deference to USCIS decisions if those decisions are not logical, rational or well founded.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

USCIS Reverses Course – STEM OPT Students May Now Work At 3rd Party Client Sites

Posted on: September 18th, 2018

By: Ken Levine

On August 17th U.S. Citizenship and Immigration Services (USCIS) posted an announcement on their website to publicize the agency’s decision to once again allow STEM OPT F-1 students to engage in training programs at a third-party client worksite.  This update supersedes the Agency’s policy change in April 2018 which disallowed STEM OPT students from being placed at 3rd party client sites.

This new guidance essentially restored an employer’s ability to place OPT students in a science, technology, mathematics or engineering (STEM) field at a 3rd party client site, so long as all applicable training obligations are met, and a bona fide employer/employee relationship is maintained for the full duration of the assignment.

This USCIS policy reversal was welcome news for the many U.S. employers who had historically trained their OPT personnel by placing them at 3rd party work sites.  However, it is extremely important that employers be vigilant in ensuring that the training is in full compliance with the I-983 training program. Companies that sponsor their OPT employees for an H-1B visa should expect that USCIS will closely scrutinize the OPT training program details.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Ken Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Foreign Students and Exchange Visitors Beware!

Posted on: May 15th, 2018

By: Layli Eskandari Deal

On May 10, 2018, USCIS published a Policy Memorandum to provide guidance on how the agency will be calculating unlawful presence for F-1, J-1, and M-1 nonimmigrant visa holders and their dependents.

Generally, foreign students and exchange visitors are admitted to the United States for “Duration of Status”.  This means that the student or the exchange visitor is admitted to the United States for as long as the individual is still doing the activity for which the visa was issued.  For nonimmigrant (F-1 and M-1) this is generally for the duration of time that they are full time students plus the time they are in their period of authorized practical training.  The length of time generally depends on their course of study.  For Exchange Visitors (J-1) this is the period of time for their program to be completed.  Previously, unless USCIS or an Immigration Judge affirmatively terminated the status, F-1, M-1 and J-1 visa holders and their dependents would not accrue unlawful presence in the United States.

USCIS is now providing the following guidance, which is a significant change in how USCIS has treated “Duration of Status” in the past:

Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:

  • The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Accruing unlawful presence can prevent an individual from being able obtain a change of status to another visa category while in the United States or obtaining a new visa at a US Embassy or Consulate.  It can also prevent an individual from obtaining US Residency (green card).  It is very important that international students and exchange visitors understand this new guidance and confer with their immigration attorney regarding any questions.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

H-1B Visa Lottery: More Than One Ticket to the Jackpot?

Posted on: April 5th, 2018

By: Layli Eskandari Deal

The answer is No.  U.S. Citizenship & Immigration Services (USCIS) has adopted a ruling made by the Administrative Appeals Office (AAO) to prohibit multiple H-1B visa request by related entities on behalf of the same beneficiary for the same fiscal year.

Under the H-1B visa cap, employers are only allowed to submit one visa petition on behalf of a beneficiary.  Multiple filings are prohibited. The underlying case arose from USCIS revoking an approved visa petition reasoning that that the employer and a “related entity” had filed for the same beneficiary under the visa cap.

Matter of S-, Inc. (AAO March 23, 2018) clarifies that that the term “related entities” includes “employers, whether or not related through corporate ownership and control, that file cap-subject H-1B visa petitions for the same beneficiary for substantially the same job.  Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, U.S. Citizenship & Immigration Services will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.”

In making its decision, the Administrative Appeals Office points to regulation and ultimately fairness in the visa number allocation process.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Planning To File Your 2018 H-1B Cap Case Under Premium Processing? Not So Fast…

Posted on: March 27th, 2018

By: Kenneth S. Levine

On March 20th USCIS announced an indefinite suspension of the premium processing program for H-1B visa petitions that are subject to the 2018 statutory cap.  The annual statutory cap limits the total of H-1B visas that can be approved in any one year to 85,000, 20,000 of which are set aside for foreign nationals who obtained a Master’s degree from a regionally accredited college or university in the U.S.

H-1B cap exempt petitions, which applies to higher education institutions, non-profits affiliated with a higher education institution and non-profit or governmental research organizations, remain eligible for premium processing.

The USCIS announcement made clear that any H-1B petitions that include a request for premium processing would simply be rejected and returned to the employer. The suspension of the premium processing service does not apply to petitions for renewals, amendments or transfers of H-1B visas.

It should be noted that USCIS also suspended premium processing in March 2017 for H-1B cap and cap exempt cases.  The program was reinstated around 6 months later.  Therefore, FMG Immigration Attorneys are cautiously optimistic that premium processing for soon to be filed H-1B cap cases will resume in October 2018.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].