End of Summer Immigration Roundup – DACA, Employment-Based Interviews, H-1B RFEs and More

Over the summer of 2017, several significant immigration changes have taken place, including the announcement on September 5 rescinding Deferred Action for Childhood Arrivals (DACA), new requirements for in-person interviews for employment-based permanent residence applications, new denials of advance parole applications, and an unprecedented uptick in Requests for Evidence (RFEs) issued in connection with H-1B petitions, among other important updates. Premium processing for H-1B petitions remains halted except for limited physician and cap-exempt cases, the J-1 visa program may see changes, a new Form I-9 is required for use by all employers on September 18, and the Visa Bulletin has impacted certain EB-1 applicants that typically do not face backlogs.

Rescission of DACA

On September 5, 2017, Attorney General Jeff Sessions announced that the Trump administration would wind down DACA in six months to allow Congress to find a legislative solution. According to the Department of Homeland Security (DHS), current DACA beneficiaries will retain their approved period of deferred action and their employment authorization documents (EADs) until they expire. Beneficiaries who have initial or renewal DACA requests pending as of September 5, 2017, will see their applications adjudicated. DACA beneficiaries whose EADs will expire between September 5, 2017, and March 5, 2018, must file renewal applications by October 5, 2017.

At a press briefing on September 5, White House Press Secretary Sarah Huckabee Sanders indicated that Congress should focus on “really big fixes and [immigration] reform,” not simply addressing the expiring DACA program.

USCIS Expands In-Person Interview Requirements for All Employment-Based I-485 Permanent Residence Applications

On August 28, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it will impose an in-person interview requirement for all employment-based permanent residence applications. These in-person interviews will start on October 1, and USCIS has indicated that it will “phase in” interviews for the following:

• Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status)
• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant

Previously, applicants in these categories did not require an in-person interview at a local USCIS office in order for their I-485 adjustment of status application to be approved. Marriage-based permanent residence applications have always required an in-person interview. It has been more than 15 years since local USCIS offices routinely conducted interviews for employment-based I-485 applicants.

USCIS has not yet provided additional guidance on the format for these in-person interviews and if local USCIS offices and officers will receive more manpower and training for the volume of cases that will now impact these offices. An added interview will mean additional backlogs and delays for many foreign national employees awaiting permanent residence, including those from India and China, who have been waiting several years or more to become permanent residents.

USCIS Denying Advance Parole Applications for Adjustment of Status Applicants Who Travel Before Advance Parole Applications Approved

In August, USCIS started to deny I-131 advance parole applications for abandonment where the applicant traveled abroad during the pendency of the application. Such denials have occurred with both initial and renewal I-131 advance parole applications, and included those applicants in valid H or L status who have the ability to travel in valid H or L status after the filing of an I-485 adjustment of status application pursuant to immigration regulations. With these reports, the American Immigration Lawyers Association (AILA) contacted the USCIS Service Center Operations Directorate (SCOPS) about this issue. In response, SCOPS indicated that the new policy was intentional even though prior USCIS policy and practice was to the contrary. There have been some rumors that USCIS may retract this policy. However, no specific guidance has been issued or released since the SCOPS discussion with AILA in mid-August. Therefore, applicants with initial or renewal I-131 applications for advance parole must review their travel situations to ensure that they have proper travel documents now and in the future as denials for abandonment will cause future travel delays and issues for I-485 applicants.

USCIS Issuing RFEs on Level 1 and Level 2 Wages on Labor Condition Applications for H-1B Petitions

There have been widespread reports of USCIS issuing Requests for Evidence (RFEs) in H-1B petitions where the underlying Labor Condition Application (LCA) uses a Level 1 or Level 2 prevailing wage. As part of an H-1B petition, the employer is required to include a certified LCA from the Department of Labor. The employer indicates on the LCA the offered salary as well as the corresponding DOL category and wage level appropriate for the occupation. Level 1 is for entry-level jobs where the employee works under close supervision. Level 2 is intended for “qualified” employees who perform moderately complex tasks.

USCIS is now issuing RFEs questioning the use of these two wage levels. The RFEs request additional information to refute the claim that 1) a Level 1 wage is not appropriate because the job duties are complex enough to warrant a high wage level and/or 2) the Level 1 wage is not appropriate for a specialty occupation because it is an entry level position. In the Level 2 cases, USCIS is requesting additional information to prove the occupation is a specialty level occupation. USCIS is also continuing to question H-1B positions as specialty occupations in H-1B cap and H-1B change of employer cases where Level 1 and Level 2 wages are not indicated in the LCA.

While USCIS analysis of whether a position qualifies as a specialty level occupation is not new, the rash of RFEs questioning the use of Level 1 and Level 2 wages is.

Premium Processing for Most H-1B Petitions Remains Halted

As noted in our June 26, 2017, legal update, premium processing for H-1B petitions filed with USCIS for physicians under the Conrad 30 Waiver program resumed on June 26. Premium processing was also resumed by USCIS for certain H-1B cap-exempt filings on July 24, 2017. However, premium processing service (where petitioners may receive a decision within 15 days of filing for an additional $1,225) for all other H-1B petitions remains suspended. Some reports indicate that premium processing may return for some or all H-1B petitions in early October. However, USCIS has not provided any official guidance on when H-1B premium processing will return for all cases.

Potential Changes Looming for J-1 Visa Program

The Trump administration is also considering significant changes to the J-1 exchange visitor visa program as part of the “Buy American Hire American” Executive Order signed in April. Reports indicate that the Trump administration may reduce the overall number of J-1 participants, is considering eliminating the trainee and intern programs, and could increase the number of site visits and audits. No specific regulatory or policy change has yet been implemented by the Department of State or other government agencies.

Summer Visa Bulletins Have Impacted EB-1 Applicants From India and China

Although there are typically no backlogs for First-Preference Employment-Based (EB-1) immigrant visa applicants, the June visa bulletin saw that EB-1 dates for India and China retrogressed to January 1, 2012. This continued with the July and August visa bulletins. According to the Department of State’s Chief of the Visa Control and Reporting Division, Charlie Oppenheim, those dates will likely become current again in the October visa bulletin.

New Form I-9 Must Be Used by All Employers as of September 18

On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) released a new version of the Form I-9. Employers will be required to use the new version starting September 18, 2017, and using earlier versions of the form will not be acceptable after that date.

Employers need to use the new form with the 7/17/2017 revision date as of September 18 and to ensure that HR teams and others responsible for completing Section 2 of Form I-9 are aware of the small changes outlined in our July 18 legal update to ensure no inadvertent discrimination or noncompliance in completing I-9s for employees.

Conclusion

More and more changes to immigration law and policy keep coming since the Trump administration took office in January. Future changes are inevitable, and will be monitored closely.