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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    H-1B extension based on an approved I-140 under section 104 is only necessary if a labor certification has been pending for less than a year. Once more than a year has elapsed after the Labor Certification is filed, whether approved or not, as long as it is still pending or valid, extension under Section 106 is available and there cannot be any possible argument that the DHS has the discretion under the statute to deny an extension.

    Therefore, while extension under Section 104 is of course more convenient, since it can be for up to three years at a time instead of just one year at a time, it is not essential except in cases where the initial six years of H-1B run out before one year has passed after filing the Labor Certification.

    Roger Algase
    Attorney at Law
  2. ImmigrationLawBlogs's Avatar
    At least Trump seems to be consistent about appointing more than a few incompetent, biased or allegedly ethically challenged people to high positions where they can do a great deal of damage.

    Roger Algase
    Attorney at Law
  3. ImmigrationLawBlogs's Avatar

    I don't think those are the key points. See my article, We don't need a terrorist attack to know diversity program has to go (November 3, 2017),

    Nolan Rappaport
  4. ImmigrationLawBlogs's Avatar
    The previous green card lottery program, AA-1, which ran from 1992 to 1994, and was available only to applicants from mainly white countries with very few exceptions, and had big set-asides for Ireland and Poland only, provided for automatic waivers for visa fraud and previous deportation. I know this from experience because I represented an applicant in this program (one of the few who was not from Europe) who needed and received both waivers without the slightest difficulty.

    The DV lottery program, which Trump and his white nationalist supporters want to abolish, since most of the beneficiaries are from Africa and Asia rather than Europe. contains no such automatic waiver provisions.

    I am mentioning this only as an historical footnote, of course.

    Roger Algase
    Attorney at Law
    Updated 11-10-2017 at 09:39 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Although it certainly is likely that the Supreme Court will drop the travel ban case on the ground that it is moot, I hope that doesn't happen. The problem with the travel ban decisions is that they are based on Trump's campaign statements and other external evidence and not on the language of the travel ban order. This means that unless the Supreme Court intervenes, anything Trump does which has a negative effect on a predominantly Muslim country is likely to be struck down on religious discrimination grounds.

    Nolan Rappaport
  6. CMusillo's Avatar
    @Noah - There is no evidence that this cuts down on abuse. (BTW, this helps immigration attorneys. We get more work from this stupid policy decision, not less. But most of us didn't get into immigration law to grind out fees from nonsensical work.)
  7. ImmigrationLawBlogs's Avatar
    There is no longer any reason (if there ever was one), to hold back or avoid mentioning the grim reality behind the Trump administration's mounting agenda of placing barrier after barrier in the way of legal immigration, as shown, among many others of his statements and actions on immigration too numerous to mention specifically, but including, most recently, his pardon of Joe Arpaio and Trump's threat to shut down the government if he doesn't get his way on funding for the border Wall:

    America now has a president who thinks that America already has too many non-white, non-European immigrants, and who doesn't want any more to come to or stay in this country.

    Roger Algase
    Attorney at Law
    Updated 08-30-2017 at 07:15 AM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    This appears to be more threats and intimidation aimed primarily against skilled legal immigrants and their employers in pursuit of the Trump - Bannnon -Sessions agenda of making America Great Again for white immigrants only, and taking America's immigration system back toward the overtly racially discriminatory quotas which prevailed for 40 years, from 1924 to 1964.

    Along this line, we can probably expect more RFE's than ever before in the Cap Subject H-1B cases that made it past the lottery in April of this year.

    I will discuss an exceptionally egregious RFE which I received in one of my own H-1B cases in a separate comment.

    Roger Algase
    Attorney at Law
    Updated 06-09-2017 at 08:28 AM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    As this article points out, there is no legal authority for replacing the random lottery with selection based on salary, and, based on lottery results received in my office so far, I see no evidence of any attempt to have done that in this year's just completed lottery.

    However, a related question is whether between now and the beginning of the new fiscal year on October 1, 2017, the Trump administration might try to change the regulations governing approval of H-1B petitions in order to deny petitions which are in compliance with current prevailing wage standards but still have a relatively low annual salary.

    Roger Algase
    Attorney at Law
    Updated 04-27-2017 at 02:25 PM by ImmigrationLawBlogs
  10. ImmigrationLawBlogs's Avatar
    I do not normally belong to the school of thought along the lines of "How can Trump get to be any worse than Obama already was" which Matt Kolken has been arguing in favor of with regard to Trump's mass deportation agenda, but as the recipient of at least my fair share of biased and otherwise ludicrous RFE's during the Obama administration, it is hard for me to see how Trump could make decision making on the merits of H-1B cases any worse or more unfair that it already was during the Obama years.

    If this happens, however, one should expect an increase in federal court litigation in order to force USCIS to follow the H-1B rules.

    Having said that, the executive branch has a great deal of power to change the H-1B regulations under the APA, and use of that power by the Trump administration in support of its apparent goal of the whitening of America by cutting back of all forms of immigration under one pretext or another should not be ruled out.

    Roger Algase
    Attorney at Law
    Updated 04-26-2017 at 03:21 AM by ImmigrationLawBlogs
  11. CMusillo's Avatar
    Hi Roger,

    Thank you for the comments.

    Addressing your points:

    1. Yes- the Memo only addresses programmers. My personal experience is that most IT positions with Level 1 designations are getting RFEs and may get denials. Having said that good lawyering and well-prepared cases can lead to successful level one petitions.

    2. I did not say that there would be "automatic denials". I said, "likely," not "automatic". I think that we are in agreement.

    Likewise, I agree that in many occupations, level two is the new "entry" wage level. However I think level one is still fine for some occupations, e.g. licensed occupations where the degree prerequisite is at least a bachelors in a specific specialty, such as Physical Therapist.
  12. ImmigrationLawBlogs's Avatar
    I do not entirely agree with Mr. Musillo's interpretation of the March 31 USCIS memo relating to IT professionals.
    First of all, the USCIS memo relates only to Computer Programmer, which has been regarded as a lower level computer position on the borderline between specialty occupation and non-specialty for quite some time, according to the last several editions of the OOH.

    The USCIS memo does not discuss computer or IT occupations in general, but only programmers..

    Second, the USCIS memo does not provide for automatic denial of a a programmer or any other H-1B petition merely because the LCA used to support the petition may have been at Level 1 (entry level). The March 31 memo still leaves open the possibility that a Level 1 LCA petition could be approved for a computer programmer or any other H-1B offered position.

    Nevertheless, as a matter of caution, I have been recommending to my H-1B employer clients to file their LCA's for any occupation at Level 2 or highter, no matter what the position is.

    This is because I have seen some H-1B cases in which USCIS examiners assume that no entry level job in any field can possibly qualify as a specialty occupation, even though this view directly contradicts the H-1B law.

    Finally, it is highly suspect that USCIS issued this memo on the deadline day itself for sending out FY 2018 cap-subject H-1B petitions, when it was too late for any employers who had filed LCA's at Level 1 to change.

    I would agree with Mr. Musillo to the extent that by the timing of the memo, if not the actual content, USCIS was doing whatever it could to make approvels more difficult for at least a limited subset of H-1B employers - those who were sponsoring Computer Programers at entry level (LCA Level 1) salaries.

    Roger Algase
    Attorney at Law
  13. CMusillo's Avatar
    Hi Roger,
    The USCIS used to have to make the announcement, but they changed the law in 2008. It is a full regulation. Our firm usually tries to file the bulk of the cases on the first night (i.e. we will file 100s of H-1B tonight for delivery on Monday, the first day of the H-1B cap), but most years we have a few dozen petitions that we file during days 2-4. We have seen no difference in the success/failure of H-1B lottery petitions for those filed later in the week.

    73 FR 15389, 15392
    “ Final Receipt Date When Cap Numbers Are Used Up Quickly This rule provides that USCIS will include petitions filed on all of those first five business days in the random selection process if USCIS receives a sufficient number of petitions to reach the applicable numerical limit (including limits on exemptions) on any one of the five business days on which USCIS may accept petitions. This will eliminate filing problems resulting from a rush of filings made on the first day on which employers may file petitions for the upcoming fiscal year. See revised 8 CFR 214.2(h)(8)(ii)(B).”

    8 CFR 2142.(h)(8)(ii)(B).
    “If the final receipt date is any of the first five business days on which petitions subject to the applicable numerical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days, conducting the random selection among the petitions subject to the exemption under section.”
  14. ImmigrationLawBlogs's Avatar
    Where does the USCIS FY 2018 H-1B cap notice which was posted on its website on March 15, 2017 say anything about accepting H-1B Cap subject petitions up until April 7, 2017?

    It only says that they will be accepted up until the cap is reached, which will almost certainly be on the first day that petitions are received, April 3, 2017.

    Unlike USCIS notices for last year and other recent years, this year's notice does not say anything about continuing to accept cap subject petitions until the end of the first week of April.

    Neither does this year's notice say anything about conducting an H-1B lottery, again in contrast to the notices in other recent years.

    Is there any reason to believe that these omissions from this year's USCIS notice were just by oversight?

    Or could we possibly be surprised by some unexpected policy changes next week?

    See my blog comment in the March 29 Immigration Daily issue.

    Roger Algase
    Attorney at Law

    Updated 03-31-2017 at 11:04 AM by ImmigrationLawBlogs
  15. ImmigrationLawBlogs's Avatar
    You are right that the situation is fluid. The executive orders authorize agency heads to add more countries to the travel ban list, and while a ten day warning was given before the revised version goes into effect, there is no guarantee that such warnings will be given for future changes.

    Nolan Rappaport
  16. ImmigrationLawBlogs's Avatar
    Contrary to the impression that has been created by some media reports about the temporary Premium Processing suspension for H-1 cases, there is no indication in the language of this announcement that it is related to any larger Trump administration goal of cutting back on immigration, by skilled workers, Muslims, or non-European immigrants in general.

    This seems instead to be a lower-level bureaucratic attempt to reduce overall H-1B procesing backlogs.

    Roger Algase
    Attorney at Law
  17. ImmigrationLawBlogs's Avatar
    Great idea! What will Steve Bannon and Jeff Sessions be whispering in Trump's ear about this one?

    The chances of getting such a bill signed are even less than the almost zero chance of getting it passed in this Republican-controlled Congress.

    And why are the Democrats so weak on impeaching Trump? Are they going to wait until he proclaims the entire Democratic party an "Enemy of the People" and starts arresting everyone who voted for Hillary Clinton?

    Roger Algase
    Attorney at Law
  18. CMusillo's Avatar
    Thanks Nolan. Strictly speaking you are, of course, correct. Having said that, the administration appears to be interpreting it in a way favorable to green card holders.
  19. ImmigrationLawBlogs's Avatar
    FACT: In late January, President Trump issued an Executive Order banning entry to the US for individuals from Iraq, Iran, Yemen, Syria, Somalia, Sudan, and Libya. The travel ban included all individuals from the seven listed countries holding a US visa, but did not include green card holders or dual nationals.

    Only partially true: The 90-day ban does apply to green card holders (lawful permanent residents). This is one of the problems the government has had in defending it. But the DHS Secretary issued the following statement shortly after the executive order was issued:

    Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States

    Release Date:
    January 29, 2017

    For Immediate Release
    Office of the Press Secretary
    Contact: 202-282-8010

    WASHINGTON – In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.

    Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.
    # # #

    Nolan Rappaport

  20. ImmigrationLawBlogs's Avatar
    Is this merely some tweaking in the H-1B law, or is it a small step toward taking America back toward the ultimate goal of reinstating the Northern-European whites only immigration policies of the 1920's?

    With the upcoming Trump administration, no one can tell, and that is what makes the picture so disturbing.

    Roger Algase
    Attorney at Law
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