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  1. New USCIS Memo Makes it Harder to Approve Employment-Based I-129 Extension Petitions and Could Create Many More RFE's and Denials. Roger Algase

    Almost immediately on being confirmed as the new USCIS Director, Lee Francis Cissna, an immigration critic and former staff worker for Charles Grassley (R-Iowa), one of the Senate's most virulent opponents of H-1B and other legal immigration programs, see:

    announced a dramatic change in adjudications policy regarding extensions of already approved H-1B and other employment based I-129 petitions.

    Up to now, as an October 23 USCIS memo correctly states, extension petitions for already approved I-129 petitions with the same employer, without any change in job duties, have been routinely approved unless there was some glaring mistake in the original approval. As the new USCIS memo states:

    "The previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination."

    The memo continues, ominously:

    "The updated policy guidance rescinds the previous policy."

    The memo then concludes by saying that, in effect, even in a routine extension case, the petitioner will now need to relitigate the entire case, and show all over again that the offered position and beneficiary are qualified for H-1B approval.

    In the context of Trump's Hire American policy, mentioned in the memo, which policy is in open conflict with not only the H-1B law, but with the laws relating to many other employment-based non-immigrant visa categories (such as O-1, L-1 and R-1) which do not require a labor certification or giving preference to US workers, the new memo is an obvious invitation to USCIS adjudication officers handling I-129 extension cases to look for reasons to overturn previous approvals - all in the name of protecting "the interests of US workers" to quote from the memo.

    One can expect that the new USCIS memo will lead to a blizzard of RFE's and denials of routine employment-based extension petitions.

    Sabotaging the employment-based legal immigration system is the obvious intention of the new policy, which is clearly designed to discourage and cause confusion and uncertainly for US employers who wish to hire or extend the employment of foreign workers in any category. This includes, but is not limited to, the highly skilled professionals whom the sponsors of the RAISE Act claim that they intend to favor by eliminating or drastically reducing key family and less skilled worker green card categories.

    The new memo, which could even be the prelude to large-scale attempts to revoke previously approved employment-based petitions before they come up for renewal (though there is no indication of this so far), shows exactly how hollow, if not fraudulent, the claim of the RAISE Act's supporters is that the purpose of that bill is, allegedly, to make America's immigration system more "merit-based".

    Under this new USCIS memo, immigrants with the most "merit" - the highly educated, highly skilled and professional workers who are doing the most to benefit our economy by making American employers more competitive and create more jobs for American workers, will be the ones who are hurt most of all.

    The only people who benefit will not be American workers - whom the Trump administration and its Congressional and state legislative allies are trying to devastate by union busting, opposition to minimum wage and equal pay legislation, and destroying their health insurance and environmental protections.

    The main beneficiaries of this memo will be Trump's white nationalist supporters who are looking for one more (of many) excuses to keep Asian, Middle Eastern, Latin American and other non-European immigrants out of the United States.

    The full memo is available at:

    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.

    Roger's practice is concentrated mainly in H-1B specialty occupation and O-1 extraordinary ability work visas, J-1 training visas; and green cards through Labor Certification (PERM), and through opposite sex or same sex marriage and other family relationships. Roger's email address is

    Updated 10-24-2017 at 12:02 PM by ImmigrationLawBlogs

  2. Court Rules for DOL in H-1B Backpay Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A New York federal judge, Edgardo Ramos, sided with the U.S. Department of Labor (DOL) in a lawsuit by private equity firm, Aleutian Capital Partners, arising out of an investigation into alleged violations of the H-1B visa program, the company liable for nearly $23,000 in back wages to two employees stating the DOL’s Administrative Review Board (ARB) properly ruled. See Aleutian Capital Partners v. Perez (S. D. NY 2017).

    Judge Ramos rejected arguments by Aleutian that it was exempt from meeting the requirement for financial analyst and H-1B participant Shakir Gangjee because the company exceeded two annual wage requirements of $60,000 through supplementary bonuses, which were “nondiscretionary payments” equal to 3 percent of Aleutian’s revenue each month. The judge found the ARB determined Aleutian did not provide documentation showing its commitment to making the bonus payments to Gangjee.

    Furthermore, Judge Ramos agreed with the ARB that the bonus structure was insufficient because Gangjee’s wages were contingent on the revenues of Aleutian.

    “The ARB’s interpretation is supported by the fact that Sec. 655.731(c)(4) requires employers seeking to make nondiscretionary payments to show ‘unequivocally’ that the required wage obligation was ‘met for prior pay periods’ and ‘will be met for each current or future pay period,” Judge Ramos wrote. “It is reasonable to conclude that such showing can be made only if the nondiscretionary payments are guaranteed and not contingent. Accordingly, the Court defers to the ARB’s interpretation.”
  3. Letters of the Week: October 23 - October 29

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