COULD PRES. TRUMP REPLACE THE H-1B LOTTERY WITH A PRIORITIZATION SYSTEM BASED ON SALARY?

One interesting legal question is whether the Trump administration could change the way that H-1B cap-subject petitions are allocated.  Under the current system, if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cap petitions that are filed during the first week of April. 

There is no Congressional authority for the H-1B lottery.  One federal court has said that USCIS’ implementation of an H-1B lottery is reasonable because Congress did not instruct the USCIS what to do if the H-1B cap when oversubscribed.  This case, Walker Macy v. USCIS, was just decided earlier this spring and is now on appeal. 

The Trump administration says that it seeks reform to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”  Could the Trump administration attempt H-1B reform by replacing the H-1B lottery with an H-1B prioritization system based on the “most-skilled or highest-paid petition beneficiaries?”

My read is that it cannot.  As noted in the Walker Macy case, “when Congress is silent about a particular agency (or judicial) interpretation for a long period of time after that interpretation while repeated amendments have been passed, this demonstrates legislative acquiescence to the interpretation.”  In other words, the fact that the USCIS has long been using an H-1B lottery is compelling. 

The random process of the H-1B lottery is also fundamentally fair since it treats all timely -filed H-1B petitions identically.  Surprising to some, Congress has not spoken on the need to prioritize the “most-skilled or highest-paid petition beneficiaries”.  In fact, Congress has set forth a different standard. 

An H-1B is appropriate if a US employer is paying at least the prevailing wage of the occupational classification.  There is nothing in the Congressional statute that favors employers who pay a greater wage.  Therefore, it is dubious whether the Trump administration can implement this change to the H-1B lottery without Congressional action.

WHAT TRUMP CAN AND CANNOT DO TO THE H-1B

The US legal and legislative system framework is one checks and balances.  The legislative branch – the Senate and House of Representatives – creates and passes law, which in most instances must also be signed by a President. 

The executive branch, which now is headed by President Trump, is tasked with administering US federal law.  The President typically works through agencies and departments in order to administer the law.  For instance, the Department of Homeland Security administers laws concerning, among other things, US immigration.  The executive branch’s authority is limited by the underlying law that is passed by Congress. 

(As an aside, the President’s authority to administer law is also limited by the third branch of government—the judiciary.  In the short Trump presidency, we have seen several instances where the judiciary has not backed down from exercising their authority and limiting President Trump’s executive action.)

The scope of an underlying Congressional law is what limits the President.  Accordingly, there are some things that President Trump can consider to do, and other things that he probably cannot do.

Here is our list of H-1B-related changes that President Trump can probably because these actions probably do not exceed the underlying Congressional statute.

• Revoke H-4 / EAD authorization.  This rule was put in by President Obama’s administration.  
• Revoke prior Guidance Memoranda that is favorable to the H-1B program.  In fact, he has already started down this path by revoking a 17 year old memorandum on the approvability of Computer Programmers.
• Increase H-1B employer or employee site visits.  Site visits are clearly within Presidential authority.  Again, the USCIS has recently released a press release notifying US employers of increased site visits.
• Increase obtuse/harassing RFEs and NOIDs.  The President has indicated to DHS that it would like to see DHS use all its power to interpret rules against H-1B users.
• Delay Consular approvals under a cloak of “background checks”.  The President generally has wide latitude to process or delay visa approvals.

Our next post will address whether the Trump administration could change the H-1B lottery to a system whereby H-1B lottery slots were awarded based on another criterion, such as the salary offered to the H-1B worker.

USCIS RECEIVES 199,000 H-1B CAP PETITIONS

USCIS announced on April 17, 2017, that it has received 199,000 H-1B cap-subject petitions, which is about 20% fewer than the 236,000 H-1B cap-subject petitions that were received in 2016 and the 233,000 that were received in 2015.  USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 43% of their H-1B cap filings to be H-1B cap winners.

As announced on March 3, USCIS has temporarily suspended premium processing for all H-1B petitions, including cap-exempt petitions, for up to six months.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Amend the H-1B petition to notify the USCIS of the filing of a new LCA and/or geographic change in employment;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second, contemporaneous part-time H-1B position. 

NOTIFICATION OF NON-ACCEPTANCE OF G-28

USCIS had begun notifying applicants and petitioners when their attorney’s Form G-28 has not been accepted.

The G-28 form is filed by the attorney with the case to notify the USCIS that the applicant or petitioner has a lawyer and that the lawyer should be notified of any updates on the case.

Previously, when USCIS did not accept Form G-28, neither the attorney nor the client was notified of the rejection. The immigration application or petition was simply processed without an attorney on the case.

The American Immigration Lawyers Association raised this issue with USCIS on several occasions, but it was not until the past year that USCIS advised that it was planning to start notifying applicants or petitioners when the G-28 was rejected.

On March 7, 2017, USCIS announced that it has added the following language to receipt notices when a G-28 was not accepted with an application or petition:

A valid G-28 was NOT received with your case. If you wish to be represented, please contact your attorney or accredited representative to submit follow-up G-28 to the USCIS location where your case is pending. For more information on filing G-28, please visit http://www.uscis.gov/forms/filing-your-form-g-28.

The receipt notices that include the above language will only be issued for cases that were filed at a lockbox facility. Cases that are directly filed with a local office will not contain the G-28 notice.

MAY 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

The Department of State has just issued the May 2017 Visa Bulletin.  This is the eight Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

May 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08FEB13	22JUN08	C	C
3rd	15MAR17	01OCT14	25MAR05	15MAR17	01JAN13

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional one month.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date again moved up, but only a few weeks. The China EB-3 again date progressed about six weeks.  This was a smaller progression than the last few Visa Bulletins.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many historical Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India moved up about one day, which is the first one day progression that I can recall.  EB-3 India stayed the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly four more months.  The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, and 2012 EB-3 visas in about 6 months.  This is even more positive than we expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

USCIS LIMITS ENTRY-LEVEL H-1Bs FOR IT WORKERS; ANNOUNCES ADDITIONAL WORKSITE ENFORCEMENT

The USCIS has issued a Policy Memorandum that will likely lead to denial of Computer-related positions where the employer uses a Level 1 OES wage.  Accordingly, MU Law recommends that all clients use at least Level Two OES wages, or use alternative wage surveys.  The new Policy Memorandum takes immediate effect and will be used for all H-1B petitions: H-1B cap, H-1B extensions, H-1B transfers, and H-1B amendments.   

The March 31, 2017 Policy Memorandum rescinds a seventeen-year-old December 22, 2000 Policy Memorandum, issued by Nebraska Service Center then-Director Terry Way.  There is little doubt that the new Policy Memorandum is a direct result of immigration restrictionists in the USCIS who feel emboldened by the new Trump presidency.  It remains to be seen how restrictive USCIS officers will be as they interpret forthcoming computer H-1B petitions.

At virtually the same time, USCIS also has issued additional measures aimed at perceived abuses in the H-1B program.  The April 3, 2017 press release says that these site visits will focus on:

• Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
• H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and 
• Employers petitioning for H-1B workers who work off-site at another company or organization’s location.