Immigration Update: H-1B and Immigration under the Trump Administration

1. Immigration Update:H-1B and Immigration under the Trump Administration July 15, 2019

2. With You Today Aaron Blumberg Partner Fragomen, Del Rey, Bernsen & Loewy, LLP Miami, Florida ABlumberg@Fragomen.com

3. Today’s Presentation: H-1B RFEs and Outcomes in 2019 Recent H-1B RFEs Immigration Under the Trump Administration

4. H-1B RFEs and Outcomes in 2019

5. The H-1B Category – In General

6. Requests For Evidence (“RFE”) • If USCIS is not able to approve or deny the case, they may issue an RFE for additional evidence • The RFE may request information/evidence such as: • Copy of an old passport • Proving that the job requires a bachelor’s in a specific field of study

7. Petition Denials without RFE/NOID • Effective September 11, 2018, USCIS adjudicators have broader authority to deny a case without an RFE or Notice of Intent to Deny (“NOID”) if the original submission lacks sufficient initial evidence to establish eligibility for the benefit. • Withdraws a prior policy that allowed an adjudicator to deny a case without an RFE or NOID only if there was no possibility that additional evidence could rectify a deficiency in the filing. • Agency’s broad interpretation of “initial” evidence: • Petitioners and Applicants must ensure initial filing contains evidence of all applicable eligibility criteria. • USCIS is reshaping its Notice to Appear policy to put foreign nationals whose applications are denied into removal proceedings and heighten the scrutiny directed toward applications for nonimmigrant status.

8. FY 2019 • In the first half of FY 2019, the rate of denials and RFE increased for employer-sponsored H1-B petitions: • Declining approval rates • Higher rates of denials and RFE •  Consistent with the Trump Administration's Buy American, Hire American Executive Order. • RFE and denial rates appear to be on track to reach or exceed last year’s highs. • Overall approval rates declined—especially, after an RFE.

9. Significant Increase in RFEs and Denials

10. Common H-1B RFEs

11. Specialty Occupation Requirement • Issue: • USCIS does not believe that position qualifies as a specialty occupation (ie one that requires a bachelor’s or higher in a specific field of study) • Request: Establish eligibility by proving the position meets at least 1 of the following 4 criteria for an H-1B: • 1. Degree is normally minimum requirement • 2.a. Degree common to the industry • 2.b. Position is so complex or unique • 3. Employer normally requires degree or equivalent • 4. Nature of specific duties so specialized and complex

12. Specialty Occupation Requirement • Solution: The Employer must provide: • Very detailed list of Beneficiary’s job duties (including percentage of time) • Similar institutions’ degree requirements in a specific field of study for the same or similar position(s) • Job postings from similar institutions • Information about the position • The Employer’s degree requirement in a specific field of study for the same or similar position(s) • The Employer’s job postings • Other employees’ degree information and paystubs (to prove employment) • Expert opinion letter from an unassociated University Professor (normally costs $600)

13. Specialty Occupation Requirement • Solution: The Employer must provide: • Explanation and examples of work product • Beneficiary’s transcripts and course syllabus to show the courses they completed • Industry associations (maybe CUPA?) showing that a degree in that specific field is common to the industry • ONET/OOH (Dept of Labor websites) showing standard degree requirements for the position in the mind of DOL • Employer letter explaining why that specific type of degree is required and also showing the correlation between the courses the Beneficiary took and the skills needed for the job.

14. Employer-Employee Relationship/Right to Control • Issue: The Beneficiary is working at multiple locations • Sometimes because a University has multiple campuses; other times, because the employee is being contracted out to provide services at a third-party site • Request: Evidence of an itinerary with the dates and locations of the services provided and explanation of whether Beneficiary is still acting as an employee at this location. Required to prove the Employer’s ability to exercise control over the Beneficiary’s work while working offsite, and/or the employer-employee relationship.

15. Employer-Employee Relationship/Right to Control • Solution: The Employer must provide: • Evidence of each worksite; if University owned, include a letter and/or printouts from website or google maps search. If a third-party site, include contracts and letter from that company/site. • The Employer’s control over the Beneficiary (ie supervision, payment, ability to fire, etc.) • The itinerary and schedule for the Beneficiary to perform services at multiple sites • Must include the allocation of time spent at each location.

16. Licensure Requirement Issues • Request: Evidence of state licensure or exemption • Medicine • Must have FL Medical License AND USMLE Steps 1, 2, 3 and ECFMG Certificate • ISSUE: Increase in denials to Medical Faculty/Physicians who have a Medical Faculty Certificate (and not a Full Medical License) • Dentistry • Teaching Permit is required. • Veterinary Medicine • Individual Licensure is not required if the Employer holds a valid Premise Permit and the Beneficiary works only. within the University’s teaching facility. • Professional (e.g., Social Worker, Psychologist) • Individual licensure is not required if the Beneficiary will be supervised by a licensed Professional/Practitioner. • Avoided or resolved with copies of licensed supervisor's complete CV + valid license. • Teaching (Exemption) • Individual licensure is not required if the Beneficiary will be teaching/providing education.

17. Licensure Requirement Issues • Solution: The Employer must provide • The Beneficiary’s license, registration, or certification • If no active and unrestricted license, then evidence of • Temporary license, interim permit, or other authorization • The Beneficiary's exemption from the requirement • E.g., the lack of state licensure requirement to teach Engineering at a University • Reference State Statutes on licensing and exemptions

18. Optional Practical Training (“OPT”) Issues • Issue: Unemployment Periods for Beneficiaries in F-1 OPT and Ensuring that Position related to Beneficiary’s College Major • Solution: The employer must provide: • Letter from OPT employer confirming: • Job Title and Duties • Relationship between position and student’s major • Dates of employment • Part-time or full-time • Salary/wages • Paystubs/W-2s

19. Immigration Under the Trump Administration

20. 2019 – Recent Developments and A Look Ahead **Italicized entries are anticipated events based on existing guidance and agency agendas.

21. H-1B Eligibility Criteria and Wage Requirements • Forthcoming proposed rule would seek a new definition of specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.” • Proposal slated for August 2019. • New definitions of “Employment” and “Employer-employee Relationship” would likely focus on third-party placements. • Possible changes to H-1B wage requirements.

22. New Guidelines on Electronic LCAs and Notice Requirements • The March 2019 Guidance from DOL’s Wage and Hour Division imposes new requirements on notice posting practices for LCAs. • Employers may need to take extra steps to ensure that electronic notices are readily available and accessible to all affected employees, including: • Making sure all affected U.S. workers—including employees of a third-party—are aware of an LCA notice for an occupation at the worksite; • Using “pointer” notices that direct workers to electronic postings; • Ensuring affected workers have ready-access to the electronic notice; and • Ensuring affected workers are able to locate the electronic notice that applies to their specific worksite and their occupations • Failure to meet these obligations could subject the employer to significant penalties, including debarment from the H-1B program.

23. Foreign Students and Exchange Visitor Proposal • The Administration was expected to propose comprehensive revision of practical training rules for F-1 students by October 2018 but deferred. • Increase protections for U.S. workers and oversight of schools and students • Additional employer obligations • Restrictions on 12-month OPT, STEM OPT extensions, and CPT • No change to regulations to allow additional 24 months of OPT for STEM graduates • Future rulemaking to restrict J-1 trainee/intern program will likely not to be published before 2020. • ICE is expected to propose modifying the period of authorized stay for F-1 students from an undefined “duration of status” to a maximum period of authorized stay with options for extensions. • The proposal is slated for publication in September 2019.

24. EAD Delays • EAD cards previously took about 3 months to be issued. • OPT EAD cards are taking about 5 months on average • Most other EADs are taking 5-8 months on average • 180-day automatic extension is only available for certain EAD categories but not available for most

25. Visa Delays in India: Visa Appointments

26. Deferred Action for Childhood Arrivals (“DACA”) • The Supreme Court will review the DACA Termination cases: • 3 federal court rulings that enjoin the Trump Administration from terminating DACA • A decision to come out as late as Spring or Summer 2020 • No changes to DACA until further notice. • Current DACA beneficiaries will be authorized to remain in the U.S. and can continue to apply for renewal of their benefits and work through the expiration of their current authorization. • No new applications are accepted. • DHS is not required to accept applications from those who have not previously received DACA benefits.

27. THANK YOU AARON M. BLUMBERG Partner Fragomen, Del Rey, Bernsen & Loewy, LLPMiami, FLablumberg@fragomen.com https://www.fragomen.com/people/aaron-blumberg