All posts by Cheng, Cho, & Yee, Immigration Lawyers

Trump Temporarily Halts New H1-B and Other Job Visas

President Trump has recently suspended H-1B and other types of visas, a move that many businesses are opposing because of the prevention of recruiting foreign talent from abroad.

The Executive Order Blocking Work Visas

In late June, Trump signed an executive order barring as many as hundreds of thousands of workers from other countries from entering the U.S. workforce. The effort comes as part of the Trump administration’s attempt to limit immigrant entry into the U.S.

The order will be in effect at least until the end of 2020, and it blocks visas for many types of jobs, including jobs in computer programming and other positions open to skilled foreign workers, many of whom enter the U.S. on H-1B visas. The order also affects other individuals including students visiting the U.S. while engaged in work-study programs during the summer, seasonal workers employed in the hospitality industry, and other au pairs who work in the U.S.

In addition to preventing immigrants from entering and working in the U.S., the order also prevents American companies with international operations and international enterprises with U.S. locations from transferring employees to the U.S. for periods of months to years. Under the new order, the spouses of foreign workers employed in the U.S. are also blocked.

Opposing the Order

President Trump described the suspension of H-1B and other visas in the order as a means to help put American workers first when filling positions for scarce jobs, which immigration advocates claim doesn’t account for an evolving, dynamic workforce.

Business leaders have also been quick to oppose the order, saying it will prevent them from recruiting vital workers from abroad for positions that many American workers are either unwilling to perform or incapable of performing. 

U.S. Chamber of Commerce chief executive Thomas J. Donohue told the New York Times, “Putting up a ‘not welcome’ sign for engineers, executives, IT experts, doctors, nurses and other workers won’t help our country, it will only hold us back.”

Attempts to block the order failed to prevent it from going into effect.

The order comes as the Trump administration has worked to slow immigration into the U.S. in the long-term. In April, Trump signed a previous order that suspended the issuance of green cards for 60 days to a majority of foreigners who wished to live in the U.S. The new order extended that restriction while also blocking individuals with work visas.

Immigration Interview? Here’s What NOT to Do

If an individual applying for immigration is required to undergo an immigration interview with the Bureau of U.S. Citizenship and Immigration Services (USCIS), there are certain things to do and avoid doing throughout the interview. Any missteps during an interview could harm an individual’s chances at approval, so it’s best to learn how to approach an interview beforehand.

What to Do in an Immigration Interview

To perform well in an immigration interview, individuals can do the following:

  • Prepare for the interview with all necessary documentation, including original documents, with the ability to answer questions regarding each document.
  • Follow the USCIS officer’s instructions, including interviewing alone if the USCIS officer requests separate interviews with each spouse.
  • Be an active listener and only respond to questions that the officer asks.
  • Be ready to answer any questions pertaining to marriage to a U.S. citizen.
  • Dress formally in business or business casual attire, similar to a job interview.
  • Bring an interpreter if needed.
  • Show up on time, which will make the interviewee appear responsible and help avoid the pain of rescheduling an interview.
  • Consider having an attorney present at the interview if there’s any uncertainty about the process.

What Not to Do

Keeping in mind what to do, the following are some things to avoid during the interview:

  • Arguing with a spouse or other family member at any point, which can harm the officer’s perception of the interviewee.
  • Engaging in overly casual conversation with the officer, including any jokes or sarcasm around sensitive topics such as smuggling, drug dealing, or other criminal behavior.
  • Lying at any point to the officer if there’s discomfort around a certain question
  • Becoming impatient with the officer and avoiding answering questions.
  • Arguing with the officer.

If an individual experiences any discomfort throughout the interview, it’s important to remain polite and avoid displaying any aggressive or elusive behavior that the officer could perceive as either malicious or otherwise troubling. In many cases, having an immigration attorney present can be a good way to avoid potential issues throughout the interview. An attorney may also be able to help keep the interview process smooth throughout if any difficulties arise.

Taking the right steps during an immigration interview can mean the difference between the approval and denial of an immigration application. 

H-1B Visa Holders Do Not Adversely Affect US Workers: Report

A recent report found that H-1B visa holders don’t negatively impact US workers. In fact, the report discovered that the presence of these visa holders helped boost employment in other occupations.

Avoiding Restrictions on H-1B Visas

The new report from the National Foundation for American Policy stated that the research that appears within should cause policymakers to reconsider further restricting the H-1B program. The main reason is that the report discloses that additional restrictions won’t help American employees.

In fact, evidence detailed in the report found that the presence of H-1B visa holders may actually help reduce unemployment rates and increase income growth among many individuals, including young people who recently graduated from college and are ready to enter the workforce. Additionally, the report revealed that US-born college graduates will have more opportunities to align their occupations with their degrees.

The study collected data spanning from 2005 to 2018 to determine precisely how a number of approved H-1B petitions to hire visa holders impacted the unemployment rate and income growth rate for their respective occupations. Ultimately, the report showed that as the number of workers with an H-1B visa in a specific occupation increased, the average unemployment rate saw a decrease in that occupation. The report specifically discovered that as the share of workers with an H-1B visa increased by one percentage point, the unemployment rate in that occupation decreased by around 0.2 percentage points.

Improving Employment for US-Born Workers

Many critics often claim that H-1B visas result in lower wages or earning growth, but the report contradicts those claims as it reveals how those visa holders don’t hurt the American job market and employment. With more approved initial or total petitions for H-1B visas in place, on average, there is a reduction in the unemployment rate within occupations corresponding to recent college graduates’ majors.

The report also detailed how the H-1B program is still small compared to the size of the college-graduate workforce in the US, accounting for a total of a maximum of two percent of US workers with higher education.

H-1B visa holders are mainly concentrated in computer-related jobs, but they only comprise a small number of workers in the information technology (IT) industry.

Contrary to what critics believe, the research concluded that the presence of workers on H-1B visas helped improve employment, productivity, and profitability for US businesses.

How is a National Interest Waiver Different For Physicians?

As the demand for more foreign-born physicians grows due to the COVID-19 pandemic, physicians may be able to acquire green cards through a national interest waiver (NIW). 

How an NIW Works for Physicians

The need for immigrant physicians is greater than ever, as the American Hospital Association and the American Organization for Nursing Leadership have both made clear through the request for reinforcements. Through a physician NIW, immigrant physicians can get a green card from U.S. Citizenship and Immigration Services (USCIS) if they meet all criteria in place.

The second-preference employment category (EB-2) is what enables certain individuals of exceptional ability, including physicians who hold advanced degrees, to obtain permanent residence.

Typically, both a job offer and labor certification are required to obtain EB-2s. However, these requirements may be waived if petitioners can establish that granting the EB-2 petition will benefit the U.S.

The USCIS may grant an NIW if a physician agrees to work for a specific period of time within an area that’s currently underserved.

What Is Needed for an NIW?

There are some criteria in place to get an NIW. These requirements include:

  • Agreeing to work full-time in a legitimate clinical practice for five years, unless otherwise specified
  • Working in an area of primary care (e.g., family practice petitioner, pediatrician, general practitioner, psychiatrist, gynecologist, obstetrician, or a general internist), or working as a specialty physician
  • Serving in either a medically underserved area (MUA), Veterans Affairs facility, Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA) as a psychiatrist, or in a Physician Scarcity Area (PSA) for qualified health care specialists
  • Obtaining a statement from either a state department or federal agency that is knowledgeable regarding the physicians’ qualifications, and which states via an attestation that the physician’s work is in the public’s best interests

To apply for a green card, physicians will need to file Form I-485, Application to Register Permanent Residence or Adjust Status.

The Importance of Physicians

A growing number of health care workers are needed to help handle the COVID-19 pandemic, particularly now as states begin to reopen their cities in an effort to return to a state of normality. In the process, immigrant physicians may be able to effectively prove their necessity in the U.S. and more easily gain permanent residence with a national interest waiver.

Why H-1B Applications Get Denied

There are ten main reasons that the U.S. Citizenship and Immigration Services (USCIS) has given for its denial of H-1B applications for workers. These reasons could involve either employees or employers.

To avoid potential issues when applying for an H-1B work visa and keep the application process smooth, understanding what the petition will require can make sure that any problems are avoided from start to finish.

The Importance of Drafting a Good H-1B Petition

To draft a good H-1B petition, applicants need to have a good understanding of the industry, specific job requirements in place, and the various technical terms used in the position when describing certain tasks and duties. If an applicant fails to understand the job and what it entails, this could culminate in a weak petition even if the petition has the potential of being approved.

To help draft a better petition, keep in mind the following common reasons for denials following USCIS evaluation. Staying aware of all of the potential reasons for denials can assist with the petition drafting process. Even if all other requirements are met when drafting a petition, one weak area could result in a denial that leads to a lengthier process and the need to submit another petition.

1. Specialty Occupation

USCIS may deny an H-1B application if the petitioner failed to identify a position as a specialty occupation. Oftentimes, issues in this area occur with business or information technology positions in lesser-known occupations that USCIS doesn’t consider “Specialty Occupations” because of inadequate communication of job duties.

2. Beneficiary Qualifications

Applicants may fail to prove that a beneficiary is qualified to perform tasks and services in a specific specialty occupation.

3. Employee-Employer Relationship

Petitioners may neglect to establish that they had built a valued employer-employee relationship with the designated beneficiary by having the right to control the beneficiary’s work for the specific validity period requested.

4. Availability of Off-Site Work

The petitioner may have failed to establish that he or she has non-speculative and specific qualifying off-site assignments for the beneficiary, which would last for the duration of the validity period requested in the specialty occupation.

5. Availability of In-House Work

The petitioner may also fail to establish that they have specific and non-speculative assignments for in-house work for the duration of the validity period.

6. Maintenance of Status

Petitioners may also fail to establish that beneficiaries properly kept their status up-to-date.

7. Itinerary

Petitioners may not meet the specific itinerary requirement in place, which makes it necessary for petitioners to submit itineraries with petitions that require services to be performed in multiple locations. All itineraries are required to include the locations and dates of services to be provided.

8. AC21 and Six-Year Limit

Petitioners failed to establish that the beneficiary is eligible for AC21 benefits or could otherwise receive an H-1B extension as the visa reaches the six-year limit.

9. LCA Corresponds to Petition

The petitioners may not establish that they obtained a Labor Condition Application (LCA) that’s been properly certified, and they may also neglect to show that this LCA properly adheres to the requirements of the designated position and the petition’s specific terms.

10. Fees

Petitioners may not establish that they fully paid all fees pertaining to the H-1B.

Any of these reasons may be grounds for denial upon USCIS review, which makes it crucial to have a good petition in place.

Good petitions are now more important than ever as denial rates continue to increase. In fact, National Foundation for American Policy analyses of data around USCIS denials for H-1B employer petitions found that the denial rate saw a drastic increase to 32 percent from 6 percent from 2015. The analyses also discovered that the denial rate rose from 3 percent to 18 percent for individuals who are seeking extensions for H-1Bs. 

With such high denial rates, it’s important to draft a good petition that meets all of the USCIS requirements for approval. Creating a checklist including all of the necessary aspects can help make sure that every element is included in the final draft.

Getting Additional Help with Drafting H-1B Petitions

For more help with drafting a petition, working with an H-1B attorney can increase an applicant’s chances of success. With a high-quality H-1B petition that displays a comprehensive understanding of what the job entails, applicants can minimize the risk of denials.

Even if a business immigrant visa applicant takes the time to cover all of the necessary elements in a petition, there may be some aspects that they miss during the drafting process that could hinder their chances of approval. Having a professional with experience in these matters review the petition and ensure that it’s valid will help avoid denial.