Applicants for H-1B Can Sue Over Changes to Lottery Rule

A D.C. federal judge ruled that H-1B specialty occupation visa applicants challenging a change to the visa lottery process only need to show that they had an active job offer when they sued to establish standing.

U.S. District Judge Trevor N. McFadden refused the government’s bid to toss a lawsuit challenging a 2019 policy change that applicants say increased the number of duplicate applications from employers looking to game the system. The applicants don’t need to prove that their employers still want to hire them to bring forward claims that the rule change reduced their odds of receiving a visa, he said in a Saturday ruling.

More than 500 H-1B visa program applicants sued U.S. Citizenship and Immigration Services in June challenging changes the agency made in 2019 to the lottery that fills all 65,000 H-1B visa slots annually, according to a redacted version of the complaint posted online by the plaintiffs’ counsel. The H-1B program invites skilled foreign workers to work in specialty occupations, often used by information technology and other tech companies.

Under the updated process, employers must file registrations on behalf of noncitizens they want to hire. If USCIS selects their registrations from the lottery, employers can then submit a petition on behalf of the foreign national they want to hire, according to the January 2019 final rule change.

The foreign workers who sued were not selected in any of the three lotteries that took place in 2021. They claim the rules make it easy for “H-1B consultancies” and “phony employers” to submit multiple applications on behalf of some workers, increasing their odds of winning the lottery and decreasing the odds for applicants who followed the laws and only filed a single registration.

Judge McFadden ruled on Saturday that the visa applicants had offered substantial evidence that the rule changes played a hand in the ballooning number of registrations, and he was unimpressed by existing fraud prevention measures.

The case is Liu et al. v. Mayorkas et al., case number 1:21-cv-01725, in the U.S. District Court for the District of Columbia.

Source: Grace Dixon, Law360, December 13, 2021:

  • https://www.law360.com/immigration/articles/1448087/h-1b-applicants-can-sue-over-lottery-rule-change

 

Salary-Based H-1B System Withdrawn by Biden Administration

In a motion filed in court in Washington, D.C., earlier this week, the Department of Homeland Security (“DHS”) has withdrawn its support for a rule, promulgated by President Trump just prior to leaving office, that would have given visa preferences to those individuals earning higher salaries, the salary-based visa selection system.

Every year, 85,000 foreign workers are selected through a lottery system to obtain H-1B nonimmigrant status, a visa category reserved for specialty occupations that require applicants to have at least 4-year college degrees, and sometimes master’s or doctoral degrees. The new rule proposed by former President Trump would have eliminated the lottery system and awarded the visa slots based purely on the highest salaries offered. Advocates against the rule argued that this would largely eliminate H-1Bs for all except those in the highest-level positions, significantly reducing the availability of H-1Bs for important entry-level work, including for foreign students graduating from U.S. college or master’s programs, who are just starting their careers.

U.S. Citizenship and Immigration Services will continue to make visa selections by random lottery.

Source: National Law Review, December 10, 2021, vol. XI, no. 344:

  • https://www.natlawreview.com/article/immigration-weekly-round-biden-nixes-salary-based-visa-selection-senate-democrats

 

U.S. Immigration Fees to Increase in Democrats’ Spending Bill

U.S. government fees for temporary work visas and for permanent immigration benefits will rise across the board if provisions of the House Democrats’ social spending plan are approved by the Senate.

The proposed hikes would represent the first comprehensive update to the fee structure used by the US Citizenship and Immigration Services (USCIS) in five years They would follow a Trump administration bid to charge more for immigration benefits that was blocked in federal court last year.

Immigration experts say the increases in the House-passed legislation, H.R. 5376, which are weighted heavily toward employers of high-skilled workers and foreign entrepreneurs, could be beneficial if they lead to improved services at USCIS.

The Department of Homeland Security (DHS) unit is almost entirely fee-funded except for emergency funding from Congress.

The proposed hikes could generate nearly $3 billion in additional revenue for the agency, according to a Cato Institute analysis based on 2019 application numbers. The increases would range from $13 for arrival/departure records to an extra $100 for family-based green card applications, to $15,000 for a visa program for foreign investors.

“This would help USCIS get on a more firm financial footing,” said Jeremy Neufeld, an immigration policy analyst at the pro-immigration Niskanen Center in Washington. “Especially as they’re going to be expected to process a lot more visas due to other provisions of the bill.”

Democrats’ effort to pass a social spending package estimated to cost $1.75 trillion remains subject to negotiation in the Senate, where a small group of moderate Democrats, led by Joe Manchin (D-W.Va.), want the overall price tag pared back.

Most of the uncertainty surrounding immigration’s piece of the funding package involves parole provisions that would protect undocumented immigrants form deportation. The House legislation would also provide an additional $2.8 trillion to USCIS to process new applications and reduce backlogs, which would help to improve its fiscal outlook.

Democrats are using a budget mechanism that will allow the legislation to pass the Senate with a simple majority, meaning they don’t need to work with Republicans if they can lock down all 50 votes in their caucus.

The Senate parliamentarian, who advises lawmakers on whether legislative provisions are permissible under budget reconciliation legislation, could rule on inclusion of parole language in the bill as soon as this week.

An agency spokesman said USCIS doesn’t comment on pending legislation.

Source: Andrew Kreighbaum, Bloomberg Law, December 9, 2021:

  • https://news.bloomberglaw.com/daily-labor-report/immigration-agency-in-line-for-billions-in-fees-in-spending-bill

 

Sixty Day Rule for Civil Surgeon Signatures Temporarily Waived

U.S. Citizenship and Immigration Services (USCIS) is temporarily waiving, until September 30, 2022, the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit (including Form I-485, Application to Register Permanent Residence or Adjust Status).

USCIS said this temporary waiver “will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes caused delays in completing the immigration medical examination.” The temporary waiver will benefit many applicants, USCIS noted, “including Afghan nationals evacuated under Operation Allies Welcome who have completed immigration medical examinations at government-run facilities but were not able to apply for adjustment of status within 60 days of the completed examination.”

Source: ABIL Newsletter, December 13, 2021:

  • “Temporary Waiver of ’60-Day Rule’ for Report of Medical Examination and Vaccination Record (Form I-693),” USCIS Policy Alert, Dec. 9, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211209-I-693FilingReqt.pdf

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