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USCIS Transferring H1B EOS with H4&EAD from NSC to CSC

While we are temporarily required to file H1B Extensions of Stay (EOS) Petitions for an H-1B worker to continue the same employment with the same employer at Nebraska Service Center to balance (NSC) USCIS workload. Now, temporarily, USCIS is transferring H-1B EOS I-129 petitions and accompanying H4 I-539 EOS and I-765 EAD from the NSC to the California Service Center (CSC) where we might have originally filed but for the direct to file at NSC to balance the workload.

Workload Transfer Update June 1, 2017
https://www.uscis.gov/workload-transfers

We transferred some of the following cases from the Nebraska Service Center to the California Service Center:
• Form I-129, Petition for a Nonimmigrant Worker, for petitioners requesting an Extension of Stay (EOS) for the H-1B classification
• Form I-765, Application for Employment Authorization, filed together with Form I-539, Application to Extend/Change Nonimmigrant Status, for petitioners requesting an Extension of Stay (EOS) for an H-1B worker to continue with the same employer

We at Litwin & Smith represent employers in most of the various industries represented around the Bay Area, across the U.S., and around the globe. We are a prestigious immigration law firm representing large and small business clients. Our firm is a nationally recognized premiere immigration firm. We have been very successful in preparing and obtaining H1B nonimmigrant visas for employers and subsequent immigrant visas and green cards for their employees on H1B. We prepare hundreds of such petitions each year. We offer excellent service at a competitive price. Of course, price isn’t everything. Timeliness, responsiveness, professionalism, and expertise are all part of providing an employer quality guidance and representation. We are known for our availability, responsiveness, timeliness, professionalism and expertise. 

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H Employsers Face Increased Scrutingy As DOL Aggressively Confronts Visa Program Fraud and Abuse

H Employers may expect increased scrutiny and site visits as the Secretary of Labor Directs Agencies to Aggressively Confront Visa Program Fraud and Abuse

The Secretary of Labor affirms the focus of DOL to “enforce vigorously all laws within its jurisdiction governing the administration and enforcement of nonimmigrant visa programs.” The notice outlines steps that DOL will take to investigate and detect visa program fraud and abuse, including:

• Wage and Hour Division enforcement of labor protections provided by visa programs.
• Changes to the Labor Condition Application (LCA) to better identify violations and fraud, and provide greater transparency for agency personnel, U.S. workers and the general public.
• ETA and the Office of the Solicitor to coordinate enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General.
• Establishing a working group from ETA and Solicitor’s office to maximize the efficiency of the department’s activities regarding the visa programs.

News Release
https://www.dol.gov/newsroom/releases/opa/opa20170606

WASHINGTON – After a thorough review of the U.S. Department of Labor’s foreign worker visa programs, Secretary of Labor Alexander Acosta announced actions to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.

“Entities who engage in visa program fraud and abuse are breaking our laws and are harming American workers, negatively affecting Americans’ ability to provide for themselves and their families. We will enforce vigorously those laws, including heightened use of criminal referrals,” said Secretary Acosta. “The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.”

The secretary determined that it is now the policy of the department to enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs, including:

• Directing the department’s Wage and Hour Division to use all its tools in conducting civil investigations to enforce labor protections provided by the visa programs.
• Directing the department’s Employment and Training Administration to develop proposed changes to the Labor Condition Application, and for the division to review their investigatory forms, to better identify systematic violations and potential fraud, and provide greater transparency for agency personnel, U.S. workers and the general public.
• Directing the division, ETA and the Office of the Solicitor to coordinate the administration and enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General.
• Establishing a working group made up of senior leadership from ETA, the division and Solicitor’s office to supervise this effort and coordinate enforcement to avoid duplication of efforts and maximize the efficiency of the department’s activities regarding the visa programs. The working group shall invite OIG to send representatives to participate in its efforts.

The department will also continue to work with the departments of Justice and Homeland Security to further investigate and detect visa program fraud and abuse.
In addition, work has already begun on promoting the hiring of Americans and safeguarding working conditions in the U.S. The department has begun to prioritize and publicize the investigation and prosecution of entities in violation of visa programs. For example, in the first successful legal action of its kind by the department, the department obtained a preliminary injunction under the H-2A visa program from the U.S. District Court for Arizona against G Farms for illegal and life-threatening housing provided to agricultural workers. The department continues to investigate the violations at G Farms and has also been in contact with the OIG on this matter.

The department’s OIG has focused substantial investigative resources towards combating visa-related fraud schemes. Their sustained efforts have led to significant results, including convictions of attorneys, employers, recruiters, corrupt government employees and labor brokers. Highlights of some of OIG’s recent successes combating fraud in the H-1B program, for example, are available here: https://www.oig.dol.gov/OIGBrief-H1B.pdf
OPA News Release:
06/06/2017
Media Contact Name:
Jennifer Hazelton
Email:
hazelton.jennifer@dol.gov
Phone Number:
(202) 693-4676
Media Contact Name:
Egan Reich
Email:
reich.egan@dol.gov
Phone Number:
(202) 693-4960
Release Number:
17-0802-NAT

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2017 Changes to USCIS H-1B Petition Adjudicataion: Policy Manual, Computer Programmer, Level 1 Wage

USCIS to update H-1B guidance to the USCIS Policy Manual in response to Senate request for action on H1B Program.
https://www.judiciary.senate.gov/imo/media/doc/Grassley%20Signed%20Response%205.24.17.pdf

USCIS Acting Director James McCament responded to a letter from Senator Charles Grassley with concerns on the H-1B program. The letter states, “USCIS continues to review all policies related to the H-1B program and is planning to publish an updated H-1B guidance section to the USCIS Policy Manual.”

This update is in addition to 2017 USCIS changes to remove Computer Programmer from the list of H1B professional occupations and level 1 wage as appropriate.

1) USCIS withdrew the 2000 Memo recognizing programmers as a specialty occupation. Future H1B programmer filings must pay particular attention in the original filing to establish the specialty position.
https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

2) USCIS has stated that Level 1 wages are not likely appropriate to H1B specialty occupations and may revert to follow an old AAO Decision.
The petitioner's statements regarding the claimed level of complexity, independent judgment and understanding required for the proffered position are materially inconsistent with the certification of the LCA for a Level 1 entry-level position.

We take particular care to reviewing our filing to establish a plan for successful filings. Including 2017changes by USCIS in H1B petition adjudications.

We are very good at what we do. We do want petitions to be successful.
The best planning for a successful petition is in the original submission. 

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ICE Recalendaring Cases that Were Previously Administratively Closed (Updated May 30, 2017)

ICE is now recalendaring cases that were previously administratively closed in an exercise of prosecutorial discretion (PD). ICE headquarters has indicated that it is recalendaring cases where there is an arrest or conviction subsequent to the administrative closure. They have also said if there was an arrest or conviction prior to admin closure, that should not trigger a motion to recalendar, nor are they seeking to recalendar all of the cases that were administratively closed for PD.

We are aware that in some jurisdictions, local ICE offices are seeking to recalendar PD cases where there was no intervening arrest or conviction. AILA is looking into the developing situation and will provide updates as they become available.

From: Chasing Down the Rumors: ICE Recalendaring Cases that Were Previously Administratively Closed
http://www.aila.org/infonet/chasing-down-rumors
ICE informed AILA that it is now recalendaring cases that were previously administratively closed in an exercise of prosecutorial discretion. ICE headquarters has indicated that it is recalendaring cases where there is an arrest or conviction subsequent to the administrative closure.
AILA Doc. No. 16112144


USCIS Completes 2018 H-1B Cap-Subject Petitions Lottery Selection Entry

Litwin & Smith is pleased to announce many of our H1B Cap Petition filings were selected in the cap. Petitioners are asked to be patient as receipt notices or petition return notices are provided. Petitioners who are not selected in the H1B cap should call for a consultation to discuss their other viable US immigration employment options.

USCIS announced on May 3, 2017, that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in their computer-generated random process. USCIS is returning all H-1B cap-subject petitions that were not selected. But, due to the high volume of filings, USCIS is not providing a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition returned. USCIS will issue an announcement when all the unselected petitions are returned.

Additionally, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.

As previously announced on March 3, USCIS has temporarily suspended premium processing for all H-1B petitions, including cap-subject petitions, for up to six months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. While premium processing is suspended, USCIS will reject any Form I-907 filed with an H-1B petition.

We will keep you informed.


USCIS from January 5 through March 28, USCIS began sending some cases between service centers in order to balance workloads. They have updated their Workload Transfer Updates page with this information:
• Some Forms I-765, Application for Employment Authorization, for F, M, and J nonimmigrants went from the California Service Center (CSC), the Nebraska Service Center (NSC) and the Texas Service Center (TSC) to the Potomac Service Center (PSC).
• Some Forms I-539, Application to Extend/Change Nonimmigrant Status, for F, M, J, or B nonimmigrants went from the VSC to the CSC
• Some Forms I-129, Petition for a Nonimmigrant Worker, for petitioners requesting H-1B nonimmigrant classification went from the VSC to the CSC
• Some Forms I-130, Petition for Alien Relative, for immediate relatives went from the NSC to the PSC and the TSC
• Some Forms I-129, Petition for a Nonimmigrant Worker, for petitioners seeking L, O, and P nonimmigrant classification went from the VSC to the CSC (except for major league sports-related P petitions which will remain with the VSC)
• Some Forms I-129S, Nonimmigrant Petition Based on Blanket L Petition, for L nonimmigrant classification when from the VSC to the CSC
• Some Forms I-539, Application to Extend/Change Nonimmigrant Status, for applicants seeking the L-2, O-3, and P-4 nonimmigrant classifications that are filed together with Form I-129 went from the VSC to the CSC (except for major league sports-related P petitions which will remain with the VSC)
• Some Forms I-765, Application for Employment Authorization, for applicants seeking L-2 status went from the VSC to the CSC 

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Diversity Visa Program: Statistics (2013-2015)
https://travel.state.gov/content/dam/visas/Diversity-Visa/DVStatistics/DVApplicantEntrantsbyCountry%202013-2015.pdf

The Department of State (DOS) provides Diversity Visa Program statistics for Fiscal Years 2013 through 2015; including the total number of entrants and derivatives based on the number of entries received during each online registration period, divided by country of chargeability.

Litwin & Smith, assists you and your family with the many immigration forms required for the visa lottery green card application. Our familiarity with the green card process avoids delays in the critical timing of your green card filings. http://www.litwinlaw.com/CM/Custom/Firm-Overview.asp

We have offices conveniently located in Santa Clara, South San Francisco and San Francisco. We look forward to assisting you.

Litwin & Smith, A Law Corporation
1435 Huntington Avenue, Suite 336, South San Francisco, CA 94080
(650) 588-7100 ext. 101 / Fax: (650) 588-4302
http://www.litwinsmith.com
Map and Directions https://www.google.com/maps/place/Litwin+%26+Smith,+A+Law+Corporation/@37.6412213,-122.4438566,13z/data=%214m12%211m6%213m5%211s0x808f79be9d43dff3:0xb9752ecdec2723e7%212sLitwin+%26+Smith,+A+Law+Corporation%218m2%213d37.64267%214d-122.419861%213m4%211s0x808f79be9d43dff3:0xb9752ecdec2723e7%218m2%213d37.64267%214d-122.419861

ACICS Loss of Accreditation Affects ESL and 24-month STEM OPT

On December 12, 2016, the U.S. Department of Education (ED) announced that it no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. This determination immediately affects two immigration-related programs:
• English language study programs, as the programs are required to be accredited under the Accreditation of English Language Training Programs Act.
• F-1 students applying for a 24-month science, technology, engineering and mathematics (STEM) optional practical training (OPT) extension, as the regulations require them to use a degree from an accredited, Student and Exchange Visitor Program (SEVP)-certified school as the basis of their STEM OPT extension. The school must be accredited at the time of the application; this is the date of the Designated School Official’s (DSO) recommendation on the Form I-20.

SEVP will provide guidance to affected students in notification letters, should their schools’ certification be withdrawn. However, students enrolled at an ACICS-accredited school should contact their designated school officials (DSOs) immediately to better understand if and how the loss of recognized accreditation will impact the F/M student’s status and/or immigration benefits application(s).

If an ACICS-accredited school voluntarily withdraws from SEVP certification or cannot provide evidence in lieu of accreditation for programs listed on their Form I-17, international students at these schools will have 18 months to:
• Transfer to a new SEVP-certified program;
• Continue their program of study until the current session end date listed on their Form I-20 (not to exceed 18 months); or
• Depart the United States.

After this 18-month grace period, SEVP will terminate the SEVIS records of any active F/M student at an ACICS-accredited school who has not transferred to an SEVP-certified school or departed the United States. Please note, this guidance applies equally to all F/M students—regardless of program of study and the 18-month period is valid for English as a Second Language (ESL) students as well.

ACICS-accredited schools will be unable to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school selects to voluntarily withdraw its certification or is withdrawn by SEVP. If a student’s ACICS-accredited school is able to provide evidence of an ED-recognized accrediting agency or evidence in lieu of accreditation within the allotted timeframe, the student may remain at the school to complete their program of study.

English Language Study Programs
USCIS will issue requests for evidence (RFEs) to any individual who has filed Form I-539, Application to Extend/Change Nonimmigrant Status, on or after December 12, 2016, requesting a change of status or reinstatement in order to attend an ACICS-accredited English language study program. Upon receiving an RFE, individuals will have an opportunity to provide evidence in response, such as documentation showing that the English language study program they are seeking to enroll in meets the accreditation requirements.

If the student does not submit a new Form I-20 from an accredited school, USCIS will deny a change of status or reinstatement request because the program of study is no longer accredited by an entity recognized by ED.

For more information about the loss of ACICS accreditation on English language study programs, see U.S. Immigration and Customs Enforcement’s page on ACICS Loss of Accreditation Recognition.

The 24-Month STEM OPT Extension Program
F-1 students wishing to participate in the STEM OPT extension must have a degree from an ED-recognized accredited U.S. educational institution at the time they file their STEM OPT application. As noted above, USCIS considers the filing of the application to be the date of the DSO’s recommendation on the Form I-20.
USCIS will issue a denial to any F-1 student filing a Form I-765 STEM OPT extension if:
• The STEM degree that is the basis for the STEM OPT extension was obtained from a college or university that was accredited by ACICS; and
• The student’s DSO recommendation for a STEM OPT extension, and as indicated on Form I-20, is dated on or after December 12, 2016 (i.e., the date on which ACICS ceased to be recognized as an accrediting agency).

Because there is a requirement that students use a STEM degree from an accredited, SEVP-certified school at the time of application, the ACICS loss of accreditation prevents these students from qualifying for a STEM OPT extension. Students who receive a denial will have 60 days to prepare for departure from the United States, transfer to a different school, or to begin a new course of study at an accredited, SEVP-certified school.

Students whose Forms I-20 have a DSO recommendation date prior to December 12, 2016, are not affected. For more information about the impact of loss of ACICS recognition on the STEM OPT extension program, see U.S. Immigration and Customs Enforcement’s page on ACICS Loss of Accreditation Recognition.


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H1B Mission India Website Correction

In a recent meeting with the Department of State (DOS), we advised: The Mission India U.S. Travel Docs website features this question: “I have a valid H-1B visa which contains my previous petitioner’s details. I have changed my employer with valid I-797 and am back in India for a short trip. Can I travel back to the U.S. on the same visa or do I need to apply for a new visa? Can a person on a dependent visa work in the U.S.?”

The site at http://www.ustraveldocs.com/in/in-gen-faq.asp#qlistwork13 provides the following answer: “In general, if you have a new petition with a different employer, you need to apply for a new visa. In certain situations (such as corporate restructuring), it may be possible to travel back with your current I-797 and visa. Further information can be found through the U.S. Customs and Border Protection.”

This answer is inconsistent with the American Competitiveness in the Twenty-First Century Act (AC21), which provides that a visa holder can use a valid H-1B visa issued for previous employment with company A and an I-797 issued for a new position at company B to seek admission to the United States. Can the language on the ustraveldocs website be amended to reflect the correct procedure under AC21?

DOS response:
Thank you for bringing this to our attention. 9 FAM 402.10-11(C) provides that an H-1B visa holder does not need to seek a new visa when there has been a change in their employer. Mission India has corrected the information on their website to reflect this.

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