U.S. Department of State Begins Collecting Social Media Information: Guidelines and Tips for Nonimmigrant and Immigrant Visa Applicants

Pursuant to a Trump administration Executive Order encouraging increased vetting of visa applicants, the Department of State announced that it would begin requiring 5 years of social media history, including usernames, previous email addresses, and phone numbers. As part of phase one of the increased information collection, Forms DS-160 and DS-260 have been updated to request social media information from applicants for immigrant and nonimmigrant visas.

How does the announcement change what information is collected?

Effective on May 31, 2019, a new question was added to Forms DS-160 and DS-260 requiring the disclosure of visa applicants’ social media identifiers for all accounts used within the last five years.

The forms direct visa applicants to provide identifiers related to specific social media platforms used to interact with others online. The new questions ask visa applicants to list the username, handle, or screenname associated with a profile or account. For example, for Twitter or Instagram a sample handle or username might be @janedoe123. For Facebook, LinkedIn, and other platforms, you may be asked to provide the full name used for the account, as well as a link to page(s). The updated visa application forms list the specific social media platforms for which identifiers are being requested. If you have multiple usernames or accounts within the last five years, all of your social media accounts should be included on the form. 

Which social media platforms are requested?

Currently, the below platforms are requested on the two forms:

Ask.FM Instagram Reddit Twoo
Douban LinkedIn Sina Weibo Vine
Facebook Myspace Tencent Weibo Vkontakte (VK)
Flickr Pinterest Tumblr Youku
Google+ Qzone (QQ) Twitter YouTube

What limits are in place to protect applicant’s privacy?

Consular officers may only ask for the applicant’s social media identifiers and are not permitted to request any passwords nor will they have the ability to access privacy controls applicants may have implemented. According to a DOS Supporting Statement, consular staff will be directed:

  • “not to engage or interact with individual visa applicants on or through social media when conducting assessments of visa eligibility;
  • not to request user passwords in furtherance of this collection;
  • not to violate or attempt to subvert individual privacy settings or controls the applicants may have implemented on social media platforms;
  • and not to use social media or assess an individual’s social media presence beyond established Department guidance.”

Individuals also do not need to share company or organization profiles if multiple other employees have access and control over those accounts.

What if the visa applicant doesn’t have any social media accounts?

A response is required to the questions related to social media on forms DS-160 and DS-260. Even if you choose to delete a social media account prior to your application, it must be listed on the form if it existed within the last five years. However, visa applicants who have never used social media will not be refused on the basis of failing to provide a social media identifier since the form does allow the applicant to respond to the question with an answer of “None.” Applicants should complete the application as completely and honestly as possible to avoid any delays in processing or unfavorable decisions.

What additional questions are being added in phase two?

The Department of State plans to add questions on the following topics in phase two:

  • An optional free-text field for applicants to provide identifiers associated with any other social media platforms during the five years preceding the date of application, other than those platforms listed.
  • Five years of previously used telephone numbers, email addresses, and international travel;
  • All prior immigration violations; and
  • Whether specified family members have been involved in terrorist activities.

How will consular officers use the information collected?

The rule posted in the Federal Register outlines that the Department of State will use the social media information for “identity resolution and vetting purposes based on statutory visa eligibility standards.” Visa applicants should consider that publicly available information they have posted on social media could be used during adjudication and processing of their visa applications.

In a Supporting Statement, the Department of State specifically notes that the social media information will be used to understand “existing and evolving threats to national security, to enable more rigorous evaluation of applicants.” The statement goes on to claim:

“Within consular and fraud prevention sections of Department’s overseas posts, public-facing social media information may be reviewed to assess potential visa fraud that would lead to a conclusion that the applicant is not eligible for a visa.  For example, information on social media pages or posts may be used to validate legitimate relationships or employment required for visa eligibility, to identify indicia of fraud, or to identify misrepresentations that disguise potential threats.”

Social Media Tips for Visa Applicants

When evaluating their social profiles, visa applicants should make sure their employment history is accurately reflected and that other posts do not conflict with information included in the visa application. Applicants should be truthful about any social media profiles in existence, as neglecting to include that information could be seen as a misrepresentation or an attempt to conceal information. This could not only lead to delayed processing times, but also potential denials of the current and future applications.

Main Visa Ineligibilities

Code Section:

(b) Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15).

  1. g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law.

Specific Ineligibilities Outlined by Department of State:

A Supporting Statement for the DS-160 changes specifically draws attention to the following ineligibilities (emphasis added):

“Among the grounds of ineligibility are those related to the health of the applicant, the applicant’s past and present criminal activities, security concerns, potential for the applicant to become a public charge, and previous violations of the INA by the applicant; however, not all grounds of ineligibility apply to all visa classifications.  In the visa application form, applicants are asked a series of questions relevant to a determination of visa eligibility.”

Below are some examples of social media information that may conflict with restrictions on various visa types. Please direct any additional questions to info@challalaw.com.

VISA TYPE REQUIREMENTS EXAMPLES OF CONFLICTING INFORMATION ON SOCIAL MEDIA
Nonimmigrant visas that don’t allow dual intent (i.e. B-1, F-1, etc.) MUST INTEND TO RETURN TO THEIR HOME COUNTRY 1.    Posts about their impending marriage in the U.S.

2.    Posts about being out of work

3.    Posts about family in the U.S. that weren’t disclosed on the visa application

F-1 MUST INTEND TO STUDY IN THE U.S. 1.    A LinkedIn update about his/her new job in the U.S.
B-1 MUST NOT ENGAGE IN WORK ACTIVITIES 1. Posts about going to their company’s U.S. office to work on a project
Family-based visa VALID MARRIAGE 1.    Posting lots of photos of fun times with friends but not with one’s U.S. citizen spouse

2.    Failing to say a thing about one’s wedding despite having posted about every other major and minor incident in one’s life for the past year

L-1 MUST WORK ONE YEAR OUT OF LAST THREE IN RELATED QUALIFYING ENTITY 1. LinkedIn profile shows that the individual worked for unrelated entities for past three years
2. Posts showing that the individual started their job with the entity less than one year prior
Immigrant Visas MUST NOT BE LIKELY TO BECOME A “PUBLIC CHARGE” 1. Facebook posts bemoaning one’s financial situation
2. GoFundMe or other crowdfunding pages asking for money
Nonimmigrant and Immigrant Visas NO INADMISSIBLE BEHAVIOR 1.    Bragging about having engaged in criminal activity

2.    Mentioning illegal use of drugs

3.    Mentioning legal use of drugs in another country (but the specific drugs are illegal in the U.S.)

 


E-2 Treaty Investor Visa Available to Citizens of Israel

On May 1, 2019, the E-2 visa will be extended to Israeli citizens for the first time. The E-2 Treaty Investor is a nonimmigrant visa that allows an individual to invest in a U.S. business and then enter the U.S. to develop and direct the business. The E-2 visa holder must demonstrate a minimum of 50% ownership of the enterprise or “operational control through a managerial position or other corporate device.”

While roughly the same size as the U.S. state of New Hampshire, Israel boasts a successful high-tech industry. According to the U.S. Embassy website for Israel:

“U.S. firms have been a big part of the Start-Up Nation story, with U.S. companies establishing two-thirds of the more than 300 foreign-invested research and development centers in Israel.  Israeli firms, meanwhile, represent the second-largest source of foreign listings on the NASDAQ after China – and more than Indian, Japanese, and South Korean firms combined.”

Similar to the EB-5 investment requirements, the E-2 requires the investor’s funds to be “at risk” or subject to loss if the investment is not successful. Unlike the EB-5 Immigrant Investor visa, the E-1 and E-2 visas allow foreign nationals of certain treaty countries to invest in the United States without a set minimum investment, as long as the investment meets several criteria to determine if it is substantial.

In addition to the substantiality test, the enterprise must exceed the marginality test and the E-2 visa applicant must be in a position to develop and direct the enterprise, through special qualifications that make the employee’s services essential to the efficient operation of the business.

Visit our website for an introduction to the E-2 Treaty Investor visa and determine if your intended U.S. investment plan meets the E-2 requirements. Contact us at info@challalaw.com if you have any questions.


An Introduction to the E-2 Treaty Investor Visa: Marginality, Substantiality, Essentiality & Other Key Tests

The E-2 Treaty Investor visa allows an individual to invest in a U.S. business and then enter the U.S. to develop and direct the business. The E-2 visa holder must demonstrate a minimum of 50% ownership of the enterprise or “operational control through a managerial position or other corporate device.” Similar to the EB-5 investment requirements, the E-2 requires the investor’s funds to be “at risk” or subject to loss if the investment is not successful.

Essentiality of E-2 Employee

The E-2 visa also emphasizes that an applicant should have “special qualifications” or “skills which make the employee’s services essential to the efficient operation of the business.” The application must demonstrate that the individual not only that possesses the necessary special qualifications, but also establishes the length of time those skills may be needed for the successful and efficient operation of the U.S. enterprise. This essentiality of the potential E-2 employee may be measured by:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States.

Impact of U.S. Workers

While the E-2 visa does not require a labor certification from the Department of Labor, USCIS does take into consideration the availability of U.S. workers when determining the degree of specialization and essentiality of the employee to the business. For example, an individual bringing a new technology to the U.S. may have specialized skills directly relating to the manufacturing, sales, and distribution of that technology, qualifying him or her for an E-2 visa. Additional evidence to support this narrative could be requested from U.S. labor organizations, industry trade groups, local or state chambers of commerce or other organizations with access to data on labor availability. It is important to note that there is no regulatory requirement that an essential employee have previously worked with the E-2 treaty enterprise. The only instance that previous employment has an affect on the application, is if the claim is being made that the necessary skills can only be obtained through that particular employment.

Short Term vs. Long Term Essentiality

When crafting the narrative of your E-2 visa application, we will consider your intended involvement in the ongoing operations of the U.S. entity. There may only be a need for the E-2 employee to come to the U.S. for a short period of time to direct the start-up operations or to train and supervise employees with specialized functions. For a short term need, the application might demonstrate that an employee is essential based on his or her knowledge with overseas operations or technologies. Evidence should demonstrate that these short-term employees are initially involved in the effort to train U.S. workers within a year or two as their own replacements.

The E-2 visa can be granted at a maximum initial stay of two years, but is renewable in various time increments depending on the nature of the underlying treaty with the country of the visa holder. Since there is no maximum limit to the number of extensions that can be granted, many business owners utilize the E-2 for a longer-term stay to continue to direct the enterprise. As long as the application demonstrates the individual has special qualifications that require his or her continuous presence in business activities, such as product development or providing a service not commonly available from U.S. workers, there is no requirement for training a U.S. worker replacement.

Case Study: Matter of Walsh and Pollard

In the 1980s, General Motors needed automotive engineers to design a new fleet of vehicles. After first attempting to meet their labor needs within the U.S., the company realized an additional need for engineers and turned to overseas for help. A British contractor made an investment as part of a strategy to open a U.S. office and then funnel designers for GM’s temporary labor needs using E-2 visas and establishing the designers’ essential skills. After the visas were approved, the then-INS (Immigration and Naturalization Service, now part of USCIS or United States Citizenship and Immigration Services) denied the engineers when they attempted to enter the U.S. The case made it to the Board of Immigration Appeals (BIA), which ruled on two key aspects of the E-2 visa:

  1. A small investment does not preclude the issuance of an E-2 visa as long as it is sufficient to “establish a viable enterprise of the nature contemplated” and
  2. The applicants whom were “highly trained, specially qualified, and essential to the corporation’s efficient operation” were qualified for the E-2 visa despite the fact they were not involved in “developing and directing the qualifying investment.”

The BIA determined that the automotive engineers had essential skills necessary to the long-term success of the enterprise and that the employees were not replacing U.S. workers in the near future, due to the extensive training that would be required to match the designers’ level of specialized skills.

Substantiality of the Business

The Foreign Affairs Manual points out some key aspects of the case when determining whether the business might meet the substantiality test, stating that “sometimes an investment of only a small amount of money might meet the requirement.” There is no standard investment amount, but the investment must meet the following:

(1)  Substantial in a proportional sense, as determined through the application of the proportionality test outlined below;

(2)  Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and

(3)  Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

Proportionality of the Business

               The substantiality of the business is partly determined by using the proportionality test by weighing the amount of funds invested against the total cost of the business. The Foreign Affairs Manual describes the appropriate investment as an inverted sliding sale, with lower cost business requiring a higher percentage of the investment and a higher cost business requiring a lower percentage of qualifying investment. The manual also defines the cost of an established business as its purchase price and the cost of a new business is the sum of costs required to establish an operational business. When applying for the E-2 visa, this figure includes the investments already made and the estimates for the additional assets needed to run the business.

Marginality of the Business

The EB-5 visa clearly outlines the required job creation for visa attainment, but the E-2 visa applicant must prove that the investment is not in a “marginal” enterprise, i.e. the business must have the present or future capacity to generate income above that for the treaty investor and his or her family. This capacity to make a “significant economic contribution” should be “realizable within five years from the date the alien commences normal business activity of the enterprise,” according to the Foreign Affairs Manual.

Contributions of E-2 Visa Holders

As with any nonimmigrant or immigrant visa, the fundamental premise of the E-2 visa is that individuals who are granted these visas will provide value to the United States. For investment-type visas, often this value is quantified by the number of jobs created or the monetary contribution to the U.S. economy. While there are no specific numeric requirements for job creation or continued investment levels, an E-2 renewal application that demonstrates these accomplishments is more likely to establish the essentiality of not only the employee to the enterprise, but of the enterprise to the continued economic health and growth of the United States economy.

Request a copy of the E-2 qualifying countries by emailing us at info@challalaw.com.


Premium Processing Back for H-1B Cases

Premium processing guarantees that USCIS will adjudicate a case within a 15-day processing time in exchange for an additional $1,410 fee. In January, premium processing was reopened for last year’s H-1B cap cases and master’s cap cases. If a petitioner decides to upgrade a pending case with an RFE to premium processing, a copy of the RFE response must also be submitted with the request. The agency previously stated that they will “resume premium processing for the other remaining categories of H-1B petitions as agency workloads permit,” but on Monday, March 11, USCIS announced that premium processing is now available for all H-1B cases. 

H-1B Cap Season 2019

While no exclusions were made as part of the announcement, many were left wondering if premium processing would be extended to this year’s H-1B cap cases. The American Immigration Lawyers Association (AILA) reached out to USCIS Service Center Operations (SCOPS) for clarification. USCIS responded that the earlier announcement did not specifically apply to this year’s H-1B cap season and that a separate H-1B cap announcement would be forthcoming.


Final H-1B Rule (Partially) Effective for 2019 Cap

After numerous public comments, USCIS posted the final H-1B registration rule requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reverses the order in which H-1B petitions are selected for adjudication, potentially increasing the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement has been suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” USCIS Director Cissna stated:

“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

Employers: Preparing for April 1, 2019

Since the registration system will be delayed, the main change to the H-1B filing process for cap season 2019 is the order by which USCIS will select H-1B petitions. The previous process was to select the advanced degree exemption beneficiaries first (assuming the H-1B cap and advanced degree exemption quotas are reached within the first five days of filing). The new rule reverses the selection order, counting all applicants towards the estimated number needed to reach the regular H-1B cap first. After those applicants are selected, then USCIS will select applicants eligible for the master’s degree or higher exemption. USCIS estimates that this change will cause a 16% increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education. Employers hiring individuals with U.S. master’s degrees may have a higher likelihood of getting beneficiaries selected for the cap or advanced degree exemption.

A recent report by the National Foundation for American Policy (a non-partisan group) found that denials and Requests for Evidence (RFEs) increased soon after the “Buy American, Hire American” executive order was signed. From the third to fourth quarter of FY2017, “the proportion of H-1B petitions denied for foreign-born professionals increased by 41%… rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.” RFEs also jumped from 63,599 in the first three quarters combined to 63,184 in the fourth quarter, causing the rate of RFEs to completed cases to jump from 23% in the third quarter to 69% in the fourth quarter.

H-1B RFEs are often a mechanism for DHS’s increased scrutiny on wages and certain level one specialty occupations. Employers need to initiate cases early so that these issues can be addressed before the petition is filed. Employers and potential H-1B recipients should already be gathering documentations in preparation for the April 1, 2019 deadline. If you wait until March, it may be too late to obtain the necessary labor condition application and gather all required documents.

Below are some tips to help your H-1B get approved:

  • Consult with an immigration attorney to ensure the position meets H-1B regulations for a specialty occupation.
  • Develop a detailed job description that clearly lists job duties and make sure the position matches the required salary.
  • Explain how the position is specialized and requires a minimum of a bachelor’s degree.
  • H-1B applicants must have all documentation translated into English with a valid translation certificate attached.
  • If the degree is from a foreign institution, plan to have a credentials evaluation completed.
  • Double check the required filing fees and decide whether to utilize premium processing.

Employers also need to ensure strict compliance to the H-1B regulations and file timely amendments or extensions for employees who could shift job duties or be near the end of a project.


Changes Imminent to H-4 Dependent Form I-539: USCIS Announces Updated Implementation Plan

USCIS recently announced their intent to publish a new version of Form I-539, Application to Extend/Change Nonimmigrant Status. Form I-539 is commonly used by individuals residing in the U.S. temporarily, such as dependents of H-1B, L-1, E-1, E-2, J-1, etc. F-1 students and B-1/B-2 visitors may also use the form to extend their stay in the U.S.

USCIS originally stated that the revised version will be available on March 11, 2019; the same day only that version of the form will be accepted. The supplemental Form I-539A was also scheduled to be updated on that date.

Stakeholder Concern

The American Immigration Lawyers Association (AILA) and other stakeholders expressed concern that there is no grace period and that the form and instructions are being released the same day that it becomes mandatory to use. The timing is difficult for beneficiaries and companies attempting to file for H-1B employees and H-4 dependents by the April filing deadline. AILA sent a letter on February 21 to USCIS Director Cissna requesting a delay for the March 11 effective date and suggesting a 90-day grace period for the updated form.

USCIS Revises Form Implementation Plan

The Office of the Citizenship and Immigration Services Ombudsman considered the concerns stakeholders articulated over the transition and hosted a teleconference on March 1, 2019 to discuss the revised forms. During that call, USCIS announced some modifications to the original timeline and implementation plan:

  • USCIS stated the revised forms I-539 and I-539A would be posted three days early.
  • There will be a 10-day grace period for those filing with the old versions of the forms: the previous version with edition date 12/23/16 will be accepted if received at a USCIS Lockbox by close of business on March 21, 2019.
  • The new forms with edition date of 2/4/19 will be accepted starting March 11, 2019.

USCIS also stated that during the grace period, the new forms will be held for processing until March 22, 2019 with the receipt date based on when the USCIS Lockbox actually received the filing.

Highlighted Updates

Below are the major changes to the form I-539 and I-539A:

  • Every co-applicant on the primary Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under the age of 14.
  • Every applicant and co-applicant must now pay separate $85 biometric services fees (except certain A, G, and NATO nonimmigrants).
  • Every applicant and co-applicant will receive biometric services appointments, regardless of age, containing an individual receipt number. The appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. (Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.)

Implications for H-1B Cap Season

Challa Law Group has determined that only select H-4 filings will be sent with the initial H-1B petition due to the uncertainty and timing surrounding the updated forms. We will only file in cases in which the principal or the H-4 dependent will fall out of a valid immigration status without a pending application or petition. For example, if the principal visa holder has Optional Practical Training through an F-1 student visa, he or she can utilize the “cap gap” to continue working until October 1. The individual can then stay in the U.S. based on the pending H-1B but cannot continue working beyond October 1 without another work-authorized status. The dependent should file for the H-4 application to also maintain his or her stay in the U.S. while the USCIS is adjudicating the cases. (For F-1 students with OPT expiring before October 1, if an OPT STEM extension is available, the student should first file for the STEM extension instead of an H-4 visa until an H-1B or another independent status can be obtained.)

By deferring the H-4 applications until after the cap filing deadline, we will mitigate some of the additional confusion surrounding a form update with no grace period. When an individual is selected in the H-1B visa cap, then the H-4 application can be submitted at that time. This will allow biometrics fees and additional signatures to be collected from H-4 dependents separately from the H-1B documentation, streamlining the process for employers and beneficiaries.

 Trump Administration’s Intent to Rescind H-4 Work Authorization

In 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence. That rule is now being reconsidered as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017. The proposed rule has moved forward to review by the Office of Management and Personnel. While the proposed regulation is not available for public review yet, some have predicted that the rule could be published in the Federal Register before a March 18 deadline in a lawsuit: Save Jobs USA v. DHS. The lawsuit, brought by U.S. technology workers, purports that DHS had no authority to issue work authorization to H-4 spouses in the first place and that the program should end immediately.

Possible Timeline for H-4 Work Authorization Rescission

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

Note: Attorneys Challa and Millburn at Challa Law Group are members of the American Immigration Lawyers Association.

KIWI Act Grants E-1/E-2 Visa Opportunity to New Zealand Citizens

It’s a bird! It’s a fruit! No, it’s the KIWI Act, a bill passed by the U.S. House of Representatives and Senate and then signed into law by President Trump on Wednesday, August 1, 2018.

The KIWI Act, short for Knowledgeable Innovators and Worthy Investors Act, extends the E-1 Treaty Trader and the E-2 Treaty Investor visas to New Zealand citizens. Unlike the EB-5 Immigrant Investor visa, the E-1 and E-2 visas allow foreign nationals of certain treaty countries to invest in the United States without a set minimum investment.

The E-1 Treaty Trader is granted to individuals to engage in international trade on his or her own behalf. The individual should demonstrate they will carry on substantial trade and that the principal trade will be between the United States and their qualifying home country. USCIS defines substantial trade as “the continuous flow of sizable international trade items, involving numerous transactions over time.” The agency also states that while there is no minimum monetary threshold, greater value will provide a better argument for the substantiality of the business.

The E-2 Treaty Investor allows an individual to invest in a U.S. business and then enter the U.S. to develop and direct the business. The E-2 visa holder must demonstrate a minimum of 50% ownership of the enterprise or “operational control through a managerial position or other corporate device.” Similar to the EB-5 investment requirements, the E-2 requires the investor’s funds to be “at risk” or subject to loss if the investment is not successful.

If you are interested in learning more about the E-1 or E-2 visas or to find out if your trade or investment might qualify, please contact us at info@challalaw.com.


Shifting H-1B Standards – In-House vs. End Client Adjudication Trends

The H-1B program has come under scrutiny in recent years, with critics claiming the program is being used to replace U.S. workers with lower-paid foreign workers. Since President Donald Trump signed the “Buy American, Hire American” executive order on April 18, 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

RFEs and Denials Increase in FY2017

A recent report by the National Foundation for American Policy (a non-partisan group) found that denials and Requests for Evidence (RFEs) increased soon after the “Buy American, Hire American” executive order was signed. From the third to fourth quarter of FY2017, “the proportion of H-1B petitions denied for foreign-born professionals increased by 41%… rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.” RFEs also jumped from 63,599 in the first three quarters combined to 63,184 in the fourth quarter, causing the rate of RFEs to completed cases to jump from 23% in the third quarter to 69% in the fourth quarter.

This increased rate of RFEs and denials can seem alarming, but the recently released policy memos offer valuable clues as to how the President’s executive order will be implemented and how USCIS has changed expectations and requirements at the case adjudication level. In this H-1B update, we’re going to put on our detective hats to investigate some of the clues USCIS has provided.

Common RFE Topics: Employer-Employee Relationship & Specialty Occupation

The employer-employee relationship and the availability of specialty occupation work have historically been the subject of many RFEs, due to large IT companies utilizing the H-1B visa to employ individuals at third-party worksite locations. Many of the explanatory language describing the employer-employee relationship is derived from a 2010 Memorandum to Service Center Directors titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements.”

The memo, also known as the Neufeld memo, describes the relationship “as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee” and puts special emphasis on an employer’s “right to control over when, where, and how the beneficiary performs the job.”

Seasoned H-1B petitioners are accustomed to providing evidence to satisfy USCIS requirements such as proving that the petitioner supervises the beneficiary and can control his or her work on a day-to-day basis, along with nine other potential factors outlined in the memo.

In February of 2018, a new policy memo titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” expanded certain evidentiary criteria from optional to required. While USCIS acknowledges that third-party arrangements “may be a legitimate and frequently used business model,” the memo also states that it is “more difficult to assess whether the petitioner has established that the beneficiary will actually be employed in a specialty occupation or that the requisite employer-employee relationship will exist.” The memo gives a list of possible evidence to include actual work assignments, signed contractual agreements between the petitioner and other companies involved in the beneficiary’s placement, work orders or detailed work statements, or end-client letters with detailed descriptions of the job duties, duration, wages, etc.

Most significantly, the memo enforces that itineraries describing the dates and locations of the services to be provided should be submitted in every petition with multiple third-party worksites, with no exemptions. Prior guidance allowed the request to be made on a case-by-case basis. The itinerary of services should include the dates of each service or engagement, the names and addresses of the employers, and the name, location and telephone numbers for each location where the services will be performed, along with evidence to support each item.

Policy Analysis: In-House vs. Third-Party Standards

While the February itineraries memo specifically targets third-party worksites using the employer-vendor-client model, our office has found that many of the underlying principles governing those adjudications are also being applied to beneficiaries working on in-house projects. Recent RFEs have requested additional evidence to prove the position is a specialty occupation with enough work to satisfy that requirement and that a valid employer-employee relationship exists by requesting evidence to demonstrate that the employer has a right to control the employee’s work. While these subjects have always been the target of RFEs, the specific evidentiary requests are similar to those previously applied to beneficiaries working at off-site locations.

Why is USCIS applying these standards to in-house projects?

USCIS may view in-house projects with companies that typically engage in third party placement as a suspicious deviation from the typical consulting services they provide. Officers are placing these petitions under increased scrutiny to make sure the projects are significant enough to warrant the requested approval period.

Our team may ask for additional project-based evidence to prove that the project is not marginal. If all of the requested documentation is not provided, you may risk receiving an RFE or a denial. If the petition is ultimately approved with less documentation, it may be for a shorter window than the requested validity period. This limits companies from hiring an employee for in-house projects with the intent of then transferring the employee to other client projects.

It is essential to provide complete documentation for an H-1B beneficiary’s in-house projects. Our paralegals and attorneys may request additional job duty details, project plans, presentations, or promotional materials relevant to the project.

If you have any questions about how recent adjudication trends have impacted your labor force, please contact us at info@challalaw.com.


New Policy Memo Grants USCIS Officers More Power to Deny Petitions: Tips for Navigating the Shifting Immigration Landscape

 

Starting on September 11, 2018, USCIS adjudicators will have full discretion to deny all types of applications, petitions, and requests (with an exception for DACA due to a preliminary injunction) without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). In the policy memo announcement, USCIS stated that the change:

“will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”

The now-rescinded policy memo from 2013 previously limited immediate denials, encouraging RFEs or NOIDs unless there was “no possibility” of an approval being issued. The new policy memo “restores to the adjudicator full discretion” and allows for “statutory denials… when the applicant, petitioner, or requestor has no legal basis for the benefit/request sought.”

While many of the media reports following this announcement have used alarming language surrounding the potential denials, it is important to note that USCIS must still follow existing regulations and can only deny a request if required evidence is not provided to establish an applicant’s eligibility.

What does this mean for employers and beneficiaries?

While we can’t predict how USCIS officers will interpret this memo, we believe it will primarily target the firms submitting incomplete petitions to purposely trigger an RFE. When our office submits a petition, we gather documentation that will provide a complete picture of a case for the adjudicating officer. For example, an H-1B employee may be working for an employer, through a middle vendor, for an end client. It is critical, now more than ever, to “connect the dots” for each of the three parties involved and show the adjudicating officer how each party is connected.

 Three Tips for Avoiding Denials

  1. File early.

As we navigate through the new adjudication trends, you should file early to allow enough time for alternative actions in case of a denial or RFE. In some cases, it may make sense to file using Premium Processing for a faster response. An earlier answer may provide additional flexibility for the employer and employee.

  1. Tell a complete story.

Occasionally it may be time-consuming to obtain end client letters or other critical pieces of evidence for your filing. When your paralegal or attorney requests these documents, please provide as much information as possible: they are requesting items that will strengthen your chances of an approval. As mentioned above, there must be proof of the chain of employment at the time of the filing. It is our job to transform a group of complex documents into a meaningful case that meets all legal requirements.

  1. Be adaptable.

We may have to modify how we approach cases as we study adjudication trends and see the impact of new memos and regulations. The new policy memo may dictate a different minimum threshold of evidence than in the past, but our experienced paralegals and attorneys will communicate the shifts as we encounter them. We ask that you attempt a similar level of flexibility during the adjustment period, so we can continue to offer you a high level of service.

We will always strive to get your case approved, so we will not submit a “frivolous filing” or “skeletal application” like the memo purports to target. Despite some claims that individuals will be deported if a document is left out of a petition, there are legal steps that must be followed by the U.S. government. While we will save a more complete discussion for another article, rest assured that deportation proceedings are not initiated until a series of preceding items occur. Although at times an adjudicating officer may miss a piece of submitted evidence, there are different appeals processes in place for USCIS errors. Feel free to contact us if you have any concerns about your specific case.

At Challa Law Group we consider our team to be part of your team and we will guide you through the complexities of new (and existing) immigration regulations. If you have any questions about the new memo or any of the new regulations and policies being implemented, please email us at info@challalaw.com.


Adjudication Alert: I-765 Photographs

Each form submitted to USCIS has different legal requirements, but we often find that as administrations change, so do adjudication and processing trends. Today’s adjudication alert is related to Form I-765, or the Application for Employment Authorization.

As a reminder, the I-765 instructions state:

You must submit two identical color photographs of yourself taken within 30 days of filing your application. The photos must have a white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched.

The directions go on to explain that the photos must measure 2” by 2” and be in color, with a full face, frontal view. The photos must also have the applicant’s name and Alien Receipt Number printed in pencil or felt tip pen on the back of the photo.

Why are we addressing such trivial instructions today? Recently, our office was engaged to respond to a Request for Evidence for a client’s recently submitted EAD application. Two passport-style photos, that seemingly met the criteria above, were submitted with the original application. However, in the RFE, USCIS pointed out that the photos were not taken within 30 days of the filing. The RFE stated that when the officer compared the photos with an EAD from two years ago, they noticed the photos were identical. The individuals must now have new photos taken in order to respond to the RFE, further delaying a decision on the EAD application.

This is just one example of the heightened scrutiny we have seen across visa types over the past months. In today’s immigration climate, it is important to have a legal team on your side that is not only aware of adjudication trends, but detail-oriented and responsive to shifting government priorities and processes. At Challa Law Group, we are dedicated to finding the best immigration strategy for our clients. Contact us today for an appointment with one of our attorneys.