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Even before COVID-19, companies were facing an increasingly challenging immigration environment as the Trump administration has tightened eligibility for common visa categories for high-skilled workers over the past three years.
Denial rates for immigration petitions have now reached record levels. The pandemic has led to entry restrictions on travelers from more than 30 countries, and a worldwide ban on immigrant visa applicants from entering the U.S. On June 22, the White House issued a proclamation expanding the entry ban to nonimmigrants, including certain categories of temporary work visas.
This environment significantly increases uncertainty and raises the risk for employees whose immigration petitions in the U.S. are denied, as they are more likely to face prolonged entry restrictions.
It is more important than ever for employers whose immigration petitions are denied to explore all legal options for preventing the departure of foreign national employees. This article looks at those options and why employers may change their traditional strategies for responding to denials.
Options for Employers When a Petition is Denied
Typically, when an employer receives a denial on an employee’s petition, such as an H-1B extension or L-1 extension, the most expedient and reliable strategy is for the employer to refile from within the U.S., if the employee’s previous status is still valid, or to have the employee depart the U.S. while the employer refiles the petition.
At this time, with numerous travel bans in place, an entry ban on immigrant visa applicants and new restrictions that include the suspension on entry of H-1B and L-1 visa seekers abroad as of June 24, employers should think twice before advising, as a strategy, that an employee leave the U.S. while their petition is refiled.
Since so many restrictions may affect reentry, and since the possibility of additional restrictions exists, employers need to reexamine their traditional approach to a U.S. Citizenship and Immigration Services denial. Employers that want to challenge a denial are left with the following three options.
Employers should carefully consider their choice, since they cannot pursue all options concurrently.
Most motions or appeals must be filed within 30 days of the denial notice by submitting Form I-290B, Notice of Appeal or Motion. A motion to reopen/reconsider is only sent to the USCIS office that issued the denial to see if it will overturn its original denial.
If the employer selects the option to appeal the decision to the AAO, they get two attempts at getting the denial overturned. If the appeal option is chosen, the case is first sent back to the USCIS office that issued the denial to see whether it will change its decision.
If the original office confirms its denial, USCIS then forwards the appeal on to the AAO. The AAO will either confirm the denial, overturn the denial or remand the case back to USCIS with specific guidance.
It is important for employers to understand that filing a motion or appeal does not maintain an employee’s underlying status or enable the employee to continue working while the case is under review.
In an effort to maintain an employee’s underlying status while seeking one of the above options, the employer may need to file a new petition — e.g., if the employee is still in legal status and an extension petition may be filed in a timely manner — or perhaps file another petition with USCIS, even if they have to request that USCIS use its discretion to forgive a late filing after the employee’s status has expired.
Why Employers Declined to Pursue These Strategies in the Past
In the past, employers were hesitant to file an appeal or motion to reopen/reconsider for a multitude of reasons. Here are several reasons:
Motions and appeals had a low success rate. In H-1B cases,[1] AAO appeals were successful less than 3.7% of the time in each of fiscal years 2015, 2016 and 2017. Employers lacked strong federal cases to support their legal arguments. In contrast, in fiscal years 2018 and 2019, the AAO sustained appeals in H-1B cases 18% of the time, not including remands.
Motions and appeals have long timelines. Motions can take more than four months for a decision and appeals can take over 6 months.
Filing an appeal with the AAO or a motion to reopen/reconsider does not grant the foreign national beneficiary any status or work authorization.
There are high costs associated with filing a motion or an appeal, including additional legal fees and filing fees.
The strategy of quickly refiling the petition under premium processing was usually the fastest and most predictable option. After approval, the foreign national employee would exit the U.S., apply for a new visa at a consulate in their home country and reenter the U.S. to quickly overcome the previous denial and reestablish legal work authorization in the U.S.
Reconsidering Options in the Current Environment
For the reasons stated above, fighting an adverse decision was not a very attractive option for an employer hoping to immediately secure employment, or to continue employment, for one of their employees. This also explains why the most expedient way to overcome a denial has typically been to refile the petition under premium processing and then have the foreign national employee return to the U.S. with the new approval to resume employment in lawful status.
Then, COVID-19 emerged and travel halted. Travel restrictions were imposed, and all U.S. consulates and embassies suspended routine visa processing. With these changes, companies must reconsider their post-decision playbook. No longer may an employer facing denial quickly, and with some predictability, send an employee outside the U.S. to await approval of a new petition.
While this strategy was largely been successful in recent years as second petitions were often approved after an initial denial, this approach is much less predictable today. Due to ongoing travel bans and closed consulates, it is much more uncertain whether employees will be able to reenter the U.S. With so much uncertainty around the ability of employees being able to return to the U.S., companies need to give greater consideration to fighting petition denials.
As sponsoring employers know, there has been a sharp increase in requests for evidence and denials in recent years. Between fiscal year 2015 and fiscal year 2018, the denial rate for new H-1B petitions quadrupled from 6% to 24% according to a policy brief by the National Foundation for American Policy,[2] based on data obtained from the USCIS H-1B employer data hub.[3]
With the substantial increase in denials, some employers began to question the legality of USCIS decisions and challenge denials via litigation. Recent court decisions provide hope, specifically to H-1B employers who seek an alternative way to retain foreign talent in the U.S.
For example, there is favorable new persuasive case law regarding the definition of a specialty occupation. Last August, in Relx Inc. v. Baran, the U.S. District Court for the District of Columbia reprimanded USCIS, stating that the immigration statute does not require that only one type of degree be accepted for a position to be considered specialized.[4]
In addition, USCIS recently agreed to a settlement in ITServe Alliance Inc. v. USCIS, which overturned restrictive policies that were being enforced against employers and their H-1B employees.[5] In the settlement, the government agrees to the following with respect to all H-1B petitions:
These positive results may encourage employers to pursue litigation following a denial, particularly when the denial is based on sudden policy changes that have reversed longstanding adjudication standards.
Action Plan for Employers Who Choose to Challenge Denials
Employers who are considering challenging a denial should take the following steps:
Understand the reason for denial. Was the law misapplied? Is there new evidence that could be provided that would result in an approval?
On the basis of the legal analysis, determine whether the employee has any other options to remain in the U.S. For example, is the employee also in the green card process and do they have work authorization via that avenue? Are they eligible to file for work authorization as a dependent spouse? Are they eligible for other visa categories?
If there are no other options, does the employer want to fight the adverse decision? Is the employer prepared to file a motion or appeal if it could result in the possibility of keeping that employee work authorized in the U.S.?
For the majority of nonimmigrant petition denials, an employer has only 30 days to appeal. Therefore, it is imperative that employers act quickly once they receive a denial, and they may even want to anticipate strategies before a denial.
In summary, if the denial decision will have a considerable impact on the business, employers may want to consider fighting back. The current policy environment means the stakes are higher than ever when an employee’s immigration petition is denied.
[1] USCIS and AAO Data for FY2019, AAO Appeal Adjudications, https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/AAO_Data_for_Publishing_Thru_FY19.pdf.
[2] National Foundation for American Policy, “H-1B Denial Rates: Analysis of H-1B Data for First Two Quarters of FY2019,” August 2019, https://nfap.com/wp-content/uploads/2019/08/H-1B-Denial-Rates-Analysis-of-H-1B-Data-for-First-Two-Quarters-of-FY-2019.NFAP-Policy-Brief.August-2019-1.pdf.
[3] U.S. Citizenship and Immigration Services, H-1B Employer Data Hub Files, https://www.uscis.gov/tools/reports-studies/h-1b-employer-data-hub-files.
[4] Relx Inc. v. Baran, 397 F. Supp. 3d 41, 54-55 (D.D.C. 2019).
[5] https://nfap.com/wp-content/uploads/2020/05/ITSERVE-SETTLEMENT-AGREEMENT-fully-executed_Redacted52020.pdf.
[6] U.S. Citizenship and Immigration Services, Policy Memorandum, PM-602-0114, June 17, 2020, https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/PM-602-0114_ITServeMemo.pdf.
[7] ITServe Alliance, Inc. v. Cissna , No. 1:18-cv-2350, slip op. at 43 (D.D.C. Mar. 10, 2020).
Lynn O’Brien is a Senior Associate and Kane Vongsavanh is an Associate in the McLean, Va., office of Berry Appleman & Leiden LLP.
This article was originally published on Law360.com on June 25, 2020.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
COVID-19 is slowing immigration processing, with U.S. consulates suspending routine visa services abroad and U.S. Citizenship and Immigration Services (USCIS) temporarily suspending premium processing and in-person services during the national emergency.
Nevertheless, companies that sponsor H-1B, labor certification and other immigration procedures for employees in the U.S. will be able to keep several processes moving and remain in compliance, thanks to new measures introduced by the Department of Homeland Security and the Labor Department.
Relaxed signature requirements
Employers who are enforcing social distancing in the workplace by mandating work-from-home policies are now permitted to file copies of signed USCIS forms during the national emergency. Although the original petition must still be printed and signed with a handwritten “wet” signature and retained, employers will be able to scan or copy (or use a scanner app on a mobile phone) the original signed petition containing the wet signature for submission to USCIS.
Relaxed I-9 verification procedures
Form I-9 verification procedures will also be temporarily eased for certain employers who have implemented telecommuting because of COVID-19. Usually, employers must inspect an employee’s documents in the employee’s physical presence. During the crisis, employers may inspect identity and employment authorization documents remotely via video, fax or email. DHS is allowing remote inspection for employers operating remotely. Notably, however, if any employees are physically present at a work location, the employer must follow normal in-person procedures. Employers who are eligible for the virtual inspection option should strictly adhere to procedures set out in the guidance to ensure that they are in full compliance during the National Emergency and after normal operations resume.
Longer deadlines
The agencies have also automatically extended several deadlines for immigration-related procedures. Employers will have more time to respond to a Notice of Inspection (NOI) issued by DHS. Companies who have not yet responded to an NOI that was issued this month are automatically allowed a 60-day extension from the effective date. At the end of the extension, DHS will decide whether to extend further. Employers now have until May 12, 2020 to respond to certain inquiries by the Labor Department’s Office of Foreign Labor Certification, such as a request for information, notice of deficiency, or notice of audit, if their original deadline to respond fell between March 13, 2020 and May 12, 2020.
Employers will also have more flexible deadlines for completing labor certification application (PERM) recruitment and H-1B Labor Condition Application (LCA) posting requirements. DOL issued guidance giving employers an additional 60 days to complete PERM-related recruitment, provided that the employer started recruitment on or after Sept. 15, 2019, and the PERM application is filed by May 12, 2020. This extension does not apply to employers who already completed recruitment within the normal deadline. Additionally, employers who started recruitment on or after Sept. 15, 2019 have an additional 60 days to post the PERM notice of filing.
Employers may be moving H-1B employees to new locations, such as work-from-home arrangements, because of COVID-19. Normally, the LCA must be posted on or within 30 days before the day the H-1B worker begins working at the new work location, but under temporary measures, employers have up to 30 days after the worker begins work at the new location to post the LCA.
These temporary measures, though modest, are a promising development in that they allow companies flexibility in meeting the competing obligations of social distancing and immigration compliance. It is hoped that the agencies will consider implementing additional measures that would ease immigration processes and compliance during these extraordinary times.
BAL will continue to engage with policymakers and advocate for measures to help clients mitigate delays and protect the health of their employees.
Lynn O’Brien is a Senior Associate in the Northern Virginia office of Berry Appleman & Leiden LLP.
As governments continue to grapple with concerns over the COVID-19 virus, and policies around international travel are still in flux, the State Department recently expanded its recommendations that will limit travel for most J-1 international exchange visitors.
U.S. employers that sponsor J-1 exchange visitors should plan to adjust their training schedules and take other actions to comply with new guidelines for affected individuals. Employers who administer their own J-1 program, should pay close attention to upcoming program start and end dates in SEVIS so that appropriate revisions can be made to an exchange visitor’s status and new forms can be generated, as needed.
Since Feb. 7, the agency’s Bureau of Educational and Cultural Affairs (ECA) has recommended restricted travel to the U.S. for exchange visitors who had been in China within the previous 14 days and for those planning to travel back to China before April 1. As of March 6, however, the guidance was expanded to additional exchange visitors who are currently outside the U.S. and those already in the country.
For new exchange visitors who are currently outside the U.S., and who have traveled to China or a country affected by COVID-19 in the past 14 days, sponsors should delay their start date until at least April 1 or later. Sponsors should also issue them a new initial certificate of eligibility (Form DS-2019), which allows them to request an interview at a U.S. consulate abroad. If the exchange visitor has already secured a J-1 visa stamp, the sponsor should issue an amended Form DS-2019 with a start date after April 1. Sponsors should delay the start date of new exchange visitors until they have been outside of the affected country (and are not exhibiting symptoms of the COVID-19 virus) for at least two weeks.
Current exchange visitors who are outside the U.S. may have their records kept in SEVIS until they are able to return to the U.S. and continue with their original program objectives. However, depending on the validity dates of their J-1 visa, they may need to renew their visa before they are able to return to the U.S. If an exchange visitor requests withdrawal, the sponsor may shorten their SEVIS records accordingly.
Employer sponsors should also take action to extend the programs of exchange visitors who are currently in the U.S., but this may require more attention to compliance. According to the State Department guidance, sponsors should reinstate (if necessary) and extend the program for current exchange visitors with a new end date of April 1, 2020. Extensions, however, require that the exchange visitor’s activities remain consistent with the original purpose of travel to the U.S. and should be documented in the extension. Program extensions must also be supported with funding by the exchange visitor, sponsor or other third parties.
It is important that J-1 exchange visitors do not overstay their authorized period of stay as indicated on their Form I-94 record by U.S. Customs and Border Protection. Most exchange visitors are granted J-1 status as long as they remain in status as an exchange visitor, but this is not always the case, and border officials sometimes denote an expiration date on the I-94. The State Department has also said that it is aware that a significant number of exchange visitors who are currently in the U.S. have reached the maximum duration of their program and are not permitted to extend it. Exchange visitors facing these circumstances are encouraged to consider applying for special measures that U.S. Citizenship and Immigration Services offers for those in the U.S. seeking to extend or change their visa status in special humanitarian or extenuating circumstances. Exchange visitors who are subject to the two-year home residency requirement may also be eligible for such relief. As exchange visitors are permitted to remain in the U.S. for up to 30 days beyond their program end date, an extension or change of status should be filed before the 30-day grace period lapses.
Employers with exchange visitor programs should anticipate significant delays in start dates for new exchange visitors, including the need to reschedule visa interviews. Employers sponsoring current exchange visitors should move to extend their programs with appropriate documentation of funding and compliance with program requirements. Additionally, sponsors should review and assess I-94 expiration dates and determine whether their current exchange visitors will need to apply to USCIS to extend or change their visa status under special humanitarian measures.
Lucrecia Davis is Senior Counsel in the Houston office of Berry Appleman & Leiden LLP.