State of the Union: Top Issues Affecting Immigration in 2019

By TL Loke Walsh

2018 was another roller coaster year in the immigration world. Spurred by the implementation of Trump’s Buy American, Hire American (BAHA) executive order in April 2017, DHS has been quietly implementing significant change – all without a major overhaul of the immigration system. By making adjustments to existing policies and guidance through a series of policy memorandums and focusing on scrutinizing employment-based adjudications instead of issuing formal regulations, the immigration climate has become increasingly hostile and disheartening. The level of anxiety and uncertainty created by the “invisible wall” is at an all-time high. As we look to the year ahead, many are wondering what 2019 will bring and how to deal with these changes and effectively hire and retain foreign talent amidst the uncertainty. Here is a summary of some of the changes impacting both employers and foreign nationals alike.

1. Continued Attacks on H-1B Visas
2. Continued Scrutiny of L-1 Visas and Subsequent EB-13 Multination-Executive/Manager Green Card Applications
3. Summary and Impact of Policy Memorandums Issued by USCIS in 2018
4. Employer Compliance is More Important Than Ever
5. Continuing Assault on Employment-Based Immigration: Is it Over for These Visa Categories?
6. Other Noteworthy Issues..

Continued Attacks on H-1B Visas

The assault on legal immigration started with increased scrutiny of the H-1B program in 2017, where Requests for Evidence (RFE) on H-1B applications increased by 45%, with USCIS issuing 85,265 RFEs between January and August of 2017. In 2017, 74% of all H-1B applications were approved, down from 87% the year before and is the lowest approval rate in at least a decade. This trend continued into 2018 and will likely continue into 2019. The main focus of these H-1B RFEs have been on the following issues:

1. Entry-Level Positions: Many of these H-1B RFEs targeted employers filing petitions for positions which paid entry-level (Level 1) salaries. By taking such a blanket, narrow interpretation, USCIS has essentially taken the position that a “specialty occupation professional” at the beginning of their career, did not qualify for an H-1B because the entry level position involved “menial” duties that would not normally require a bachelor’s degree to perform the job. Based on this flawed line of reasoning, an entry level lawyer or a dentist or engineer or doctor could not be considered a specialty occupation position because of the entry-level nature of the position. Yet, for two years now, USCIS has continued to issues these RFEs, perhaps assuming that many employers will “give up” and withdraw the case. Despite the continuing scrutiny on this issue, the Loke Walsh Immigration Law team has successfully challenged USCIS’ erroneous interpretation of the law, securing approvals on these types of cases.
2. LOKE WALSH TIP

   • • If filing for an entry-level position, employers must be able to show that the position is truly an entry-level position. Avoid using entry-level salaries for mid-level or senior employees.
3. Job is Too Complex for a Level 1 Salary: On the flip side, another target of these RFEs were for positions that USCIS thought were too sophisticated and complex for an entry-level wage. For example, some of these RFEs indicated that an entry level Investment Analyst graduating with a Bachelor’s degree and no experience, should not be paid an entry-level Level 1 salary because the job duties seemed too “complex” for an entry-level position. The Loke Walsh Immigration Law team has successfully argued that there is no legal basis for USCIS’s mistaken assumption, securing approvals on these cases.
4. It’s Not Just Computer Occupations that are Being Scrutinized by USCIS: In 2018, USCIS expanded its scrutiny beyond computer occupations to other positions, including Investment Bankers, Accountants, Business Development Analysts, Marketing Managers and even Statisticians. USCIS has continued its “over-reliance” on an outdated government publication called the Occupational Outlook Handbook (OOH), which outlines the minimum requirements for a specialty occupation. The problem with the OOH is that many of the “new” jobs of the 21st century, such as Data or Business Intelligence or SEO Analysts or IT Business Analysts are not listed in the OOH. If a job is not listed in the OOH, USCIS takes the narrow-minded approach that since the position does not appear in the OOH, it cannot be an H-1B specialty occupation as a bachelor’s degree is not normally the minimum requirement for entry into the position. The Loke Walsh Immigration Law team has successfully challenged USCIS’ position on this issue, securing approvals for our clients using alternative criteria, but we expect this scrutiny to continue into 2019.USCIS has also taken a new approach to certain occupations in the OOH. For example, OOH states that “software developers usually have a bachelor’s degree, typically in computer science, software engineering or a related field.” USCIS insists that since a range of education (not just one-degree major) is acceptable, a bachelor’s degree in a specific specialty is not required and therefore the position cannot be an H-1B specialty occupation. This “new” interpretation expanded to other occupations in 2018. For example, a recent RFE for an Accountant indicated that the OOH states, “accountant and auditor positions require at least a bachelor’s degree in accounting or a related field. Some employers prefer to hire applicants who have a master’s degree, either in accounting or in business administration with a concentration in accounting.” Based on the OOH, USCIS stated that an Accountant is not a specialty occupation because a range of education and not just one specific specialty is required. In yet another RFE, USCIS argued that Financial Analysts are not a specialty occupation because the OOH (which states “most positions require a bachelor’s degree. A number of fields of study provide appropriate preparation, including accounting, economics, finance, statistics, and mathematics”) indicates that multiple fields of study, and not just one specialty, can qualify someone for the position. USCIS has thus been using this “new” interpretation to deny a substantial number of H-1B petition on the grounds that the job is not actually in a “specialty occupation.” This is despite historically approving these same jobs as being in a “specialty occupation.” The constant moving of the goal posts is part of USCIS’s modus operandi to deny H-1B petitions and will continue into 2019.Another common misconception in these RFEs is if the OOH uses the term “usually” instead of “all,” USCIS takes the position that the H-1B job does not normally require a degree and is therefore not a specialty occupation for H-1B purposes. This unreasonable interpretation has also caused much grievance for employers, but the Loke Walsh Immigration Law team has successfully challenged USCIS on this issue. We however expect this trend to continue into 2019.
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   • • Include a detailed job description clearly outlining the complex nature of the position along with an explanation of how the position requires at minimum, a bachelor’s degree to perform the job, and how the H-1B employee’s education background is relevant for the job. Including a list of classes the H-1B applicant has taken during their bachelor’s or master’s degree and explaining how these specific classes are relevant for the job is also a must.
6. H-1B Applicant’s Degree is in a Different Field: USCIS also targeted H-1Bs where the person’s educational background was not clearly related to the occupation. For example, if a software engineer has a degree in electrical engineering, USCIS takes the position that the degree is not relevant for the job. USCIS has taken this concept even further. If a job requires a bachelor’s degree in some sort of quantitative field such as mathematics or engineering (e.g. Operations Research Analyst) – USCIS has started to question these positions because “according to publicly available Internet resources, there are approximately forty (40) different types of engineering degrees ranging in specialties to include but not limited to Mechanical, Ceramics, Civil, Electrical, Environmental, Agricultural, Marine, to Electronics Engineering. As such, it can be determined that the OOH does not indicate that a baccalaureate degree in a specific field of study is the minimum educational requirement.” Our firm has successfully challenged these RFEs and secured approvals for our clients, but the frequency of these RFEs have dramatically increased.
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   • • If the H-1B employee’s education is in a different field, it is possible to combine relevant experience with the education and have it evaluated by a professional credential service to determine if there is a minor in the field or a double major in the relevant field. Even if USCIS has already approved a prior H-1B for the person, it may no longer approve it if the officer determines that the person’s education is not relevant to the position.
8. H-1B Denials are on the Rise: Unfortunately, the additional scrutiny on H-1Bs has led to an increased number of denials. A National Foundation for American Policy report indicated a 41% increase in the denial rate of H-1B petitions in the 4th quarter of 2017 alone. USCIS is hellbent on misusing the OOH as the authoritative source and in a restrictive manner, often ignoring the other credible evidence provided by H-1B employers. More and more, foreign nationals report that they have friends whose cases have been denied because there is no deference to prior approvals when an H-1B (or any other nonimmigrant work visa) extension is filed. In the fall of 2017, USCIS revoked a long-standing memorandum that gave deference to previously approved petitions, meaning that if an applicant files for an extension, USCIS will no longer take into account the prior approval and will adjudicate the case as a new case. As a result, many H-1B applicants have received RFEs and sometimes denials on their extensions even if their petitions have been approved multiple times in the past for the same employer and for the same job!This development has had a significant impact on lateral hires and rendered the concept of “H-1B portability” meaningless. Employers now find that lateral new hires are reluctant to use “H-1B portability” and insist on waiting for the approval of the H-1B before joining a new company because of fears of denials. With the suspension of premium processing, this can mean a delay of 4-6 months, which is not viable for “just-in-time” hiring.
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   • • USCIS provides four criteria to qualify for an H-1B visa. The most common way to qualify has been to show that “a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” This is the criterion that USCIS has been using the OOH to disqualify applicants. But, there are 3 other ways to qualify for an H-1B visa by showing:
       1. The degree requirement is common to the industry in parallel positions among similar organization or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; or
       2. The employer normally requires a degree or its equivalent for the position; or
       3. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

       The next best way to qualify is through the criterion that “the employer normally requires a degree or its equivalent for the position.” This can be shown through prior job postings for the position. As such, it may be prudent for employers to place job postings with specific educational requirements for these positions on the company website, alumni offices, local newspapers, job posting websites or use employee referral programs. Care must be taken to ensure that the specific educational requirements are listed and that the educational requirements are met by the H-1B applicant. For example, it’s not enough to state that a bachelor’s degree is required; the job posting must specify what kind of bachelor’s degree (i.e. a specific specialty or major) is required. Obviously, the applicant’s educational background should match the employer’s educational requirement!

10. Increased Scrutiny on Use of Curricular Practical Training (CPT) by H-1B Applicants: With the challenges created by the H-1B lottery, many applicants have used the “going back to school” option as a way to stay in the United States. Some schools throughout the country have seized on the opportunity by offering MA level programs with a “full-time CPT” option from Day 1. As way of background, most students are only eligible for CPT after completing one academic year (i.e. at least 9 months of school.) There are some exceptions that allow students to use CPT from Day 1 of school. Many of these schools offer programs that allow students to use CPT from the first day without even attending school. This has allowed applicants to go back to work immediately. This trend has caught the attention of USCIS which has been scrutinizing these H-1B petitions, where the applicant completed a master’s degree, used one year of OPT and then went back for a second master’s program and is working on CPT. USCIS has been granting the H-1B but denying the “change-of-status” portion of the H-1B petition. With the new “unlawful presence” memorandum, it is also possible that USCIS may make a determination that the use of the additional CPT is a status violation and the unknowing applicant may have accrued over 180 days of unlawful presence!
11. Changes to the H-1B Process: What Lies Ahead for H-1B Employers and Applicants: On January 30th, 2019, USCIS announced some significant changes to the H-1B process. Under the current system, USCIS conducts a computer-generated lottery if it receives more than 85,000 H-1B petitions in the first 5 business days. Typically, petitions for the advanced degree cap are selected first. If the advanced degree cap of 20,000 is reached, higher-degree applicants get a second chance as part of the regular cap (65,000 slots).The new regulation reverses the order of selection, where USCIS will now conduct the computer-generated lottery on H-1B regular cap petitions first. Once a sufficient number of applicants have been selected for the regular cap of 65,000, USCIS will then select applicants towards the higher-degree cap.USCIS believes that changing the order of the random lottery will increase the number of applicants with a U.S. masters or higher degree by up to 16% (or 5,340 applicants). This change is effective in 2019 (FY 2020) for this year’s applications.As part of the final regulation, USCIS also announced that it will be introducing an electronic registration requirement, but this will not be implemented until FY 2021, i.e. April 2020. Under the electronic registration requirement, all employers filing an H-1B petition will be required to first electronically register with USCIS during a designated period. The registration period will last a minimum of 14 calendar days and will start at least 14 days before the earliest date on which H-1B cap-subject petitions may be filed. An employer must submit a separate electronic registration for each H-1B applicant and each applicant must be named. An H-1B employer may only submit one registration per person in any fiscal year. If an H-1B employer submits more than one registration per applicant in the same fiscal year, all registrations filed by the H-1B employer for that applicant for that fiscal year will be considered invalid. If selected, the employer will then have at least 90 days to submit the H-1B petition.

In summary, it’s been tough times for H-1B applicants. The main difference between 2017 and 2018 is the increase in the number of denials. What is frustrating is that there is no rhyme or reason as to why some cases are approved while identical cases for the same employer and the same occupation are denied. However, now that the dust has settled, the end goal is crystal clear. The additional scrutiny on the H-1B program will likely discourage employers from applying for H-1B visas. In addition to the unpredictability of the lottery selection process and the final outcome of cases, the additional burden of responding to ridiculous RFEs will likely have a chilling effect on employers that in the past have been willing to sponsor H-1B applicants, particularly entry-level new graduates.

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Continued Scrutiny of L-1 Visas and Subsequent EB-13 Multination-Executive/Manager Green Card Applications

While USCIS has scrutinized L-1 visa applications in the past few years, it seems that it raised the level of scrutiny up another notch. In particular, businesses looking to establish a presence in the United States are finding it difficult to obtain start-up L-1s. In many instances, USCIS has taken the position that a start-up does not have the organizational structure/complexity to support an executive or manager. A reasonable person may wonder how a business is supposed to “start-up” the business without an executive or manager on the ground initially. The subsequent L-1 extension is even more difficult with an unprecedented level of pushback at the extension stage.

In the past, one option was to apply for a green card instead of an L-1 extension, but USCIS’s new focus seems to be on these EB-13 green card applications. Trying to argue that USCIS has already granted an L-1 (or in some cases, multiple L-1s) has been a challenge. While LWIL has successfully obtained approvals for start-up L-1s, extensions and subsequent green cards, the unpredictability in USCIS decisions is likely to discourage foreign investment into the United States.

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Summary and Impact of Policy Memorandums Issued by USCIS in 2018

USCIS issued a flurry of policy memorandums in 2018, continuing the trend that enabled USCIS to narrowly interpret the law and regulations when adjudicating petitions, all of which have a significant impact on foreign nationals and employers.

1. Memorandum on Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)In the past, USCIS policy was to generally either approve a case or issue an RFE. Issuing a straight denial was highly unusual unless the applicant was clearly not eligible for the visa. Even in those situations, USCIS would often issue a Notice of Intent to Deny (NOID) instead. In September 2018, USCIS issued an update on this policy, announcing that adjudicating officers have full discretion to deny cases without issuing an RFE. While USCIS stated that it would not issue denials for innocent mistakes, anecdotal reports indicate that USCIS has used this policy to issue more denials. Applicants who mistakenly tick the wrong box on a form or inadvertently leave a document out of the petition have been penalized as denials become more common. Students in particular, seem to be the most penalized group of applicants. Examples of straight denials on OPT applications include where an F-1 student included an older version of an I-20 or an unsigned version of an I-20 or submitted an I-20 that was signed more than 30 days prior to filing. In the past, USCIS would have allowed an easy fix to the student by issuing an RFE. However, if an OPT application is denied outright, it is disastrous for the F-1 student as the window to submit another application will have closed, leaving them with no choice but to leave the United States. In other situations, USCIS has also denied OPT applications outright where the security checks reveal that the F-1 student has an arrest (e.g. DUI, trespassing).
2. Unlawful Presence Memo for F and J Visa HoldersIn August 2018, USCIS completely reversed a long-held policy concerning the accrual of unlawful presence for F and J visa holders. In the past, F and J visa holders were admitted for the duration of stay (D/S) of their program (as opposed to “date-certain” admissions for others with E, H, L, O or P visas), and would only accrue unlawful presence if USCIS or an immigration judge made a status determination against them.The concept of unlawful presence is important because once someone has accrued over 180 days of unlawful presence, a three-year bar is triggered upon departure from the United States. Anyone who accrues more than 1 year of unlawful presence triggers a ten-year bar upon departing from the United States.Under this new policy which became effective on August 9, 2018, an F or J who violates their status will automatically begin to accrue unlawful presence from the date of the violation. Many of us in the immigration bar have voiced serious concerns about the draconian impact of this policy as many F and J visa holders, particularly students, simply won’t even realize they have triggered this provision until much later when it will be too late. Examples of status violations include:
   • Failure to maintain a full course-load while at school
   • Failure to notify USCIS of an address change
   • Failure to notify school of change of employer while on OPT
   • Working more then the 20 hours allowed during part-time CPT (internships)
   • STEM OPT violations (e.g. volunteering or working for non-E-Verify employers)
   • Working in the gig economy (e.g. UBER, LYFT, Airbnb)
   • Casual employment (e.g. working as a tutor, bartender, waiter, barista)
   • Developing apps/monetizing/selling items of Etsy
   • Working after cap-gap extension expires

   This extreme policy has been challenged in a a lawsuit filed by Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College in October 2018. Yale, MIT, Stanford and more than 70 other universities have filed an amicus brief in this case.

3. Updated Guidance on Issuance of Notices to Appear (NTA)On July 5, 2018, USCIS published new guidance regarding the issuance of Notices to Appear (NTA). Starting October 1, 2018, USCIS will issue an NTA to every person who is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied. The NTA policy memo will not be implemented with respect to employment-based petitions and humanitarian applications at this time. The NTA guidance will however apply to Form I-485 Adjustment of Status applications as well as Form I-539 Applications to Extend/Change Nonimmigrant Status and will be implemented incrementally. Generally, USCIS will not issue an NTA immediately upon denial, but will generally wait for the expiration of the motion or appeal period before issuing an NTA. An NTA is a charging document that is issued to foreign nationals we are deemed “removable” from the United States. People who receive NTAs must appear before an immigration judge to determine whether they should be removed from the United States, or whether they are entitled to some type of relief from removal, allowing them to remain in the United States legally. When a NTA is issued, the person is forced into the court system, preventing them from departing the United States, even if they want to.
4. Changes to the Definition of Public ChargeThe Trump Administration’s proposed rule broadens the factors the government considers when determining whether someone is considered a “public charge.” The proposed rule is aimed at reducing legal immigration. The proposal received over 210,000 comments during the 60 day-comment-period which ended in December 2018. The Department of Homeland Security will likely take months to go through the comments and issue a final rule, which will likely be challenged in courts.

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Employer Compliance is More Important Than Ever

If it seems to you that USCIS has transformed from a benefits-granting agency (or a service-oriented agency) to an enforcement-driven agency, you aren’t the only one. It may seem reasonable, but not when there are already two other enforcement-focused government agencies in Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). Given the current climate, employer compliance is more important than ever as we will see a stepped-up effort at workplace enforcement in 2019.

1. H-1B and L-1 Worksite Enforcement Site-Visits Will Increase in 2019USCIS conducts unannounced work-site visits for employers that sponsor H-1B and L-1 visa applications. In 2017 and 2018, the number of site visits increased and will continue to be a focus in 2019. These unannounced work-site visits are conducted by the Fraud Detection and National Security (FDNS) officers, who will typically meet with the H-1B or L-1 foreign national as well as with an HR manager or supervisor. The purpose of the visit is to verify the accuracy of all the information submitted in the H or L petition, including job duties, the salary being paid and the work site location.Here’s our LWIL FDNS Cheat Sheet which includes some of the frequently asked questions and issues that come up during a site visit.As a reminder, it is more critical than ever to ensure full compliance with all of the H-1B and L-1 provisions. Therefore, if an H-1B’s job duties change significantly or if the company moves offices or the H-1B’s work site changes, this may require the filing of an H-1B amendment with USCIS. In addition, if an H-1B employee is laid off or terminated, an H-1B employer must notify USCIS which will then revoke the H-1B petition.You can refer to our “Employer Obligation” Cheat Sheet for a list of the obligations and liabilities of an H-1B employer.
2. I-9 Audits Likely to Increase in 2019In 2018, Thomas Homan, the Immigration and Customs Enforcement Acting Director at the time, promised a fourfold increase in work-site enforcement actions, to include actions against both employers and undocumented workers. The agency has focused on developing and implementing its comprehensive worksite enforcement strategy that focuses on imposing fines on employers that violate employment laws and on detaining workers who work in the United States without employment authorization. In 2018, we saw an increase of more than 300% in ICE investigations, with ICE continuing its pattern of launching several high-profile raids employers and issuing record fines against employers for I-9 and discrimination violations. Proper I-9 completion and maintenance of I-9 and E-Verify records will be critical for all employers in 2019.Here’s our Top I-9 Practice Pointers for tips on I-9 compliance.
3. The Return of Social Security Administration “No-Match” LettersThe Social Security Administration will “revive” its previous policy of sending out “no-match” letters to employers in spring 2019. In these no-match letters, SSA will notify each employer with at least one W-2 form where the name and SSN do not match SSA records.“No-match” letters were initially sent out in 1993, but they created extensive confusion for employers about how to deal with the letters and whether the letters could be used as evidence of unauthorized employment. The Obama Administration suspended the use of these letters in 2012. The issuance of a “no-match” letter could be because of a typo or confusing hyphenated or double-barreled last names or unreported name changes, and not necessarily because the employee did not have employment authorization. An employer must never use a “no-match” letter to take any adverse action against the employee, but at the same time, the employer should take good faith efforts to determine why the “no-match” letter was issued.

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The Continuing Assault on Immigration: Is it the End for these Visa Categories?

1. The H-1B Program – is it Over?Opponents of the H-1B program have introduced bills to either restrict or get rid of the H-1B visa for over 20 years. Keep in mind that any major overhaul of the H-1B program requires Congressional approval (i.e. both the Senate and the House have to vote to approve) which is still challenging. However, we will likely continue to see implementation of change through adjustments to existing policies or guidance – change that will fly below the radar without needing to go through a formal rulemaking process or period for public comment. This means that USCIS will continue to scrutinize H-1B applications and FDNS will ramp up its unannounced work-site visits.In 2018, USCIS did indicate that it is considering a number of policy and regulatory changes to carry out the President’s “Buy American, Hire American” executive order, including conducting a “thorough review’ of employment-based visa programs. In September 2018, as part of its regulatory agenda, USCIS quietly included a proposal (“Strengthening the H-1B Nonimmigrant Visa Classification Program”) to revise the definition of a specialty occupation, as well as plans to redefine an “employer-employee” relationship. It is possible that USCIS will also remove the Level 1 (i.e. entry-level) set of wages. We will likely see some action on this in 2019.
2. H-4 EADs Likely to be Phased OutOnly about 100,000 H-4s have been issued EADs since 2015. Yet, the H-4 EAD is the source of pending litigation. Several motions were filed in December 2017, with DHS asking the court to hold the current litigation since the Trump Administration has made it clear that they intend to rescind the rule. Yet, for some unknown reason (not that anyone is complaining), DHS has yet to make the announcement rescinding the H-4 EAD.For now, Loke Walsh Immigration Law recommends that anyone who is eligible for the H-4 EAD, apply for it while it remains available. Even if the rule is rescinded, we believe that USCIS will likely allow the existing cards to remain valid until expiration as it is more costly to revoke and return the EADs to USCIS.
3. Are NAFTA-TN Visas Under Threat?Following re-negotiations of the NAFTA treaty, we have a new United States-Mexico-Canada Agreement (USMCA) that is essentially the same as the original NAFTA. The USMCA will become effective in 2020 and it leaves the original visa classifications mostly intact with some very minor changes that made some unofficial guidance, official. However, the USMCA must still be ratified by Congress. The team at Loke Walsh Immigration Law will continue to keep you updated if there are any developments in this area.
4. Diversity Visa (DV) LotteryA constant target of not only the Trump Administration, but also other critics, the DV Lottery program is still alive and kicking. Loke Walsh Immigration Law continues to recommend that everyone who is eligible to apply, to continue to apply for lottery during the registration period. If selected, it is one of the best ways to obtain a green card.Here’s our “Top 10 Things You Need To Know About the FY 2019 Green Card Lottery.”
5. STEM OPT Continues to be ScrutinizedThe Trump Administration has indicated that it is looking at scaling back STEM OPT for international students. ICE notes that it plans to revamp the program to “improve protections of U.S. workers who may be negatively impacted by the employment of nonimmigrant students on F and M visas.” The team at Loke Walsh Immigration Law will continue to keep you updated if there are any developments in this area.
6. Dreamers and DACAIn September 2017, DHS announced the termination of the Deferred Action for Childhood Arrivals (DACA) program impacting approximately 800,000 DREAMERS around the United States. However, three years later, DACA is still alive and kicking because of a preliminary injunction issued by a U.S. District Court Judge. As such, USCIS is still required to accept and process DACA renewal applications. The case is likely to come before the U.S. Supreme Court in 2019.

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Other Noteworthy Issues..

1. Increase Delays in Adjudications of Visas Filed With USCISThe American Immigration Lawyers Association’s (AILA) analysis of recently published USCIS data reveals crisis-level delays in the agency’s processing times. AILA reports that the overall average case processing time surged by 46% over the past two fiscal years and 91% since 2014. The slowdown in processing times increased substantially in FY 2018 even as fewer immigration cases were filed.We have seen significant delays in adjudications of all types of applications, but some of the most significant delays are with the following:
   • H-1B visa petitions are taking between 8-10 months, some even 1 year to be adjudicated. USCIS supposedly suspended the premium processing service for all types of H-1B applications (with the exception of 3 types of cases: i) Cap-exempt petitions; ii) Extensions where there are no changes to the job; and iii) FY 2019 cap-cases (i.e. H-1B cap cases filed in April 2018 that are still pending; this 3rd exception only came into effect on January 28, 2019)), to focus on clearing their backlogs. However, the lengthy processing times continue.
   • Family-based cases (e.g. marriage-based green card applications) have seen a major increase in processing times. In Los Angeles, marriage-based cases were routinely scheduled within 3-5 months for over a decade; now they are typically scheduled around 10-12 months after filing. Local offices around the United States are experiencing similar delays. Citizenship applications have also seen a slowdown in adjudications, going from 3-4 months to 10-12 months. This is likely due to the introduction of mandatory interviews for all employment-based applications at the local offices, which were already strained by limited space and resources.
   • Combo cards and EADs used to take 2-3 months to be issued; now, they are taking anywhere between 3 months and 5.5 months to be issued.
2. Increased Delays in Visa Issuance at US Embassies and ConsulatesMany visa applicants experienced delays in the issuance of their visas at U.S. embassies in their home countries in 2018. In many situations, an additional delay of 1 or 2 days is not too noticeable, but, for applicants in certain industries (think STEM), applying in certain countries (e.g. India, China, Russia), we have seen an uptick in “administrative processing”. While most applicants undergoing administrative processing receive their passports within 7-10 days, some cases can drag out over several weeks to several months. Some visa applicants may therefore want to carefully consider the necessity of international travel due to the uncertainty in timing. A short trip home may turn into several months, creating unexpected hardships on both employers and employees.Applicants from Middle Eastern countries also experienced “extreme vetting” with U.S. embassies and consulates requiring much more detailed information about travel, employment and residential history for the past 15 years, phone numbers for the last 5 years, email addresses and social media handles for the last 5 years.
3. Additional Delays for Applicants with DUIs and ArrestsIn 2017, we saw a significant change in the treatment of any visa holder arrested for a DUI. Within 2-3 days, the U.S. embassy or consulate that issued the person’s nonimmigrant visa (e.g. H-1B, F-1, L-1, O-1, etc.) notified the person that the visa has been revoked. The person may remain in the U.S.in valid status (based on a valid I-94 Admission/Departure Record), but if s/he travels internationally, s/he must apply for a new nonimmigrant visa at the U.S. embassy or consulate in his or her home country. As part of the interview process, the applicant must secure medical clearance (determining that s/he is not a “habitual drunkard”) from the embassy’s designated doctor. This process can take several weeks. This continues to be the trend.In 2018, we reported that USCIS had started to deny some change-of-status applications from anyone with a recent DUI, essentially “forcing” the applicant to return to their home country to go through an interview and medical clearance procedure. Reports are mixed as USCIS continues its alarming trend of unpredictable decisions, leaving an applicant’s fate in the hands of the adjudicating officer. If lucky, the petition is approved; if unlucky, the petition is denied.Other arrests which are considered misdemeanors, such as trespassing (common in California where people accidentally wander onto private beaches or try to get too close to the Hollywood sign!) or shoplifting charges (e.g. college dares gone wrong), can lead to additional delays when applying for visas, but the visas are usually issued.The team at Loke Walsh Immigration Law continues to remind clients that even with the number of states (and now Canada!) legalizing either medical marijuana or recreational marijuana, it is still against federal law and can have serious consequences on immigration status.
4. Changes in International Travel while a Green Card Application is PendingFor the last two decades, H-1B and L-1 applicants with pending green cards have always been allowed to travel with valid H/L visas during the process. As part of the I-485 adjustment of status (AOS) application, it is customary to apply for a combo card (combined work permit and travel document). In fall of 2017, USCIS started to issue split decisions on combo cards (denying the travel portion (I-131), but approving the employment authorization (I-765)) where an H or L visa holder travelled with his or her H/L visa, before the combo card was issued. As a practical matter, the denial of the travel portion of the combo card may not be significant as the foreign national can still travel as long as they have a valid H or L visa. But, there are situations where it is beneficial to have a combo card – for example, someone on an L or H visa may not have any H or L time left having reached the maximum allowable period of time on the visa. Or, it may be difficult and/or time consuming to apply for an H or L visa at a U.S. embassy abroad.Based on these changes, H and L visa applicants filing for AOS had to decide whether to continue to travel on their H/L visas and only apply for the employment authorization document (no combo card) or stay put with no international travel until the combo card is issued.On November 16, 2018, during the USCIS Ombudsman Annual Conference, USCIS Director L. Francis Cissna spoke briefly on this USCIS policy to deny pending Forms I-131, Application for Travel Document when an applicant travels overseas. Based on feedback from the CIS Ombudsman and other stakeholders, Director Cissna indicated that USCIS will end the practice of denying pending I-131 applications when an applicant travels overseas. However, USCIS has not formally announced this reversal in policy in writing. The team at Loke Walsh Immigration Law will provide updates throughout the year.

2018 was a challenging, heartbreaking and exhausting year on the immigration front. The trend towards additional scrutiny and a tightening up on all fronts is likely to continue well into 2019. As long as the Trump administration continues to view high-skilled foreign professionals as threats to American workers instead of assets to the U.S. economy, the additional scrutiny on not only the H-1B program but other types of work visas and green card applications will likely continue.

The team at Loke Walsh Immigration Law remains hopeful and will continue to provide updates throughout the year. Please feel free to share this update with your colleagues and anyone else who may find the information useful. Until then, we Stand With Immigrants.

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