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L-1B Denial Rates on the Rise Again: USCIS Proposes New Adjudication Standards in Response

U.S. Citizenship and Immigration Services (“USCIS”) recently released statistics related to L-1B denial rates for fiscal year 2014, in response to a Freedom of Information Act (FOIA) request filed by the National Foundation for American Policy (NFAP). (Click here for NFAP’s report). The denial rate reached an all-time high of 35% in 2014. This is up dramatically from the denial rate in 2006 which was a mere 6%. Most disconcerting about this news is that regulations that provide for L-1B adjudication standards remain unchanged despite the spike in denial rates. Although USCIS has acknowledged the sharp increase in the denial rate, it has offered no justification for it and has not provided employers with any substantive guidance in preparing L-1B visa petitions.

eLABORate: Department of Labor's Changed Stance on the Applicability of the FLSA's Administrative Exemption to Mortgage Loan Officers Upheld by Supreme Court

On March 9, 2015, the United States Supreme Court (“Court”) issued its ruling in Perez v. Mortgage Bankers Association, upholding a Department of Labor interpretation regarding the status of mortgage loan officers as non-exempt under the Fair Labor Standards Act (“FLSA”), even though the DOL’s position was a 180-degree reversal from what it had said a few years prior. At issue in Perez was whether the Department of Labor could alter its position regarding whether mortgage loan officers qualify for the administrative exemption under the FLSA without adhering to the notice-and-comment rulemaking process set forth in the Administrative Procedure Act (“APA”). To fully understand the Court’s ruling, a brief background on both the APA and the applicability of the FLSA’s administrative exemption to mortgage loan officers is necessary.

Jackson Lewis Employers’ Immigration Update

Employers must be ready to file their completed H-1B visa petitions on April 1, 2015. The Immigration and Nationality Act (INA) allocates 65,000 new H-1B visas each fiscal year (running October 1 – September 30) and another 20,000 H-1Bs are reserved for individuals who received a master’s degree or higher from a U.S. educational institution. Because a petition cannot be filed more than six months prior to the employee’s start date, the earliest possible date to file for a new H-1B is April 1. This year we anticipate roughly three times the number of applications will be filed as there are visas available.

Business Immigration Zone: The H-1B Lottery, the H-2B Cap, and Suspension of the H-2B Guestworker Program

The United States is apparently adding jobs at its best pace in 20 years, according to new government data released last Friday. The U.S. added 295,000 jobs in February. And that was the 12th consecutive month in which the U.S. added more than 200,000 jobs. The headline unemployment rate was 5.5%, the lowest level in six years, according to data released by the Department of Labor. This favorable economic news means that the U.S. demand for labor is high, and U.S. workers are able to become more selective in the jobs they seek and accept. It also means that there is an increased demand for the temporary employment visas that U.S. employers normally use to cover the gap when domestic labor supply sources are unavailable.

State Department to Resume J-1 Visa Program Sponsor Site Visits

The U.S. Department of State (DOS) has informed the sponsors of J-1 intern and trainee programs that it will perform site visits to many J-1 Intern and Trainee host organizations in 2015. Some employers have reported that such visits have occurred as early as February. Program participants and host organizations have received emails from the J-1 sponsors regarding these visits. The State Department performed similar visits last spring, which involved gathering information and observing the exchange programs. Generally speaking, last year these visits were reported to have successfully demonstrated the value of these cultural exchange programs.

Administration's Plan to Grant Work Authorization to Millions of Individuals on Hold

President Obama's recent deferred action directive is on hold for now. A federal judge in Texas granted a temporary injunction requested by 26 states, halting a potential grant of work authorization to as many as five million individuals who lacked lawful status. The administration's Deferred Action for Parental Accountability or DAPA is designed to provide work authorization to parents of United States citizens or lawful permanent residents. DAPA is modeled after the administration's Deferred Action for Childhood Arrivals (DACA) which has provided work authorization to close to one million individuals. U.S. Citizenship and Immigration Services claimed this week to have granted as many as one hundred thousand DAPA applications before the injunction.

House Relents on DHS Funding Debate; Leaves Executive Action on Immigration to Be Fought in the Courts

Legislative Update: On March 3, 2015, the U.S. House of Representatives agreed to strip language that would have rolled back President Obama’s executive action on immigration out of a hotly contested Department of Homeland Security (DHS) funding bill. The “clean” version of the bill, which had previously been passed by the U.S. Senate just the week before, was approved by a vote of 257-to-167. The move provides funding for DHS through September 2015, which marks the end of the current fiscal year and avoids the risk of a partial agency shutdown that would have occurred at the end of the week had no other agreement been reached.

New DHS Rule Extends Eligibility for Work Authorization to H-4 Dependent Spouses of Certain H-1B Workers Starting May 26, 2015

Executive Summary: In a historic move, effective May 26, 2015, the Department of Homeland Security ("DHS") will allow, for the first time, H-4 spouses of H-1B workers who are pursuing permanent residence ("green cards") to apply for work authorization. DHS recognizes that the inability of H-4 spouses to work, through what is often a very lengthy green card process for the H-1B worker, may create financial and personal stressors for a household which can make the prospect of living in the U.S. long term unattainable. Given that such financial constraints can cause an H-1B worker to abandon his or her green card process and return overseas, resulting in the loss of talent and disruption to US businesses, DHS hopes that the change will encourage H-1B nonimmigrants to remain in the U.S. and see the process through to the end. In this way, DHS supports the retention of highly skilled H-1B workers and ensures that this talent remains in the U.S. to benefit our economy as opposed to the economy of a competitor nation.

DHS Funding Hangs In Balance While Congress Squares Off Over Executive Action on Immigration

A chess match continues to be fought in Congress over the fate of President Obama’s executive action on immigration. The standoff is over disagreement as to whether President Obama exceeded his constitutional authority by attempting to bypass Congress and put into effect a collection of immigration reforms through executive action first announced on November 20, 2014. Two of the central provisions from that executive action, the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the extension of the related Deferred Action for Childhood Arrivals (DACA) program, are currently blocked by a preliminary injunction ordered by federal district Judge Andrew Hanen in a case brought by 26 states to challenge the president’s action. The administration has appealed Judge Hanen’s order.

How Will Immigration Executive Action Impact Higher Education Institutions?

Multi-national personnel and students are uniquely important to the mission and objectives of higher education institutions. The recent focus on immigration reform at the federal level raises the potential for broader opportunities for international offices on campus to help talented foreign national students, researchers, and faculty interested in their efforts to develop careers in the United States. One of the greatest challenges faced by foreign nationals educated in the United States is obtaining work-authorization status to remain in the country in the face of quotas and other obstacles that derail their attempts to work in the United States. We provide here a summary and analysis of anticipated changes to U.S. immigration rules that are expected to impact the ability of foreign nationals on campus to remain and work in the country, either at your institution or elsewhere.