H-1B employers and beneficiaries have recently been checking the USCIS case status website after a Request for Evidence (RFE) response has been submitted hoping to see that the case has been approved. Unfortunately, instead, many have been seeing that a second RFE has been issued in the case.

A second RFE is not an indicator that a petition is going to be denied. It just means that USCIS has additional questions they want to ask.

These second RFEs seem to be a new trend in USCIS. They are related to the LCA having a Level 1 Wage. They quote the Depart of Labor’s Occupational Outlook Handbook for the applicable SOC code. The RFEs question whether “a level 1 wage designation would correspond to the proffered position described in the petition." After mentioning some of the job details, the RFEs later suggest that a position may not correspond to a Level 1 Wage if the position encompasses more than a basic understanding of the occupation or appears to contain more than routine tasks that require limited if any, the exercise of judgment. 

The timing of these RFEs suggests that they may be related to the “Computer Programmer” memo that was issued in late March 2017. Although that memo specifically applied to the Programmers, it indicated that the wage level chosen for a position is a relevant factor in determining specialty occupation. It is, therefore, more important than ever to ensure the proper SOC code and wage level are selected prior to filing an LCA needed for an H-1B worker.  

Rahul Reddy & Vy Hoang - Attorneys At Law 

When a beneficiary changes companies from Employer A to B, a transfer petition is filed. As you may know, once the transfer is filed the beneficiary can immediately join the new company and begin working for Employer B. But what happens if the project changes once the transfer case is pending with USCIS?

A change in the project can be easily handled if acted upon quickly by the new company. If a new project is located within the same Metropolitan Statistical Area (MSA), Employer B should immediately file an Amendment to report the project change. This amended petition should be filed before the beneficiary moves to the new project and ideally filed before a Request for Evidence is issued.

Here are examples of a case we are handling in our firm regarding regular and quota cases:

  • The beneficiary is currently on OPT and has filed for a change of status to H-1B in the 2017 cap with Employer A. The Beneficiary’s H-1B petition was selected in the lottery, and a receipt notice was issued on April 17, 2017. One month later, May 16, 2017, Employer A notifies us that the project for the H-1B petition has ended but has a new project available in a new MSA. What do they do now?

    Luckily, the Beneficiary has not received a Request for Evidence for the initial H-1B petition. So our office immediately filed a new Labor Certification Application as the project is now in a new MSA, prepared an Amendment with the new project location and documentation, and filed it with USCIS.

  • The beneficiary is transferring from Employer C to Employer D. He filed a transfer petition in December 2016, but while the transfer case has been pending the project changed work location within the same MSA. What do they do now?

    Just the same, our office filed a new Labor Certification Application, prepared an Amendment with the new project information, and filed it with USCIS.

It is important to remember that there is no guarantee that filing an Amendment will ensure an approval by USCIS or prevent an issuance of an RFE to the underlying petition. The goal is to provide USCIS with notice that the beneficiary will be working on a different project than the one reported in the initial transfer petition.

Rahul Reddy, Attorney at Law

 American citizenship is the only legal status that cannot be revoked on the basis of national origin, or religion. Previously, lawful permanent residency (a green card) held the same standard, subject only to revocation in rare circumstances such as fraud on immigration forms, criminal activity, or fraudulent marriage for the purpose of obtaining a green card. However, this is no longer the case since the beginning of President Trump’s war on immigration.

Trump’s controversial January 27 executive order was issued without any clear indication of the intended effects on green card holders. Due to this vague and hasty action, lawful residents were detained for hours in airports, questioned with no legal counsel present, and not informed of their rights. This has since been rectified by the Trump administration in a statement: “[We] thereby deem the entry of lawful permanent residents to be in the national interest.” While this was a temporary appeasement, it certainly falls far short of actually clarifying the order’s meaning and intent. With enforcement of the order now on hold due to court decisions, despite opposition and confusion from Trump’s administration, many green card holders have become fearful for their status and safety in this country.

On February 19, one of Trump’s senior advisors, Stephen Miller, appeared on Face the Nation and declared:

“Our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”

For many, this broad statement of executive power was shocking, and rightfully so. Does the President truly possess the unquestionable power to command the immigration authority as implied by Mr. Miller?

There are two potential legal precedents on which Mr. Miller could be basing his statements, though neither presents a clear-cut stance on exclusive executive jurisdiction, especially in the sweeping way he asserts. The executive branch is granted the power by the constitution to make sure that the laws of this nation are “faithfully executed.” This includes the discretion to decide the ways in which federal laws will be executed. For example, in his DACA and DAPA executive orders, President Obama used this discretion to fast-track the deportation of undocumented aliens with criminal records by deprioritizing the investigation of certain undocumented aliens (primarily young people who were brought to the U.S. as children), even if their initial entrance was not legal. The President was widely criticized for overstepping his powers in taking this action, though the White House asserted at the time that it was acting under the authority of immigration laws passed by Congress. It is possible that Mr. Miller was alluding to the “faithfully executed” clause of the U.S. Constitution when making the statements he did last Sunday. However, in this case, there is no federal law under which the President might have been acting when he signed his executive order.

The second possible source of the powers Mr. Miller believes the President possesses is a 128-year-old Supreme Court opinion, commonly called the Chinese exclusion case. The court ruled in this case that the federal government possessed the power to exclude immigrants as an aspect of the powers given to the government as a sovereign nation. Importantly, this case asserted not that the executive branch had this power, but that instead it was Congress who could exercise exclusionary powers. Since 1889, the year in which the court decided this case, it has been widely denounced by elected officials, judges, and politicians. Whatever Mr. Miller’s precedent, given the lack of a federal law passed by Congress, it is dubious at best.

One of the ways the administration argues a green card can be revoked is “foreign policy.” This is mostly in reference to espionage and terrorism, but has since been broadened by the Trump administration to serve as a catch-all to apply to many more foreign nationals. According to 8 U.S.C. § 1227, lawful permanent residents can have their status revoked and consequently be deported if their country of national origin presents “potentially serious adverse foreign policy consequences.” This means that if the country you are from in any way has a negative relationship with the United States, your presence can be considered adverse to foreign policy. Therefore, you could have your green card revoked and you may be deported regardless of how long you have been in the U.S., how much you have paid in taxes, whether you have served this country, what property you may own, what businesses you may have started here that have promoted job growth, who you voted for in local and state elections, or whether in your heart you believe you are an American and this is the country you call home. There is no real due process, though some due process protections will apply, and this is all perfectly legal, at least according to the Trump administration.

It is worth noting that this is speculative. We have not yet seen the deportation of lawful permanent residents en masse based on foreign relations considerations under the Trump administration. We have seen however, a trend of anti-immigrant rhetoric that culminated in Trump’s executive order, and the administration’s response to the opposition of it. There are already cases of legal residents being coerced into giving up their green cards when trying to re-enter the United States.  It may seem far-fetched, but this is not the first time this country has taken on mass deportation based on national origin.

One of many historical examples of this was the Mexican Repatriation (a.k.a. Repatriation Movement) in which millions of Mexican-American citizens were deported with no due process between 1929 and 1936. An estimated 1.2 million of these individuals were United Sates citizens. The Immigration and Naturalization Service targeted Mexicans in California, Texas, and Colorado because of “the proximity of the Mexican border, the physical distinctiveness of mestizos, and easily identifiable barrios” (75 Hoffman). In 2005, the State of California passed an official “Apology Act” to those who were discriminated against and forced to relocate to Mexico.

We now see the potential for the Repatriation Movement to happen again with the controversy surrounding Trump’s proposed U.S.—Mexico border wall. As Mexico has stated numerous times, they will not pay for the wall; this has in turn caused a strain on foreign relations between the U.S. and Mexico. Should the administration choose to do so, the U.S. government can consider all Mexican nationals with lawful permanent residency, even those who qualify for citizenship but have not started the process, a threat to national security and therefore deportable. This could be used as a threat to the Mexican government to encourage them to reconsider their stance on payment for the wall, effectively using people who have otherwise been productive members of our society as pawns between governments. 

Given the current political uncertainty surrounding immigration, both legal and illegal, it is essential that immigrants and legal permanent residents know their rights. The term “permanent” can be misleading in that individuals believe, due to the rights they have as green card holders, and because they are already here, they are citizens. This is far from the truth. While naturalization can be a tedious process, there are a number of avenues available to green card holders to help with the process. The time and effort put in is certainly worth it, as upon being granted naturalization status, regardless of your religion or national origin, you cannot be deported. An estimated 8.8 million green card holders within the United States qualify for citizenship, and it is very likely that their status in this country could be jeopardized by the Trump administration. Becoming a citizen has always been advantageous for legal permanent residents. In 2017 however, it may become a necessity.

Hoffman, Abraham (1974-01-01). Unwanted Mexican Americans in the Great Depression: Repatriation Pressures, 1929-1939. VNR AG. ISBN 9780816503667

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Reddy & Neumann, P.C. is a boutique business immigration law firm based in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the nation in their efforts to bring foreign workers and business professionals to the United States. Our expertise on immigration issues such as changes of status, H-1B transfers, EB-3 to EB-2 conversion, and I-140 petition educational equivalency is available free of charge to participants in our conference call as each day one of our experienced team of immigration lawyers in Houston & Dallas advises clients on these and a host of other issues. Join us and experience how the skilled attorneys at Reddy & Neumann, P.C. can provide you with efficient answers to your immigration questions.