NEW! Policy Memorandum About H-1B Visas; Supreme Court Blocks Trump From Ending DACA

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NEW! Policy Memorandum About H-1B Visas; Supreme Court Blocks Trump From Ending DACA

hi I’m John Dealey CEO of online visas and welcome to another issue of voice of immigration if you’re watching this on youtube please like and subscribe and turn on your notifications if you want to keep up to date if you’re watching us on Facebook thanks a lot like share and and stay tuned for more things we’re going to talk about three things today number one a new memo from immigration was just issued June 17 2012 the policy memorandum we’ll get into that number two thing we’re going to talk about the Supreme Court just came down on daca and number three the new executive orders should be dropping any day and we think maybe just in time for Trump’s first rally which will be in Tulsa Oklahoma my home state with all the things around that we think that dropping that will end up being a political banter so let’s dig into this so the policy memorandum is rescinded rescission of a to other policy memorandum now this is not a surprise so let me give you the background on it so in March in a case called IT servants versus the Secretary of Homeland Security the the DC Court ruled very strongly that USCIS had violated its own policies in utilizing two memorandum right so the one memorandum was the 2010 determining employer employee relationships for adjudication of h-1b petitions and the second one was the contracts and itineraries requirement for h-1b petitions involving third-party work sites and now it’s from February 22nd 2018 now these policies had been wreaking havoc on h-1bs in particular staffing companies who are placing their employees at third-party locations so not surprised because there was a settlement following that case that came down a few weeks ago and this is a policy memorandum saying that those memorandums should not be used how immigration works is that the adjudicators have these memorandums they sort of have checklist right and so they had to rescind this or the adjudicators would be looking at this and the timing of that is interesting on a couple levels so here we are mid-june the last day of June is the last day you can put in the h-1b visas under the cap that the cap Lottery was in March and they issued the the visas that could be applied under the cap and in the cap was to do this so they needed to do this now the inks not even going to be dry before the president drops a new executive order which will deal with the h-1b and we’ll talk about that a little bit also stay tuned because we’re gonna do a webinar we think on June 25th but stay tuned on that check with our youtube channel or facebook page and online business comm for news on that so the member or the the webinar we’re going to do in other videos we’re going to do are going to be what does the executive order do and what’s still permitted and what’s not permitted under it so stay tuned for that so meanwhile I’m gonna give you this so what what this says is that a couple of questions I’m going to read the questions to you and give you some feedback so question number one or a under the employer employee relationship number one is should an officer consider an h-1b petitioner and an h-1b beneficiary to have an employer employee relationship if they meet only one of the higher fire supervisors or otherwise control of the work factors under 8 CFR 2 14.2 h4 2 so the answer is the officers should apply the existing relative definition in assessing whether employer benefits are you have employer employee relationship the officer should consider whether the petitioner has established that it meets at least one of the higher fire supervisors or otherwise control work of factors with respect to beneficiary h-1b petitioners are required to submit an LC ads and late condition application and a copy of any written contracts between the penitent beneficiary and the petitioner or a summary of terms of the oral agreement if a written contract does not exist depending on the contract – such documentation it may establish the employer-employee relationship the officer may not apply the prior rescinded guidance okay so what does that mean so it asks it said they meet only one and it says establish that it meets at least one which under that

language is at least one means one or more so is it one or more so the the cases were very strong that they only had to be more right so I think if you if you utilize when you’re adjudicating this the IT service is case then it’s one at least ones interesting because that’s a little fuzzy but they are saying they can’t use the other ones where they they kind of used you know all of them right so a good win there and although some funny language okay question number two must the h-1b petitioner established that the employment exists at the time of filing a bona fide job offer must exist at the time of filing so it’s yes right petitioner is required to attest under penalty of perjury on the h-1b petition in LCA that all the information contained in the position petition and supporting documents is complete true and correct the petitioner has the burden approved established the employment exists at the time of filing and will employ the beneficiary and especially occupy occupation if the petitioner adaptations and supporting documents meet this standard then the officer should not request additional evidence and should approve the petition provided all other eligibility requirements are met by preponderance of evidence if the officer finds that a petitioner is not established by a preponderance of evidence statutory or regulatory eligibility for the classification at the time of filing the officer should I pick you late that basis in 290 h-1b to make this determination the officer should apply statutory regulatory requirements excluding the itinerary requirement binding core president a AO adopted Proceedings so on and so forth so what does that mean so you can’t lie yeah there has to be a job but you know and then look this is why these things started in the first place there were companies that were going out and you know you always applied for these h-1b six months so on the you know now it’s March to do the lottery filing but you know April 1st is the earliest you can file the actual petition so on April 1st companies were going out and asking for large numbers of visas and hoping they would find the work by October 1st so you can’t do that don’t do that however what it’s saying is you make a penalty under perjury that you have this work and that’s all they’re gonna look at so you know best practices don’t lie have the work and do it that way but but immigration is is for cluding itself from digging in the way it did on RFPs and canals before okay so number be caught or letter B I’m sorry contracts question one under contracts should an officer request the chain of contracts or legal agreements between the h-1b petitions petitioner and third parties including the ultimate end client letter and immediate vendors to assess the employer employee relationship or non speculative employment and especially occupation work availability this is what they used to do should the officer request a chain of contracts between them in support of the petition an h-1b petitioner is not required by existing regulations to submit contracts or legal agreements between the petitioner and third parties however the petitioner must demonstrate eligibility for the benefits sought in assessing whether employee in a beneficiary have or will have an employer employee relationship the officer may consider any evidence provided by the petitioner including chain of contracts or legal agreements between the petitioner and third parties further if a petitioner provides contracts or legal agreements the officer is not precluded from evaluating the evidence and adjudicating communication or other eligibility okay so that’s that’s that’s interesting no you don’t have to do it you can do it but if you do do it and they don’t think it looks very good they can ask for other eligibility mmm strategy there okay so we’ll well marinate on that a little bit and tune in for how to get visas after the Trump executive order on how that may come into play so that’s that’s a pretty interesting thing so do you do you put it in and hope you get it but if he cuz you don’t have to but if you do put it in as I can open er Fe pretty interesting question right so we’ll see playing chess with these guys write letter C non-speculative specialty occupation work number one should an officer require evidence of day-to-day assignments to establish the availability of specialty occupation work answer the officers should review the position as described by the h-1b petitioner to determine if the petition has met its burden of proof to establish the beneficiary be employed and especially occupation while evidence of the specific day to day 2 assignments is not required to establish that the position is a specialty occupation the petitioner may choose to provide such evidence okay what’s different about that well they said you don’t have to do it you can do it but this number one c1 doesn’t say that if you do it then we can ask more questions about it so that’s interesting right so if you show the chain of contracts and I don’t think the contracts are sufficient that they can

they can now ask about it where if you don’t do it they can’t but on the on the issue of day to day assignments which is I right you don’t have to do it you can do it but they don’t say you can ask more if you do it okay so that’s interesting and maybe that’s you know because the schedule is a schedule and a contract may or may not look legitimate I think that’s what they’re saying okay so number 200 non-speculative specialty occupation work may an officer deny a petition for h-1b non-immigrant classification on the bat on the basis that the petitioner while having identified and described the nature of the specialty occupation has not special specified the beneficiary’s day to day assignments in a role okay an officer should deny a petition when the petitioner has not established the beneficiary working especially occupation while a petitioner is not required to identify and document the the beneficiary specific day-to-day assignments the petitioner must meet all the statutory regular requirements excluding the itinerary requirement so if the officer finds a petition is not established by proton as an evidence that story regulatory eligibility for the classification the officer should articulate that basis in the nine th one P so let’s think about that so can while having identified and described the nature of the special allocation is not specified beneficiaries day-to-day assignments so I guess this is it so I think what they’re saying is you need to define what the person’s gonna do you just don’t need an itinerary that says exactly where they’re going to be doing it right so in your employment letter make sure you talk about the day-to-day you know duties of the job you know I think I think that’s a good idea and I think it you I don’t hot water there all right number three may an officer denying h-1b extension or change of status request or revoke an approval of an h-1b non-immigrant classification if evidence in the record established that the beneficiary was benched or never worked but was still think okay so they they really went into that that benching is not illegal right it’s actually anticipated as long as you get your prevailing wages can really what those cases said but here’s what the memo says it’s a little tighter than in those cases right so except in certain limited circumstances so there are limited circumstances benching is prohibited by law to prevent foreign workers from unfair treatment by the employers and ensure the job opportunities and wages of US workers are being protected failure to work according to the terms and conditions of the petition approval may support among other enforcement actions revocation of the petition approval and finding that the beneficiary failed to maintain status or both okay so if you’re not working you’re out of status that’s what they’re basically saying so guidance concerning benching remains unchanged the officer may issue a notice of intent to deny for failure to maintain status or of a note into a notice of intent to revoke as appropriate if evidence in the record indicates there has been material change in the terms and conditions of employment may affect the liability so lack of work may be a material change in the terms and conditions of employment that could affect eligibility of the h-1b non-american and could require the filing of an amended petition all right so being benched that means if you’re not working there that means that’s a material change you’re looking at it but they’re trying to dance a little bit with the that said that it’s in there so the further regulations state that being no longer employed in a capacity specified a petition as a basin’s the revocation of notice being placed that non-productive status or training for an extended period time even if they’d they qualified as being no longer employed and capacity of specified and work if a beneficiary is in a non-productive status because of lack of work that could indicate that the beneficiary no longer is an especially occupation and there has been a material change in the term of conditions an employment that may affect eligibility however okay there’s like if you’re not working you’re not in status however it would be a violation of the h-1b non-immigrant status for a beneficiary to be in a non-productive status during a period that is not subject to payment under petitioners benefit plan or statute says to the Family Medical Leave Act or men are Americans with Disability Act so if a beneficiary has been in a working status option made carefully examine the reasons and consult with a supervisor as appropriate it’s okay so they’re saying FMLA disabilities things like that might be okay and they could look at it but let’s go further in assessing whether the beneficiary’s non-productive status constitutes a violation of benefits use h-1b non-immigrant classification the officer must assess the circumstances in time spent in non-productive status while neither statutes nor regulations state the maximum allowable time of non-productive status the officer may exercise his or her discretion to issue a notice of intent to deny or notice of intent to revoke to give a petitioner an opportunity to respond if the time period of non-productive status is more than required for a reasonable

transition between assignments as always if the officer in Canada was a novel issue the option should elevate the issue the local service center management or service center operations as appropriate if a petitioner files an amendment or new petition reflecting the change of terms and condition play the officer should not revoke the approval of the original petition unless the record establishes a pattern or practice a failure to find amended or new petition when required to do so instead the officers should adjudicated the amended or new petition and may find if warranted that the beneficiary did not maintain status in issue in denial of the h-1b extension or change of status request if appropriate ultimately the officers adjudication requires consideration of the time period of non-productive status the circumstance of the non provided in productive status including but not limited to medical or personal leave and whether the petitioner filed an amended or new petition okay so let’s break that down a little bit all right so one of the big things in those IT serve cases and and the others that that broke in March in February of 2020 was that that while benching is not appropriate it is not a violation to be benched and so immigration sort of saying yeah it kind of is but we’re gonna kind of narrowly say what’s okay right so we agree that we benching you know you’re not supposed to bench but there’s some limited circumstances they’re trying to define those limited circumstances here right so they laid out the Medical Leave Act and personal leave and stuff like that that’s not really what benching is right I mean now that’s nilly what those companies do so what do companies do that they’re trying to stop right so companies will have a project the project ends they put somebody in another project and for a limited period of time they’re not in that project right that should be okay immigration saying yeah but we’re still getting a on that right and we’re gonna use discretion to do that so it better be a short period of time but and you better file an amended petition but if you follow them in a petition and there was a period of time we still may deny it right so there might have to go back to litigate on that one so you know the the old rule of thumb of don’t bench probably is what they’re telling is is we’re still gonna look at it that way despite what those courts said all right so letter D itinerary should an officer continued to apply itinerary requirements under you know the 8 CFR 2 14.2 and it’s progeny USCIS will abstain from the application of itinerary requirement in the liniment limited instance of applicable h-1b adjudications until Department of Homeland Security or USCIS issues new adjudicative or regulatory guidance on this requirement the officers should not apply the rescinded guidance if the officer files petition is not established by preponderance of the evidence eligibility for the classification under sexual requirements blah blah blah officer should continue to apply the attend requirement for agent-based ones okay so what does that say no we’re not gonna use the attend our Aires we said we’re not gonna use the attend Aires we settled it but we’re gonna have new regulations coming out so the executive order maybe for example might bring it back just in a couple of days so stay tuned we’ll tell you what happens on that letter e limiting validity times may an officer limit the validity period of an approved h-1b petition USCIS may issue approvals for h-1b petitions with validity period shorter than the time period requested by the h-1b petitioner however that decision must be accompanied by a brief explanation as to why the validity period has been limited this includes Minh is not limited to instances when the certified LCA has a validity period shorter okay so what does that say well they told him not to do that right they slammed him for doing that one of the easiest wins was when USCIS would limit these things based on our tenor Ares and contracts so they said we still can do it but one of the reasons we can do it is the LCA but not only that so look at a lot of this is yes we know we settled it and we said we wouldn’t do it but we’re still telling our adjudicators that they can alright so that’s pretty interesting right I think what’s the tea leaves on this we had to do it we said we would do it stay tuned we’re coming hard with new regulations that’s that’s what I read out of that so that’s interesting okay that’s number one that’s the memo big news coming down on the memo number two Dhaka Supreme Court case ruled 5-2 for the Chief Justice Roberts a conservative sided with the Liberals to save that immigration I’m sorry that the president the Trump administration improperly revoked daca now daca a little background on it deferred adjudication for childhood arrivals what does that mean that means if if if a kid was brought into the company in the country by their parents even though their parents were illegal and they were

illegal prior to the age of 17 they could file for this deferred of ocation giving them a effectively a work card and the ability to be here legally there’s about 700,000 of these folks right and the president Trump’s one of his big platforms was to get rid of daca and so that he was struck down by the lower courts now he’s been struck down by the Supreme Court now today start the process to do doc again now it’s really interesting to look at this policy memorandum slammed by the courts policy memorandum says well we’re still gonna kind of do it anyway but we’re not gonna say that we’re doing it but you know all those things that we said we couldn’t do other than the itineraries we still can kind of do right so do what do we expect this administration to do after the docket denial it was a political banter in 2016 it’s gonna be this year so do you file a doctor right now I don’t know I don’t know it is an executive order the president said you know the deal was is they just had too much hubris he just basically said a president shouldn’t be able to do daca he could have given a reasonable reason to do it but chose not to and then the court slammed him so you know I would steer clear of it I think right now but that’s to remain to be seen stay tuned well well we following that will there be a memo on daca after this will the president say we’re gonna do it again you know we’ll see all right number three the new executive order this should drop any day and this weekend there will be a rally the first major grouping of people first major crowd other than the protests in the street but official sort of thing in a stadium in an arena at the BOK Center in Tulsa I live in Norman I am two hours from that in the state of Oklahoma is going to be the site of the first big rally we are in the pandemic we have been opening back up but there’s been a spike in Tulsa in particular coming out of the protest really a lot of that in and so give me a lot of people there probably not a lot of them wearing masks and will but you know what’s going to happen there we think that the executive order may likely drop four so that they can talk about it in the rally if not it’ll be in early next week anyway that’s kind of where we are those are three things on immigration that’s a lot busy day on immigration today I’m John viele CEO of online visas please reminding you to like and share subscribe to our YouTube channel turn on your notifications if you want to cap keep up to speed click some of these other cards of other visas that are similar you might want to go back and see what our predictions were of the executive order we’ve got a really a great video on that a lot of people tune into that one and then we will be dropping one just as soon as we hear that today we just got this policy memorandum today we put this out we are not only going to talk about the executive order we will be having a webinar likely June 25th but stay tuned to that check out online business comm for more information check out our Facebook and LinkedIn Twitter and YouTube accounts or good online business comm schedule a strategy session with us or post some comments under this and we’ll we’ll try to get back to you really appreciate you john bailey CEO of online visas delivering dreams one visa to done