There’s Reason for Optimism in the H-1B Battle

Dear All:

I’m not sure who other than John R. has played rugby. I played for a few years when I was in the Army in the 1980s and as you could imagine, unlike me, many of those on our side had played a good bit of U.S. football. I recall a conversation I had with a fellow player who was struck how in rugby the action rarely stopped. Even if there was an injury, it was up to the other side if you could replace your downed teammate. In a nutshell, rugby taught us to take the hits and keep on going.

Looking back on this week with its ups and downs, call to actions, rulings, passage of bills, numerous conversations, proclamations, deceptions, intrigues, floor fights, debates and finally news that POTUS and the First Lady have COVID-19, it kind of feels as if we are in the last three minutes of the second period, the score is tied up and the opposing team is on our side of the pitch and bearing down on our goal line. So, about those ups and downs …

We started this week with a “Call to Action” to prevent a seemingly innocuous revision published by USCIS from taking effect on October 1. As it usually does, the Department of State published its monthly Visa Bulletin with two charts concerning the employment-based Green Card category: Final Action Dates & Filing Dates. In the case of the Final Action chart, it shows which priority dates have reached the front of the line based on Green Card availability.

However, in addition to the Final Action Dates Chart, USCIS published the Filing Date Chart, when in the past they have usually just gone by the Final Action Chart. This change is critical because now an H-1B national from India who had been sponsored for an EB-3 Green Card before January 1, 2015, would now be able to file for an EAD work permit (Advanced Parole) while s/he waits for the actual Green Card.

The publishing of the Early Filing Date could conceivably allow 100,000 H-1B visa holders (and their family members) to receive EAD cards. This was a kick in the teeth! Once the implications of the bulletin were fully understood, we put out our Call to Action that you responded to brilliantly! All we asked was that the publishing of the Early Filing Date chart be rescinded. No one at the White House, DHS, DOL and USCIS was expecting to be flooded with hundreds of phone calls and emails.

Your actions forced Joseph Edlow, Deputy Director for Policy, USCIS, to respond in a statement the following day. Sadly, as we have come to expect, the response fell short of what was required. He essentially affirmed their commitment to “Hire American,” but refused to rescind the Early Filing Date Chart.

Returning to the rugby metaphor, the opposing team is on our side of the pitch and has just been awarded a penalty kick. All we can do is hope they screw up. All we can do now is hope the bureaucrats at USCIS take their jobs seriously and scrutinize each and every application they review for instances of fraud.

Although they can counter with, “We were only obeying the law and doing what the statutes require,” we all know the vigor with which bureaucrats choose to enforce the law, and the creativity they employ can be highly subjective. I have no evidence, but I suspect players with deep corporate ties were responsible for this. But I wax conspiratorial.

If that wasn’t enough, Judge Jeffrey White, a George W. Bush appointee to the 9th Circuit Court (Circus) in Oakland, Calif., ruled in favor of the National Assoc. of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet and Intrax in their lawsuit against President Trump’s suspension of nonimmigrant employment visas which includes H-1B and H-4. Despite our best efforts, including the submission of an amicus brief to the court, we lost this one.

However, we won on the same type of suit in two other federal courts to include the District of Columbia. Could this be a case where two rights can beat out a wrong? Stay tuned as I will be doing a podcast later today with attorney John Miano to get his view on this situation.

Keeping track of the ways Congress finds to screw over the American worker is becoming a lot like playing whack-a-mole. On Oct. 1, POTUS signed into law the “Continuing Appropriations Act, 2021 and other Extensions Act.” What could possibly be wrong with this, you might think? Reading through the table of contents, one sees Public Healthcare Extenders, Nutrition and Commodities programs, etc.

But buried deep in the bill, under the section, “Other Matters,” is section 4102. Expansion of Premium Processing. Essentially, this allows anyone willing to pay an additional $2,500 to get expedited processing for EAD work permits.

I know this is all a bit of a downer, but there is reason for optimism. It was reported on social media that the administration had pulled its H-1B rule changes while they were being reviewed by the Office of Information and Regulatory Affairs (OIRA). I’m pleased to report that was not the case. Suzanne Monyak reported that OIRA may have “waived their preliminary review of the rule, which was communicated as a withdrawal on the website,” and “the rule remains active,” with it being a “priority rulemaking item.” So fingers crossed, we will have some substantial changes sooner, rather than later.

In closing, let me remind you that your efforts with the Call to Action did not go unnoticed. Your voices were heard. Truth be told, we are getting better and better at this with each passing month. We need to continue to gird up. Keep reaching out to the congressional and senate staffers in your districts and states. Make your communications regular and be at the ready.

In rugby there is a thing called a scrum. A scrum (short for scrummage) is a method of restarting play in rugby that involves players packing closely together with their heads down and attempting to gain possession of the ball. If our team is able to kick the ball from our scrum in the direction of one of our players, their job is to grab and run for the goal. That is why we must be at the ready; why we must have our networks of colleagues, friends, families and legislators ready to take action to protect the American worker.

In Solidarity.