Department of Labor’s New FLAG Software Required for H-1B Labor Condition Applications

We wrote earlier this summer about the Department of Labor’s new software rollout. The Foreign Labor Application Gateway, or FLAG, is the government’s new cloud-based portal designed to serve as an application filing and case management solution for all foreign labor certification processes.  The first part of the rollout required employers to submit Prevailing Wage Requests on the platform. Now employers must also submit the Labor Condition Application (“LCA”) for Nonimmigrant Workers using this system.

The LCA is an integral part of the H-1B, H-1B1, and E-3 application processes.  Many temporary work visa applications will require this new software, which has experienced significant technical issues throughout the rollout process. This software will also make it easier for the government to crosscheck information between the temporary work visa application and the green card process. We have anticipated this change. We will ensure that the transition is smooth and the information provided is consistent across application types for all of our clients.

Government Focuses on Immigrants’ Financial Health

The Department of Homeland Security (“DHS”) issued a new rule to determine eligibility for temporary work status, a green card, or admission to the United States. The rule changes the standard used to decide how likely an applicant is to become a financial burden on the government (“public charge”).  To make this determination, adjudicators apply a totality of the circumstances test. This test weighs the applicant’s age, health, family status, education and skills, assets, resources, and financial status.  The rule will go into effect on October 15, 2019, but the government will not consider benefits received prior to this date

Family-Based Green Card Applicants: If an applicant received certain public benefits, such as food stamps, during a designated time period, the applicant might not be eligible for a green card.

Temporary Work Status: Furthermore, DHS will conduct a more limited public charge determination for nonimmigrants seeking a change or extension of status. In these cases, the government will only consider whether the applicant has received designated benefits for a certain period since obtaining the nonimmigrant status they seek to change from or extend.  Fortunately, the government will not weigh other factors in determining if the applicant will be a public charge in the future.

Asylum: Notably, this new rule does not apply to asylum applicants and refugees.

Though this rule is much more restrictive than current policy, we will continue to prepare our clients so they are able to demonstrate they will not become a public charge.  As we previously wrote, the government has been taking aim at this ground of inadmissibility for some time, but with the proper documentation and preparation, we know our clients will continue to be successful in their immigration matters.

Department of Homeland Security to Use Fake Social Media Accounts to Investigate Immigrant Applicants

We recently shared that the government is now asking visa applicants for their social media history. Applicants who wish to obtain a visa to enter the United States must disclose their social media handles for each platform they have used for the past 5 years.

We have recently learned that U.S. Citizenship and Immigration Services now authorizes its officers to create fictitious social media accounts to investigate applicants for permanent residence and U.S. citizenship.  Officers review the social media accounts of applicants flagged for additional investigation. Officers can only review publicly available social media information. They cannot “friend” or “follow” an individual.  Because we have anticipated such actions, we have for many years warned clients to make sure any public information on social media sites is truthful and consistent with your immigration strategy.  Such advice is now more important than ever.  Hopefully, the government will not illegally use information about an applicant’s political positions against him/her.  Indeed, the government’s new tactics cause a chilling effect on free speech.

Providing Stability during an Unpredictable Time

We are often asked what it is like to work in the immigration field right now. Immigration law is a political flash point with the crisis at the border, the travel ban, and a president whose policies and rhetoric have caused backlogs, instability, and fear for those wishing to stay or immigrate to the United States.  These issues do not change the work that we do on a daily basis, but require us to adapt quickly to provide our clients with stability and assurance during an unpredictable time.  When we see reviews like the one below, we know our efforts are paying off.

5 star avvoNavid and his team is extremely thorough and professional. I worked with him for my H1B application through my employer, multiple times over the years. Even in the current challenging immigration scenario, he will give you a sense of certainty and clarity into your immigration case. He is always on top of the ever changing immigration rules and would proactively advise and equip me with right documents/instructions during my international travel. Navid and his team are a delight to work with and I will continue working with them for all my immigration needs. I highly recommend them.

Immigrant Visa Availability Slows as We near End of Fiscal Year

The Department of State visa bulletin indicates when an immigrant visa becomes available for the various family-based (FB) and employment-based (EB) visa categories. Immigrant visa availability determines when many individuals are eligible to apply for a green card. The Department of State updates the visa bulletin each month depending on availability and demand for each category.

We recently learned that the EB-3 category for citizens of all countries has immediately been made “unavailable” for the remainder of Fiscal Year 2019. This means that the annual limits have been reached in this category. Additional visa numbers are unavailable until the beginning of the next fiscal year in October 2019.

In addition to this change, several other categories are listed as unavailable for the remainder of the fiscal year, including EB-1 India. EB-1 China is not listed as unavailable but did move backwards 2.5 years due to increased demand.

Individuals with pending green card applications that fall into these categories should still continue with their cases and follow government requests. For example, unless otherwise advised, applicants should still appear for a scheduled green card interview. The officer may decide not to proceed with the interview and/or reschedule it for another time. If the interview moves forward and the application is approved, the officer will put the case on hold until a visa number is available.

We will continue to track visa availability and keep clients updated. Though the visa bulletin can be unpredictable, we strive to provide clients guidance to increase the success of their immigration strategy.