Visa changes that could impact LL.M. students


By Deisree Jaeger-Fine

Immigration was among the most hotly-debated issues of the 2016 U.S. presidential election and is among the most important issues for LL.M. students and graduates.

Immigration is a highly complex issue further complicated by constantly moving targets. Please use this article as a starting point to inform yourself. Your immigration status is not to be taken lightly and I strongly encourage everyone to discuss his/her situation with a qualified attorney.

This article will examine willful misrepresentations in visa interviews and the impact of H-1B changes on LL.M. graduates.


Willful Misrepresentation

In a cable to American embassies around the world, Secretary of State Rex W. Tillerson wrote that visitors who require a visa before entering the U.S. must follow through on their stated plans for at least three months. If during that period, they do something they failed to mention in an interview with a consular official, such as go to school or get a job, it will be presumed to be the result of “willful misrepresentation,” in other words, an intentional lie. This will make it difficult, if not impossible, for them to renew a visa, get a new one or change their status. And it would make those visitors still in the United States eligible for deportation.

Changes of plans that occur after three months may still be problematic but are not presumed to be the result of “willful misrepresentation.” Under previous rules, a change in plans was deemed to be a misrepresentation only for the first month after arrival in the United States.

Prospective LL.M. students should be very careful and plan. If someone comes to the U.S. as a tourist, then decides to participate in an LL.M. program within 90 days and applies for a student visa, it could mean that the application may be denied.


H-1B Changes

The H-1B visa program allows U.S. employers to sponsor foreign workers in “specialty occupations” requiring at least a bachelor’s degree. The H-1B visa is the most commonly used visa for LL.M. graduates who seek to work in the U.S. The H-1B program is limited to 65,000 new H-1B visas per year, with an additional allotment of 20,000 for individuals who have earned a U.S. advanced degree (for example, an LL.M. degree). The H-1B lottery is administered according to a random selection of petitions—a lottery—filed each year within the first working days of April.

There are four developments that may influence H-1B visas for LL.M. graduates:


1 | Changing Standard for “Specialty Occupation”

In a memorandum issued in March 2017 titled “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions,’” U.S. Citizen and Immigration Services (USCIS) reversed a previously issued policy memorandum classifying all computer programming positions as specialty positions. The policy memorandum placed the burden on employers to prove that positions qualify for the H-1B “specialty occupation” classification.

While the policy expressly dealt with entry-level computer programmers, it demonstrates the tendency of the USCIS to consider with greater scrutiny whether a position is indeed a “specialty occupation.” This could be a challenge for LL.M. graduates seeking entry-level positions. For example, if the wage level designation for the position is entry-level, USCIS may consider this factor to signal that the position does not qualify as an H-1B “specialty occupation” as outlined in the abuse indictors below.


2 | Fraud and Abuse Indicators

In support of its American Workers First mandate, USCIS announced five indicators of fraud and abuse including:

1. The H-1B worker will not be paid the wage certified in the Labor Condition Application (LCA); 2. There is a wage disparity between the H-1B worker and other workers performing the same or similar duties;

3. The H-1B worker is not performing the duties specified in the H-1B petition;

4. The H-1B worker has less experience than U.S. workers in similar positions in the same company; and

5. The H-1B worker is not working in the intended location as certified on the LCA.


3 | Changes in Evaluating H-1B Extensions

In October 2017, USCIS eliminated a longstanding policy for H-1B extension petitions. Under the previous H-1B extension review policy, if an extension petition met certain criteria like the same employer, employee and underlying facts, then USCIS officers had to give deference to that previous decision if there was no fraud or material error involved. Under the new policy for H-1B extension, USCIS indicates that irrespective of the previous approval of the petition, there is no need for the USCIS officer reviewing the petition to give deference to previous approvals. Basically, the USCIS officer will review the petition as if it were a new petition.


4 | Potential Future Change to Merit-Based Points System

The RAISE Act, introduced in 2017, seeks to implement extensive reform to the U.S. immigrant visa system, including replacing the current classification-based system with a merit-based points system.

Under a potential merit-based points system, prospective immigrants would earn points based on education, English-language ability, proposed salary, age of the employee, level of achievement and high-value investment. The bill’s points-based system would set a 30-point minimum threshold for qualification for an immigrant visa, and USCIS would offer immigrant visas twice yearly to the highest-scoring applicants.

This points-based system could replace the current annual H-1B visa lottery, under which H-1B petitions are selected at random for processing. The proposed law follows through on Presidents Trump’s announcement to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.


How These Changes May Impact LL.M. Graduates

The H-1B pool of filings decreased by 15% from the past two years, which suggests that employers are more selective in their submission of petitions. The government, in turn, shows increased scrutiny over H-1B applications. The USCIS is questioning ever more strictly the sufficiency of H-1B petitions submitted with Level 1 wages and the interpretation of “specialty occupation,” especially for young entry-level professionals, including junior attorneys.


Guidance for LL.M. Students in View of These Developments

Considering these developments, LL.M. students should carefully review each aspect of their current and future visa status: adhering to deadlines, maintaining records and monitoring ongoing compliance. I strongly suggest keeping a record of all documents, dates and facts that may be required to prove your past and current status. You should dedicate a folder to all documents in print as well as digitally. Time passes fast and if you would like to apply for a new visa status sometime in the future, you will be happy to find your records located in one spot. I, for example, kept a travel log for my first five years in the U.S., recording each and every flight I took, when and where, including flight number, etc. This came in handy when I applied for citizenship.

Key actions for LL.M. students to take include the following:


1 | Keep an eye on your future.

Goals change but you should take every eventuality into account so that you can prepare well in advance. Undertake a close review of how candidates are selected for H-1B sponsorship and the standards the government requires to qualify for a visa. As said above, regarding H-1B petitions, USCIS will consider low-wage or entry-level skill positions to be an indicator that the employer is abusing the system.


2 | Understand the visa process better than anyone else.

It is astonishing how little LL.M. students know about their status and what is required to achieve their future goals. You absolutely must inform yourself no matter whether you want to be a teaching assistant, do an internship, use your OPT, get an H-1B or spousal visa, etc. Do not place the burden on a prospective employer or your current law school to understand your visa issues. Gain knowledge!


Related articles:

Three things LL.M. grads wish they knew when they started

Welcome to your LL.M.: Who is Who at the Law School

5 easiest states for foreign-trained attorneys to take the bar exam


Desiree Jaeger-Fine is principal of Jaeger-Fine Consulting, LLC, a career management firm for international attorneys in New York, and author of A Short & Happy Guide to Networking (West Academic Publishing).