6. China Visa Availability Retrogresses in Some Categories in August, Other Categories Advance – An “extremely large increase” in applicant demand has resulted in retrogressions in the China-mainland born EB-3 and “Other Workers” categories, to 2004.
7. USCIS Resumes Premium Processing for Extension-of-Stay H-1B Petitions – As of July 13, 2015, USCIS resumed accepting requests for premium processing service for all H-1B extension-of-stay petitions (Form I-129, Petition for a Nonimmigrant Worker).
8. USCIS Media Campaign Highlights Citizenship Info, Tools – The media campaign includes print and digital advertisements, and video and radio public service announcements, in several languages.
9. U.S. Embassy in Mexico Announces Changes in Nonimmigrant E Visa Application Processing – The embassy is shifting processing of E-1 treaty trader and E-2 treaty investor visas away from Mexico City.
10. ABIL Global: Canada – Canada implements Express Entry.
- Improving the issuance of employment-based immigrant visa numbers;
- increasing efficiency for international arrivals through enhanced technology and increasing the focus on high-risk travelers;
- Implementing the “Known Employer Program,” which will allow employers meeting strict criteria to pre-establish certain requirements as petitioners, by creating a prototype, publishing a report upon completion of the pilot, and creating an implementation plan for a permanent program;
- Improving integrity and increasing the minimum investment for immigrant investor visas; and
- Enhancing opportunities and providing greater clarity for certain nonimmigrants, including the circumstances under which U.S. employers may directly sponsor students on F-1 visas for lawful permanent residence.
The letter states that affected recipients must return their invalid EADs by either appearing at a USCIS field office location by July 27, 2015, or by mailing USCIS the invalid three-year EAD by July 27, 2015. On a stakeholder call on July 14, 2015, USCIS said it is making home visits to collect the invalid EADs. Among other things, USCIS said that if a DACA recipient returns his or her invalid EAD but receives a letter from USCIS requiring a field office visit, he or she must go to the field office to confirm the return of the invalid EAD.
A related USCIS fact sheet is at http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/important-information-some-daca-recipients-who-received-three-year-work-authorization-fact-sheet. A USCIS Web page with details on this issue is at http://www.uscis.gov/humanitarian/daca-recipients-who-received-3-year-work-authorization-post-injunction-quick-facts. The USCIS letter sent July 14 to affected DACA recipients is at http://www.aila.org/File/Related/15070802g.pdf. USCIS’ July 27 announcement is at http://www.uscis.gov/news/urgent-some-daca-recipients-who-received-three-year-work-permits-must-return-them-immediately.
- USCIS Seeks Comments on Proposed Expansion of Eligibility for Provisional Unlawful Presence Waivers
U.S. Citizenship and Immigration Services (USCIS) is seeking public comments on a proposed rule that would expand eligibility for provisional waivers of inadmissibility based on the accrual of unlawful presence. The proposed rule would expand eligibility to all foreign nationals who are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence.
Currently, the Department of Homeland Security (DHS) allows certain immediate relatives—specifically certain parents, spouses, and children of U.S. citizens—who are in the United States to request a provisional unlawful presence waiver before departing for consular processing of their immigrant visas. The waiver currently is only available to those immediate relatives whose sole ground of inadmissibility would be unlawful presence under INA § 212(a)(9)(B)(i) and who can demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen spouses or parents.
Under the proposed rule, USCIS may grant a provisional waiver to foreign nationals if they are statutorily eligible for immigrant visas and for waivers of inadmissibility based on unlawful presence. The proposed rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.
The changes, which USCIS said it is proposing “in the interests of family unity and to enhance customer service,” would take effect on the date indicated in the final rule when the final rule is published in the Federal Register. USCIS said that foreign nationals should not submit applications now requesting provisional unlawful presence waivers based on the proposed changes. USCIS may deny any such application filed before the effective date indicated in the final rule.
Comments are due by September 21, 2015. To submit comments, follow the instructions in the notice.
The USCIS announcement is at http://www.uscis.gov/news/alerts/uscis-seeks-comments-proposed-expansion-eligibility-provisional-unlawful-presence-waivers-0. The related proposed rule is at http://www.gpo.gov/fdsys/pkg/FR-2015-07-22/html/2015-17794.htm. USCIS’s Provisional Unlawful Presence Waivers page with additional information is at http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers.
- USCIS Ombudsman Annual Report Notes Continuing RFE Issues
U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman’s Office has published the 2015 Annual Report. Highlights include:
RFE issues. The Ombudsman’s Office reviews issues involving temporary nonimmigrant petitions (H-2A, H-2B, H-1B, L-1, and O-1), investor immigrant petitions (EB-5), other immigrant petitions, and employment authorization applications. The Annual Report states that the Ombudsman continues to be concerned with the quality and consistency of adjudications and the issuance of unduly burdensome requests for evidence (RFEs). Last year’s report discussed in detail RFEs that were “too often vague, unduly burdensome, or unnecessary,” this year’s report notes. The Ombudsman said that such RFEs “continue to delay adjudications and burden applicants and petitioners, particularly in the provisional waiver program and key employment-based categories.” Providing adequate notice regarding filing deficiencies “is essential to the effectiveness of RFEs, but they are often general and fail to address evidence already in the record,” the Ombudsman said, adding that this is especially important in cases in which applicants and petitioners are not afforded the option of an appeal or a motion to reopen or reconsider.
The report notes one example of an employer agent who submitted a request for case assistance with the Ombudsman. The agent had filed an H-2A petition on behalf of the employer on October 31, 2014, with a November 15, 2014, start date requested. USCIS issued an RFE on November 19, 2014. USCIS did not use the next-day-return courier envelope provided and instead sent the request by regular USPS mail. The agent did not receive the notice until December 1, 2014. Furthermore, the agent was confused by the duplicative nature of the RFE because the documents requested were submitted with the initial petition. The employer immediately submitted a duplicate copy of the documents to USCIS using overnight mail. The Ombudsman contacted USCIS, and assisted in having the agency review and adjudicate the H-2A petition within a day of the communication. The report states that a shift to electronic processing, whether via online submission or email, would result in faster processing.
Stakeholders continue to raise concerns about USCIS adjudication of nonimmigrant petitions for high-skilled beneficiaries, the report notes, including H-1B (specialty occupations), L-1A (intracompany transferee managers or executives), L-1B (specialized knowledge workers), and O-1 (extraordinary ability or achievement). Specifically, employers and their representatives have sent examples to the Ombudsman of RFEs that appear to be redundant, seeking documentation that was previously provided; unnecessary, requesting information that is irrelevant or exceeds what is needed to complete the adjudication; and unduly burdensome in scope or intrusiveness.
Petitioners have also provided the Ombudsman with examples of RFEs and denials in “new” office L-1A extension cases. In reviewing these extension filings, the report notes that “it is appropriate that adjudicators examine whether the petitioner is actually ‘doing business,’ to ascertain the specific job duties that will be performed by the beneficiary under the extended petition,” and to consider the “staffing of the new operation, including the number of employees and types of positions held.” Yet, in some instances, the report notes, “it appears that adjudicators are placing undue emphasis on whether the beneficiary is too closely connected to the actual production work or services offered by the petitioning entity.” The report states that “L-1A managers and executives are in fact permitted to engage in some hands-on activities, provided these activities are secondary to their principal and essential duties.”
In response to the concerns about RFEs, the Ombudsman said that trainings for adjudicators could be made more useful. “A training program on the preponderance of the evidence standard using detailed real-world case examples for each product line would better assist USCIS adjudicators [in determining] whether cases are approvable or deniable upon first review, resulting in the issuance of fewer, and more narrowly tailored RFEs,” the report notes. The Ombudsman also continues to urge the agency to pilot an initiative requiring 100 percent supervisory review before an RFE is issued.
EB-5 program and employment-based processing. The report notes that although USCIS has hired new adjudicators and economists, it had 12,749 investor petitions (Form I-526, Immigrant Petition by Alien Entrepreneur) in its pending inventory as of March 31, 2015, with nearly 20 percent pending adjudication for more than a year, and that EB-5 processing times have been getting longer. The report notes that USCIS has provided technical assistance to Congress and is working with other DHS and government agencies to put safeguards in place to ensure program integrity.
Regarding employment-based immigrant petition processing, the report notes that in recent months USCIS has taken steps to review its longstanding policy on who is an “affected party” for purposes of appealing a decision on a Form I-140, Immigrant Petition for Alien Worker. The Ombudsman encourages USCIS to consider the significant case law and recognize legal standing for certain beneficiaries of a Form I-140 petition.
Matter of Simeio. The report notes that on April 9, 2015, USCIS’s Administrative Appeals Office (AAO) issued a rare precedent decision addressing when a reassignment of an H-1B worker requires the petitioning employer to file an amended H-1B petition that is supported by a DOL certified Labor Condition Application (Form ETA-9035). As a precedent decision—one of only four issued in the last three years—the holding in Simeio is binding on all USCIS H-1B petitioning employers nationwide, the report notes.
Since the Simeio decision was issued without accompanying guidance, the Ombudsman hosted a national teleconference on April 30, 2015, to seek stakeholder feedback and identify outstanding issues. Over 650 external stakeholders and government officials participated in the call. Of utmost importance to the affected stakeholder community, the report notes, was how the decision would be applied to H-1B employees who were previously reassigned with no amended filing based on prior practice. On May 21, 2015, USCIS addressed some of these questions through its issuance of draft guidance, which established a 90-day time frame for employers to submit amended filings.
The report notes that the Simeio case had been pending before AAO for nearly four years, and that this new agency interpretation was made without first providing the affected stakeholder community an opportunity to provide its input. “Some large employers have informed the Ombudsman that the decision could cost them millions in additional legal fees and filing costs,” the report states.
DACA. USCIS began accepting Deferred Action for Childhood Arrivals (DACA) renewal applications in June 2014. Approximately 15 percent of requests for case assistance submitted to the Ombudsman involved DACA renewal processing delays. The report notes that this year, Department of Homeland Security (DHS) Secretary Jeh Johnson directed USCIS to expand the provisional waiver program and to clarify “extreme hardship” factors.
Juveniles. In this reporting period, USCIS developed and implemented the In-Country Refugee/Parole Program for Central American Minors in El Salvador, Guatemala, and Honduras. The Ombudsman continues to be concerned with adjudications issues and processing delays in special immigrant juvenile petitions, fee waiver requests, and asylum applications. Among other things, the Ombudsman received numerous examples of special immigrant juvenile petitions in which USCIS issued RFEs requesting a wide range of records pertaining to the underlying state court dependency order, “essentially second-guessing the state court action.” The report notes that in the near future, the Ombudsman will publish formal recommendations to improve processing of petitions for special immigrant juveniles.
Other issues. The Annual Report also discusses delivery of USCIS notices and documents; recording or withdrawal of legal representation; USCIS’s calculation of processing times; and the agency’s ongoing effort to move from a paper-based to an electronic environment.
The report is available at http://www.dhs.gov/annual-report-congress.
- China Visa Availability Retrogresses in Some Categories in August, Other Categories Advance
The Department of State’s Visa Bulletin for August 2015 reported an “extremely large increase” in applicant demand that has resulted in retrogressions in the China-mainland born employment-based third preference (EB-3) and “Other Workers” categories, to June 1, 2004, and January 1, 2004, respectively. The Visa Office said that “[e]very effort will be made to return those categories to the [previous] … cut-off dates as quickly as possible under the FY-2016 annual limits. Those limits will take effect October 1, 2015.”
Otherwise, most employment-based priority dates advanced. The EB-3 and “Other Workers” categories for the Philippines have once again become available, with a cut-off date in both categories of June 1, 2004.
The Visa Bulletin for August 2015 is available at http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_August2015.pdf.
- USCIS Resumes Premium Processing for Extension-of-Stay H-1B Petitions
As of July 13, 2015, U.S. Citizenship and Immigration Services (USCIS) has resumed accepting Form I-907, Request for Premium Processing Service, for all H-1B extension-of-stay petitions (Form I-129, Petition for a Nonimmigrant Worker).
Premium processing service had been suspended previously for I-129 H-1B extension-of-stay petitions starting May 26, 2015, to July 27, 2015. USCIS said the temporary suspension allowed the agency to implement the final rule on employment authorization for certain H-4 dependent spouses in a timely manner and begin adjudicating applications for employment authorization filed by H-4 nonimmigrants under the new rule. Premium processing remained available for all other types of I-129 H-1B petitions during the temporary suspension.
USCIS said it closely monitored its workloads and determined that the agency could resume premium processing service for H-1B extension-of-stay petitions as of July 13, 2015. In response to a query, USCIS’s Service Center Operations Directorate responded, “We now will accept an I-907 on any H-1B [extension of stay]. If an I-907 was filed/received prior to 07/13/15 it will be rejected.”
As a reminder, USCIS also noted that it will accept only the new version (edition date: 01/29/2015) of the I-907. The edition date is printed on the bottom left corner of every page of the form and instructions.
The new USCIS announcement is available at http://www.uscis.gov/news/uscis-resumes-premium-processing-extension-stay-h-1b-petitions. The new version of the I-907 is available at http://www.uscis.gov/i-907. The final rule discussed above is available at https://www.federalregister.gov/articles/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov. The previous announcement about the initial “freeze” on premium processing for these petitions is available at http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions.
- USCIS Media Campaign Highlights Citizenship Info, Tools
U.S. Citizenship and Immigration Services (USCIS) released a series of promotional materials on July 6, 2015, as part of its Citizenship Public Education and Awareness Initiative.
The effort is intended to raise awareness about the rights, responsibilities and importance of U.S. citizenship and provide information on the naturalization process and USCIS educational resources. The promotional campaign guides lawful permanent residents to the USCIS Citizenship Resource Center for “official, accurate and reliable information on citizenship and naturalization topics.”
The media campaign includes print and digital advertisements in English, Spanish, Chinese, and Vietnamese; radio public service announcements in Spanish and Chinese; and video public service announcements in English and Spanish. Online digital advertisements will run until August 15, 2015. A second phase will begin in September, and will include additional print and digital media spots.
USCIS said this campaign “is part of a larger effort to demystify the [naturalization] process and provide lawful permanent residents with information to protect themselves against the unauthorized practice of immigration law.”
USCIS noted that an estimated 8.8 million lawful permanent residents are eligible to apply for citizenship, and the median time spent as a lawful permanent resident before becoming a U.S. citizen is seven years.
Immigrant-serving organizations and members of the media interested in donating media space should email email@example.com. The Citizenship Resource Center is available at http://www.uscis.gov/citizenship. To view the video public service announcements, see the Video PSAs Web page at http://www.uscis.gov/citizenship/see-all-section-items-title-right/Video%20PSAs/86344?destination=node/41137. More information on the Citizenship Public Education and Awareness Initiative is available at http://www.uscis.gov/citizenship/organizations/citizenship-public-education-and-awareness-initiative.
- U.S. Embassy in Mexico Announces Changes in Nonimmigrant E Visa Application Processing
The U.S. Embassy in Mexico recently announced changes in nonimmigrant E visa application processing. The embassy notes that E visa treaty trader and treaty investor applicants are an integral part of the U.S. economy. Recent increases in overall visa applications “have made it challenging to offer efficient processing of these cases in Mexico City,” the embassy states. To provide a higher level of service for all applicants, the embassy is shifting processing of E-1 treaty trader and E-2 treaty investor visas away from Mexico City.
Effective for all applications received in Applicant Service Centers in Mexico on or after July 7, 2015:
- E-1 treaty trader visa processing will be handled by the Consulates General in Monterrey and Tijuana
- E-2 treaty investor visa processing will be handled by the Consulate General in Ciudad Juarez
- The U.S. Embassy in Mexico City will not process nonimmigrant E visa applications received in Applicant Service Centers on or after July 7, 2015
The announcement is available at https://ais.usvisa-info.com/en-mx/niv.
For more information regarding the transition of E-1 treaty trader visas to Monterrey and Tijuana, contact the consulates in Monterrey and Tijuana through the appropriate “E1” forms at http://mexico.usembassy.gov/visas/contact/contact-us/form-b.html.
For more information regarding the transition of E-2 treaty investor visas to Ciudad Juarez, contact the consulate in Ciudad Juarez by selecting the “Other” form under “Ciudad Juarez” at http://mexico.usembassy.gov/visas/contact/contact-us/form-b.html.
For a full list of consulates and their contact information, see http://mexico.usembassy.gov/eng/edirectory.html.
- ABIL Global: Canada
Canada implements Express Entry.
Since January 2015, when Citizenship and Immigration Canada (CIC) introduced Express Entry, a new permanent residence immigration process, the process has solidified and immigration practitioners are learning to navigate the online Express Entry system.
Express Entry is a points-based system that ranks candidates according to various human capital and personal criteria and allows CIC to issue a limited number of Invitations to Apply (ITAs) for permanent residence. Since January, CIC has issued approximately 13,000 ITAs to candidates to permit them to subsequently submit permanent residence applications. Following are highlights of the new system:
Express Entry draws. CIC “draws” of the highest-ranked candidates have been occurring every few weeks. For each draw, CIC establishes the minimum Comprehensive Ranking System (CRS) point score required to receive an ITA, which allows the agency to manage the intake of permanent residence applications. The minimum CRS score was initially very high—over 800 CRS points for the first three draws (886, 818, and 808 CRS points) early in the year, which required those who were drawn to have had a Labour Market Impact Assessment (LMIA) or Provincial Nomination Certificate in their favor, which grants a bonus 600 CRS points. Subsequent draws have dropped since March 2015 to the mid- to high-400’s CRS point range, with the lowest dips occurring at two draws at 453 CRS points on March 27, 2015, and on April 17, 2015. The minimum CRS score required to receive an ITA may continue to drop slightly for the remainder of the year, although it is unlikely to drop drastically.
Provincial Nominee Programs. Over the past months, the Canadian provinces have been implementing their own unique Express Entry Provincial Nominee Programs (PNPs), which are province-based selection programs that can accord a candidate 600 bonus points in Express Entry. Provinces have taken awhile to implement PNPs because of the need to move to electronic PNP systems that are compatible with Express Entry. British Columbia was the first province to implement a PNP for Express Entry and issue Provincial Nominee Certificates to applicants. Recently, Ontario has released its own PNP program, which encompasses both a Human Capital Stream and a French-Speaking Skilled Worker Stream. Other Canadian provinces with Express Entry PNPs include Saskatchewan, Nova Scotia, New Brunswick, and Prince Edward Island.
Documentary requirements. CIC has issued the majority of ITAs for permanent residence based on governmental discretion pursuant to the Federal Skilled Worker Program, as opposed to the Canadian Experience Class Program, even for those candidates working in Canada. Because the Federal Skilled Worker Program has additional documentary requirements, it is important to start gathering documents that may be needed even before an ITA is received and often before the Express Entry profile itself is created. Documents that often need to be uploaded in the online permanent residence application after receiving an ITA can include employment letters and pay slips for present and past employment, official language exam results (English and French), copies of police certificates, immigration medical examination receipts, copies of civil identity documents, and proof of settlement funds except for those working in Canada with certain work permits.