CDMA COMMENT ON USCIS JOB PORTABILITY GUIDANCE

https://www.scribd.com/doc/293634387/CDMA-Comment-On-Proposed-Guidance-on-Job-Portability-Under-INA-204-j

December 2015 Immigration Update

Headlines:

  1. USCIS Adds 16 Countries to H-2A/H-2B Visa Programs – The countries being added in January are Andorra, Belgium, Brunei, Colombia, Finland, France, Germany, Greece, Lichtenstein, Luxembourg, Malta, Monaco, San Marino, Singapore, Taiwan, and Timor-Leste. Moldova will no longer be designated as an eligible country to participate in the H-2B program because Moldova is not meeting regulatory standards. Nationals of Moldova may still participate in the H-2A program because Moldova continues to meet those standards.
  2. USCIS Updates Application for Employment Authorization – Several older versions are also still being accepted.
  3. USCIS Releases Controversial Draft Policy Memo on Job Portability – The memo provides additional guidance on determining whether one job is in “the same or a similar occupational classification” as another job.
  4. DHS Provides Post-Earthquake Relief to Nepali F-1 Students – Eligible Nepali citizens who are F-1 students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 student status.
  5. Wisconsin Joins E-Verify RIDE Program – Wisconsin joins Florida, Idaho, Iowa, Mississippi, Nebraska, and North Dakota in the program.
  6. Credit Cards Now Accepted for Naturalization Fees – USCIS explained that this change is one of the recommendations made by the White House Task Force on New Americans.
  7. USCIS Updates Paper Version of G-28 Notice of Appearance – USCIS recently updated the paper version of Form G-28, Notice of Entry of Appearance as Attorney or Representative.
  8. Fifth Circuit Upholds Injunction Against Obama Administration’s DACA/DAPA Programs – The court found, among other things, that the states have shown that the threatened injury if the injunction were denied outweighed any harm that would result if the injunction were granted.
  9. State Dept. Projects Employment-Based Visa Number Availability in Coming Months -The Department of State’s Visa Bulletin for December 2015 includes information on visa number availability in the coming months.
  10. State Dept. Replaces Manual of Visa Guidance – The 9 FAM-e, which replaces the legacy 9 FAM, will become the authoritative source for visa guidance.
  11. USCIS Issues Policy Memo on Initial Field Review of AAO Appeals – USCIS issued a policy memorandum on initial field review of appeals to the Administrative Appeals Office. The memo provides guidance to USCIS employees on the proper processing of such appeals.
  12. ABIL Global: United Kingdom – Several developments have been announced.
  13. Firm In the News

 Details

  1. USCIS Adds 16 Countries to H-2A/H-2B Visa Programs

Effective January 18, 2016, USCIS and the Department of Homeland Security (DHS), in consultation with the Department of State, are adding Andorra, Belgium, Brunei, Colombia, Finland, France, Germany, Greece, Lichtenstein, Luxembourg, Malta, Monaco, San Marino, Singapore, Taiwan, and Timor-Leste to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for 2016.

DHS noted that it reserves the right to add countries to the eligible list at any time, and to remove any country whenever the agency determines that a country fails to meet the requirements for continued designation.

Secretary of Homeland Security Johnson and Secretary of State Kerry have agreed that Moldova will no longer be designated as an eligible country to participate in the H-2B program because Moldova is not meeting regulatory standards. Nationals of Moldova may still participate in the H-2A program because Moldova continues to meet those standards.

USCIS explained that the H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. Typically, USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS, however, may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

The notice does not affect the status of beneficiaries who currently are in the United States in H-2A or H-2B status unless they apply to change or extend their status. Each country’s designation is valid for one year from January 18, 2016.

The Federal Register notice announcing the additions is at http://www.gpo.gov/fdsys/pkg/FR-2015-11-18/html/2015-29373.htm.

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  1. USCIS Updates Application for Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) has published an update to Form I-765, Application for Employment Authorization. The new edition is dated 11/04/15. Previous editions dated 02/13/15, 05/27/08, or later are also being accepted.

The latest I-765 edition is at http://www.uscis.gov/i-765. The related Federal Register notice is at https://www.federalregister.gov/articles/2015/11/24/2015-29909/agency-information-collection-activities-employment-eligibility-verification-form-i-9-revision-of-a. Other recent forms updates are listed at http://www.uscis.gov/forms-updates, including the Immigrant Petition for Alien Worker (http://www.uscis.gov/i-140) and the Application to Register Permanent Residence or Adjust Status (http://www.uscis.gov/i-485).

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  1. USCIS Releases Controversial Draft Policy Memo on Job Portability

U.S. Citizenship and Immigration Services (USCIS) recently released a draft policy memorandum, “Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability.” The memo was posted on November 20, 2015, and the comment period ends January 4, 2016.

The memo instructs Immigration Services Officers (ISOs) on how they may use the Department of Labor’s (DOLХs) Standard Occupational Classification (SOC) codes and other evidence to determine whether a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140 petition) submitted to USCIS. USCIS said the purpose of the memo is “to promote consistency and efficiency in section 204(j) portability adjudications in accordance with the policy objectives described herein. Such adjudications require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented.”

The memo notes that despite the statutory flexibility provided in INA ¤ 204(j), “stakeholders have raised concerns that the job portability provision is underutilized due to significant uncertainty concerning USCIS determinations in this area.” The memo “is intended to address that uncertainty by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s).”

In making these determinations, the memo explains, USCIS may refer to DOL’s labor market expertise as reflected in its SOC system, which is used to organize occupational data and classify workers into distinct occupational categories. Occupations are generally categorized based on the type of work performed and, in some cases, on the skills, education, and training required to perform the job. The memo notes that the SOC organizes all occupations into 23 “major groups,” which are then broken down in descending order into: 97 “minor groups,” 461 “broad occupations,” and 840 “detailed occupations.” All workers are classified into one of these 840 detailed occupations. Detailed occupations with similar job duties and, in some cases, skills, education, and/or training are generally grouped together in the same broad occupation. The SOC system is organized using numeric codes that generally consist of six digits. Each digit or group of digits represents the level of similarity of positions. No occupation is assigned to more than one category at the lowest level of the classification (sixth digit).

Some attorneys complain that USCIS misses the mark with this memo and ignores the legislative history, which was, as the title of the provisions suggest, for “job flexibility,” so that workers are not treated as indentured servants and may improve their prospects by switching jobs and employers. These commenters note that the agency interprets “similar” to mean having a “marked resemblance,” rather than a mere “resemblance,” although it cites two dictionaries, only one of which says the resemblance must be “marked.” They also expressed concerns that USCIS mechanistically applies the SOC codes, which were never intended to be used for this purpose, and instead were a bureaucratic fix for DOL to stop publishing the 40,000+ job listing in the Dictionary of Occupational Titles.

The memo is at http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/PED-Draft_Same_or_Similar_Policy_Memorandum_-_11.20.15.pdf.

See also Cyrus Mehta’s blog entitled The Proposed USCIS Guidance On Job Portability:  Good, Bad or Ugly, http://blog.cyrusmehta.com/2015/11/the-proposed-uscis-guidance-on-job.html

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  1. DHS Provides Post-Earthquake Relief to Nepali F-1 Students

Effective November 9, 2015, the Department of Homeland Security (DHS) suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is the Federal Democratic Republic of Nepal and who are experiencing severe economic hardship as a direct result of the earthquake there on April 25, 2015.

DHS said this action is intended to provide relief to Nepali citizens who are F-1 students so they may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 student status. DHS will deem an F-1 student who receives employment authorization by means of this notice to be engaged in a “full course of study” for the duration of the employment authorization, if the student satisfies the minimum course load requirement described in the notice.

The Federal Register notice is at http://www.gpo.gov/fdsys/pkg/FR-2015-11-09/html/2015-28360.htm.

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  1. Wisconsin Joins E-Verify RIDE Program

U.S. Citizenship and Immigration Services (USCIS) recently announced that Wisconsin has become the latest state to join the “Records and Information from DMVs for E-Verify” (RIDE) program. In conjunction with the American Association of Motor Vehicle Administrators, RIDE links the E-Verify system with participating state driver’s licensing agencies. RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as Form I-9 identity documents.

Wisconsin joins Florida, Idaho, Iowa, Mississippi, Nebraska, and North Dakota in the program.

For more information, see http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Wisconsin_RIDE_Fact_Sheet.pdf.

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  1. Credit Cards Now Accepted for Naturalization Fees

U.S. Citizenship and Immigration Services (USCIS) is now accepting credit cards to pay the processing fee for Form N-400, Application for Naturalization. Most applicants pay $680, which includes the $595 naturalization application fee and a biometrics fee of $85.

To pay with a credit card, an applicant must file Form G-1450, Authorization for Credit Card Transaction. USCIS explained that this change “is one of the recommendations made by the White House Task Force on New Americans.” Acceptable cards include Visa, MasterCard, American Express, and Discover, along with gift cards with Visa, MasterCard, American Express, or Discover logos. The entire fee must be paid using a single card. USCIS will reject the application if the card is declined.

Details on how to pay with a credit card are at http://www.uscis.gov/forms/fingerprints/pay-your-n-400-application-fee-your-credit-card.

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  1. USCIS Updates Paper Version of G-28 Notice of Appearance

U.S. Citizenship and Immigration Services (USCIS) recently updated the paper version of Form G-28, Notice of Entry of Appearance as Attorney or Representative. The update does not address filings made in the Electronic Immigration System.

The notice is at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1117_PM_602-0127_Updated_Form_G-28_Notice_of_Entry_of_Appearance_.pdf.

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  1.      Fifth Circuit Upholds Injunction Against Obama Administration’s DACA/DAPA Programs

On November 9, 2015, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld 2-1 a preliminary injunction against the Obama administration’s executive actions on Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). The court found, among other things, that the states have shown that the threatened injury if the injunction were denied outweighed any harm that would result if the injunction were granted. “The states have alleged a concrete threatened injury in the form of millions of dollars of losses,” the panel majority noted.

The majority also rejected the argument that congressional silence on immigration has conferred on the Department of Homeland Security (DHS) the power to act. The court found, among other things, that DAPA was “foreclosed by Congress’s careful plan,” and that immigration law “prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

Judge Carolyn King dissented, citing, among other things, a “litany of errors committed by the district court.” She noted, “There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable.” Judge King concluded, “I have a firm and definite conviction that a mistake has been made.”

The Obama administration plans to appeal the ruling to the Supreme Court.

The decision, including Judge King’s dissent, is at http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf.

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  1.     State Dept. Projects Employment-Based Visa Number Availability in Coming Months

The Department of State’s Visa Bulletin for December 2015 includes information on visa number availability in the coming months.

For the employment fourth preference (certain religious workers) category, the bulletin notes that the non-minister special immigrant (SR) program expires on December 11, 2015. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on December 10, 2015. Visas issued before that date will only be issued with a validity date of December 10, 2015, and all individuals seeking admission as non-minister special immigrants must be admitted into the U.S. by midnight on December 10, 2015.

For the employment fifth preference (I5 and R5) categories, visas may be issued until the close of business on December 11, 2015, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 11, 2015.

The bulletin notes that Congress is considering an extension of the SR, I5, and R5 visa categories, “but there is no certainty when such legislative action may occur.” If there is no legislative action extending one or both of these categories, those cut-off dates would become “Unavailable” on December 12, 2015.

The bulletin also notes the following potential monthly movement for employment-based categories in the coming months:

Employment First: Current

Employment Second:

  • Worldwide: Current
  • China: Forward movement during FY 2015 has resulted in a dramatic increase in demand. Little, if any, movement is likely during the coming months.
  • India: Up to eight months.

Employment Third:

  • Worldwide: The rapid forward movement during FY 2015 was expected to generate a significant amount of demand for numbers. If such demand fails to materialize in the near future, it will be necessary to begin advancing this cut-off date.
  • China: Rapid forward movement is expected. Such movement will result in increased demand, which will require “corrective” action as early as April.
  • India: Will advance up to three weeks.
  • Mexico: Will remain at the worldwide date.
  • Philippines: Will advance four to six weeks.

Employment Fourth: Current

Employment Fifth: The category will remain “Current” for most countries.

  • China-mainland born: Slow forward movement.

The bulletin notes that the above projections for the employment categories indicate what is likely to happen on a monthly basis through March based on current applicant demand patterns. “Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that ‘corrective’ action will not be required at some point in an effort to maintain number use within the applicable annual limits,” the bulletin states. “The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables.”

Also, U.S. Citizenship and Immigration Services (USCIS) announced recently that for family-sponsored filings, applicants may use the “Dates for Filing Visa Applications” chart in the December bulletin. For employment-based filings, however, USCIS said the “Application Final Action Dates” for December must be used.

The Visa Bulletin for December 2015 is at http://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-december-2015.html.

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  1. State Dept. Replaces Manual of Visa Guidance

On November 18, 2015, the Department of State (DOS) will replace the legacy Volume 9 of the Foreign Affairs Manual (9 FAM) with the 9 FAM-e. The 9 FAM-e will become the authoritative source for visa guidance.

DOS said the new 9 FAM-e represents the revision and reorganization of more than 4,000 pages of the legacy 9 FAM content that paralleled Volume 22 of the Code of Federal Regulations. The new 9 FAM-e overhauls language and organization, but not substance, DOS said. The former interpretive and procedural notes were merged, along with appendices. The new 9 FAM-e “adopts a hierarchical structure that is both more logical and better suited to modern search technologies,” DOS said, noting that the revised 9 FAM-e also uses a new citation system that is similar to the citation system used in other volumes of the FAM and the Foreign Affairs Handbook. DOS also has developed crosswalk tables correlating old citations with new, so that users can match new sections with former locations in the legacy FAM.

The announcement is in section F of the December 2015 Visa Bulletin at http://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-december-2015.html.

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  1. USCIS Issues Policy Memo on Initial Field Review of AAO Appeals

U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on November 4, 2015, on initial field review of appeals to the Administrative Appeals Office (AAO). The memo provides guidance to USCIS employees on the proper processing of such appeals.

Field offices include USCIS field and overseas offices, service centers, and the National Benefits Center. The memo notes that appeals to the AAO are filed on Form I-290B, Notice of Appeal or Motion. USCIS first conducts an intake procedure to ensure the appeal is complete and the agency has collected any required filing fees. After intake, the USCIS field office that made the unfavorable decision conducts an “initial field review” of the appeal. If the field office does not take favorable action, it forwards the appeal to the AAO for appellate review without issuing a new decision.

The memo notes that the purpose of initial field review is “to promote the efficient review of administrative appeals of field office decisions.” The affected party may submit a brief and/or additional evidence with the appeal. The appeal process is “undermined” if initial field review is not timely or if the appeal is inappropriately terminated, the memo states. Therefore, the memo provides additional guidance on the timeliness and scope of initial field review.

Among other things, the memo states that the regulations do not require the field office to complete initial field review within 45 days of receipt, but USCIS is adopting 45 days as the agency’s processing goal.

The memo is at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1104_Initial_Field_Review_PM_APPROVED.pdf.

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  1. ABIL Global: United Kingdom

Several developments have been announced.

Home Office Publishes Latest Changes to Immigration Rules—How Will These Affect Tier 2 Sponsors?

On October 29, 2015, the Home Office published its latest Statement of Changes to the Immigration Rules. The most relevant for points-based system Sponsors are those relating to Tier 2. These changes, which took effect November 19, 2015, are summarized below. Also included below is an update on other immigration-related changes, including the United States’ extending its passport fast-track scheme to United Kingdom (UK) citizens and further roll-out of criminal record checks.

Tier 2 Changes

  • A number of additional jobs have been added to the Shortage Occupation List (SOL):
    • All nursing posts. This is a temporary measure, pending the outcome of a further consultation by the Migration Advisory Committee (MAC). The MAC will then report on the need for nurses to remain on the SOL. This is welcome news for the profession because it means that starting in April 2016, nurses will be exempt from the Resident Labour Market Test, will receive higher priority in the allocation of places for the Tier 2 limit, and will not need to meet the £35,000 qualifying salary threshold for Tier 2 (General) applicants to secure permanent residence in the UK.
    • Four roles in the digital technology sector (product manager, data scientist, senior developer, and cyber security specialist). These roles are only available to Sponsors who can satisfy the new “qualifying company” criteria. A qualifying company is a licensed sponsor that employs between 20 and 250 employees, is not more than 25% owned by a company with one or more establishments in the UK having more than 250 employees, and has not been established in the UK for the purpose of supplying services exclusively to a single company or group in the UK. Each qualifying company will be able to sponsor up to 10 Tier 2 (General) migrants holding these positions. The roles also require migrants to have five or more years of relevant experience and demonstrable experience of having led a team.
  • Entry clearance issuance dates will be better aligned with migrants’ start dates of employment in the UK. In effect, they can be post-dated in line with the applicant’s stated date of travel to the UK, provided this is no later than 14 days after the start date of employment given by the migrant’s Sponsor. This change will give more flexibility to migrants and hopefully will reduce the incidence of migrants having to reapply for entry clearance if they have been unable to travel to the UK within the short window provided by the 30-day travel visa.
  • Maintenance rules for family members are being amended so that where the Tier 2 migrant is exempt from having to show maintenance with extension applications, his or her dependents will also be exempt, even if applying at a later date.
  • Tier 2 (and Tier 5) migrants are limited to four weeks of unpaid absence from work per calendar year. This is being changed from the current period of 30 days.
  • Tier 2 provisions relating to maternity, paternity, and adoption leave will now also cover shared parental leave. This will be relevant where there is a salary reduction below the appropriate rate for the job, as stated in the government’s Standard Occupation Codes, for the duration of the leave only.
  • Indefinite leave to remain (ILR) additional requirements for Tier 2 (General) migrants include the requirement for Sponsors to certify in writing that the migrant is still required for the employment in question for the foreseeable future and that the salary payable will continue for the foreseeable future. This will affect those migrants who have been issued a redundancy notice, for example, or where the migrant has given notice of termination of employment. Sponsors need to be aware of these new requirements when an application for ILR is submitted and a decision has been made regarding the end date of a migrant’s employment.

United States Extends Passport Fast-Track Scheme to UK Citizens

This development will be extremely useful for British nationals who travel frequently to the United States for business. Similar to the UK Registered Traveller Scheme, frequent travelers to the United States can apply to join “Global Entry” starting on December 3, 2015. Travelers first must apply to the Home Office and pay a £42 processing fee. If the applicant passes UK vetting, he or she will receive an access code to use when applying for the Global Entry program, which costs £65 and is valid for five years. This new program is intended to speed up passage through U.S. immigration control. According to the United States, the new process cuts down passport control waiting times by about 70%. For more on this program and the expansion to UK travelers, see http://www.cbp.gov/travel/trusted-traveler-programs/global-entry.

Further Roll-Out of Criminal Record Checks

The Home Office is reviewing the further roll-out of the requirement for migrants to obtain police clearance certificates. Because this may be rolled out to Tier 2 migrants early in 2016, Sponsors should factor it in when planning for migrants to transfer to the UK early next year.

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  1. Firm In The News

Cyrus Mehta was a Speaker, Advanced Corporate Immigration Law Conference: Issues for Attorneys, In-House Counsel & Human Resources Personnel, New Jersey Institute for Continuing Legal Education – A Division of the New Jersey State Bar Association, Newark, NJ, November 11, 2015.

Cyrus Mehta was a Panelist, Difficult Citizenship, Naturalization and Expatriation Cases, AILA Latin American & Caribbean Chapter Annual Conference, Rio de Janeiro, Brazil, November 5-6, 2015.

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November 2015 Immigration Update

 
Headlines:
 
1. DHS Proposes Rule on Expanding F-1 STEM OPT – Among other things, the proposal would allow F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months.
 
2. Update on ‘Visagate’ Filing Date Fiasco: Temporary Restraining Order Denied – On October 7, 2015, a judge rejected a petition for a temporary restraining order (TRO) in a class action challenging a new change to the October Visa Bulletin.
 
3. Labor Dept. Publishes Final Rule on Temporary Employment of H-2A Workers in Herding or Production of Livestock on the Range – Among the issues addressed are the qualifying criteria, preparing job orders, program obligations of employers, filing H-2A applications requesting temporary labor certification for range occupations, recruiting U.S. workers, determining the minimum offered wage rate, and meeting minimum standards for housing used on the range.
 
4. USCIS Reports Satisfaction With Filing for Replacement Green Cards Online – More than 93 percent of applicants who filed for a replacement green card online had a positive experience, and more than 95 percent would recommend online filing to others.
 
5. USCIS Reminds Those Affected by South Carolina Floods of Immigration Relief Options – USCIS said that requestors should explain how the flooding created a need for the requested relief.
 
6. Congress Extends Four Immigration Programs Until December 11 – Congress has extended the EB-5, E-Verify, Conrad state 30 (physician J-1 waiver), and religious workers programs until December 11, 2015, as part of congressional passage of a continuing resolution to fund the government.
 
7. Registration Opens for Diversity Visa 2017 Program – Registration is open until noon, eastern time, on November 3, 2015.
 
8. USCIS Announces New Direct Filing Address for Certain I-140 Petitions, Workload Rebalancing – The direct filing address has changed for I-140 (Immigrant Petition for Alien Worker) petitions submitted together with I-907 (Request for Premium Processing) petitions with a worksite location in Maryland, New Jersey, New York, or Pennsylvania.
 
9. H-1B, L-1 Additional Fees Expire – The expired fee was $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions.
 
10. USCIS Will Close Vienna Field Office in December – The last day the office will be open to the public and accept applications is November 30, 2015.
 
11. DHS Sets FY 2016 Limit for CNMI-Only Transitional Workers – DHS will allow up to 12,999 nonimmigrants in fiscal year (FY) 2016 for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program.
 
12. ABIL Global: Peru – On September 26, 2015, a new Aliens Law in Peru was published in the official gazette, El Peruano. Selected highlights are discussed.
 
13. Firm In The News
 
Details:
 
1. DHS Proposes Rule on Expanding F-1 STEM OPT
 
On October 19, 2015, the Department of Homeland Security (DHS) published a new proposed rule on expanding F-1 science, technology, engineering, and mathematics (STEM) optional practical training (OPT). Specifically, the proposal would allow F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension would effectively replace the 17-month STEM OPT extension currently available to certain STEM students. The rule also increases oversight of STEM OPT extensions by, among other things, requiring the implementation of formal mentoring and training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools.
 
As with the current 17-month STEM OPT extension, the proposed rule would authorize STEM OPT extensions only for students employed by employers enrolled in U.S. Citizenship and Immigration Services’ (USCIS) E-Verify employment eligibility verification program. The proposal also includes the “cap-gap” relief first introduced in 2008 for any F-1 student with a timely filed H-1B petition and request for change of status. DHS said that the cap-gap relief allows such students to automatically extend the duration of F-1 status and any current employment authorization until October 1 of the fiscal year for which such an H-1B visa is being requested.
 
The proposed rule also responds to a court decision that vacated a 2008 DHS regulation on procedural grounds. The proposed rule includes changes to the policies announced in the 2008 rule to further enhance the academic benefit provided by STEM OPT extensions and increase oversight. DHS noted that “[t]hese on-the-job educational experiences would be obtained only with those employers that commit to developing students’ knowledge and skills through practical application. The proposed changes would also help ensure that the nation’s colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.”
 
 
2. Update on ‘Visagate’ Filing Date Fiasco: Temporary Restraining Order Denied
 
On October 7, 2015, a judge rejected a petition for a temporary restraining order (TRO) in a class action challenging a new change to the October Visa Bulletin. By moving many filing dates back, the update to the bulletin radically restricted a previously announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The class action was filed in the U.S. District Court for the Western District of Washington at Seattle on September 28, 2015. 
 
The complaint noted that in the absence of relief, plaintiffs and class members, “who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published, will be irreparably harmed and left without any remedy for Defendants’ unlawful actions.” The complaint asks the court to declare, among other things, that the September 24 revision of the October 2015 Visa Bulletin constitutes unlawful agency action in violation of the Administrative Procedure Act. The Alliance of Business Immigration Lawyers (ABIL) filed a declaration supporting the complaint, and individual ABIL lawyers also filed declarations as experts including Cyrus Mehta. ABIL also plans to file an amicus brief in the litigation.
 
Varied explanations for the latest change, which some are calling “Visagate,” were floated. For example, in a statement announcing the change, U.S. Citizenship and Immigration Services (USCIS) explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.” USCIS also reportedly said that the agency was correcting a mistake and there was no way it could comply with the law without fixing the bulletin. USCIS also said that a retrogression in cut-off dates was not accounted for when the first October bulletin was issued.
 
Attorneys for the plaintiffs have set up a Facebook page to track the litigation at https://www.facebook.com/VisagateLitigation2015. The order denying the TRO is at http://www.scribd.com/doc/283960048/Mehta-v-DOS-ORDER-Denying-Ps-Mtn-for-TRO-10-7-15. The class action complaint is at http://2hqyh93y2sj32lqbnw40aoj0.wpengine.netdna-cdn.com/wp-content/uploads/1-0.Complaint.pdf. The USCIS announcement is at http://www.uscis.gov/news/dos-publishes-updated-visa-bulletin-october-2015. The latest chart, along with information on when to file, is available at http://www.uscis.gov/visabulletininfo. The November Visa Bulletin is at http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_November2015.pdf.  For a commentary on Visagatge October 2015 See Cyrus D. Mehta, http://blog.cyrusmehta.com/2015/10/when-is-visa-immediately-available-for.html.  
 
 
3. Labor Dept. Publishes Final Rule on Temporary Employment of H-2A Workers in Herding or Production of Livestock on the Range
 
The Department of Labor (DOL) has published a final rule establishing standards and procedures for employers seeking to hire foreign temporary agricultural workers for jobs in herding and production of livestock on the range. Among the issues addressed are the qualifying criteria, preparing job orders, program obligations of employers, filing H-2A applications requesting temporary labor certification for range occupations, recruiting U.S. workers, determining the minimum offered wage rate, and meeting minimum standards for housing used on the range. The regulations establish a single set of standards and procedures applicable to employers seeking to hire foreign temporary agricultural workers for sheep and goat herding and range production of livestock.
 
Among other things, DOL noted the need to address “inadequate wage methodology” that has contributed to herder wage stagnation. Instead of using inaccurate, outdated surveys, DOL decided to use the federal minimum wage rate, currently $7.25 per hour, multiplied by 48 hours per week to set the monthly wage rate.
 
 
 
4. USCIS Reports Satisfaction With Filing for Replacement Green Cards Online
 
U.S. Citizenship and Immigration Services (USCIS) recently announced that more than 93 percent of applicants who filed for a replacement green card (Form I-90, Application to Replace Permanent Resident Card) online had a positive experience, and more than 95 percent would recommend online filing to others. 
 
USCIS noted that since the agency introduced the electronic I-90 in March 2015, more than 168,000 applications were filed that way. Online I-90 filings now account for 47 percent of all I-90 applications filed. USCIS said it still accepts paper I-90 applications, but converts them into electronic records. Those filing an I-90 on paper can still create an online account to track the case electronically. 
 
Information about electronic filing is at http://www.uscis.gov/uscis-elis. The I-90 application is at http://www.uscis.gov/i-90
 
 
5. USCIS Reminds Those Affected by South Carolina Floods of Immigration Relief Options
 
U.S. Citizenship and Immigration Services (USCIS) recently issued an alert noting that the agency “offers immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe flooding in South Carolina.”
 
USCIS said that requestors should “explain how the flooding created a need for the requested relief.” The agency noted that the following measures may be available upon request:
  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired
  • Re-parole of individuals previously granted parole by USCIS
  • Expedited processing of advance parole requests
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship
  • Expedited adjudication of employment authorization applications, where appropriate
  • Consideration of fee waivers due to an inability to pay
  • Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to appear for an interview, submit evidence, or respond in a timely manner
  • Replacing lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (green card)
  • Rescheduling of scheduled biometrics appointment
 
 
6. Congress Extends Four Immigration Programs Until December 11
Congress has extended the EB-5, E-Verify, Conrad state 30 (physician J-1 aiver), and religious workers programs until December 11, 2015, as part of congressional passage of a continuing resolution to fund the government. 
 
Members of Congress hope to reauthorize and reform the EB-5 program in the interim, although the outcome is uncertain due to political disputes and legislative scheduling pressures. In January, Reps. Mark Amodei (R-Nev.) and Jared Polis (D-Colo.) introduced an EB-5 reauthorization bill in the House of Representatives. In June, Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.) introduced a reauthorization and reform bill in the Senate. At least two other bills to reform the EB-5 program have also been introduced. Conrad 30 supporters also hope to make changes, such as reducing backlogs in the wait for green cards.
 
 
7. Registration Opens for Diversity Visa 2017 Program
 
The 2017 diversity visa (DV) program opened for electronic registrations opened on October 1, 2015, and closes at noon, eastern time, Tuesday, November 3, 2015. 
 
For DV-2017, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. 
 
Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
 
The Department of State said that based on the allocations of available visas in each region and country, individuals will be randomly selected by computer from among qualified entries. DV-2017 entrants must go to Entrant Status Check using the confirmation numbers from their DV-2017 online entry registrations to find out whether they have been selected. Those who are selected will be directed to a confirmation page that will provide further instructions, including information about fees connected with immigration to the United States. The Department noted that Entrant Status Check will be the only means by which selectees are notified of their selection for DV-2017. The Department of State will not mail notification letters or email selectees.
 
Applicants can access the electronic DV entry form (E-DV) at the official E-DV website: http://www.dvlottery.state.gov during the registration period. DV instructions, including a video, are on the Department of StateХs public website at: http://www.travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html. Entrant Status Check will be available on the E-DV website at http://www.dvlottery.state.gov starting May 3, 2016, through at least September 30, 2017.
 
 
8. USCIS Announces New Direct Filing Address for Certain I-140 Petitions, Workload Rebalancing
 
U.S. Citizenship and Immigration Services (USCIS) announced that starting on October 19, 2015, the direct filing address has changed for Form I-140 (Immigrant Petition for Alien Worker) petitions submitted together with Form I-907 (Request for Premium Processing) petitions with a worksite location in Maryland, New Jersey, New York, or Pennsylvania. Those who are filing an I-907 to upgrade a pending I-140 to premium processing should mail the I-907 to the service center that has the pending I-140.
 
USCIS also noted that it recently rebalanced its workload for certain I-140 petitions and employment-based I-485 (Application to Register Permanent Residence or Adjust Status) applications between the Texas and Nebraska service centers. 
 
 
 
9. H-1B, L-1 Additional Fees Expire 
 
U.S. Citizenship and Immigration Services (USCIS) announced that H-1B and L-1 petitions should no longer include the additional fee required by ¤ 402 of Public Law 111-230, as amended, for certain H-1B and L-1 petitions. The additional fee expired on September 30, 2015. The fee was $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.
 
All other H-1B and L-1 fees are still required. USCIS reminded petitioners that the agency prefers separate checks for each filing fee.
 
 
10. USCIS Will Close Vienna Field Office in December
 
U.S. Citizenship and Immigration Services (USCIS) will permanently close its field office in Vienna, Austria, on December 31, 2015. The last day the office will be open to the public and accept applications is November 30, 2015. The USCIS field offices in Frankfurt, Rome, and Athens will assume Vienna’s former jurisdiction, which includes Austria, Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Hungary, Kosovo, Former Yugoslav Republic of Macedonia, Montenegro, Poland, Romania, Serbia, Slovakia, and Slovenia. The U.S. Embassy in Vienna will assume responsibility for certain limited services previously provided by USCIS to individuals residing in Austria.
 
Additional details, including the new jurisdictional breakdown for countries in USCIS Vienna’s former jurisdiction and detailed filing instructions for various services and forms, is at http://www.uscis.gov/news/austria-uscis-vienna-field-office. 
 
 
11. DHS Sets FY 2016 Limit for CNMI-Only Transitional Workers
 
The Department of Homeland Security (DHS) announced on October 22, 2015, that it will allow up to 12,999 nonimmigrants in fiscal year (FY) 2016 for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program. 
 
Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act. The CW program is in effect until December 31, 2019. DHS said it reduced the FY 2016 CW-1 limit by 1,000 “to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a regulatory requirement to reduce the numerical limit each year.”
 
The announcement does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay. Approved petitions with an employment start date between October 1, 2015, and September 30, 2016, will generally count toward the 12,999 limit, DHS said. The numerical limit applies only to CW-1 principals. It does not directly affect anyone currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1, USCIS noted.
 
 
 
12. ABIL Global: Peru
On September 26, 2015, a new Aliens Law in Peru was published in the official gazette, El Peruano. Selected highlights are discussed below. 
Legislative decree No. 1236, most of which will be effective 90 days after related regulations are published, will change the scheme of work visas, and immigration categories and statuses, in Peru. Among other things, the immigration categories under the new law will include:
  • Visitor: Allows foreign nationals short-term visits to Peru.
  • Temporary: Allows foreign nationals to carry out paid activities, study, or undertake training activities, as appropriate to the immigration status assigned.
  • Resident: Allows foreign nationals to set up residence in Peru. Foreign nationals with resident status may carry out any kind of paid or for-profit activity as a subordinate, independent, or self-employed person. The resident immigration category is divided into:
  • Permanent Resident: Allows foreign nationals to establish permanent residence in Peru. Foreign nationals may apply to obtain this status after 21 months as provisional residents. The specific requirements will be set in regulations.
  • Provisional Resident: Allows foreign nationals to perform tasks or activities only during the period of their authorized stay. Maximum term of 2 years.

A foreigner may apply for provisional residence in certain cases: (1) after two years under certain immigration statuses, including humanitarian, investor, religious, worker, and other immigration statuses as determined by Supreme Decree countersigned by the Minister of Interior and Minister of Foreign Affairs; or (2) as an intra-company transfer, applicable to a foreign national who enters Peru as an employee of a multinational company or international corporation and relocates to Peru to work in a company that is part of the same economic group or holding, to serve in a managerial (high-ranking) position, as employee in a position of trust, or as a highly qualified specialist.

Under the “Temporary” category, a new immigration status has been created: Worker—Short-Term Stay (T19), applicable to a foreign national who enters Peruvian national territory to perform work for the public or private sectors, during a brief determined term expected to be up to 30 days, nonrenewable. Short-term stay workers cannot perform paid or for-profit activities on their own account or independently.

Some immigration statuses enable the exercise of certain activities that are also allowed under a different immigration status that is not incompatible, as established in the regulations.

The Ministers of Interior and Foreign Affairs may jointly create new immigration statuses by Supreme Decree for the purpose of developing certain temporary activities. They also can develop subcategories for each immigration status. To exercise duties under the new law, MIGRACIONES and the Ministry of Foreign Relations have sanctioning power under the scope of their authority.

Actions that breach the provisions of the new law constitute punishable offenses. When evaluating the breach, the competent authority must take into account the seriousness of the offense based on proportionality and reasonableness criteria. Unlawful actions are classified as minor, serious, or very serious. National citizens; foreign nationals; transportation companies, operators, or concessionaires; domiciled individuals; and corporations that breach the obligations of the decree are subject to disciplinary proceedings.

For family unity purposes, not only the spouse but the common-law partner (according to the provisions of Article 2049 of the Peruvian Civil Code) is recognized as member of the family unit of a foreign national who can request family reunification.

As noted above, most of the law will be effective 90 working days after the publication of corresponding regulations in the official gazette, El Peruano, unless otherwise provided by law.

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David Isaacson was a Speaker, There’s Been Some Malfeasance Up Near Brainerd—Ethical Issues to Consider, AILA 2015 Fall CLE Conference: The Absolute Waivers Conference—In the Land of 10,000 Lakes, Minneapolis, MN, October 2, 2015

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October 2015 Immigration Update

 

Headlines

1. State Dept. Moves Many Filing Dates Back From Previously Released October Visa Bulletin; Lawsuit Filed – On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. A lawsuit is challenging the change.

2. USCIS Resumes Final Adjudications of Employment-Based Adjustment Applications After Brief Suspension – USCIS resumed final adjudication of employment-based adjustment applications on October 1, 2015, when visa numbers were again available.

3. White House Announces New Measures Under Citizenship Initiative – Among other things, USCIS began accepting and processing credit card payments for the naturalization application and biometrics fee. USCIS also said it is entering into a formal partnership with the U.S. Department of Agriculture to provide temporary office space for USCIS officers in agricultural and rural communities that have significant numbers of immigrants but are not located near a USCIS office.

4. CBP Redesigns ESTA Website for Visa Waiver Program – Some of the new features include access to frequently asked questions at any time during the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications using a smartphone; translation capability at any point in the application by choosing one of 23 languages; and availability of the Group feature at the beginning of the application process to make it easier for families and groups to submit their applications at the same time.

5. United States Announces ‘Trusted Traveler’ Trilateral Agreement With Canada and Mexico – The new agreement outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.

6. DHS Designates Yemen for Temporary Protected Status -The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017.

7. ABIL Global: Netherlands – The Dutch government introduced the Startup Visa in 2015; requirements and early experiences are discussed.

8. Firm In The News…

Details:

1.         State Dept. Moves Many Filing Dates Back From Previously Released October Visa Bulletin; Lawsuit Filed

On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals who have immigrant visa petitions based on family or employment to file adjustment of status applications once their priority dates are listed on a separate chart on the monthly Visa Bulletin, “Dates for Filing Applications.” In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications.

With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.”

The change means that potentially thousands of applicants who had already gathered documents, prepared applications, paid for medical examinations, and incurred other costs based on the previous dates now may have to wait many months to take the next steps in their green card cases, unless the situation changes. An informal survey of immigration lawyers revealed that about 80-90% of people who were eligible to apply for adjustment of status under the original Visa Bulletin were adversely affected by the changes announced by USCIS and DOS.

A class action challenging the new change was filed in the U.S. District Court for the Western District of Washington at Seattle on September 28, 2015. The complaint notes that in the absence of relief, plaintiffs and class members, “who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published, will be irreparably harmed and left without any remedy for Defendants’ unlawful actions.” The complaint asks the court to declare, among other things, that the September 24 revision of the October 2015 Visa Bulletin constitutes unlawful agency action in violation of the Administrative Procedure Act. The Alliance of Business Immigration Lawyers (ABIL) filed a declaration supporting the complaint, and individual ABIL lawyers including Cyrus Mehta, also filed declarations as experts. ABIL also plans to file an amicus brief in the litigation.

Below are a few examples of the extreme changes:

  • EB-2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)
  • EB-2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)
  • EB-3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)
  • FB-1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)
  • FB-3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

The Visa Bulletin indicates when immigrant visas are available based on priority date. The priority date is the date on which the applicant’s relative or employer filed the immigrant visa petition on the applicantХs behalf. In case of employer sponsorship through labor certification, the priority date is the date the labor certification was filed with the Department of Labor. Certain immigrants may also “recapture” earlier priority dates established by other immigrant visa petitions on their behalf.

The class action documents are at http://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2015/10/01/visagate2015-litigation-update-oct-1-2015-mehta-v-dos.aspx.  Cyrus MehtaХs Declaration is at http://www.slideshare.net/gsiskind/declaration-of-cyrus-mehta. The USCIS announcement is at http://www.uscis.gov/news/dos-publishes-updated-visa-bulletin-october-2015. The latest chart, along with information on when to file, is available at http://www.uscis.gov/visabulletininfo

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2.         USCIS Resumes Final Adjudications of Employment-Based Adjustment Applications After Brief Suspension

U.S. Citizenship and Immigration Services (USCIS) announced on September 24, 2015, that it had suspended through September 30, 2015, the adjudication of all employment-based Form I-485 (Application to Register Permanent Residence or Adjust Status) adjustment applications pending with USCIS through that date, because the Department of State reported that the statutory cap was reached for the employment-based preference categories for fiscal year (FY) 2015.

USCIS resumed final adjudication of employment-based adjustment applications on October 1, 2015, when visa numbers were again available. USCIS noted that applicants filing an I-485 on or after October 1 should review the “When to File” section on the Visa Bulletin Info Web page to determine whether they are eligible.

The announcement is at http://www.uscis.gov/news/alerts/uscis-suspends-final-adjudication-employment-based-adjustment-applications-remainder-fy-2015. The Visa Bulletin Info Web page is at http://www.uscis.gov/visabulletininfo.

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3.         White House Announces New Measures Under Citizenship Initiative

The Obama administration recently announced several new measures as part of its citizenship initiative. For example, on September 19, 2015, U.S. Citizenship and Immigration Services (USCIS) began accepting and processing credit card payments for the naturalization application and biometrics fee. Previously, the fees could only be paid with a check or money order.

USCIS also said it is entering into a formal partnership with the U.S. Department of Agriculture for the Farm Service Agency to provide temporary office space for USCIS officers in agricultural and rural communities that have significant numbers of immigrants but are not located near a USCIS office. Services under this pilot program will include biometrics collection, interviews for applications or petitions, informational appointments, and general presentations on immigration benefits.

USCIS also has begun live question-and-answer sessions on Twitter with USCIS experts answering non-case-specific questions.

The Department of Homeland Security’s Office of Immigration Statistics estimates that 8.8 million permanent residents (green card holders) are eligible to apply for citizenship. A recent analysis showed that the median time spent as a permanent resident before becoming a U.S. citizen was seven years. USCIS noted that green card holders who meet all eligibility requirements may apply for citizenship after five years, or after three years if they are married to a U.S. citizen.

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4.         CBP Redesigns ESTA Website for Visa Waiver Program

U.S. Customs and Border Protection launched a redesigned Electronic System for Travel Authorization (ESTA) website for Visa Waiver Program (VWP) participants on September 10, 2015.

Some of the new features include access to frequently asked questions at any time during the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications using a smartphone; translation capability at any point in the application by choosing one of 23 languages; and availability of the Group feature at the beginning of the application process to make it easier for families and groups to submit their applications at the same time.

CBP said it conducted focus groups as part of the redesign process to better understand how to improve the website for the more than 19 million VWP visitors who use it each year. VWP visitors who have already applied for ESTA will be able to access their accounts on the new site. Travelers with valid ESTAs will not have to reapply for new ones until their current ESTAs expire or they receive new passports.

CBP noted that the VWP enables nationals of 38 designated countries to travel to the United States for tourism or business for stays of up to 90 days without first obtaining a visa. All nationals or citizens of VWP countries must have an approved ESTA before boarding a carrier to travel by air or sea to the United States under the VWP. ESTA applications should be submitted at least 72 hours before travel. Once approved, the ESTA is generally valid for up to two years or until the applicant’s passport expires. Authorizations are valid for multiple entries.

CBP’s announcement of the redesign is at http://www.cbp.gov/newsroom/national-media-release/2015-09-10-000000/cbp-launches-redesigned-esta-website-visa-waiver. The redesigned ESTA application website is at https://esta.cbp.dhs.gov/esta/.

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5.         United States Announces ‘Trusted Traveler’ Trilateral Agreement With Canada and Mexico

The Department of Homeland Security (DHS) has joined Public Safety Canada and the Secretariat of Governance of Mexico in a trilateral agreement to expand “trusted traveler” programs. The new agreement, signed on July 10, 2015, outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.

As part of the agreement, Mexican nationals who are members of Mexico’s Viajero Confiable program will be able to apply for the U.S.-Canada NEXUS trusted traveler program, making them eligible for expedited screening benefits upon arrival at international airports in the United States and Canada. The arrangement will also allow Canadian citizens who are members of NEXUS to apply for Viajero Confiable, making them eligible for expedited screening benefits upon arrival at select international airports in Mexico. U.S. citizens are currently eligible to apply for the NEXUS and Viajero Confiable trusted traveler programs through existing partnerships between U.S. Customs and Border Protection (CBP), Public Safety Canada, and Mexico’s National Institute of Migration. Eligible travelers will be able to apply for each program beginning in 2016.

At the 2014 North American Leaders Summit in Toluca, Mexico, the leaders of the United States, Canada, and Mexico committed to the development of a trilateral trusted traveler network to facilitate air travel in North America. Facilitating secure air travel within North America is also a goal of the U.S.-Canada Beyond the Border initiative, the U.S.-Mexico 21st Century Border Management Initiative, and the U.S.-Mexico High-Level Economic Dialogue.

The announcement is at http://www.dhs.gov/news/2015/08/05/united-states-announces-trilateral-agreement-canada-and-mexico-expand-trusted.

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6.         DHS Designates Yemen for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Yemen for temporary protected status (TPS) for 18 months due to the ongoing armed conflict within the country. Eligible nationals of Yemen residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017.

DHS noted that Yemen “is experiencing widespread conflict and a resulting severe humanitarian emergency, and requiring Yemeni nationals in the United States to return to Yemen would pose a serious threat to their personal safety.” The designation means that during the designated period, eligible nationals of Yemen (and people without nationality who last habitually resided in Yemen) who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD).

 

To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since September 3, 2015. Applicants will also undergo thorough security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.

The USCIS announcement is at http://www.uscis.gov/news/dhs-announces-temporary-protected-status-designation-yemen (English) and http://www.uscis.gov/news/news-releases/tln-dr-lmn-lwtny-tkhsys-status-hmy-mwqt (Arabic). The Federal Register notice designating Yemen for TPS, and providing additional details about registering and eligibility, is at http://www.gpo.gov/fdsys/pkg/FR-2015-09-03/html/2015-21881.htm.

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7.         ABIL Global: Netherlands

The Dutch government introduced the Startup Visa in 2015; requirements and early experiences are discussed.

On January 1, 2015, the Dutch government introduced a residence permit scheme for start-up companies. What are the requirements and what are the first experiences with this new permit scheme?

General

The Dutch government is keen on enhancing the ecosystem for startup companies with the goal of becoming a top-three startup hub within Europe. One of the instruments is a facilitated residence permit scheme for the owners of startup companies.

The general scheme for entrepreneurs has proven inadequate to accommodate the visa and residence needs of this category of businesses, mainly because of too-severe requirements in terms of capital demands and (forecasted) financial results. For startup companies, these demands often are hard to meet. A specific visa has been introduced where these demands don’t apply. The “startup visa” can be issued to the owners of startup companies that have been selected by, and have signed a contract with, a Dutch facilitator; i.e., a company that offers professional support for setting up and growing startup businesses.

Requirements

To sponsor a startup visa application, the facilitator must prove its expertise and reliability. This is assessed by the Ministry of Economic Affairs (MEA) upon request of the Immigration and Naturalization Service (IND). The main requirements are a proven track record of accompanying startups for at least two years, and a solid financial position.

The applying startup entrepreneur must substantiate that the product or service that is being developed is innovative, and that he or she will likely qualify for a permit based on the general points system within one year. This aspect is also assessed by MEA. The startup must provide a detailed milestone plan that includes:

  • the role the applicant fulfills in the startup;
  • the concept of the product or service the startup will deliver;
  • the innovativeness of the product or service; and
  • the milestones that need to be reached throughout the first year to take the startup from a mere concept to an actual undertaking.

The contract between the startup and the facilitator must describe:

  • the nature of the accompaniment and advice from the facilitator;
  • the conditions under which the accompaniment is offered; and
  • the stake that the facilitator has in the startup, if any.

Other Aspects

The startup visa is granted for one year and cannot be renewed. All persons participating in the startup company (e.g., as shareholders) are eligible for startup visas.

The anticipated total processing time is approximately four weeks. The first application was made on January 1, 2015, and was granted within five weeks. During that time, first the facilitator’s track record was approved, and subsequently the innovativeness of the startup was assessed. In essence, both the MEA and the IND proved to be able to move very fast under this scheme.

Results So Far

Since the introduction of the scheme, about 10 permits have been granted, and about 50 applications are still pending or have been denied. Although this could relate to “startup” problems and is not necessarily a reflection on the new scheme, the government’s special envoy for the improvement of the startup ecosystem, Neelie Kroes, has reportedly said that the number of visas granted should have been much higher by now, and that the new scheme is “a failure.”

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Cyrus Mehta was a Speaker, Ethics In Immigration Law Practice, Immigration Justice Corps Training, New York, NY, September 18, 2015.

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September 2015 Immigration Update

 

Headlines:

1.  New L-1B Memo Addresses Some Issues, But Concerns Remain Some practitioners expressed concerns that the memo still gives adjudicators broad discretion to issue RFEs and denials.

2. USCIS Discontinues Legacy E-Filing System – After the legacy system is decommissioned and before the new system is fully operational, applicants must use paper forms for several categories.

3.  DHS Extends TPS Designation for Haiti by 18 Months Current TPS Haiti beneficiaries seeking to extend their TPS status must re-register during a 60-day period that runs through October 26, 2015.

4.  Federal Prosecutors Drop Criminal Case Based on Evidence Seized From LaptopProsecutors told the U.S. Court of Appeals for the D.C. Circuit that they would not pursue the criminal case or challenge a U.S. District judge’s May ruling that the evidence, seized from a laptop without a warrant at the Los Angeles airport, could not be used.

5.  DHS Announces Security Enhancements to Visa Waiver Program DHS, along with the Department of State and some other federal agencies, will introduce a number of additional or revised security criteria for all VWP participants.

6.  Canada Introduces New Entry Requirement for Some Visa-Exempt Foreign Nationals Traveling by Air – Canada has introduced a new entry requirement, known as Electronic Travel Authorization (eTA), for certain visa-exempt foreign nationals traveling to Canada by air, not including U.S. citizens.

7.  District Court Strikes Down DHS Rule Extending STEM OPT, But Stays Action Until 2016 – The court struck down a 2008 interim rule extending the duration of STEM OPT by 17 months but stayed that action until February 12, 2016, to avoid disruption and allow DHS to submit the rule for notice and comment.

8.  GAO Calls for Better Assessment of Fraud Risks, Economic Benefits From EB-5 Program The GAO noted that fraud risks are constantly evolving and that USCIS continually identifies new fraud schemes, but the agency does not have documented plans to conduct regular future risk assessments.

9.  Senate Holds Hearing on Obama Administration’s Executive Actions The hearing followed the White House’s announcement on July 15, 2015, of progress on the Obama administration’s executive actions on immigration and next steps, as part of an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.

10.  USCIS Accounts for Returns of Erroneously Issued DACA EADs USCIS said it has accounted for over 99 percent of the approximately 2,600 identified invalid work permits requiring return.

11.  TPS Registration Deadline Was August 18 for Liberia, Guinea, Sierra Leone – The TPS designations for these three countries run through May 21, 2016.

12.  USCIS Summarizes Temporary Immigration Relief Measures for Marianas USCIS reminded people affected by Typhoon Soudelor that certain U.S. immigration benefits or relief may be available to them.

13.  ABIL Global: Canada – Canada has introduced a new immigrant investor venture capital pilot program.

14.  Firm In The News

Details:

1. New L-1B Memo Addresses Some Issues, But Concerns Remain

A new L-1B policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the United States. It provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda. Some practitioners expressed concerns that the memo still gives adjudicators broad discretion to issue requests for evidence (RFEs) and denials.

The memo notes the following “non-exhaustive” list of factors USCIS may consider when determining whether a beneficiaryХs knowledge is specialized:

б         The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations.

б         The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.

б         The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.

б         The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).

б         The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.

б         The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.

The memo notes that specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals. Specialized knowledge need not be proprietary or unique to the petitioning organization. The memo also notes that the L-1B classification does not involve a test of the U.S. labor market, and that specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.

The memo, issued August 17, 2015, is available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/L-1B_Memorandum_8_14_15_draft_for_FINAL_4pmAPPROVED.pdf.

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2. USCIS Discontinues Legacy E-Filing System

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is discontinuing its legacy “e-Filing” system to maintain data security standards and focus resources on a replacement Electronic Immigration System.

The legacy e-Filing system offered online filing for several USCIS forms. After the legacy system is decommissioned and before the new system is fully operational, applicants must use paper forms when filing all categories of:

  • Form I-131, Application for Travel Document
  • Form I-140, Immigrant Petition for Alien Worker
  • Form I-765, Application for Employment Authorization
  • Form I-821, Application for Temporary Protected Status
  • Form I-907, Request for Premium Processing Service

The last day to start new forms in the e-Filing system was August 30, 2015. Applicants must complete and submit all forms by September 20, 2015, or file a paper form. Those who have a pending case submitted through the legacy e-Filing system do not need to take any action. USCIS said it will adjudicate those cases to completion.

USCIS noted that the forms being removed from the legacy e-Filing system will not be available immediately in the new Electronic Immigration System, but the agency plans to add them in the future. USCIS did not indicate when the new system would be fully implemented.

The USCIS announcement is at http://www.uscis.gov/uscis-elis/uscis-discontinues-legacy-e-filing-system.

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3. DHS Extends TPS Designation for Haiti by 18 Months

The Department of Homeland Security has extended Haiti’s temporary protected status (TPS) designation for an additional 18 months, through July 22, 2017.

 

Current TPS Haiti beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began on August 25, 2015, and runs through October 26, 2015. U.S. Citizenship and Immigration Services (USCIS) is encouraging beneficiaries to re-register as soon as possible.

 

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible TPS Haiti beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of July 22, 2017. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is automatically extending current TPS Haiti EADs bearing a January 22, 2016, expiration date for an additional six months. These existing EADs are now valid through July 22, 2016.

 

Haiti was initially designated for TPS on January 21, 2010, after a major earthquake devastated the country. Following consultations with other federal agencies, DHS determined that current conditions in Haiti support extending the designation period for current TPS beneficiaries.

 

To re-register, current TPS beneficiaries must submit:

 

  • Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the I-821 application fee);
  • The biometric services fee (or a fee waiver request) if they are 14 years old or older;
  • Form I-765, Application for Employment Authorization, regardless of whether they want an EAD; and
  • The Form I-765 application fee, or a fee waiver request, but only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required.

Applicants may ask USCIS to waive the I-765 application fee and/or biometrics fee based on an inability to pay. To do so, applicants must file Form I-912, Request for Fee Waiver, or submit a written request. Fee waiver requests must be accompanied by supporting documentation.

The Federal Register notice announcing the extension is at http://www.gpo.gov/fdsys/pkg/FR-2015-08-25/html/2015-21006.htm.

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4. Federal Prosecutors Drop Criminal Case Based on Evidence Seized From Laptop

Federal prosecutors have dropped a criminal case against Jae Shik Kim, a Korean businessman, who was charged with violating economic sanctions based on evidence seized from his laptop. On August 11, 2015, prosecutors told the U.S. Court of Appeals for the D.C. Circuit that they would not pursue the criminal case or challenge an order U.S. District Judge Amy Berman Jackson made in May ruling that the evidence, seized without a warrant at the Los Angeles airport, could not be used.

Judge Jackson had noted, “ Given the vast storage capacity of even the most basic laptops, and the capacity of computers to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane.” Jeff Ifrah, one of Kim’s lawyers, speculated that the federal government didn’t appeal the decision because it “could have resulted in some bad precedent about the type of searches that are going on every day at airports. I think they donХt want to be responsible for having a circuit court of appeals rule that those searches are illegal.” He called the case “clearly a violation of the Fourth Amendment.”

Judge Jackson’s May 2015 order is at https://cdn.arstechnica.net/wp-content/uploads/2015/05/kimruling.pdf.

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5. DHS Announces Security Enhancements to Visa Waiver Program

On August 6, 2015, Department of Homeland Security (DHS) Secretary Jeh C. Johnson announced the agency’s intent to implement security enhancements to the Visa Waiver Program (VWP). He said that DHS, along with the Department of State and other federal agencies, will begin introducing “a number of additional or revised security criteria” for all VWP participants, to apply to both new and current members of the program. The VWP currently has 38 participating countries.

Most significant among the new security requirements, he said, would be required use of e-passports for all VWP travelers coming to the United States; required use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a VWP country’s borders; and permission for the expanded use of U.S. federal air marshals on international flights from VWP countries to the United States.

U.S. Customs and Border Protection (CBP) has noted that DHS is concerned about the risks posed by the situation in Syria and Iraq, where increasing instability has attracted thousands of foreign fighters, including many from VWP countries. Such individuals could travel to the United States for operational purposes on their own or at the behest of violent extremist groups in Syria, CBP warned. Among other things, DHS has expanded the amount of information collected by its Electronic System for Travel Authorization (ESTA).

Secretary Johnson’s statement is available at http://www.dhs.gov/news/2015/08/06/statement-secretary-jeh-c-johnson-intention-implement-security-enhancements-visa. The CBP announcement is at http://www.cbp.gov/travel/international-visitors/esta/enhancements-to-esta-faqs.

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6. Canada Introduces New Entry Requirement for Some Visa-Exempt Foreign Nationals Traveling by Air

As of August 1, 2015, Canada has introduced a new entry requirement, known as Electronic Travel Authorization (eTA), for certain visa-exempt foreign nationals traveling to Canada by air. Exceptions include U.S. citizens and travelers with valid visas. Entry requirements for other methods of travel (e.g., land, sea) have not changed.

Eligible travelers can apply online for an eTA. On March 15, 2016, this entry requirement will become mandatory and such travelers will need an eTA before they can board a flight to Canada.

For more information or to apply for an eTA, see http://www.cic.gc.ca/english/visit/eta.asp?utm_source=partner-eng&utm_medium=website&utm_campaign=eta.

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7. District Court Strikes Down DHS Rule Extending STEM OPT, But Stays Action Until 2016

The U.S. District Court for the District of Columbia recently struck down an interim rule promulgated by the Department of Homeland Security (DHS) in April 2008 extending, for eligible science, technology, engineering, and mathematics (STEM) students, the duration of optional practical training (OPT) by 17 months. However, the court stayed that action until February 12, 2016, to avoid disruption and allow DHS to submit the rule for notice and comment.

The plaintiff, Washington Alliance of Technology Workers, a collective-bargaining organization that represents STEM workers, had challenged the interim rule. The complaint alleged, among other things, that the plaintiff’s members who had technology-related degrees in the computer programming field and had applied for STEM employment were in direct and current competition with OPT students on a STEM extension.

OPT allows a nonimmigrant foreign national on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. When DHS published the interim rule, the agency explained that OPT employees often are unable to obtain H-1B status within their authorized period of stay in F-1 status, including the 12-month OPT period, and thus are forced to leave the United States. “The inability of U.S. employers, in particular in the fields of science, technology, engineering and mathematics, to obtain H-1B status for highly skilled foreign students and foreign nonimmigrant workers has adversely affected the ability of U.S. employers to recruit and retain skilled workers and creates a competitive disadvantage for U.S. companies,” DHS said.

The court vacated the 17-month STEM extension described in the interim rule at 73 Fed. Reg. 18944 (Apr. 8, 2008), but stayed the vacatur until February 12, 2016, and remanded to DHS for further proceedings. The court concluded that immediate vacatur of the 2008 rule would be “seriously disruptive,” noting that in 2008, DHS estimated that there were approximately 70,000 F-1 students on OPT and that one-third had earned degrees in a STEM field. While DHS has not disclosed the number of people currently taking advantage of the OPT STEM extension, the court said it had no doubt that vacating the 2008 rule would force thousands of foreign students with work authorizations to scramble to depart the United States Vacating the 2008 rule could also impose a costly burden on the U.S. tech sector, the court noted, if thousands of young workers have to leave their jobs quickly. The court said it saw no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector. As such, the court ordered that the vacatur be stayed until February 12, 2016, “during which time DHS can submit the 2008 Rule for proper notice and comment.”

The decision is at http://irli.org/wp-content/uploads/2015/08/2015.8.12-Memo-Opin.pdf.

For a commentary, See Cyrus D. Mehta, Opportunity Knocks In Disappointing Decision Vacating STEM Optional Practical Training Rule For Foreign Students

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8. GAO Calls for Better Assessment of Fraud Risks, Economic Benefits From EB-5 Program

The U.S. Government Accountability Office (GAO) recently released a report that calls for additional actions to better assess fraud risks and report economic benefits in the EB-5 program. The GAO noted that fraud risks are constantly evolving and that U.S. Citizenship and Immigration Services (USCIS) continually identifies new fraud schemes, but the agency does not have documented plans to conduct regular future risk assessments.

Among other things, fraud risks previously identified include uncertainties about whether invested funds are obtained lawfully and various investment-related schemes to defraud investors. The GAO noted that USCIS has taken steps to address fraud risks by enhancing its fraud risk management efforts, including establishing a dedicated entity to oversee these efforts. However, USCIS’s information systems and processes limit its ability to collect and use data on EB-5 program participants to address fraud risks. The GAO noted that USCIS plans to collect and maintain more complete data in its new information system; however, the GAO reported in May 2015 that the new system is nearly four years delayed. In the meantime, USCIS does not have a strategy for collecting additional information, including some information on businesses supported by EB-5 program investments, that officials noted could help mitigate fraud, such as misrepresentation of new businesses. Given that information system improvements with the potential to expand USCIS’s fraud mitigation efforts will not take effect until 2017 at the earliest and that gaps exist in USCIS’s other information collection efforts, developing a strategy for collecting such information would better position USCIS to identify and mitigate potential fraud, the GAO said.

The GAO noted that USCIS increased its capacity to verify job creation by increasing the size and expertise of its workforce and providing clarifying guidance and training, among other actions. However, the GAO said that USCIS’s methodology for reporting program outcomes and overall economic benefits “is not valid and reliable because it may understate or overstate program benefits in certain instances” because it is based on the minimum program requirements of 10 jobs and a $500,000 investment per investor instead of the number of jobs and investment amounts collected by USCIS on individual EB-5 program forms. For example, the GAO noted, USCIS reported 4,500 jobs for 450 investors on one project using its methodology instead of 10,500 jobs reported on EB-5 program forms for that project. Further, investment amounts are not adjusted for investors who do not complete the program or invest $1 million instead of $500,000. USCIS officials said they were not statutorily required to develop a more comprehensive assessment. However, tracking and analyzing data on jobs and investments reported on program forms would better position USCIS to more reliably assess and report on the EB-5 program’s economic benefits, the GAO said.

The report, “Immigrant Investor Program: Additional Actions Needed to Better Assess Fraud Risks and Report Economic Benefits” (GAO-15-696), is available at http://www.gao.gov/products/GAO-15-696.

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  1. Senate Holds Hearing on Obama Administration’s Executive Actions

The U.S. Senate Committee on the Judiciary held a hearing on July 21, 2015, “Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims.” The hearing followed the White House’s announcement on July 15, 2015, of progress on the Obama administration’s executive actions on immigration and next steps, as part of an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.

Those testifying at the hearing included U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez; Grace Huang, Public Policy Coordinator, Washington State Coalition Against Domestic Violence; J. Thomas Manger, Chief of Police, Montgomery County (Maryland) Police Department; Sarah Saldaña, Assistant Secretary, U.S. Immigration and Customs Enforcement; and others. Judiciary Committee members Charles Grassley (R-IA) and Patrick Leahy (D-VT) submitted statements.

In his opening statement, Sen. Grassley said that the Obama administration, “in too many cases, has turned a blind eye to enforcement, even releasing thousands of criminals at its own discretion, many of whom have gone on to commit serious crimes, including murder.” He also said that the administration has granted deferred action “to criminal aliens who have committed heinous crimes after receiving this relief from deportation.” Sen. Grassley noted that he has written to Homeland Security Secretary Jeh Johnson about four specific cases in which such individuals received Deferred Action for Childhood Arrivals (DACA). “One of those beneficiaries was a known gang member when he applied and received DACA, then went on to kill four people in North Carolina. Another DACA recipient used his work authorization to gain employment at a popular youth camp in California, where he was recently arrested for child molestation, and distribution of child pornography. I am still waiting for responses on some of these cases,” Sen. Grassley said.

Sen. Leahy noted that immigrants are statistically less likely than individuals born in the United States to commit crimes, and said crimes by certain people “should not be used as an excuse for demonizing an entire community.” He also noted that the Obama administration “has committed unprecedented resources to enforcement efforts at the border and in the interior,” spending nearly $18.5 billion per year on enforcement, “which exceeds all other federal criminal law enforcement spending combined.” The Obama administration, he noted, has removed more individuals than any other administration.

Mr. Rodriguez summarized key executive actions on immigration issues, including DACA. He noted, among other things, that through the end of March 2015, USCIS had received 1,175,689 DACA requests, and rejected and returned more than 71,000 at the outset. Of the 1,104,594 DACA requests accepted by USCIS for consideration, 748,789 were initial requests and 355,805 were renewal requests. Of the initial requests, USCIS approved 664,607 and denied 43,375; 40,807 remained pending as of the hearing date. Of the renewal requests, USCIS approved 243,872 and denied 414; 111,519 remained pending as of the hearing date. Mr. Rodriguez noted that denials may occur when a DACA requestor does not meet the continuous residence or education guidelines, is deemed to pose a threat to national security or public safety, or is otherwise deemed not to warrant deferred action based on a case-by-case review of each application.

He noted that these figures “do not illustrate the human face of DACA.” He noted, for example, the situation of twin sisters who were born in Mexico. Their mother brought them to the United States when they were five years old. The sisters therefore spent most of their childhood in the United States, but did not know if they could ever go to college because they were undocumented. They received DACA and went on to graduate from high school with honors and are now attending a prestigious college. They have said they are committed to working hard so they can give back to the university and the nation. Mr. Rodriguez said they are two of many examples of young people who are now able to fully contribute to their communities and to the nation because they can “finally emerge from the shadows, and give back to the community.” He noted that DACA is part of a greater effort to ensure that valuable and limited enforcement resources “are spent wisely and focused on those individuals who are a danger to national security or a risk to public safety” rather than on people such as the twin sisters he described.

Mr. Rodriguez also noted that when the district court issued a preliminary injunction in Texas v. United States, USCIS ceased preparations to implement the new DACA eligibility guidelines and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). USCIS also took immediate steps intended to ensure that the agency ceased issuing three-year (rather than two-year) periods of deferred action and work authorization to DACA recipients processed under the 2012 memorandum (a change that had begun, as directed by the memorandum, on November 24, 2014). He noted that between November 24, 2014, and the date of the injunction, USCIS granted approximately 108,000 three-year employment authorization documents (EADs) to renewal and initial requestors who were granted deferred action under the 2012 DACA guidelines. He said that the vast majority of these requests were filed before issuance of the 10 memoranda on November 20, 2014, announcing the executive actions. He said the large number of requests and decisions during this period reflected the natural cycle of DACA renewals, as the initial two-year periods of deferred action and work authorization were expiring for those persons who were granted DACA during the initial months after its launch in 2012.

He acknowledged that USCIS failed to prevent the release of approximately 2,000 three-year EADs for individuals eligible for 2012 DACA once the agency’s initial February 17 freeze on all EADs was lifted, and thereafter erroneously issued a small number of three-year EADs due to “manual errors.” In addition, he said, USCIS re-mailed some three-year EADs (approximately 500) that had initially been mailed before the injunction, were returned by the U.S. Postal Service as undeliverable, and were re-mailed by USCIS after the injunction.

Mr. Rodriguez said that as the director of USCIS, “I accept full responsibility for these mistakes.” He noted that the Secretary of Homeland Security has asked the DHS Office of Inspector General (OIG) to investigate the circumstances of the issuance of the approximately 2000 three-year EADs after the issuance of the preliminary injunction order. “USCIS fully supports this investigation, and like Secretary Johnson, I have notified agency leadership and relevant staff components directing full and expedited cooperation with the OIG,” he said.

He also said that USCIS has implemented corrective measures, including the conversion of all the validity periods of deferred action and employment authorization to two years, and that the agency is issuing new two-year EADs for each of the 2,000 erroneously issued three-year EADs, as well as those approximately 500 returned as undeliverable. USCIS notified those individuals who received the now-invalid three-year EADs that their deferred action and employment authorization would be terminated on July 31, 2015, if those individuals did not comply with the requirements for returning the invalid EADs. Additionally, Mr. Rodriguez directed the agency to take additional precautions, “including the modification of USCIS computer systems and additional quality control measures to further minimize the potential for manual error that could lead to unintended issuance of three-year EADs, instead of two years, in future DACA cases,” he said.

Testimony statements of all the witnesses at the hearing are at http://www.judiciary.senate.gov/meetings/oversight-of-the-administrations-misdirected-immigration-enforcement-policies-examining-the-impact-on-public-safety-and-honoring-the-victims.

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  1. USCIS Accounts for Returns of Erroneously Issued DACA EADs

U.S. Citizenship and Immigration Services (USCIS) issued an update on August 5, 2015, regarding returns of erroneously issued employment authorization documents (EADs) with more than two years of validity issued after February 16, 2015, to certain Deferred Action for Childhood Arrivals (DACA) recipients. This was after a court order was in place prohibiting the agency from conferring DACA for more than two years. After the court order in Texas v. United States, USCIS can approve deferred action requests and related employment authorization applications based on DACA only for two-year periods.

USCIS said it accounted for over 99 percent of the approximately 2,600 identified invalid work permits requiring return. Twenty-two of the approximately 2,600 recipients failed to return their work permits or certify good cause for not doing so by the deadline of July 30, 2015. As a result, USCIS terminated DACA for those 22 people.

USCIS noted that the recall only applied to some individuals who received a card after the February 16, 2015, court order; there are approximately 108,000 individuals who have valid three-year DACA work permits and do not need to return them. USCIS said that those who were affected by the recall and returned their invalid three-year work permits should use Case Status Online to verify whether USCIS received the work permit.

Those who returned their cards but their DACA and work authorization was terminated should either call USCIS at 1-800-375-5283, select option 1 for English, then option 8; or visit their local USCIS field offices between 9 a.m. and 3 p.m. Monday through Friday.

Case Status Online is available at https://egov.uscis.gov/casestatus/landing.do. A related “quick facts” sheet is at http://www.uscis.gov/humanitarian/daca-recipients-who-received-3-year-work-permit-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.

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  1. TPS Registration Deadline Was August 18 for Liberia, Guinea, Sierra Leone

August 18, 2015, was the deadline for eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries) to register for temporary protected status (TPS). The deadline marked the end of the 90-day extension of the initial registration period, U.S. Citizenship and Immigration Services (USCIS) said in a reminder. The TPS designations for these three countries began on November 21, 2014, and run through May 21, 2016.

Eligibility criteria include having been “continuously residing” in the United States since November 20, 2014, and having been “continuously physically present in” the United States since November 21, 2014. Eligible persons also must undergo security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.

Liberian nationals currently covered under the two-year extension of deferred enforced departure (DED) based on President Obama’s September 26, 2014, are eligible for TPS. Liberians under DED who have an employment authorization document (EAD) or have applied for an EAD do not need to apply for another EAD related to this TPS designation. However, those who are granted TPS may request a TPS-related EAD at a later date as long as the TPS designation for Liberia remains in effect.

The TPS announcement is also available in French at http://www.uscis.gov/news/la-date-decheance-de-linscription-au-tps-pour-le-liberia-la-guinee-et-la-sierra-leone-est-le-18-aout-2015. Additional information about TPS for Liberia, Guinea, and Sierra Leone, including guidance on eligibility, the application process and where to file, is at http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status. The September 2014 presidential memorandum on DED is at https://www.whitehouse.gov/the-press-office/2014/09/26/presidential-memorandum-deferred-enforced-departure-liberians.

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  1. USCIS Summarizes Temporary Immigration Relief Measures for Marianas

U.S. Citizenship and Immigration Services (USCIS) recently reminded people affected by Typhoon Soudelor, which caused extensive damage in the Commonwealth of the Northern Mariana Islands (CNMI) on August 2, 2014, that certain U.S. immigration benefits or relief may be available to them. USCIS said it understands that a natural disaster can affect an individual’s ability to maintain lawful immigration status or obtain certain other immigration benefits.

Eligible individuals may request or apply for temporary relief measures, including:

  • A change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
  • Extension or re-parole of individuals previously granted parole by USCIS;
  • Expedited adjudication of employment authorization applications; and
  • Assistance to lawful permanent residents (LPRs) stranded overseas without immigration or travel documents, such as permanent resident cards (green cards). USCIS and the Department of State will coordinate on these matters when LPRs are stranded in a place that does not have a local USCIS office.

USCIS noted that the agency “may also exercise its discretion to allow for filing delays resulting from the typhoon.” This may include, for example:

  • Assistance to those who have not appeared for an interview or submitted required forms of evidence. USCIS noted, “You may show how the typhoon prevented you from appearing or submitting documents as required”; or
  • Assistance to those who have not been able to respond to a request for evidence (RFE) or notice of intent to deny (NOID). USCIS said it will extend the deadline for individuals to respond to RFEs or NOIDs by 30 days. This applies to all RFEs and NOIDs with a deadline of August 2 through September 2, 2015. During this time, USCIS said it “will not issue denials based on abandonment of an application or petition in the CNMI.”

USCIS will continue to monitor the situation and will provide updated guidance as needed. The announcement is at http://www.uscis.gov/news/alerts/temporary-immigration-relief-measures-available-individuals-affected-typhoon-soudelor. The agency referred people to http://www.uscis.gov/humanitarian/special-situations for more information on “special situations.”

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  1. ABIL Global: Canada

Canada introduces new immigrant investor venture capital pilot program.

In January 2015, Citizenship and Immigration Canada (CIC) introduced a new Immigrant Investor Venture Capital (IIVC) Pilot Program to attract experienced business immigrants who can actively invest in the Canadian economy and thereby stimulate innovation, economic growth, and job creation.

Applicants must have a minimum personal net worth of CDN $10 million and make an at-risk investment of CDN $2 million in the IIVC Fund, which will be held for 15 years. Also, the applicant must: prove his or her proficiency in English or French in all four language abilities (speaking, reading, listening, and writing).

Canadian post-secondary degree, diploma, or certificate of at least one year or a foreign equivalent. However, if the applicant is able to demonstrate that he or she has a personal net worth of $50 million or more acquired through lawful, private sector business or investment activities, the applicant may request an exemption from the education requirement.

Since its inception, there have been a number of closures and re-openings under the IIVC program. The most recent re-opening of the program took place in May 2015.

CIC will accept applications until December 30, 2015, and will process the first 60 complete applications. CIC will also accept up to 60 additional applications that will be placed on a waiting list. The program may close earlier if 60 immigrant investors are approved for permanent residence, or once 60 applications are in process and 60 applications are on the waiting list.

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14. Firm In The News

Cyrus Mehta was a Discussion Leader, Protecting Your EB-5 Practice: Ethical Issues & Minimizing Risk, 2015 EB-5 Investors Summit: Representing EB-5 Investors & Regional Centers In  A Time Of Change, AILA, Las Vegas, NV, August 27-28, 2015.

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August 2015 Immigration Update

Headlines:

1. USCIS Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions – In general, H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition.

2. Obama Administration Moves Forward With Executive Actions – On July 15, 2015, the White House announced progress and next steps in an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.

3. USCIS Demands Return of Erroneously Issued DACA EADs USCIS sent letters demanding the return of new, erroneously issued EADs with more than two years of validity sent after February 16, 2015, to certain DACA recipients.

4. USCIS Seeks Comments on Proposed Expansion of Eligibility for Provisional Unlawful Presence Waivers 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.

5. USCIS Ombudsman Annual Report Notes Continuing RFE Issues The Ombudsman continues to be concerned with the quality and consistency of adjudications and the issuance of unduly burdensome requests for evidence, among other things.

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.

 Details:

1.         USCIS Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions

U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, on when to file an amended or new H-1B petition after the precedent decision in Matter of Simeio Solutions, LLC (Simeio).

USCIS said that Simeio, issued on April 9, 2015, represents the USCIS position that H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition. Specifically, an H-1B employer must file a new H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s place of employment.

On May 21, 2015, USCIS issued draft guidance and solicited public comment on the implementation of Simeio. After considering the feedback submitted, USCIS issued the new guidance, which is effective as of July 21. USCIS noted that although the final guidance responds to many of the comments received, some suggestions and inquiries were outside the scope of Simeio. USCIS said it will consider addressing those remaining questions, as necessary, in the near future.

In general, USCIS said, a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.

The memo also notes when a petitioner does not need to file an amended or new H-1B petition. If a petitioner’s H-1B employee is moving to a new job location within the same area of intended employment, for example, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. The petitioner must still post the original LCA in the new work location within the same area of intended employment.

Similarly, with respect to short-term placements under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite) without obtaining a new LCA or having to file an amended or new H-1B petition.

Also, if an H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered “non-worksite” if: (1) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference or staff seminar; (2) the H-1B employee spends little time at any one location; or (3) the job is “peripatetic in nature,” such as in a situation where the employee’s job is primarily at one location but he or she occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations.”

USCIS said that it will exercise discretion in several ways, specified in the memorandum, to accommodate petitioners who need to come into compliance with Simeio. For example, the memo noted that if an employer transferred an H-1B employee to a new location on or before April 9, the date of the Simeio decision, the agency generally will not pursue new adverse actions, even if the employer does not file an amended petition. The memo also specifies certain circumstances in which USCIS will pursue new adverse actions against employers or preserve adverse actions already begun.

The final guidance is at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf. Simeio is at http://www.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdf. USCIS’s announcement is at http://www.uscis.gov/news/final-guidance-when-file-amended-or-new-h-1b-petition-after-matter-simeio-solutions-llc.

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2.         Obama Administration Moves Forward With Executive Actions

On July 15, 2015, the White House announced progress and next steps in an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions. The next steps in this effort are summarized in a new report, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century.” The report includes a wide range of new actions that federal agencies are undertaking to improve the visa experience for families, workers, employers, and people in need of humanitarian relief.

Among other things, President Obama directed key federal agencies responsible for administering the legal immigration system to explore ways to modernize and streamline the system while helping the U.S. economy and improving services for applicants. Some of the recommendations summarized in the new report include:

  • 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 report notes progress since the November announcement on several of the Obama administration’s executive actions. For example, regarding a directive to clarify options for intracompany transfers to the United States, USCIS recently published a “consolidated and authoritative policy memorandum” on the L-1B intracompany transferee classification for workers with specialized knowledge. The report says that USCIS plans to issue a final memorandum effective August 31, 2015. 

Also, USCIS published a final regulation, effective May 26, 2015, extending eligibility for work authorization to certain H-4 spouses of H-1B workers who are on the path to lawful permanent resident status. USCIS also published a notice of proposed rulemaking on July 15, 2015, that would expand an existing process to provide provisional waivers to certain family members of U.S. citizens and lawful permanent residents seeking to obtain lawful permanent residence, thereby reducing family separation. The final rule will be published in spring 2016. The report notes that the Department of Homeland Security (DHS) is working to clarify the definition of extreme hardship, which must be proven by applicants seeking provisional waivers, and plans to release guidance on this issue in the near future. 

Also, the report says that the Obama administration “continues to move forward” with expanding opportunities for foreign investors, researchers, and entrepreneurs. Toward that end, DHS plans to propose, consistent with its existing parole authority, a parole program for entrepreneurs who would provide a “significant public benefit”; for example, because they have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies. DHS also will clarify guidance on the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy. 

The report also notes that DHS is evaluating the Optional Practical Training program for foreign students and graduates of U.S. universities, to determine how to enhance the program “in a manner that strengthens the program and improves training for students who will enhance American innovation and competitiveness, while protecting U.S. workers.”

The report includes a number of goals on the technology front. For example, the Obama administration wants to provide applicants with a single “dashboard” that allows them to view their case status in the overall process. Currently, the report explains, applicants must check with DHS and the Department of State individually to view their current status. Ideally, the report says, this information would be aggregated, requiring that only one dashboard be checked for an overview of one’s application, and all related components. 

On the consular front, the report notes that officers do not have a consistent way of receiving feedback about the visa process, both overseas and in the United States, from key participants, such as applicants, petitioners, lawyers, and community groups. The report says this limits an exchange of information that might help clarify rules, reduce misinformation, and produce valuable insights about consular post processes. The Obama administration is directing the Department of State to share visa process information with key sectors of the public via messages and media with the goal of providing information and engaging in a two-way dialogue so their feedback and input are incorporated into the process. 

A related goal is to increase public outreach and engagement efforts by consular posts. The report says that staff will engage applicants through a wide variety of avenues, including existing post websites and digital media, local organizations and websites, and other channels tailored to local conditions, to engage visa applicants and ensure diverse feedback.

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3.         USCIS Demands Return of Erroneously Issued DACA EADs

U.S. Citizenship and Immigration Services (USCIS) sent letters on July 14, 2015, demanding the return of erroneously issued employment authorization documents (EADs) with more than two years of validity issued after February 16, 2015, to certain Deferred Action for Childhood Arrivals (DACA) recipients. This was after a court order was in place prohibiting the agency from conferring DACA for more than two years. After the court order in Texas v. United States, USCIS can approve deferred action requests and related employment authorization applications based on DACA only for two-year periods.

USCIS said this action does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

The agency also subsequently issued an urgent notice on July 27, 2015, stating that “the three-year work permit recall only applies to SOME individuals who received a card after the February 16, 2015, court order.” USCIS said that “[if] you have not been contacted by USCIS and you received a three-year card after February 16, 2015, you should use the new online tool or call the USCIS Customer Service line at 800-375-5283 and select option 1 for English, then option 8 to verify whether you are affected BEFORE returning your card.”

USCIS said that it issued the erroneous EADs (including both EADs with three years and EADs with more than two years but less than three) to approximately 2,100 DACA recipients. Separately, the U.S. Postal Service returned to USCIS as undeliverable about 500 three-year EADs that the agency approved and issued before the February 16, 2015, injunction. USCIS subsequently re-mailed these cards to updated addresses after the injunction. USCIS said it has taken action to correct this issue for these individuals and has updated its records to reflect a two-year period of deferred action and employment authorization for them.

The letter sent to affected DACA recipients explains that the erroneous EADs they received are not valid and must be returned to USCIS. USCIS issued new two-year approval notices and new EADs reflecting a two-year validity period for those people. The letter states that if the recipient of such a letter does not return the invalid EAD, even if he or she has not yet received the new two-year EAD, USCIS will “terminate your deferred action and all associated employment authorizations.” Failure to return the invalid EAD, and subsequent termination of the recipient’s DACA and employment authorization, “may be considered a negative factor in weighing whether to grant any future requests for deferred action or any other discretionary requests.”

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.

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  1. 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.

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  1. 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.

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  1. 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.

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  1. 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.

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  1. 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 norine.w.han@uscis.dhs.gov. 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.

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  1. 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.

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  1. 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.

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July 2015 Immigration Update

 
Headlines:
 
1. U.S. Supreme Court Decides Two Immigration Cases – The U.S. Supreme Court has decided two immigration cases with potentially far-reaching implications, Kerry v. Din and Mata v. Lynch.
2. Visa, Passport Computer Problems Mostly Resolved  Among other things, the problems caused delays at the U.S.-Mexico border with seasonal workers being unable to enter the United States.
3. USCIS Temporarily Stops Accepting Electronic Versions of Several Forms – To ensure that the paper and electronic versions of certain forms are consistent with each other, the agency has temporarily remove the current electronic versions until it develops updated forms in the new USCIS online filing system.
4. USCIS Proposes Changes to E-Verify – USCIS seeks public comments on proposed changes to E-Verify.
5. North Dakota Joins E-Verify RIDE Program -North Dakota joins Mississippi, Florida, Idaho, Iowa, and Nebraska in the Records and Information from DMVs for E-Verify (RIDE) Program.
6. DHS Announces Temporary Protected Status Designation for Nepal – The 180-day TPS registration period runs through December 21, 2015.
7. DHS Extends Temporary Protected Status Registration Deadline for Liberia, Guinea, Sierra Leone – DHS is extending the initial registration deadline for TPS to August 18, 2015, for eligible nationals of Liberia, Guinea, and Sierra Leone.
8. USCIS Warns DACA Renewal Applicants About Work Permit Expirations – USCIS noted that some people wait too long to request DACA renewal or do not correctly submit all the required forms and fees. As a result, their employment authorization documents may expire before USCIS can finish processing their requests. USCIS outlined steps to prevent this from happening.
9. USCIS Reopens FY 2015 H-2B Cap for Temporary Nonagricultural Workers – On June 5, 2015, USCIS reopened the congressionally mandated fiscal year 2015 cap and is accepting petitions requesting new H-2B temporary nonagricultural workers with an employment start date between April 1 and September 30, 2015.
10. Green Cards Don’t Always Have Signatures, USCIS Reminds – When the agency issues a green card without a signature, the card will say “Signature Waived” on the front and back of the card where a signature would normally be located.
11. Agencies Investigate H-1B Outsourcing Firms; Layoffs Provoke Controversy – Several companies have been in the spotlight recently due to hiring H-1B workers and laying off U.S. workers in similar positions.
12. USCIS Releases Processing Times at International Offices – On June 9, 2015, USCIS began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters.
 
13. ABIL Global: United Kingdom – Far-reaching immigration reforms have been announced following the general election.
Details:
 
1. U.S. Supreme Court Decides Two Immigration Cases
The U.S. Supreme Court has decided two immigration cases with potentially far-reaching implications:
Kerry v. Din. Kanishka Berashk is an Afghan who formerly worked in the Taliban-controlled government as a payroll clerk. Due to a terrorism-related statute, he was denied a visa to enter the United States to live with his U.S. citizen spouse, Fauzia Din. The Supreme Court held that because Mr. Berashk is not a U.S. citizen, he had no right to a court review, and his U.S. citizen wife had no due process right to challenge the visa denial in federal court. This left the longstanding doctrine of consular absolutism untouched. The decision is available at http://scholar.google.com/scholar_case?case=17792974794054210079&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
Mata v. Lynch. Noel Reyes Mata, an undocumented person from Mexico, was convicted of assault and put in removal proceedings. His original attorneys failed to submit an appeals brief and missed a deadline in filing a motion to reopen. The Supreme Court held that the federal court has jurisdiction to hear his case and decide whether those in removal proceedings can extend their deadlines. The decision is available at http://scholar.google.com/scholar_case?case=16155766832839896789&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
2. Visa, Passport Computer Problems Mostly Resolved
 
The Department of State’s Bureau of Consular Affairs initially reported on June 12, 2015, technical problems with overseas passport and visa systems. The issue was not specific to any particular country, citizenship document, or visa category. Those problems reportedly were generally resolved by the end of June.
Among other things, the problems caused delays at the U.S.-Mexico border with seasonal workers being unable to enter the United States. Daren Gee, a California strawberry grower, said the delay was costing him $25,000 to $30,000 per day in lost revenue because 200 seasonal workers he intended to employ were unable to enter the country. ТThe vans are there, the buses are waiting. But we canХt seem to get workers across,У he said.
Some businesspeople were also unable to obtain passports. David Lummas, who was waiting for his passport in Bangkok, Thailand, so he could continue working for a British multinational company, said, “They are holding my passport so I have been grounded this week from traveling.”
The Department of State told the Wall Street Journal that 100 technicians were working on the problem, and that it was prioritizing visas for urgent humanitarian cases and agricultural workers.
A State Department announcement about its progress on these problems is available at http://travel.state.gov/content/travel/english/news/technological-systems-issue.html. The State Department announced that as of June 26, 2015, all visa-issuing embassies and consulates were back online. The State Department is scheduling visa interviews and issuing nonimmigrant and immigrant visas.
3. USCIS Temporarily Stops Accepting Electronic Versions of Several Forms
 
On June 15, 2015, U.S. Citizenship and Immigration Services (USCIS) stopped accepting electronically filed Forms I-539, Application to Extend/Change Nonimmigrant Status, and Forms I-526, Immigrant Petition by Alien Entrepreneur. Recently, USCIS also updated the Form I-539 and Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. USCIS also discontinued the EB-5 Regional Center Document Library.
USCIS said that to ensure that the paper and electronic versions of these forms are consistent with each other, “we must temporarily remove the current electronic versions until we develop these updated forms in our new USCIS online filing system.”
USCIS said this change will not adversely affect those who have pending or draft cases that were created before June 15. “We will adjudicate those cases to completion and allow the standard 30 days” for completion or submission of draft cases, USCIS said.
USCIS issued the following instructions:
Filing a Form I-539 or Form I-526
 
Customers who need to file a Form I-539 or Form I-526 must now file the paper version of the form. If you already started an electronic Form I-539 or Form I-526, you will have 30 days from the day you began your application/petition to complete and submit it online. If you are unable to complete your electronic form within this 30-day time period, you will need to file a new paper application or petition. Й
If You Filed Electronically Before June 15, 2015
 
If you filed a Form I-539 or Form I-526 electronically, you will still be able to access your account to check your case status, change your address, and respond to requests for evidence while USCIS processes your case. If you filed a Form I-526 electronically, you will still be able to review and attest existing deal packages created by the Document Library Manager. However, Document Library Managers will not be able to create new document libraries or deal packages.
The notice is available at http://www.uscis.gov/news/alerts/uscis-discontinues-electronic-form-i-539-form-i-526-and-regional-center-document-library. Instructions on how to file a paper Form I-539 are available at http://www.uscis.gov/i-539. Instructions on how to file a paper I-526 are available at http://www.uscis.gov/i-526.
4. USCIS Proposes Changes to E-Verify
 
On June 8, 2015, USCIS published a Federal Register notice seeking public comments on proposed changes to E-Verify, including:
  • Three proposed enhancements:
Final Nonconfirmation (FNC)СAllows employees to contest FNCs that they feel have been issued in error. This will be a new process allowing employees to request a review of their FNCs that will replace the current manual review process.
ReverificationСRequires employers to use E-Verify to reverify employees whose work authorization has expired. These include employees who were hired before the employer signed the E-Verify Memorandum of Understanding (MOU).
Updated MOUsСRevises the E-Verify MOU to support proposed business processes.
  • Streamlined Tentative Nonconfirmation (TNC) Processes
Provides employees with greater access to E-Verify information. USCIS has simplified the TNC process to streamline the notice that an employer provides to the employee. USCIS has also drafted new email messages to communicate directly with the employee regarding Social Security Administration and Department of Homeland Security TNC notices.
The public will have 60 days to submit comments, until August 7, 2015. To comment, follow the instructions in the Federal Register notice, available at https://www.federalregister.gov/articles/2015/06/08/2015-13935/agency-information-collection-activities-e-verify-program-revision-of-a-currently-approved. Contact E-Verify with questions at http://www.uscis.gov/e-verify/customer-support/contact-e-verify.
5. North Dakota Joins E-Verify RIDE Program
 
U.S. Citizenship and Immigration Services (USCIS) announced that North Dakota is the latest state to join the Records and Information from DMVs for E-Verify (RIDE) Program, beginning June 15, 2015. RIDE is an ongoing E-Verify initiative that links E-Verify with participating state driver licensing agencies in conjunction with the American Association of Motor Vehicle Administrators.
RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as Form I-9 identity documents. USCIS said that RIDE “helps to reduce document fraud and boosts the accuracy of E-Verify employment eligibility verification.”
North Dakota joins Mississippi, Florida, Idaho, Iowa, and Nebraska in this initiative.
A fact sheet on North Dakota’s driver’s license and ID card information with respect to E-Verify is available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/NorthDakota_RIDE-FactSheet.pdf. Information on driver’s license verification is available at http://www.uscis.gov/e-verify/employers/drivers-license-verification. 
6. DHS Announces Temporary Protected Status Designation for Nepal
 
On June 24, 2015, the Department of Homeland Security designated Nepal for temporary protected status (TPS) for 18 months based on conditions resulting from the magnitude 7.8 earthquake that struck Nepal on April 25, 2015, and subsequent aftershocks. As a result, eligible nationals of Nepal residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS).
The TPS designation for Nepal will be in effect through December 24, 2016. During the designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive an employment authorization document (EAD). The 180-day TPS registration period began June 24, 2015, and runs through December 21, 2015.
To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since June 24, 2015. Applicants will also undergo security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.
Applicants may ask USCIS to waive any or all TPS-related fees based on inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee waiver requests must be accompanied by supporting documentation. USCIS will reject any TPS application that does not include the required filing fee or a properly documented fee waiver request.
7. DHS Extends Temporary Protected Status Registration Deadline for Liberia, Guinea, Sierra Leone
 
The Department of Homeland Security (DHS) is extending the initial registration deadline for temporary protected status (TPS) to August 18, 2015, for eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries).
DHS began accepting TPS applications on November 21, 2014, from applicants of these three countries. The previous deadline was May 21, 2016. Those who submitted an application for one of these three countries whose applications were previously returned based on the May 20, 2015, deadline may now resubmit a complete application by August 18, 2015.
8. USCIS Warns DACA Renewal Applicants About Work Permit Expirations
 
U.S. Citizenship and Immigration Services (USCIS) issued a warning on June 15, 2015, to those wishing to renew work permits under the Deferred Action for Childhood Arrivals (DACA) program. USCIS noted that some people wait too long to request renewal or do not correctly submit all the required forms and fees. As a result, their employment authorization documents may expire before USCIS can finish processing their requests for DACA renewal.
USCIS said that renewal applicants can lessen the chance that this may happen by taking the following steps:
  • File on time. Submit your renewal request between 150 days and 120 days before the expiration date listed on your current Form I-797 DACA approval notice and Employment Authorization Document.
  • Correctly submit all required forms and fees. USCIS will reject your renewal request unless you properly submit:
– Form I-821D, Consideration of Deferred Action for Childhood Arrivals;
– Form I-765, Application for Employment Authorization;
– Form I-765 Worksheet; and
– Required fees of $465
  • Avoid processing delays.  Be sure to submit 
– Any new documents and information related to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request;
– Proof of advance parole if you have traveled outside the United States since you filed your last DACA request that was approved; and
– Proof of any legal name change.
  • Respond to Requests for Evidence. USCIS may deny your renewal request if you do not respond to a Request for Evidence in a timely manner.
USCIS noted that since March 27, 2015, the agency has been mailing renewal reminder notices to DACA recipients 180 days before the expiration date of their current period of deferred action. Previously, these reminder notices were mailed 100 days in advance. The earlier notices are intended to ensure that DACA recipients are reminded before the start of the recommended renewal period and have sufficient time to prepare their renewal requests.
USCIS said its current goal is to process DACA renewal requests within 120 days. A DACA recipient may submit an inquiry about the status of his or her renewal request after it has been pending more than 105 days.
9. USCIS Reopens FY 2015 H-2B Cap for Temporary Nonagricultural Workers
 
On June 5, 2015, USCIS reopened the congressionally mandated fiscal year (FY) 2015 cap and is accepting petitions requesting new H-2B temporary nonagricultural workers with an employment start date between April 1 and September 30, 2015.
USCIS explained that its role in managing the H-2B cap involves ensuring that enough Form I-129 (Petition for a Nonimmigrant Worker) H-2B petitions with a sufficient number of beneficiaries have been approved to fully subscribe the H-2B cap each year. The agency noted that “[i]t can be difficult to estimate in advance how many beneficiaries of an H-2B petition approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa” by the Department of State (DOS). USCIS said it “strives to reasonably estimate the number of petitions the agency may approve before the annual cap will be reached.”
USCIS said it continues to work in collaboration with DOS to monitor the issuance of H-2B visas. On April 2, 2015, USCIS announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000 H-2B visas. From June 3, 2014, through March 26, 2015, USCIS accepted about 3,900 petitions (about 77,000 beneficiaries) toward the H-2B FY 2015 cap. USCIS initially believed this was sufficient to fully meet the FY 2015 cap. However, USCIS has determined that as of June 5, 2015, DOS received fewer than the expected number of requests for H-2B visas. A recent analysis of DOS H-2B visa issuance and USCIS petition data revealed that the number of actual H-2B visas issued by DOS was substantially less than the number of H-2B beneficiaries seeking consular notification listed on cap-subject H-2B petitions approved by USCIS. In light of this new information, USCIS determined that there were still available H-2B visa numbers remaining for the second half of the FY 2015 cap.
Filing procedures. On June 5, 2015, USCIS began accepting additional FY 2015 cap petitions with employment start dates between April 1 and September 30, 2015, and is considering them in the order in which USCIS receives them.
To petition for an FY 2015 H-2B cap number, employers must:
  • Submit an I-129 with all required documents, including an approved Temporary Labor Certification (TLC) from the Department of Labor that is valid for the entire employment period stated on the petition.
  • Indicate an employment start date between April 1 and September 30, 2015.
USCIS noted that the employment start date listed on the petition must be the same as the employment start date authorized on the TLC unless a petitioner is filing an amended H-2B petition due to the unavailability of originally requested workers as stated on the previously approved TLC. Petitioners may still use TLCs for which the employment start date occurred on or after April 1, 2015, even if the start date occurred during the closure of the FY 2015 H-2B cap. Such TLC, however, must still be otherwise valid, and the employment start date on the petition must match the employment start date authorized on the TLC. Petitions with employment start dates that do not match their TLCs’ employment start dates will be rejected and returned with fees, USCIS said.
USCIS noted that it will consider petitions received on or after October 1, 2015, and/or requesting a start date on or after that date, toward the FY 2016 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2016 H-2B cap filings. USCIS started accepting FY 2016 H-2B cap petitions on June 3, 2015.
10. Green Card Don’t Always Have Signatures, USCIS Reminds
 
U.S. Citizenship and Immigration Services (USCIS) recently issued a reminder that green cards (Permanent Resident Cards) do not always include the holder’s signature.
In limited cases, USCIS may waive the signature requirement for certain people, such as children under the age of consent or individuals who are physically unable to provide a signature. Also, since February 2015, USCIS has been waiving the signature requirement for people entering the United States for the first time as lawful permanent residents after obtaining an immigrant visa abroad from a U.S. embassy or consulate.
When the agency issues a green card without a signature, the card will say “Signature Waived” on the front and back of the card where a signature would normally be located.
11. Agencies Investigate H-1B Outsourcing Firms; Layoffs Provoke Controversy
 
Several companies have been in the spotlight recently due to hiring H-1B workers and laying off U.S. workers in similar positions.
According to reports, the Departments of Labor (DOL) and Justice (DOJ) are investigating several companies for possible labor and immigration law violations. The companies include several Indian outsourcing firms that provided H-1B workers to Southern California Edison (SCE), a power company. The latter company hired Infosys and Tata Consultancy Services to bring in H-1B workers and laid off hundreds of U.S. workers, some of whom said they had to train their replacements.
DOL sent a letter to Rep. Judy Chu (D-Cal.) on June 10, 2015, stating that the agency “has recently opened investigations related to Tata and Infosys’ provision of H-1B workers to SCE.” DOL also noted in the letter that it had “recently referred allegations concerning SCE and its contractor consultants to the Office of Special Counsel for Immigration-Related Unfair Employment Practices” at DOJ.
Meanwhile, U.S. Citizenship and Immigration Services (USCIS) sent a letter to Rep. Chu dated May 29, 2015, saying the agency was following up on concerns such as those Rep. Chu had raised “regarding [SCE] to ensure that petitions are entirely consistent with our legal framework.” The letter said USCIS would “work with the Department of Labor to review visa petitions and labor condition and certification applications, as appropriate.”
The labor condition application (LCA) instructions in ETA Form 9035CP state, among other things, “The employer attests that H-1B, H-1B1 or E-3 foreign workers in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers.”
At Disney/ABC Television in New York and Burbank, California, where a reorganization included a plan to lay off U.S. workers and hire H-1B workers, according to reports, Disney subsequently canceled the layoffs. That followed on the heels of several hundred layoffs at Walt Disney World in Orlando, Florida. One laid-off IT worker complained that “[s]ome of these folks were literally flown in the day before to take over the exact same job I was doing.” He said he had trained his replacement.
For a commentary, see Putting Disner & H1B Visas In Perspective,  http://blog.cyrusmehta.com/2015/06/putting-disney-and-h-1b-visas-in.html
12. USCIS Releases Processing Times at International Offices
 

On June 9, 2015, U.S. Citizenship and Immigration Services (USCIS) began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters. USCIS said those with cases before USCIS “can use this information to better manage their expectations for when their cases will be processed at USCIS offices. We will update this information every quarter.”

The information is available at https://egov.uscis.gov/cris/ptIntlIntro.do.

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  1. ABIL Global: United Kingdom

Far-reaching reforms have been announced following the general election.

When the results of the recent general election were tallied, even the victors were surprised when the Conservative Party won sufficient seats in the House of Commons to shed its coalition partner and form a new majority government. Following this success, Prime Minister David Cameron moved swiftly to announce the Tories’ new policies and begin implementing a raft of far-reaching reforms.

With regard to immigration, the government intends to:

  • introduce a criminal offense for illegal working (the government plans to seize wages as the proceeds of a crime);
  • create a government enforcement agency to address the exploitation and coercion of migrant workers;
  • make it illegal for employment agencies to recruit solely from abroad without first advertising in English in Britain;
  • expand tenant immigration status checks to the national level, while simultaneously making the eviction of undocumented migrant tenants easier for landlords;
  • ensure that banks take action against accounts of undocumented migrants;
  • broaden the scope of “deport first, appeal later” to include nearly all immigration cases;
  • implement mandatory electronic “tagging” of migrant offenders who are released on bail; and
  • ask the Migration Advisory Committee (MAC) to consult on plans to further reduce migrant labor from outside the European Union, including:
    • financing United Kingdom (UK) apprenticeships via levies on businesses hiring individuals under Tier 2;
    • increasing minimum salary thresholds for migrant workers;
    • restricting how long occupational sectors may claim that they have a skills shortage;
    • limiting work visas to specialist experts and areas with skills shortages; and
    • restricting Tier 2 dependents’ right to work.

In anticipation of the promised “in-out” referendum by 2017 on whether the UK should remain a member of the EU, Prime Minister Cameron also took the first steps toward renegotiating the terms of the UK’s relationship with the EU. Alongside other, broader changes he is proposing, and in an effort to curb migration from the European continent, Cameron hopes to restrict EU migrants’ access to social welfare benefits in the UK. While some of these terms may be possible, EU leaders have made it clear that free movement is not up for negotiation.

At present, however, an overwhelming majority of Britons do not believe that Mr. Cameron’s negotiations will be effective. Notwithstanding this pessimism, polls suggest that 44% of British citizens favor remaining in the EU (with 36% hoping to leave, and 17% still undecided). That said, as the pollsters and pundits were nearly universally incorrect in their general election forecasts, no result should at this point be seen as a foregone conclusion.

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  1. Firm In the News

Cyrus Mehta  was a Speaker on the following panels:  Speaker on the following panels: 1) Immigration and Health Care: Everything You Need to Know About How the Affordable Care Act Impacts Your Clients; 2) AILA Ethics Compendium Live and 3) Beyond Deferred Action – Is Permanent Residence An Option? 2015 AILA Annual Conference on Immigration Law, Washington DC at National Harbor,  June 17-20, 2015.

Mr. Mehta was interviewed on CNBC in a segment about skilled foreign workers and H-1B visas. The video is available at http://video.cnbc.com/gallery/?video=3000386272.

David Isaacson was a Speaker on the panel: Has CSPA Aged-out?2015 AILA Annual Conference on Immigration Law, Washington DC at National Harbor, MD, June 17-20, 2015.

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June 2015 Immigration Update

Headlines:

1. USCIS Suspends Premium Processing Until July 27 for Extension of Stay H-1B Petitions; New Form In Effect USCIS said this temporary suspension will allow the agency to implement its final rule on employment authorization for certain H-4 spouses in a timely manner.

2. USCIS Releases Revised I-765 Application for Employment Authorization The revised
I-765 contains the eligibility category (c)(26) for certain H-4 dependent spouses to apply for employment authorization.

3. When Should Employers File Amended H-1B Petitions After Simeio? USCIS Issues Draft Guidance  USCIS noted that the precedent decision in Matter of Simeio Solutions represents the agency’s position that employers must file an amended petition before placing an H-1B employee at a new worksite. USCIS said it will accept comments on the draft guidance for a limited period of time.

4. USCIS To Hold EB-5 Conference Call on June 4 The topic of discussion will be expenses that are includable (or excludable) for purposes of estimating job creation.

5. Fifth Circuit Denies Emergency Stay of Preliminary Injunction Against DAPA and Expanded DACA On May 26, 2015, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration’s request for an emergency stay of a preliminary injunction against its Deferred Action for Parents of Americans and Lawful Permanent Residents program.

6. USCIS Completes Data Entry of All FY 2016 H-1B Cap-Subject Petitions USCIS will issue an announcement once all the unselected petitions have been returned.

7. DOL, DHS Publish Rules on H-2B Temporary Nonagricultural Worker Program, Related Prevailing Wage Methodology The agencies published an interim final rule to reinstate and make improvements to the program, and a final rule to establish the prevailing wage methodology.

8. DHS Issues Final Rule Adjusting Limitations on Designated School Official Assignments and Study by F-2 and M-2 Nonimmigrants The final rule grants school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses. The rule also allows accompanying spouses and children of F-1 or M-1 academic and vocational nonimmigrant students to enroll in less than “full course” study at a SEVP-certified school.

9. USCIS Announces Immigration Relief Measures for Nepali Nationals USCIS announced immigration relief measures that may be available to Nepali nationals who are affected by the massive earthquake that struck Nepal on April 25, 2015. A group of organizations called for temporary protected status.

10. USCIS Alerts Yemenis to Available Immigration Relief Measures Due to the unstable security situation in Yemen, USCIS highlighted immigration relief measures that may assist eligible Yemeni nationals.

11. It’s Not Your Imagination: U.S. Mail Delivery Is Slower Than Before The slowdown is affecting delivery of immigration-related documents, such as approval notices, among others.

12. Firm In The News

Details:Als in this issue:

1.         USCIS Suspends Premium Processing Until July 27 for Extension of Stay H-1B Petitions; New Form In Effect

U.S. Citizenship and Immigration Services (USCIS) has suspended premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of stay for an H-1B nonimmigrant.

Also, USCIS has implemented a new version of the I-907 (edition date: 01/29/2015) and will no longer accept previous versions as of June 1, 2015. USCIS issued the new version on May 1 and continued to accept old versions during the transition period, which ended May 31.

USCIS said the temporary suspension will allow the agency to implement its final rule on employment authorization for certain H-4 spouses in a timely manner and to adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. USCIS said it anticipates receiving an “extremely high volume” of Form I-765 applications and needs to temporarily suspend premium processing “to ensure that we can provide good customer service to both H-1B petitioners and H-4 applicants.”

The agency said it will monitor its workloads closely and “may resume accepting premium processing requests before July 27, 2015, if we determine that we can once again provide customers with the level of service offered with premium processing.”

During the temporary suspension, USCIS will refund the premium processing fee if:

  • A petitioner filed an H-1B petition before May 26, 2015, using the premium processing service, and
  • USCIS did not act on the case within the 15-calendar-day period.

Premium processing remains available for all other I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.

USCIS noted that petitioners may request expedited processing for their H-1B extension of stay petitions during the temporary suspension period. The agency said it will “review all expedite requests on a case-by-case basis and grant the requests at the discretion of the Director. The burden is on the petitioner to demonstrate that one or more of the expedite criteria have been met.”

Information on how to request expedited processing is available at http://www.uscis.gov/forms/expedite-criteria. The announcement is available at http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions. The final rule noted 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 new I-907 is available at http://www.uscis.gov/i-907.

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2.         USCIS Releases Revised I-765 Application for Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) recently published a revised Form I-765, Application for Employment Authorization, with an 02/13/15 edition date.

The revised I-765 contains the eligibility category (c)(26) for certain H-4 dependent spouses to apply for employment authorization. Those filing under the new H-4 rule should provide the receipt number of the H-1B principal spouse’s most recent Form I-797 Notice of Approval for Form I-129.

While USCIS will continue to accept versions of the form with edition date 05/27/08 or later, H-4 applicants should use the 02/13/15 version of the form to prevent delays or the need for USCIS to issue a request for evidence.

The announcement is available at http://www.uscis.gov/news/alerts/revised-form-i-765-now-available. For more information about the H-4 rule and eligibility for employment authorization under the rule, see http://www.uscis.gov/working-united-states/temporary-workers/employment-authorization-certain-h-4-dependent-spouses. A related list of frequently asked questions is available at http://www.uscis.gov/working-united-states/temporary-workers/faqs-employment-authorization-certain-h-4-dependent-spouses.

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3.         When Should Employers File Amended H-1B Petitions After Simeio? USCIS Issues Draft Guidance

U.S. Citizenship and Immigration Services (USCIS) recently issued draft guidance following its Administrative Appeals Office (AAO) precedent decision, Matter of Simeio Solutions, LLC, which held that an employer must file an amended H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:

1.    When H-1B employees change their place of employment to a worksite location that requires an employer to certify a new LCA to the Department of Homeland Security, this change may affect the employees’ eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR ¤¤ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

2.    When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.

USCIS noted that this precedent decision represents the agency’s position that employers must file an amended petition before placing an H-1B employee at a new worksite. USCIS said it will accept comments on the draft guidance for a limited period of time.

When To File or Not File

Employers must file an amended H-1B petition if an H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or “area of intended employment” (as defined at 20 CFR ¤ 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. The employer does not have to wait for a final decision on the amended petition for the H-1B employee to start work at the new location.

USCIS said employers do not need to file an amended petition in the following situations:

  • A move within an MSA: If the H-1B employee is moving to a new job location within the same MSA or area of intended employment, a new LCA is not required. Therefore, the employer does not need to file an amended H-1B petition. However, the employer must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but the employer would still need to post the previously obtained LCA at the new work location. USCIS said this is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
  • Short-term placements: Under certain circumstances, the employer may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. (See 20 CFR ¤ 655.735.) In these situations, the employer does not need to file an amended H-1B petition.
  • Non-worksite locations: If the H-1B employee is only going to a non-worksite location, the employer does not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
    • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
    • The H-1B employees spend little time at any one location; or
    • The job is “peripatetic in nature,” such as situations where the primary job is at one location but the H-1B employees occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR ¤ 655.715.
Filing Amended H-1B Petitions  
  • If the H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, the employer has 90 days from May 21, 2015, to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA from that submitted with the original H-1B petition. Therefore, if the employer has not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, it has until August 19, 2015, to file an amended petition.
  •  If the H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS said it will not take adverse action against the employer or employees if the employer, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, the employer must now file an amended petition for these H-1B employees by August 19, 2015. If the employer does not file an amended petition for these employees by August 19, 2015, it will be out of compliance with USCIS regulation and policy and thus subject to adverse action, USCIS said. Similarly, the H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
  • If the amended H-1B petition is denied but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
  • If the previously filed amended H-1B petition is still pending, the employer may still file another amended petition to allow the H-1B employee to change worksite locations immediately upon the latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. If the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005), for similar instructions about portability petitions (link below).

USCIS noted that to the extend possible, the employer should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.

 

The 2005 Aytes memorandum discussed above is available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf. The draft guidance is available at http://www.uscis.gov/news/alerts/uscis-draft-guidance-when-file-amended-h-1b-petition-after-simeio-solutions-decision. Matter of Simeio Solutions, LLC, is available at https://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdf.

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4.         USCIS To Hold EB-5 Conference Call on June 4

U.S. Citizenship and Immigration Services (USCIS) will hold a second engagement (conference call) in the informational series “EB-5 Interactive” on Thursday, June 4, 2015, from 1 to 2:15 p.m. (ET). The topic of discussion will be expenses that are includable (or excludable) for purposes of estimating job creation. Economists from the Immigrant Investor Program will make a short presentation and answer non-case-specific stakeholder questions concerning this topic.

For more information, see http://www.uscis.gov/outreach/upcoming-national-engagements/eb-5-interactive-series-expenses-are-includable-or-excludable-job-creation.

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5.         Fifth Circuit Denies Emergency Stay of Preliminary Injunction Against DAPA and Expanded DACA

On May 26, 2015, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration’s request for an emergency stay of a preliminary injunction against its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA) program. In denying the request, the Fifth Circuit said that the government “is unlikely to succeed on the merits of its appeal of the injunction.”

The district court previously determined that 26 states who challenged the DAPA and expanded DACA programs were likely to succeed on their procedural Administrative Procedure Act (APA) claim, so it temporarily enjoined implementation of the programs. Among other things, those states argued that the DAPA and expanded DACA programs are procedurally unlawful under the APA because they are substantive rules that are required to undergo notice and comment but the Department of Homeland Security (DHS) had failed to do so. The states also asserted that DAPA and expanded DACA were substantively unlawful under the APA because DHS lacked the authority to implement the programs even if it did follow the correct process.

Among other things, the district court had held that Texas had standing because it would be required to issue driver’s licenses to DAPA and expanded DACA beneficiaries, and the costs of doing so would constitute a cognizable injury. Alternatively, the court held that Texas had standing based on a theory it called “abdication standing,” under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. The court entered the preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that implementation of the DAPA and expanded DACA programs would violate the APA’s notice-and-comment requirements. The Fifth Circuit said it reached only the district court’s first basis for standing—the driver’s license rationale—”because it is dispositive.”

The Fifth Circuit noted that the government’s motion for a stay pending appeal was based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that the DAPA and the expanded DACA programs are exempt from the notice-and-comment requirements. The government also argued that the injunction’s nationwide scope was an abuse of discretion. The Fifth Circuit did not agree.

The Fifth Circuit will consider the government’s appeal of the preliminary injunction, with arguments scheduled for early July.

The Fifth Circuit’s opinion is available at http://www.americanimmigrationcouncil.org/sites/default/files/5th%20circuit%20stay%20denied.pdf.

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  1. USCIS Completes Data Entry of All FY 2016 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in a computer-generated random process. USCIS will begin returning all H-1B cap-subject petitions that were not selected. The agency noted that due to the high volume of filings, the time frame for returning these petitions is uncertain, so USCIS would prefer not to receive queries in the meantime. USCIS will issue an announcement once all the unselected petitions have been returned.

For more information, see http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season.

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  1. DOL, DHS Publish Rules on H-2B Temporary Nonagricultural Worker Program, Related Prevailing Wage Methodology

In response to recent court decisions that the U.S. Departments of Labor and Homeland Security say have created significant uncertainty about the H-2B temporary foreign nonagricultural worker program, the agencies published an interim final rule on April 29, 2015, to reinstate and make improvements to the program, and a final rule the same day to establish the prevailing wage methodology.

The agencies said that these rules “strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available.” The rules include several provisions to expand recruitment of U.S. workers, including more recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They include worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations.

The agencies said they intend these rules to support U.S. businesses and the U.S. economy “by expeditiously reinstating the H-2B program and bringing certainty, stability, and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers’ ability to use H-2B workers.” The new rules also provide interim transition procedures.

The announcement is available at http://www.uscis.gov/news/new-rules-h-2b-visa-program-announced-us-departments-labor-and-homeland-security. The interim final rule is available at http://www.gpo.gov/fdsys/pkg/FR-2015-04-29/pdf/2015-09694.pdf and the final rule is available at http://www.gpo.gov/fdsys/pkg/FR-2015-04-29/pdf/2015-09692.pdf.

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  1. DHS Issues Final Rule Adjusting Limitations on Designated School Official Assignments and Study by F-2 and M-2 Nonimmigrants

The Department of Homeland Security (DHS) is amending its regulations under the Student and Exchange Visitor Program (SEVP) “to improve management of international student programs and increase opportunities for study by spouses and children of nonimmigrant students.” The final rule “grants school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses.” The rule also “provides greater incentive for international students to study in the United States” by allowing accompanying spouses and children of F-1 or M-1 academic and vocational nonimmigrant students to enroll in study at a SEVP-certified school so long as any study remains less than a full course. F-2 and M-2 spouses and children remain prohibited from engaging in a full course of study unless they apply for, and DHS approves, a change of status to a nonimmigrant status authorizing such study.

DHS charges designated school officials (DSOs) with the responsibility of acting as liaisons between nonimmigrant students, the schools that employ the DSOs, and the U.S. government. Among other things, DSOs are responsible for making information and documents relating to F-1 and M-1 nonimmigrant students, including academic transcripts, available to DHS.

Since the Student and Exchange Visitor Information System (SEVIS) is now fully operational and appropriate access controls are in place, DHS has reconsidered the DSO limitation, and, with this rule, eliminates the maximum limit of DSOs. The rule instead allows school officials to nominate an appropriate number of DSOs for SEVP approval based upon the specific needs of each school.

DHS explained that although the average SEVP-certified school has fewer than three DSOs, F and M students often cluster at schools within states that attract a large percentage of nonimmigrant students. As such, schools in the three states with the greatest F and M student enrollment represent 35 percent of the overall F and M nonimmigrant enrollment in the United States. In schools where F and M students are heavily concentrated or where campuses are in dispersed geographic locations, the limit of 10 DSOs has been problematic.

The rule does not alter SEVP’s authority to approve or reject a DSO or principal designated school official (PDSO) nomination.

The rule also amends the benefits allowable for the accompanying spouse and children (hereafter referred to as F-2 or M-2 nonimmigrants) of an F-1 or M-1 student. DHS said it recognizes that the United States is engaged in global competition to attract the best and brightest international students to study in U.S. schools. Allowing F-2 or M-2 nonimmigrants to study while in the United States would help enhance the quality of life for many of these visiting families. Accordingly, DHS is allowing F-2 and M-2 nonimmigrant spouses and children to study in the United States at SEVP-certified schools that does not amount to a full course of study. Over time such enrollment in less than a full course of study could lead to attainment of a degree, certificate, or other credential. To maintain valid F-2 or M-2 status, however, the F-2 or M-2 nonimmigrant would not be permitted at any time to enroll in a total number of credit hours that would amount to a “full course of study,” as defined by regulation.

The newly permissible area of part-time study for these categories at SEVP-certified schools is academic study—whereas before only part-time recreational/vocational study was permitted for these categories (other than the exception for K-12 full-time study by F-2 and M-2 children). The change limits F-2 and M-2 study, other than avocational or recreational study, to SEVP-certified schools, to make it more likely that the educational program pursued by the F-2 or M-2 nonimmigrant is a bona fide program and that studies at the school are unlikely to raise national security concerns. The F-2 or M-2 nonimmigrants can still participate full-time in avocational or recreational study. If an F-2 or M-2 nonimmigrant wants to enroll in a full course of academic study, however, he or she must apply for and obtain approval to change his or her nonimmigrant classification to F-1, J-1, or M-1. Similarly, as noted, the rule does not change existing regulations allowing full-time study by children in elementary or secondary school (kindergarten through twelfth grade).

The final rule is available at http://www.gpo.gov/fdsys/pkg/FR-2015-04-29/pdf/2015-09959.pdf.

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  1. USCIS Announces Immigration Relief Measures for Nepali Nationals

U.S. Citizenship and Immigration Services (USCIS) announced the following immigration relief measures that may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • A grant of re-parole;
  • Expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
  • Assistance in replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

Meanwhile, the National Council of Asian Pacific Americans, along with 127 organizations, sent Jeh Johnson, Department of Homeland Security Secretary, a letter on May 5, 2015, calling for temporary protected status designation for Nepal due to the earthquake.

The USCIS announcement is available at http://www.uscis.gov/news/alerts/immigration-relief-measures-nepali-nationals. The text of the sign-on letter is available at http://www.ncapaonline.org/letter_to_dhs_for_tps_for_nepal.

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  1. USCIS Alerts Yemenis to Available Immigration Relief Measures

Due to the unstable security situation in Yemen, U.S. Citizenship and Immigration Services (USCIS) recently highlighted available immigration relief measures that may assist eligible Yemeni nationals:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • A grant of re-parole;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Consideration for waiver of fees associated with USCIS benefit applications, based on an inability to pay.Back to TopAccording to reports, approximately 20 to 50 percent of U.S. mail now takes an extra day to deliver, thanks in part to the U.S. Postal Service’s eliminating first-class local overnight delivery starting in January and closing many mail processing plants in response to decreased demand. This slowdown is affecting delivery of immigration-related documents, such as approval notices, among others.12.       Firm In The News
  • Cyrus D. Mehta was a Panelist on Executive Order – U.S. Citizenship and Immigration Services (USCIS) Hot Topics Panel and CSPA and Child Citizenship Act of 2000, Federal Bar Association, Immigrxation Law Conference, Memphis, TN, May 15-16, 2015.
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  • 11.       It’s Not Your Imagination: U.S. Mail Delivery Is Slower Than Before
  • The announcement is available at http://www.uscis.gov/news/alerts/uscis-alerts-yemeni-nationals-available-immigration-relief-measures.

The 2015  USA Edition of Chambers and Partners has ranked Cyrus D. Mehta & Associates, PLLC as a Band 2 Firm in New York.  Cyrus D. Mehta has also been ranked as a Star Individual  in New York and Cora-Ann Pestaina and David Isaacson as Associates to Watch in New York. Below is a relevant extract from the Chambers and Partners commentary on immigration firms and lawyers in New York:  

 Cyrus D. Mehta & Associates PLLC

 What the team is known for Dynamic and comprehensive immigration outfit with expertise representing corporations and individuals in business, family, citizenship, asylum and removal matters. A rigorous academic appreciation of changing immigration policy makes practitioners ideal advocates in unconventional and complex cases.

Strengths (Quotes mainly from clients)

“They pretty much saved my life. If I could give them an award, I would.”

“They are very thorough and keep clients informed. I would give them an A-plus. They were very helpful .”

Notable practitioners 

Peers and clients unanimously praise Cyrus Mehta for the superior insight he brings to challenging immigration issues. His stellar competencies across business, family, consular and asylum matters are complemented by his unique appraisal of the ethical issues that intersect with immigration law.

Sources describe David Isaacson as a “young, dedicated and intelligent” attorney who, apart from being “a valuable asset to Cyrus,” is one to watch in his own right. Clients highlight his passion and persistence as refreshing attributes: “He seemed to be striving for near perfection in my application. You can tell it’s not just a job for him. He goes above and beyond and will always fight for his clients.”

Sources compliment senior counsel Cora-Ann Pestaina for her depth of understanding of the immigration legal rules and protocol. She counsels a range of varying sized companies, in addition to individual clients, on employment-based matters and permanent residency applications.

The full Chambers and Partners commentary can be accessed at  http://www.chambersandpartners.com/12806/31/editorial/5/1#RankedLawyers_Tab

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May 2015 Immigration Update

 
Headlines:
 
1. H-1B Premium Processing Has Begun – On April 27, 2015, USCIS began premium processing for cap-subject H-1B petitions requesting it, and for petitions seeking an exemption from the H-1B cap for individuals with a U.S. master’s degree or higher.
2. Senators Seek Multi-Agency H-1B Program Investigation – The senators expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers.
3. Senate Committee Holds Hearing on H-1B Program and Skilled U.S. Worker Displacement – The Senate Judiciary Committee held a hearing on March 17, 2015, “Immigration Reforms Needed to Protect Skilled American Workers.”
4. District Court Grants Extension to DOL for H-2B Program – DOL will continue to process temporary labor certification applications under its 2008 H-2B regulations through May 15, 2015.
5. USCIS Resumes Premium Processing for H-2B Petitions – On April 20, 2015, USCIS resumed accepting premium processing requests for Form I-129 H-2B petitions
6. USCIS Reaches H-2B Temporary Nonagricultural Worker Cap for FY 2015 – March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.
7. China-Mainland Born EB-5 Category Oversubscribed in May; Philippines EB-3 Retrogresses – Heavy China-mainland born applicant demand has required the implementation of an employment fifth preference cut-off date to hold visa number use within the maximum for FY 2015. Also, the current rate of increase in demand in the Philippines EB-3 category has required the retrogression of this cut-off date for the month of May.
8. OSC Issues Technical Assistance Letter on E-Verify Issues – The OSC letter was in response to concerns about the possible conflict between the obligations that Texas state contractors and certain Texas state agencies have under federal E-Verify rules and their obligations under a Texas executive order, RP-80, and about possible antidiscrimination violations.
9. Sen. Grassley Introduces E-Verify Bill – Among other things, the bill would allow employers to use E-Verify before a person is hired and require employers to check the status of all current employees within three years.
10. ESL Teacher Indicted for Stealing Tens of Thousands From Student Visa Holders – The teacher allegedly stole more than $30,000 from at least six victims, in exchange for promises of green cards that she never fulfilled.
11. AAO Decides Two Cases – Definition of ‘Doing Business’ and Material Change in Place of Employment Р The AAO recently decided two cases of interest.
12. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals – AAO is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO.
13. ABIL Global: Hong Kong – Hong Kong has suspended the Capital Investment Entrant Scheme; other developments have been announced.
 
Details:
 
1. H-1B Premium Processing Has Begun
 
On April 27, 2015, U.S. Citizenship and Immigration Services (USCIS) began premium processing for cap-subject H-1B petitions requesting it, and for petitions seeking an exemption from the H-1B cap for individuals with a U.S. master’s degree or higher. USCIS guarantees a 15-calendar-day processing time for premium processing.
 
For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date USCIS receives the request. However, for cap-subject H-1B petitions, including advanced-degree exemption petitions, the 15-day processing period began on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date on which the premium processing fee is received.
 
 
USCIS had announced on April 7, 2015, that it reached the congressionally mandated H-1B nonimmigrant visa cap of 65,000 for fiscal year (FY) 2016. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced-degree exemption. USCIS announced on April 13, 2015, that nearly 233,000 employers filed H-1B petitions in the first week of April. This means that employers have about a 30% chance of winning the H-1B lottery this year.
 
U.S. businesses use the H-1B program to employ foreign workers in occupations that require at least a bachelor’s degree or equivalent.
 
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2016 H-1B cap. USCIS will continue to accept and process petitions filed to:
  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
 
 
2. Senators Seek Multi-Agency H-1B Program Investigation
 
A group of senators sent a letter on April 9, 2015, to Attorney General Eric Holder, Homeland Security Secretary Jeh Johnson, and Labor Secretary Thomas Perez seeking an investigation of the H-1B program. The group, led by Sens. Richard Durbin (D-Ill.) and Jeff Sessions (R-Ala.), expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers. 
 
The letter asks:
 
In many cases it appears that the H-1B workers are not employees of the U.S. company laying off American workers, but instead are contractors employed by foreign-owned IT consulting companies. This increasingly popular business practice by U.S. companies and foreign-owned IT outsourcing firms raises several questions. For example, have the U.S. companies that have laid off American workers and replaced them with H-1B workers and/or the IT consulting contractors the companies retained engaged in prohibited citizenship status discrimination against U.S. citizens? Did the Labor Condition Applications certified by the Department of LaborХs Employment and Training Administration and the petitions approved by U.S. Citizenship and Immigration Services for each H-1B visa holder who replaced a U.S. worker at these companies accurately reflect the scope and location of their work? Did such labor condition applications or visa petitions show any evidence of misrepresentation or fraud by the employer-petitioners? Did the employer-petitioners maintain a true employer-employee relationship with the H-1B workers after they were placed at the U.S. client company? While media reports indicate that the H-1B visa program is the principal visa program at issue in the layoffs, were other visa programs, such as the L-1B or the B-1, also used to displace American workers at U.S. companies?
 
 
 
3. Senate Committee Holds Hearing on H-1B Program and Skilled U.S. Worker Displacement
 
The Senate Judiciary Committee held a hearing on March 17, 2015, entitled “Immigration Reforms Needed to Protect Skilled American Workers.” The hearing focused on the effects of the H-1B visa program and other temporary worker programs on skilled U.S. workers. Sen. Charles Grassley (R-Iowa), chairman of the committee, charged that the H-1B program is “highly susceptible to fraud and abuse.” He noted that he and Sen. Dick Durbin (D-Ill.) have introduced legislation to require, among other things, employers seeking to hire an H-1B worker to first make a good faith effort to recruit a U.S. worker. 
 
Sen. Patrick Leahy (D-Vt.) also released a statement. He noted the “meaningful contribution that immigrant workers make to the U.S. economy, and the ways in which a healthy immigration system can grow the country’s economic base and create jobs that benefit all Americans.” He said that hearing witness Bjorn Billhardt came to the United States as a high school exchange student, later earned degrees from the University of Texas and Harvard Business School, and subsequently stayed in the United States to start a successful education business that now employs over 40 people. “Mr. Billhardt’s experience illustrates the value of an immigration system that welcomes diverse backgrounds and keeps promising graduates of our universities here in the United States, where they can contribute to our culture and our economy,” Sen. Leahy said.
 
Witnesses at the hearing included Richard Trumka, President, AFL-CIO; Prof. Ron Hira, Howard University; Bjorn Billhardt, Founder and President, Enspire; Jay Palmer, an American worker from Alabama; Benjamin E. Johnson, Executive Director, American Immigration Council; John Miano, Washington Alliance of Technology Workers; and Prof. Hal Salzman, E.J. Bloustein School of Planning and Public Policy, J.J. Heldrich Center for Workforce Development, Rutgers University.
 
 
 
4. District Court Grants Extension to DOL for H-2B Program
 
On April 15, 2015, the federal district court in the Northern District of Florida issued an order effectively allowing the Department of Labor (DOL) to continue issuing temporary labor certifications under the H-2B visa program through May 15, 2015. As a result, DOL will continue to process temporary labor certification applications under its 2008 H-2B regulations through May 15, 2015.
 
On March 4, the court vacated DOL’s 2008 H-2B regulations on the grounds that DOL lacks authority to issue regulations in the H-2B program. DOL and the Department of Homeland Security are working on regulations “to minimize future interruptions to the H-2B program,” U.S. Citizenship and Immigration Services said. 
 
 
 
5. USCIS Resumes Premium Processing for H-2B Petitions
 
On April 20, 2015, USCIS resumed accepting premium processing requests for Form I-129 H-2B petitions. USCIS had announced a temporary suspension of premium processing for all  H-2B petitions on March 9, 2015.
 
Employers are now able to file Form I-907, Request for Premium Processing Service, either:
 
Ґ Together with a Form I-129, Petition for a Nonimmigrant Worker, H-2B cap exempt petition; or
Ґ Separately to request premium processing service for a previously filed H-2B petition.
 
The current filing fee for the I-907 is $1,225.
 
 
 
6. USCIS Reaches H-2B Temporary Nonagricultural Worker Cap for FY 2015
 
U.S. Citizenship and Immigration Services (USCIS) announced on April 2, 2015, that it had reached the congressionally mandated H-2B temporary nonagricultural worker cap of 66,000 visas for fiscal year (FY) 2015. March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.
 
USCIS noted that employers may file petitions up to 120 days before the employment start date. USCIS therefore will reject new H-2B petitions filed more than 120 days before the employment start date.
 
USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions filed on behalf of the following beneficiaries:
 
  • H-2B workers in the United States or abroad who have been previously counted toward the cap in the same fiscal year;
  • Current H-2B workers seeking an extension of stay;
  • Current H-2B workers seeking a change of employer or terms of employment;
  • Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
  • H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands and/or Guam.
 
 
7. China-Mainland Born EB-5 Category Oversubcribed in May; Philippines EB-3 Retrogresses
 
The Department of State’s Visa Bulletin for May 2015 notes that heavy China-mainland born applicant demand has required the implementation of an employment fifth preference (EB-5) cut-off date of May 1, 2013, for investors from China to hold visa number use for that country within the maximum limit for FY 2015. 
 
The bulletin notes that future visa availability will depend on a combination of demand for numbers being reported each month and the extent to which otherwise unused numbers may become available. An increase in visa demand by applicants with relatively early priority dates could make a retrogression of this cut-off date necessary before the end of the fiscal year. The Bulletin emphasizes that retrogression is not being predicted but cannot be ruled out. “It is extremely likely that this category will remain subject to a cut-off date indefinitely,” the Bulletin says.
 
The bulletin also reports that the cut-off date for the Philippines employment third (EB-3) preference has recently advanced very rapidly “in an effort to generate sufficient demand to fully utilize all available numbers.” The current rate of increase in demand has required the retrogression of this cut-off date for the month of May to July 1, 2007, in an attempt to hold number use within the annual limit for this preference category.
 
On April 13, 2015, the Visa Office attended the IIUSA 2015 EB-5 Regional Economic Advocacy Conference to address questions related to the implementation of a visa cutoff date for Chinese investors in the EB-5 visa category. Responses from the Visa Office to questions are available at http://travel.state.gov/content/dam/visas/VO%20Attends%20IIUSA%20EB5%20Conference.pdf. 
 
 
 
8. OSC Issues Technical Assistance Letter on E-Verify Issues
 
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical assistance letter on April 15, 2015, in response to a query from an attorney expressing concerns about the possible conflict between the obligations that Texas state contractors and certain Texas state agencies have under federal E-Verify rules and their obligations under a Texas executive order, RP-80. The attorney also raised a concern about a potential violation of the antidiscrimination provision of the Immigration and Nationality Act (INA), which the OSC enforces.
 
First, the attorney expressed concern that RP-80’s requirement that state contractors use E-Verify for “all persons employed during the contract term to perform duties within Texas” conflicts with federal E-Verify rules. The attorney noted that as a general matter, federal E-Verify rules require E-Verify users to create E-Verify cases only for newly hired employees, whereas RP-80 requires Texas contractors to use E-Verify on all their current employees performing duties in Texas, whenever hired. Second, the attorney raised concerns about RP-80’s requirement that certain Texas state agencies use E-Verify for “all current and prospective agency employees.” The attorney observed that federal E-Verify rules bar all employers from creating E-Verify cases for an individual before he or she accepts a job offer and completes the employment eligibility verification form (I-9). Finally, the attorney expressed concern that under RP-80, a nationwide employer may seek “to root out employees” by “transferring some complainers into Texas after winning a Texas project” and running them through E-Verify, potentially violating the antidiscrimination provision.
 
In response, OSC noted that it cannot provide an advisory opinion on any set of facts involving a particular individual or entity, but that the agency can provide general guidelines. Regarding the apparent conflict between federal E-Verify rules and the provisions of RP-80, OSC noted that U.S. Citizenship and Immigration Services (USCIS), the agency that administers the E-Verify program and issues related guidance, has advised employers in Texas that federal E-Verify requirements are in effect at all times. Under federal E-Verify rules, OSC noted, most employers using E-Verify may only create E-Verify cases for new hires. However, federal E-Verify rules provide an exception for employers enrolled in E-Verify as federal (not state) contractors. Such federal contractors must create cases in E-Verify both for new hires and for existing employees performing work under the federal contract (if the employer has not already created a case for the employee), and may choose an option to create cases in E-Verify for all employees of the contractor.
 
OSC also noted that federal E-Verify rules also prohibit all employers from creating an E-Verify case for an individual who has not yet accepted a job offer and completed an I-9. Consequently, employers using E-Verify for prospective employees or using E-Verify for current employees, when not enrolled in E-Verify as federal contractors, “would violate federal E-Verify program rulesСthe same rules that the employers agreed to comply with in their MOU [memorandum of understanding] with USCIS.” OSC said that “[f]ailure to comply with E-Verify program rules could lead to possible termination or suspension from the E-Verify program.”
 
Regarding the attorney’s concern that an employer may violate the antidiscrimination provision of the INA when it uses E-Verify to improperly “root out employees,” the OSC noted that an employer that uses RP-80 to assign an employee to work in Texas for the purpose of reverifying the employee’s employment authorization “may raise concerns that it is treating that employee differently in the employment eligibility verification process based on perceived citizenship status or national origin.” The OSC said these concerns are heightened “where an employer requires an existing employee to provide new Form I-9 documentation to run the existing employee through E-Verify when not permitted to do so under federal E-Verify requirements.”
 
 
 
9. Sen. Grassley Introduces E-Verify Bill
 
Sen. Charles Grassley (R-Iowa) introduced the “Accountability Through Electronic Verification Act,” S. 1032, on April 21, 2015. Among other things, the bill would permanently authorize E-Verify, make employer E-Verify use mandatory, allow employers to use E-Verify before a person is hired, require employers to check the status of all current employees within three years, and require employers to re-verify an employee’s immigration status if his or her work authorization is due to expire.
 
Similar legislation (H.R. 1147) is pending in the House of Representatives. 
 
Details of the Senate bill will be posted at https://www.congress.gov/bill/114th-congress/senate-bill/1032/all-info as they become available. Sen. Grassley’s statement explaining the bill is available at http://www.grassley.senate.gov/news/news-releases/grassley-introduces-legislation-expand-work-eligibility-tool-employers
 
 
10. ESL Teacher Indicted for Stealing Tens of Thousands From Student Visa Holders
 
Manhattan District Attorney Cyrus R. Vance, Jr., announced on April 6, 2015, the indictment of Jenetta Ferguson, an English as a Second Language (ESL) teacher, for allegedly stealing tens of thousands of dollars from European and Asian student visa holders by misleading the victims and falsely promising to provide them with green cards in exchange for cash payments. The defendant was charged in an indictment in New York State Supreme Court with grand larceny in the third and fourth degrees, as well as scheme to defraud in the first degree.
The defendant’s alleged victims include individuals from Italy, Uzbekistan, Bangladesh, and the Philippines, who were residing in the U.S. on student visas. According to the indictment and documents filed in court, Ms. Ferguson taught ESL at a school in Manhattan. Between March and September 2014, she allegedly approached the students and falsely informed them that she could provide them with green cards in exchange for a fee, charging between $8,500 and $10,500 per person. However, instead of providing the promised documents to these individuals, Ms. Ferguson allegedly kept the money, which amounted to more than $30,000 from at least six victims.

The indictment also charges that the defendant encouraged many of the victims to refrain from renewing their student visas, leaving many without adequate documentation once their visas later expired.

The announcement of the indictment is available at http://manhattanda.org/press-release/da-vance-announces-indictment-esl-teacher-stealing-thousands-student-visa-holders. U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Directorate in the New York Office played a key role in the indictment. The related USCIS release is available at http://www.uscis.gov/news/news-releases/uscis-assists-ny-case-leading-indictment-esl-teacher-stealing-thousands-student-visa-holders.

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  1. AAO Decides Two Cases—Definition of ‘Doing Business’ and Material Change in Place of Employment

U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) recently decided two cases of interest.

  • In Matter of Leaching International, Inc., 26 I&N Dec. 532 (AAO 2015), in which the petitioner’s appeal was sustained, the AAO noted that the petitioner is a U.S. subsidiary of a Chinese clothing manufacturing company that filed an Immigrant Petition for Alien Worker (Form I-140) to classify the beneficiary as a multinational manager or executive. The petitioner sought to employ the beneficiary in the position of deputy general manager. The Texas USCIS Service Center Director denied the petition, finding that the petitioner failed to establish that it had been doing business for at least one year as of the date the petition was filed.The Service Center Director concluded that the petitioner was not doing business as required by the regulations, reasoning that the petitioner’s evidence “do[es] not indicate ‘doing business’ with independent corporations or entities” for a full year preceding the filing of the petition, but rather “only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” Specifically, the Director found that the petitioner, as a clothing importer, should have provided invoices or evidence of payment of invoices from the customers who purchased the clothing for the year preceding the filing of the petition.The AAO noted that the Director’s finding that the petitioner did not submit evidence of doing business with “independent corporations or entities” implies a requirement that a petitioner must transact directly with an unaffiliated third party. In sustaining the petitioner’s appeal, the AAO noted, however, that:
  • On appeal, the petitioner asserted that the Director erred and that existing case law and regulatory history supported a conclusion that the petitioner is doing business in a regular, systematic, and continuous fashion despite the fact that it is not a named party to contracts with buyers in the United States. The petitioner states that the evidence establishes it acts as an intermediary between its Hong Kong affiliate and the U.S. buyers and suppliers by locating customers and finalizing the details of sales contracts for the benefit of the affiliate.
  • Established in New York in 2008, the petitioner imports and sells the Chinese parent company’s products to United States customers, primarily major clothing retailers. The petitioner directly performed these sales activities through 2011. However, beginning on or about January 2012, it provided marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate, which previously employed the beneficiary and was owned by the Chinese parent company.

(1) The definition of “doing business” at 8 CFR § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party; and

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.

Matter of Leaching is available at http://www.justice.gov/eoir/vll/intdec/vol26/3830.pdf.

  • In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO affirmed the Service Center Director’s decision to revoke an petition’s approval. Among other things, the Director had concluded that changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. The changes included different metropolitan statistical areas from the original place of employment, which USCIS agents were unable to find. The Director held that the petitioner therefore should have filed an amended Form I-129 H-1B petition corresponding to a new labor condition application (LCA) that reflected these changes, but the petitioner failed to do so.
  • In affirming the Director’s decision, the AAO held:

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to USCIS with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

The AAO noted that petitioners must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility for H-1B status. Matter of Simeio Solutions, LLC, is available at http://www.justice.gov/eoir/vll/intdec/vol26/3832.pdf.

Commentary. In the past, employers relied on informal guidance indicating that as long as a new LCA was obtained before placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO now has explicitly stated in Simeio Solutions that the Hernandez guidance has been superseded. Even before the guidance was formally superseded, employers were filing amended H-1B petitions, as consular officers were recommending to USCIS that the H-1B petition be revoked if a new LCA was obtained without an amendment of the H-1B petition. According to the AAO, “[i]f an employer does not submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security.” The AAO cited INA § 101(a)(15)(H)(i)(b), 8 CFR § 214.2(h)(4)(i)B)(1), and 20 CFR § 655.700(b) to support its position, but none of these provisions seems to suggest that an LCA obtained after an H-1B petition has already been submitted is not valid if it is “not certified to the Secretary of Homeland Security.” The Department of Labor (DOL) certifies the LCA. There is no separate process where the DOL also has to certify the LCA to the Secretary of Homeland Security.

It is not so much the cost that troubles employers with respect to filing an amended H-1B petition. The USCIS has made it extremely onerous for employers to obtain H-1B petitions especially when an H-1B worker will be assigned to third party client sites. This is a legitimate business model that American companies across the board rely on to meet their IT needs, but USCIS is now requiring an onerous demonstration that the petitioning company will still have a right to control the H-1B worker’s employment. Each time the employer files an amendment, USCIS will again make the employer demonstrate the employer-employee relationship through the issuance of a request for evidence (RFE). The employer will thus risk a denial upon seeking an amendment, even though it received an H-1B approval initially on virtually the same facts.

H-1B workers in other industries such as healthcare also get reassigned to different locations, such as physicians, nurses, and physical therapists. They too will be burdened by the need to file amended H-1B petitions each time they move to a new work location.

Arguably, if an H-1B worker is being moved to a new job location within the same area of intended employment, a new LCA is not required, nor will an H-1B amendment be required. The original LCA should still be posted in the new work location within the same area of intended employment.

20 CFR § 655.17 defines “area of intended employment”:

Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA).

So a move to a new job location within New York City (NYC) would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.

The DOL Wage and Hour Division Fact Sheet # 62J at http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62j.htm also confirms this:

If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?

No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.

The AAO decision in Simeio Solutions further overregulates the H-1B visa. This in turn will deprive U.S. companies of an efficient business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top talent quickly with flexibility and at affordable prices and scale that benefit consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the United States promotes to other countries but seems to restrict when applied to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

The Hernandez guidance provided flexibility to employers whose H-1B workers frequently moved among client locations, while ensuring the integrity of the H-1B visa program. Employers were still required to obtain new LCAs based on the prevailing wage in the new area of employment, and also notify U.S. workers. However, they were not required to file onerous H-1B amendments each time there was a move, and risk further arbitrary and capricious scrutiny. The AAO has removed this flexibility, and has further regulated the H-1B to such an extent that the LCA must now always firmly and securely tether an H-1B worker through an amended petition just like a dog to his leash.

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  1. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals

U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO (and if so, when, and under what circumstances). Specifically, the AAO seeks briefs on how this issue applies to beneficiaries of Form I-140, Immigrant Petition for Alien Worker, and the effect, if any, of the American Competitiveness in the Twenty-First Century Act on denied or revoked I-140 petitions.

The deadline for the AAO to receive briefs is May 22, 2015. The AAO’s request, which includes additional details, is available at http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/3-27-15-AAOamicus.pdf.

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  1. ABIL Global: Hong Kong

Hong Kong has suspended the Capital Investment Entrant Scheme; other developments have been announced.

The Hong Kong Immigration Department (HKID), under the leadership of the Chief Executive, actively reviews immigration policy to better suit the ever-evolving economic development of the Hong Kong Special Administrative Region. One of the most significant policy changes in 2015 is the suspension of the Capital Investment Entrant Scheme (CIES) effective January 15, 2015. The CIES has been a popular vehicle for residence in Hong Kong since its launch in October 2003 with the objective of facilitating the entry of investors willing to make a substantial passive investment without having to play an active role in a business.

At the end of 2014, 41,802 applications were received and 25,504 applicants have made the requisite investments and were granted formal approval to reside in Hong Kong. Additionally, 2,493 applicants were granted approval-in-principle to enter Hong Kong to make the requisite investments.

In a recent press release, the HKID made clear that when the CIES was first implemented, Hong Kong’s economy was in recession and new capital was required to stimulate economic growth. However, attracting capital investment entrants is no longer a priority for the Hong Kong government in view of the latest economic situation in Hong Kong, and the focus is now on attracting and retaining talent, professionals, and innovative entrepreneurs to contribute to Hong Kong’s economy.

The HKID has announced that it will introduce a series of measures in the second quarter of 2015, including a pilot “Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents” (ASSG), to attract second-generation Chinese Hong Kong permanent residents from overseas to return to Hong Kong. In this scheme, the applicants are not required to have an offer of employment in Hong Kong upon application and will be granted an initial stay of one year without other conditions. The applicants may then apply for extensions of stay if they have secured offers of employment at a level common for degree holders and with a remuneration package at market level.

Other measures include relaxing the duration-of-stay pattern under various visa schemes, including the General Employment Policy (GEP), the Admission Scheme for Mainland Talent and Professionals (ASMTP), and the Quality Migrant Admission Scheme (QMAS). Entrants admitted under the GEP, the ASMTP, and the QMAS under the General Point Test (GPT), will be relaxed from the current initial stay of one year to two years, and the extension pattern will be changed from the current “two-two-three” year pattern to the “three-three” year pattern.

Additionally, top-tier entrants under these immigration schemes, subject to fulfilling specified criteria, which include having worked or resided in Hong Kong under the respective schemes for at least two years, and having an assessable income for salary tax above a certain level in Hong Kong (not less than HK $2 million or approximately US $250,000), may be granted a six-year extension on time limitation only without other conditions of stay upon application for the first extension. Those successful QMAS entrants under the Achievement-Based Point Test (APT) will be granted upon entry eight years of stay on time limitation only without other conditions of stay. The HKID will also enhance the scoring scheme of the GPT to attract more talent with outstanding academic backgrounds and international work experience to work in Hong Kong.

The immigration policy in Hong Kong remains open and flexible to highly skilled people and responsive to the labor needs of businesses, to ensure that Hong Kong remains a unique “world city” while gradually being reintegrated with the mainland.

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April 2015 Immigration Update

Headlines:

1. Reminder: File H-1B Petitions Early! – USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program, which began on April 1.

2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance – The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge.

3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations – The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation.

4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings – The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings.

5. USCIS Temporarily Suspends Adjudication of H-2B Petitions Following Court Order – USCIS has temporarily suspended adjudication of Form I-129 H-2B petitions for temporary nonagricultural workers while the government considers the appropriate response to a court order. Also due to the order, the Department of Labor is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. DOL is considering its options.

6. China EB-3 Visa Category Retrogresses Nearly 10 Months – Continued heavy demand by applicants with very early priority dates has required a retrogression of the cut-off date for the for the China EB-3 visa category for the month of April, to January 1, 2011.

7. China EB-5 Visa Category to Retrogress by June; Two-Year Backlog Expected – The State Department predicts that it will establish a retrogression of the cut-off date for the China EB-5 category by June. The retrogression could create about a two-year backlog.

8. Obama Announces Enforcement Push on April 1, GOP Objects, As Per Usual – President Barack Obama announced on April Fool’s Day that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. Republicans objected.

9. ABIL Global: Turkey – There have been recent changes in Assembly, Maintenance and Service visas in Turkey.

10. Firm In The News…

Details:

1. Reminder: File H-1B Petitions Early! 

On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. CDMA  recommends filing during the first five business days in April. 

If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. 

The USCIS announcement is available at http://www.uscis.gov/news/uscis-will-accept-h-1b-petitions-fiscal-year-2016-beginning-april-1-2015. USCIS has released an optional checklist for I-129 H-1B filings, available at http://www.uscis.gov/sites/default/files/files/form/m-735.pdf. USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates at http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season.

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2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance

U.S. Citizenship and Immigration Services (USCIS) has issued interim policy guidance on L-1B “specialized knowledge” adjudications that supersedes and rescinds certain prior L-1B memoranda. USCIS said it is issuing this memorandum now for public review and feedback. . USCIS will finalize the guidance effective August 31, 2015. The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge. In the case of off-site employment, it also clarifies how to comply with the requirements of the L-1 Visa (Intracompany Transferee) Reform Act of 2004. 

Among other things, the memo notes that a beneficiary must possess either special or advanced knowledge, or both. Determining whether a beneficiary has “special knowledge” requires review of the beneficiary’s knowledge of how the company manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests. Determinations concerning “advanced knowledge,” on the other hand, require review of the beneficiary’s knowledge of the specific employing company’s processes and procedures, the memo states. While the beneficiary may have general knowledge of processes and procedures common to the industry, USCIS’s focus is primarily on the processes and procedures used specifically by the beneficiary’s employer. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary’s knowledge is not commonly held throughout the particular industry or within the petitioning employer. As discussed in detail in the memo, however, such knowledge need not be proprietary in nature or narrowly held within the employer’s organization.

The memo notes the following non-exhaustive list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized: 

Ґ The beneficiary is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations. 

Ґ The beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace. 

Ґ The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position. 

Ґ The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with that employer. 

Ґ The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).

Ґ The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm. 

The memo notes that specialized knowledge cannot be easily imparted to other individuals. 

Commentary.  We note that some language on page 14 of the memo could still snare L-1Bs working at third-party clients, and this will continue to plague Indian-heritage IT companies. 

Workers at third-party sites must be implementing the specialized knowledge of the petitioner’s unique products or services. Specialized knowledge derived from customized products or services rendered to the client may complement but cannot substitute for specialized knowledge of the petitioner’s products, services, or methodologies. Sometimes the specialized knowledge is intertwined. For example, the petitioner customized the product or application for the client, and the L-1B is being sent to the United States to upgrade it. Even though the product or application was rendered to the client, the beneficiary possesses specialized knowledge of the product that was customized for the client. This fact pattern could potentially cause problems. 

The memo, which includes details on types of evidence to present and information on off-site employment, is available at http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/2015-0324-Draft-L-1B-Memo.pdf. Comments are due to USCIS by May 8.

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3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations

U.S. Citizenship and Immigration Services (USCIS) recently released guidance on the adjudication of H-1B petitions for nursing position. The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo supersedes any previous guidance on the subject.

The memo notes that the private sector is increasingly showing a preference for more highly educated nurses. Registered nurses’ (RN) duties and titles often depend on where they work and the patients with whom they work. Nursing work can focus on specific areas, such as addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, operating room, and rehabilitation. The memo states that depending on the facts of the case, some of these RN positions may qualify as specialty occupations. 

An advanced practice registered nurse (APRN) defines a level of nursing practice that uses extended and expanded skills, experience, and knowledge in assessment, planning, implementation, diagnosis, and evaluation of the care required. Positions that require certified APRNs “will generally be specialty occupations due to the advanced level of education and training required for certification.” Having a degree is not by itself sufficient to qualify a position as an H-1B, the memo notes. The burden is on the petitioner to establish eligibility, but the memo provided a non-exhaustive list of APRN occupations that may satisfy the requirements for a specialty occupation, including Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner, and Certified Registered Nurse Anesthetist. 

Evidence submitted by a petitioner may include the nature of the petitioner’s business; a description of industry practices; a detailed description of the duties to be performed within the petitioner’s business operations; advanced certification requirements; American Nurses Credentialing Center Magnet Recognized status (explained in the memo); clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.

The memo, which includes additional details, is available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015-0218_EIR_Nursing_PM_Effective.pdf

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4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings

The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings. In a memorandum released February 27, 2015, to the field, Richard F. Griffin, Jr., NLRB General Counsel, noted that although the National Labor Relations Act (NLRA) protects all covered employees regardless of immigration status, related issues may affect remedies and present obstacles to enforcing the NLRA. 

The new memo provides updated procedures that apply when immigration status issues are raised during NLRB investigations and proceedings. The new procedures require that regions immediately contact the assigned representative(s) in the Division of Operations-Management as soon as they become aware that immigration status issues may affect the ability to remedy or litigate a potential ULP violation. Operations-Management will: (1) provide technical assistance; (2) determine whether interagency engagement could assist in effectuating the NLRA; (3) discuss with the region and/or ask the region to submit to advice on whether it may be appropriate to seek certain additional remedies; and (4) coordinate the agency’s response to these issues.

The memo states that in cases where immigration status issues may affect the NLRB’s ability to remedy or litigate a potential ULP violation, Operations-Management will work with the region to determine whether:

Ґ potential discriminatee(s) and/or witness(es) could be eligible for a U or T visa, or for deferred action, and whether the NLRB should certify and/or facilitate this process;

Ґ it is appropriate to refer the case to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices pursuant to the NLRB-OSC’s Memorandum of Understanding;

Ґ it is appropriate to engage with the Department of Homeland Security regarding their enforcement operations.

In meritorious cases, Operations-Management and, where appropriate, the Division of Advice will consider whether additional remedies should be sought to address potential limitations on back pay and reinstatement that may arise. The memo states that in this regard, the region should also explore and bring to the attention of Operations-Management any alternative remedies the region seeks and/or that a charging party advances as necessary or appropriate.

The memo is available at http://www.nlrb.gov/reports-guidance/general-counsel-memos (scroll down to GC 15-03, “Updated Procedures in Addressing Immigration Status Issues That Arise During ULP Proceedings,” February 27, 2015).

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5. USCIS Temporarily Suspends Adjudication of H-2B Petitions Following Court Order

As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended adjudication of Form I-129 H-2B petitions for temporary nonagricultural workers while the government considers the appropriate response to a court order entered March 4, 2015, in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015).

USCIS noted that due to this decision, as of March 4, the Department of Labor (DOL) is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. DOL is considering its options in light of the courtХs decision.

Because H-2B petitions require temporary labor certifications issued by DOL, USCIS has temporarily suspended adjudication of H-2B petitions. USCIS will continue adjudicating H-2B petitions for nonagricultural temporary workers on Guam if the petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

As of March 6, 2015, USCIS has also suspended premium processing for all H-2B petitions until further notice. If a petitioner has already filed H-2B petitions using the premium processing service and the agency did not act on the case within the 15-calendar-day period, USCIS will issue a refund.

DOL has released frequently asked questions (FAQs) regarding its implementation of the decision in Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Perez, 774 F.3d 173, 191 (3d Cir. 2014). Following the court’s decision, DOL ceased issuing prevailing wage determinations in the H-2B program based on employer-provided wage surveys and can no longer issue H-2B temporary employment certifications based on employer-provided wage surveys.

USCIS’s notice on Perez v. Perez is available at http://www.uscis.gov/news/uscis-temporarily-suspends-adjudication-h-2b-petitions-following-court-order. DOL’s notices on Perez v. Perez and Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Perez are available at http://www.foreignlaborcert.doleta.gov/

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6. China EB-3 Visa Category Retrogresses Nearly 10 Months

The Department of State’s Visa Bulletin for April 2015 notes that continued heavy demand by applicants with very early priority dates has required a retrogression of the cut-off date for the China EB-3 visa category for the month of April, to January 1, 2011, to hold number use within the annual numerical limit. The Visa Office advanced the China EB-3 visa category very rapidly during the past seven months, in an attempt to generate demand to ensure that all numbers under the annual limit could be made available. 

Potential forward movement of this cut-off date during the remainder of the fiscal year will depend on the demand received for applicants with very early priority dates.

The bulletin is available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-april-2015.html

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7. China EB-5 Visa Category To Retrogress by June; Two-Year Backlog Expected

The Department of State’s Visa Bulletin for April 2015 notes that continued heavy demand by EB-5 immigrant investor applicants will require a retrogression of the cut-off date for the China EB-5 visa category by June 2015 to hold number use within the annual numerical limit. Informed sources predict that the initial retrogression is expected to be about two years. 

The bulletin is available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-april-2015.html

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8. Obama Announces Enforcement Push on April 1; GOP Objects, As Per Usual

President Barack Obama announced on April 1, 2015, that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. He explained that this was to enhance enforcement and counterterrorism efforts, to keep the country safe from the “wrong element,” and to protect American jobs. He added that he finally “gets” that it’s simply the manly man thing to do and he wants to appear more forceful. “I get it,” he said. “We can’t be weak, just letting people in willy-nilly.” 

Among other things, in an emergency budget allocation, Obama reallocated $852 billion to erect a very large (huge, actually) fence along the southern border and send border patrol agents with scowls on their faces and big, impressive weapons still smoking from other operations to defend the border 24-7, taking potshots at anything that moves. “My final gift to America,” he said. He sat back and waited for Republicans to congratulate him. “Now I’ve got ’em. They can’t possibly object to this!” he reportedly whispered gleefully to Vice President Joe Biden while the mic was still on. 

Immediately after the press conference announcing the new executive actions, however, Republicans in Congress objected, stating that this was just a gimmick and we should be more welcoming. “President Obama seems to have forgotten that this is a nation of immigrants,” new presidential candidate Sen. Ted Cruz announced. “I myself was born to a Cuban father. Mitt Romney was born in Mexico, and John McCain was born in Panama. President Obama and the Democrats need to get their heads out of the heartland. He needs to stop being a cowboy, and a weak tyrant, or something. He just doesn’t get it. Imagine a country where people can flourish, regardless of where they come from.” President Obama pleaded, “But I thought enforcement is what you wanted all along. That’s what you all kept saying. ‘Enforcement this, enforcement that,’ right?? I’m just trying to meet you halfway. Okay, 200 percent of the way. Whatever.” Retorted House Speaker John Boehner, “That was yesterday. This is today, and this means war!” 

Republicans shortly afterward filed a lawsuit challenging the new actions, stating that President Obama is simply too American and just doesn’t get it. Radio personality Rush Limbaugh huffed and puffed and said we should blow that fence down. Donald Trump, remarking that it had suddenly gotten very windy across America, held onto his toupee. The WTOP Radio meteorologist issued a toupee and comb-over alert. Sarah Palin noted that Obama has gone all “forcy-forcy. Actually, I kinda like it! Got it? You betcha,” she said.

Happy April Fool’s Day!

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9. ABIL Global: Turkey

There have been recent changes in Assembly, Maintenance and Service visas in Turkey. 

Turkey amended its work permit regulations in January 2015 with respect to Assembly, Maintenance and Service (AMS) visas. An AMS visa is a short-term (90-day) technical work visa for foreign employees, under certain conditions, to engage in assembly, maintenance, service, or technical training work for the benefit of a Turkish company without the need for a work permit. This visa is a very practical category for many companies in the technology, construction, and energy sectors because it generally has a very low documentary burden and is adjudicated solely at the consular post, most often within a few days.

Historically, the problem with this visa category was twofold: (1) the 90-day period was calculated consecutively within a year and (2) the visas were generally issued as single entry. Therefore, unless an assignee remained in Turkey for the entire 90-day period uninterrupted, the full 90 days per year could not be used. 

On January 22, 2015, the work permit regulations were changed to now state that AMS visa holders can remain for up to three months in total within a year. And the regulations now allow foreigners with an AMS visa to enter Turkey on multiple occasions provided that they do not remain in Turkey more than three months in total within a year.

The change in the wording of the regulation appears to convey that the 90-day period will now be calculated cumulatively over the period of a year, not consecutively. It also states that these visa holders should be granted multiple entries, which is welcome news regardless of the calculation of the 90 days, particularly since the vast majority of consular posts issue single-entry AMS visas. 

In the meantime, it is best practice to provide a copy of the legal changes to the consular post when applying for an AMS visa in order to insist that consular posts follow this regulatory change and grant one-year multiple-entry AMS visas. However, the calculation of the 90-day period (cumulative vs. consecutive), is in the hands of the passport officers at entry points to confer later entries for AMS visa holders whose period is beyond 90 days consecutively (yet have not been present in Turkey for 90 days cumulatively). AMS visa holders should anticipate that some consular officers and passport officers will not have full awareness or knowledge of this legal change for some time.

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10.   Firm In the News

Cyrus Mehta spoke at the following events: 

  • Panelist, “Ethical and Practical Issues in Representing Children in Immigration Cases,” American Immigration Lawyers Association (AILA) Philadelphia Chapter’s 2015 CLE Conference, Philadelphia, Pennsylvania, March 27, 2015.
  • Program Chair, “Basic Immigration Law 2015,” Practising Law Institute, New York City and live webcast, March 12, 2015.
  • Panelist, “Alternatives to H-1B,” 2015 Midwest Regional Conference, AILA, Chicago, Illinois, March 9, 2015.

Cora-Ann V. Pestaina was a Speaker at “Basic Immigration Law 2015,” Practising Law Institute, New York City and live webcast, March 12, 2015.

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