Mid-December 2016 Immigration Update

Headlines:

  1. Graham, Durbin Introduce Bipartisan ‘Bridge Act’ for DACA Beneficiaries – Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) have introduced bipartisan legislation “to protect undocumented individuals should the Deferred Action for Childhood Arrivals (DACA) program be discontinued.”
  2. Congress Extends Four Immigration Programs Through April 28 – The law extends the EB-5 Regional Center Program, E-Verify, the Conrad State 30 J-1 Waiver Program, and the Special Immigrant Non-Minister Religious Worker Program.
  3. EB-5 Regional Centers Must File Form I-924A By December 29 – USCIS reminds all EB-5 regional centers with a designation letter dated on or before September 30, 2016, that they must file Form I-924A, Supplement to Form I-924, for fiscal year 2016 by December 29, 2016.
  4. USCIS To Dispose of SAVE Records in April 2017; Historic Records Report Available – In April 2017, USCIS plans to dispose of SAVE transaction records that are over 10 years old. A Historic Records Report contains transaction records dated on or before December 31, 2006, which SAVE users may download from now through March 31, 2017.
  5. Firm In the News…

Details:

  1. Graham, Durbin Introduce Bipartisan ‘Bridge Act’ for DACA Beneficiaries

Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) announced on December 9, 2016, that they have introduced S. 3542, a bipartisan bill “to protect undocumented individuals should the Deferred Action for Childhood Arrivals (DACA) program be discontinued.” Cosponsors include Sens. Lisa Murkowski (R-AK), Dianne Feinstein (D-CA), and Jeff Flake (R-AZ). The legislation, dubbed the “Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act,” would provide temporary relief from removal and work authorization to young undocumented persons who were brought to the United States as children.”

DACA, which the Obama administration implemented via executive order, provides temporary protection from removal and work authorization to young students and veterans who grew up in the United States if they register with the government, pay a fee, and pass a criminal background check. More than 740,000 young people have received DACA. Temporary protection under the BRIDGE Act “would ensure that these young people can continue to work and study and be protected from deportation while Congress debates broader legislation to fix our broken immigration system,” Sen. Durbin said.

Key points of the BRIDGE Act include:

  • A current DACA recipient would receive provisional protected status until the expiration date of his or her DACA status and could apply for provisional protected presence prior to this expiration.
  • An individual who is not a DACA recipient but who is eligible for DACA could also apply for provisional protected presence.
  • Applicants would be required to pay a reasonable fee, be subject to criminal background checks, and meet a number of eligibility criteria indicating that they came to the United States as minors, grew up in the United States, have pursued an education, have not committed any serious crimes, and do not pose a threat to the United States.
  • An individual’s provisional protected presence and employment authorization would be subject to revocation by the Department of Homeland Security if the individual no longer met the eligibility criteria.
  • The provisional protected presence and employment authorization would be provided for three years after the date of enactment of the legislation.

President-elect Donald Trump had previously said that he would rescind “every single Obama executive order,” but he recently said when questioned about DACA recipients that “[w]e’re going to work something out that’s going to make people happy and proud,” and noted that “[t]hey got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.” Sen. Durbin said, “We want to reach out to the incoming administration and urge them if they take any action on DACA try to do it with this BRIDGE, to join us in passing this BRIDGE so we don’t have the disruption.” And House Speaker Paul Ryan (R-WI) said that Republicans “would not pull the rug out from under” DACA recipients brought to the United States as children. “I will defer to the people who are focused on this on a daily basis to make sure they get this policy right, so that we don’t have any kind of ugly disruption that people are concerned about.”

The bill is at https://www.congress.gov/bill/114th-congress/senate-bill/3542/text?q=%7B%22search%22%3A%5B%22S.+3542%22%5D%7D&r=1. Sen. Durbin’s announcement is at http://www.durbin.senate.gov/newsroom/press-releases/graham-durbin-announce-bipartisan-bridge-act-to-protect-young-individuals-from-deportation. More information on DACA is at https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca.

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  1. Congress Extends Four Immigration Programs Through April 28

President Barack Obama signed H.R. 2028 (Pub. L. 114-254), a short-term bill passed by Congress, into law on December 9, 2016. The law includes a continuing resolution to fund the government through April 28, 2017. It extends without any changes the EB-5 Regional Center Program, E-Verify, the Conrad State 30 J-1 Waiver Program, and the Special Immigrant Non-Minister Religious Worker Program. The H-2B returning worker exemption was not reinstated.

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  1. EB-5 Regional Centers Must File Form I-924A By December 29

U.S. Citizenship and Immigration Services (USCIS) is reminding all EB-5 regional centers with a designation letter dated on or before September 30, 2016, that they must file Form I-924A, Supplement to Form I-924, for fiscal year 2016 by December 29, 2016. Regional centers must submit an I-924A every year to demonstrate continued eligibility for the regional center designation.

Regional centers may be terminated for:

  • Failure to provide USCIS with required information, including annual Form I-924A submissions
  • Failure to promote economic growth

A regional center that has been terminated from the EB-5 program may not solicit, generate, or promote investors or investments, or otherwise participate as a designated regional center in connection with the Immigrant Investor Program.

The USCIS announcement is at https://www.uscis.gov/news/alerts/eb-5-regional-centers-must-file-form-i-924a-dec-29.

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  1. USCIS To Dispose of SAVE Records in April 2017; Historic Records Report Available

In April 2017, U.S. Citizenship and Immigration Services (USCIS) plans to dispose of Systematic Alien Verification for Entitlements (SAVE) transaction records that are over 10 years old. USCIS has created a Historic Records Report that contains transaction records dated on or before December 31, 2006, which SAVE users may download from now through March 31, 2017.

SAVE encourages users to retain the Historic Records Report. USCIS noted that it may retain SAVE records associated with an ongoing government investigation, prosecution, or litigation. Instructions on how to download the report are at https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Instructions_to_Download_NARA_Reports_in_SAVE.pdf. More information about SAVE is at https://www.uscis.gov/save/contact-save.

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  1. Firm In The News

Cyrus D. Mehta was a Speaker on 1) Opportunities and Challenges in H-1B, L-1 Practice and Other Non-Immigrant Visa Categories – Problems, Solutions, Recent Developments and 2) Alternatives and New Trends with Regard to Admissibility, at the 49th Annual Immigration & Naturalization Institute, New York, NY and Live Webcast, on December 7-8, 2016.

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December 2016 Global Immigration Update

Headlines:

BELGIUM – Belgium has announced changes to existing “contribution to cover the administrative costs” rules and related proposals, and new 2017 salary thresholds for some fast-track work permits B.

ITALY – The government has lifted translation and legalization requirements for certificates of coverage in work permit applications; a new investment visa category has been introduced; residence permit fees have been abolished; and guidelines are now available for filing mandatory notifications in compliance with Posted Workers EU Directive 2014/67.

UNITED KINGDOM – The latest statement of changes to the Immigration Rules incorporates the Tier 2 changes announced by the government in March, following the Tier 2 review conducted by the Migration Advisory Committee last year. Also, a ruling has been issued on an important Brexit case. The UK Registered Traveller Service has been expanded, and the 28-day grace period for overstaying is changing to 14 days.

Details:

BELGIUM

Belgium has announced changes to existing “contribution to cover the administrative costs” rules and related proposals, and new 2017 salary thresholds for some fast-track work permits B.

Changes and Proposals Introduced for “Contributions to Cover the Administrative Costs”

Effective March 2, 2015, Belgium introduced a mandatory “contribution to cover the administrative costs” with regard to some first requests for residence authorization (e.g., visa D applications) by foreigners. Work permit holders (€215) and most of their family members (€160) must pay the levy. Several categories of foreigners (e.g., European Economic Area citizens, Swiss citizens and their family members, minors) are exempt.

Theo Francken, Belgian federal Secretary of State for Asylum and Migration, has proposed a preliminary draft bill to allow municipalities to receive a similar contribution for the renewal, extension, or replacement of some residence permits. In practice, the request to renew, extend, or replace a Belgian residence permit must be filed with the municipal authorities of the town where the foreigner resides. Under the new rules, the municipal authorities will have the option to ask payment of a contribution for renewal of residence permit type A. The contribution, which would be paid in addition to administrative fees for processing the new residence permit, is considered an equitable compensation for the administrative services provided by the municipalities. The type A residence permit, valid for a definite term, is held by work permit B holders and most of their family members. The proposed change will thus have an impact on corporate immigration.

The Belgian federal government approved a second version of the preliminary draft bill on September 30, 2016, and submitted it as a draft bill to the Belgian parliament on October 20, 2016. The draft bill will now go through the legislative process before taking effect.

The maximum amount of the contribution must be fixed in a separate Royal Decree (decree implementing an Act): the federal government has agreed to limit the maximum amount to €50. The draft Royal Decree has not yet been published.

Mr. Francken also proposed increasing the existing “contribution to cover the administrative costs” for a first application. The current amounts (€215 for work permit holders and €160 for family members) do not reflect the actual cost, which would amount to €268 per application. The new amounts would be €350 (work permit holders) and €200 (family members). The Belgium federal government approved a draft Royal Decree on October 28, 2016. The draft bill will now go through the legislative process before taking effect.

New 2017 Salary Thresholds Established for Some Fast Track Work Permits B

One of the requirements for some Belgian fast-track work permits B—as well as for the Blue Card—is a salary threshold. The authorities will only issue or renew them if it is clear that the employee’s annual gross remuneration will meet or has met the threshold amount, which is adjusted/indexated on a yearly basis.

The authorities will only consider amounts that will definitely be paid. Discretionary bonuses and COLA (Cost of Living Allowances) cannot be taken into account when processing work permit applications. Some benefits in kind may qualify, depending on the facts.

Work permits are processed by the Belgian Regions: Flanders, Brussels, and Wallonia.

The following new salary thresholds, effective January 1, 2017, have been confirmed by all regional authorities:

  • For highly skilled work permits: €40,124 (€39,824 for 2016)
  • For executive-level work permits: €66,942 (€66,442 for 2016)

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ITALY

The government has lifted translation and legalization requirements for certificates of coverage in work permit applications; a new investment visa category has been introduced; residence permit fees have been abolished; and guidelines are now available for filing mandatory notifications in compliance with Posted Workers EU Directive 2014/67.

Government Lifts Translation and Legalization Requirements for Certificates of Coverage in Work Permit Applications

In July 2016, the Ministries of Interior and Labour issued a joint circular (no. 35/0002777 dated 14/07/2016) about the requirements for highly skilled work permit applications filed pursuant to Articles 27 and 27-quater of Legislative Decree No. 286/98 (Italian Immigration Law).

Recently, the Ministries circulated a note amending the joint circular. Authorities have clarified that translation and legalization of the certificates of coverage is no longer required. From now on, certificates of coverage must be submitted as soon as they are issued by the relevant foreign authority. This is expected to reduce overall processing time.

Certificates of coverage are required when there is a bilateral Social Security Agreement between Italy and the country where the posted worker is employed. The certificates document the agreement conditions with respect to social security (exemption from host country social security contributions).

New Investment Visa Category Introduced

Italy has introduced a specific category of visas for investors. The new type of national visa, provided for in the 2017 Budget Law—yet to be confirmed by the Senate—can be granted to individuals who:

  • Invest at least €2 million in government bonds and keep it for at least 2 years, or
  • Invest at least €1 million in an Italian company and keep the investment for at least 2 years, or
  • Make a donation of at least €1 million in a public interest project in the fields of culture, education, immigration management, scientific research, or protection of cultural or landscape heritage.

The Ministry of Economic Development will set forth the application procedure with a decree to be approved within 90 days from the publication of the Budget Law.

The investor can bring his or her family to Italy. The permit will be granted with an initial period of two years, renewable for three-year periods, upon verification that the investment is maintained as required by the law.

Residence Permit Fees Abolished

The Council of State has abolished the residence permit application/renewal fees that were introduced in 2011 (€80 to €200). The Ministry of Interior has provided that residence permit applications are no longer subject to the €80 to €200 fee (communication no. 43699 of October 26, 2016). Only fixed expenses remain in place of about €76 (€30.46 for the electronic card, €16 for the application stamp, and a €30 mailing fee).

Background. In October 2011, a joint Ministerial decree introduced high residence permit application/renewal fees (from €80 to €200, depending on the type and duration of the permit, in addition to the fixed expenses already in place). In 2015, the European Court of Justice judged the tax to violate European Union regulations. Subsequently, the Regional Administrative Court of Lazio declared the residence permit tax illegal and abolished the fee on applications in May 2016.

On September 14, 2016, with Presidential Decree No. 03903/2016, the Council of State suspended the court order of the TAR, Lazio’s Regional Administrative Court. The fees were temporarily reintroduced until a final decision was reached.

Italy Implements Posted Workers EU Directive 2014/67 

Italy has implemented the European Union (EU) Posted Workers Directive (2014/67), which regulates the posting of workers in the context of the provision of services by means of Decree no. 136/2016.

The directive refers to the transnational provision of services in three situations: posting of a worker to another EU Member State under a contract concluded with the party for whom the services are intended (customer or other company); posting of a worker to an establishment or to a company owned by the group; and workers posted by placement agencies.

“Posted workers” are defined as workers “who habitually work in another Member State and are sent to work in Italy for a limited, predetermined or predictable period of time.” During the posting, the worker maintains an employment relationship with the sending employer and is sent to work to another Member State with the aim of temporarily providing a service within the receiving country.

The Decree applies to:

  1. EU companies posting workers to Italy in the framework of the provision of services either to a company that is part of the same group or to a customer or other company;
  2. Placement agencies established in an EU state posting workers to companies established or operating in Italy; and
  3. Non-EU companies posting workers to Italy in the framework of the provision of services either to a company that is part of the same group or to a customer or other company;

A number of obligations were introduced for employers posting workers in Italy.

Mandatory Communications (effective December 26, 2016)

The posting employer must create an account in the online dedicated system, which will be available on the Labour and Social Policy portal (http://www.lavoro.gov.it) by December 26, 2016. The information provided through the system (e.g., number of workers involved, start/end date of the posting, place of work, host entity) will be available to the Labour Inspectorate, National Social Security Agency (INPS), and National Workers compensation authority (INAIL).

Employers posting workers to Italy must submit, one day before the start of the posting, a compulsory electronic notification (electronic form UNI_Distacco_UE) through the Labour and Social Policy portal with the following information:

  • Sending company details;
  • Number and details of posted workers;
  • Start date, duration, and end of assignment;
  • Place of work;
  • Host company details;
  • Type of services;
  • Data and address of the representative(s) domiciled in Italy; and
  • Number of authorization, if applicable

Any variation in the posting conditions must be communicated through the same system within 5 days, including:

  • Start date, end date, and duration of assignment;
  • Place of work;
  • Type of services (ATECO code);
  • Details and address of the legal representative in Italy responsible for keeping/receiving the documents; and
  • Details of the representative responsible for maintaining the relationship with the unions, government, and company representatives

Document Retention Obligations (in force since July 22, 2016)

During the posting and up to two years after its termination, the posting company must keep the documentation related to the assignment. The following documents must be stored, along with a translation into Italian:

  • Job contract or any other equivalent document such as a recruitment letter, containing the following information:

– Personal data of employee/employer
– Place(s) of work and registered address of the employer
– Start date of work
– Duration of the contract (whether fixed-term or open-ended)
– Duration of trial period, if applicable
– Job position, job level, and qualifications or description of the worker’s tasks
– Salary, salary structure, and period of payment
– Duration of paid vacation; how this is determined and enjoyed
– Working hours
– Applicable notice in case of resignation

  • Payroll
  • Record of start/end/duration of the working day
  • Documents attesting the payment of salary
  • Notification of employment or equivalent
  • Social security certificate, if applicable

Obligations To Have a Representative Domiciled in Italy (in force since July 22, 2016)

The posting employer must:

  • Appoint a representative domiciled in Italy. During the posting and up to 2 years after its termination, a legal representative based in Italy must be appointed in charge of receiving/sending any official documents. In absence of this, the host company is considered to act as the representative of the foreign posting entity.
  • Appoint a representative responsible for dealing with the parties involved in labor negotiations.

Penalties

Article 12 of the decree lists the following penalties:

  • Sanctions for non-compliance with mandatory communications: a fine of €150 to €500 for each worker involved (in any case, the fine cannot exceed €150,000)
  • Sanctions for non-compliance with document retention obligations: a fine of €500 to €3000 for each worker involved (in any case, the fine cannot exceed €150,000)
  • Sanctions for non-compliance with the obligation to have a representative domiciled in Italy in charge of receiving/sending any official documents: a fine of €2000 to €6000

Open Points

  • It is not clear if the provisions of Legislative Decree July 17, 2016, n. 136, apply specifically to posting of workers in the context of the provision of services or to any postings, even if not expressly linked to the transnational provision of services under a specific contract. In fact, the situation of workers who are posted to provide “services” in-house from the headquarters to the subsidiary appears to fall outside the objectives of the Directive and, consequently, outside the objectives of Decree July 17, 2016, n. 136. It is therefore not clear if there are exceptions to the obligations above.
  • Apparently, penalties listed in article 12 of the decree do not apply to companies established outside the EU.
  • The website where the posting employers must sign up is not active yet; it is expected to be available by December 26, 2016.
  • It is not clear if a third party can act on behalf of the sending employer with regard to the obligations concerning mandatory communications and document retention.

More information is at http://www.lavoro.gov.it/strumenti-e-servizi/Distacco-transnazionale/Pagine/default.aspx (Italian only).

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UNITED KINGDOM

The latest statement of changes to the Immigration Rules incorporates the Tier 2 changes announced by the government in March, following the Tier 2 review conducted by the Migration Advisory Committee last year. Also, a ruling has been issued on an important Brexit case. The UK Registered Traveller Service has been expanded, and the 28-day grace period for overstaying is changing to 14 days.

Changes to Immigration Rules for Tier 2

As widely anticipated, the latest statement of changes to the Immigration Rules incorporates the Tier 2 changes announced by the government in March, following the Tier 2 review conducted by the Migration Advisory Committee last year. The main changes, effective November 24, 2016, are summarized below.

Highlights of Tier 2 (General) changes include:

  • The salary threshold for experienced workers has been increased to £25,000 for the majority of new applicants (the salary threshold for new entrants stays at £20,800). An exemption from this increase applies to nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin. The exemption will end in July 2019.
  • As a transitional arrangement, the £25,000 threshold did not apply to workers sponsored in Tier 2 (General) before November 24, 2016, if they applied to extend their stay in the category. The government intends to increase the threshold to £30,000 in April 2017. There is no such transitional arrangement for workers sponsored in Tier 2 (General) between November 24, 2016, and April 2017—they will need to satisfy the £30,000 threshold in any future application.
  • United Kingdom (UK) graduates who have returned overseas have been weighted more heavily in the monthly allocation rounds under the Tier 2 limit.
  • UK graduates who apply in the UK continue to be exempt from the limit. A change is being made to facilitate changes of occupation for applicants sponsored in graduate training programs. This enables them to change occupations within the program or at the end of the program, without their sponsor needing to carry out a further Resident Labour Market Test or for them to make a new application.

The following additional changes to Tier 2 (General) are being made:

  • Beginning in April 2017, a change to the rules on advertising via a milkround (companies touring universities each year to advertise job openings and recruit) will be introduced to close a loophole in which a sponsor can offer a job to a migrant four years after carrying out a milkround, without the need for a further recruitment search. Sponsors can continue to rely on a milkround that ended up to four years before assigning a Certificate of Sponsorship, but only if the migrant was offered the job within 6 months of that milkround taking place.
  • Following a separate review by the Migration Advisory Committee on nursing shortages, nurses are being retained on the Shortage Occupation List, but a change is being made to require a Resident Labour Market Test before a nurse is assigned a Certificate of Sponsorship.

Tier 2 (Intra-Company Transfer) (ICT) changes made:

  • The salary for short-term ICT applicants has been increased to £30,000 for new applicants. A transitional arrangement applies for those already in the UK under the short-term route.
  • The closure of the Skills Transfer subcategory to new applicants.
  • Changes to the Graduate Trainee subcategory. The salary threshold has been reduced from £24,800 to £23,000 and the number of places a sponsor can use has been increased from 5 to 20 per year.

Ruling Issued on Brexit Case

In the case of R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court ruled that the government is prohibited from giving notice of the UK’s withdrawal from the European Union under Article 50 of the Lisbon Treaty without first consulting Parliament. Should the ruling be upheld by the Supreme Court, which recently gave the government permission to appeal, it could block or delay the Prime Minister’s proposed timetable of beginning ‘Brexit’ negotiations by March 2017.

UK Registered Traveller Service Expands

The Home Office has announced the expansion of the UK Registered Traveller Service to applicants from 16 new countries. Membership is now also open to passengers from Argentina, Belize, Brazil, Brunei, Chile, Costa Rica, El Salvador, Guatemala, Honduras, Israel, Malaysia, Mexico, Nicaragua, Panama, Paraguay, and Uruguay, subject to meeting the membership criteria. Previously this was only available to applicants from Australia, Canada, Japan, New Zealand, the United States, Hong Kong (SAR), Singapore, South Korea, and Taiwan.

To qualify, applicants must:

  • Be 18 years of age or more
  • Hold a valid visa (except Tier 5 (Sporting & Creative Concessions), EEA family permits, discretionary leave, and leave outside the rules)
  • Be a member of a diplomatic mission, or
  • Be a “visitor” (and have visited the UK at least four times in the previous 24 months) in one of the following categories:

– Business
– General
– Academic
– In transit
– Entertainment or sports
-Parents with a child in a UK school
– Medical

The service is available at:

•Gatwick
•Heathrow
•Birmingham
•East Midlands
•Edinburgh
•Brussels, Lille and Paris (Rail Terminals)
•Manchester
•Edinburgh
•Glasgow
•London City
•Stansted
•Luton

How to apply:

Step 1: Applicants must apply online via http://www.gov.uk/registered-traveller. The fee is £70 for a 12-month membership.

Step 2: The Home Office processes the application and conducts a number of checks. A decision will be reached within 10 days and applicants will receive an email notification.

Step 3: If successful, applicants must print the decision email and carry this when passing through immigration control on their next entry to the UK.

Step 4: To complete enrollment at:

  • Gatwick, join the lanes for Registered Travellers.
  • Heathrow, join the “other passports” lane, or go to the “Fast Track” desk if you have a “Fast Track” ticket.
  • Manchester, Edinburgh, Glasgow, London City, Luton, Birmingham, East Midlands, or Stansted, join the “other passports” lane.
  • Those who applied in a visitor or diplomatic category can also join the “other passports” lane at Brussels, Paris, or Lille

Completion of Membership:

Acceptance is recorded in the Home Office system to facilitate easier transit though immigration control on subsequent entries to the UK. Membership is valid for 12 months and is evidenced by a membership card. Applicants are issued a card on which they must write their name and membership number as stated on the decision email.

The 28-Day Grace Period for Overstaying Changes to 14 Days

The 28-day grace period for overstaying has been reduced to 14 days. The 28-day period allowed many applicants to apply for further leave to remain after their current leave had expired.

The standard expectation is to submit applications for further leave to remain before an applicant’s current UK visa expires. The 28-day period had been introduced so that applicants who had made an innocent mistake or were restricted due to circumstances beyond their control were not penalized. As such, a period of overstaying for 28 days or fewer by itself was not considered a ground for refusal of those applicants.

The recent statement of changes to the Immigration Rules proclaimed this to be inconsistent with the UK’s immigration laws and accordingly abolished the 28-day period. Instead, the revised practice will be not to refuse an “out-of-time” application submitted within 14 days of the expiration of a UK visa and where the Secretary of State considers that there is “good reason beyond the control of the applicant or the representative,” set out in or with the application, why a timely (“in-time”) application could not be made.

It is likely that each application will be considered on a case-by-case basis. Alternatively, guidance may be published on what the Secretary of State will deem a “good reason” when the changes take effect.

There is considerable debate about whether the 28-day period should have been abolished. On the one hand, it is very rare that an applicant will actively delay submitting a timely application unless there is a good reason beyond his or her control. On the other hand, and rather controversially, if the 28-day period is inconsistent with the UK’s immigration laws, why allow any period of overstaying?

Allowing 14 days will resonate with those who remain in the UK with leave extended by section 3C of the Immigration Act 1971, as they find that their permission to continue to stay in the UK will be reduced to 14 days from the expiration of any 3C leave. The purpose of section 3C leave is to protect a person who makes an in-time application to extend his or her leave, from overstaying illegally while awaiting a decision on an application or while any appeal or administrative review to which he or she may be entitled is pending.

Without this new 14-day arrangement, the abolition of the 28-day period or potentially any period of grace leave would mean that any further applications made by 3C leave individuals would be deemed to be out of time. This demonstrates a real need for some type of grace period, as this is paramount to protect individuals who are entitled to remain in the UK, either as a result of circumstances beyond their control, while an application is in process, or while an administrative review or appeal is under consideration. A period of overstaying therefore is incorporated in UK immigration law to protect certain otherwise law-abiding individuals.

There is a genuine need for leniency and realistic time frames. This is vitally important to protect those who are entitled to be in the UK as a direct result of their complying with the UK’s immigration laws. The specified period should allow the applicant, representative, or sponsor to review the situation and administer necessary action.

Consider, for example, these realistic scenarios:

  1. Company A’s employees are all TUPE’d [Transfer of Undertakings (Protection of Employment)] across to Company B after an acquisition. Company A omits reporting the TUPE and also inadvertently allows its Sponsor Licence to lapse. The Home Office proceeds to curtail the leave of Company A’s Tier 2 sponsored workers.

Company A decides to take legal advice to rectify the situation. The lawyers submit representations to the Home Office requesting a reversal of the curtailment. While the Home Office is considering the representations, a sponsored worker’s UK visa expires and the clock now starts ticking. The Home Office finally decides to reverse the curtailment but it is now day 24 of the 28-day period.

Under the new “14-day period with good reason” practice, this Tier 2 sponsored worker would most likely already be deemed to be overstaying illegally and have no basis to remain in the UK. Would the Home Office exercise any discretion in these circumstances? Would the Home Office even consider the above scenario a good enough reason beyond the control of the applicant or representative?

  1. An applicant receives a Home Office refusal decision and finds he or she no longer has valid leave to remain in the UK. This person will need an appropriate amount of time and funds to obtain legal advice in order to understand their immigration position and pursue viable options. These aspects can logically eat into the 14 days, which imposes excessive pressure on applicants and representatives.

This revised time frame from 28 to 14 days appears to serve no real purpose. What “good reason” is there to this approach of limiting overstaying?

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December 2016 Immigration Update

Headlines:

  1. USCIS Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs – USCIS has issued a final rule, effective January 17, 2017, to provide greater flexibility for high-skilled foreign professionals. The new regulations also codify current informal administrative guidance about statutory provisions added in 2000.
  2. USCIS Revises I-9 Employment Eligibility Verification Form – By January 22, 2017, employers must use only the new version of the I-9, dated 11/14/2016 N. Until then, they can continue to use either the version dated 03/08/2013 N or the new version.
  3. USCIS Announces Final Rule on Fee Increases, Changes – USCIS recently published a final rule to increase the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016.
  4. ABIL Global: United Kingdom – The United Kingdom is changing its immigration rules. Also, the High Court has ruled on a key Brexit case.
  5. Firm In The News…

Details:

  1. USCIS Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs

U.S. Citizenship and Immigration Services (USCIS) has issued a final rule to provide greater flexibility for high-skilled foreign professionals. The new regulations also codify current informal administrative guidance about statutory provisions added in 2000. The regulations take effect on January 17, 2017.

USCIS previously made many of these clarifications through a series of non-binding policy memoranda over the past 15 years, with no definitive rules in place.

USCIS said the final rule is intended to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended the regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.

Among other things, the final rule is intended to:

  • Clarify and improve longstanding policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which USCIS said will enhance consistency in adjudication.
  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
  • Clarify and expand when individuals may keep their priority dates when applying for adjustment of status to lawful permanent residence.
  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
  1. They are the principal beneficiaries of an approved I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate that compelling circumstances exist that justify the agency’s issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one-year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six-year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements, and protections for whistleblowers.
  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Forms I-766) for certain individuals who apply on time to renew their EADs.
  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day time frame.

USCIS received nearly 28,000 comments on the proposed rule from a broad range of entities and individuals. Comments submitted by the Alliance of Business Immigration Lawyers are at http://www.abil.com/news_detail.cfm?NEWS_ID=1390.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-publishes-final-rule-certain-employment-based-immigrant-and-nonimmigrant-visa-programs. The final rule is at https://www.federalregister.gov/documents/2016/11/18/2016-27540/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled.

For our firm’s commentary, See Analysis of Key Provisions of the High Skilled Worker Final Rule.

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  1. USCIS Revises I-9 Employment Eligibility Verification Form

U.S. Citizenship and Immigration Services (USCIS) recently published a revised version of Form I-9, Employment Eligibility Verification. By January 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use either the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

USCIS said the revised I-9 is also easier to complete on a computer. Changes include drop-down lists and calendars for filling in dates, on-screen instructions for each field, access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

The announcement is at https://www.uscis.gov/news/news-releases/uscis-revises-form-i-9-used-all-new-hires-us.

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  1. USCIS Announces Final Rule on Fee Increases, Changes

U.S. Citizenship and Immigration Services (USCIS) recently published a final rule to increase the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016.

Fees will increase for the first time in six years by a weighted average of 21 percent for most applications and petitions. USCIS said these increases include the costs associated with fraud detection and national security, service and case processing, and providing services without charge to refugee and asylum applicants and to others eligible for fee waivers or exemptions.

The final rule includes a table summarizing current and new fees. Applications and petitions postmarked or filed on or after December 23 must include the new fees or USCIS will not accept them.

USCIS said it is also offering a reduced filing fee for certain naturalization applicants with limited means.

Highlights of the fee rule include:

  • A fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.
  • A reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.
  • A fee increase from $550 or $600 to $1,170 for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.
  • A new fee of $3,035 for Form I-924A, Annual Certification of Regional Center.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-announces-final-rule-adjusting-immigration-benefit-application-and-petition-fees.

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ABIL Global: United Kingdom

The United Kingdom is changing its immigration rules. Also, the High Court has ruled on a key Brexit case.

Changes to Immigration Rules

On November 3, 2016, a Statement of Changes to the Immigration Rules was set before Parliament. In relevant part, the raft of reforms includes the first stage of a two-phase package of changes to Tier 2 of the Points-Based System (PBS). The majority of these changes affect applications made on or after November 24, 2016, and include:

Tier 2 (General)

  • The salary threshold for experienced workers is increasing to £25,000. New entrants will remain at £20,800 and some additional, minor exceptions apply.
  • Individuals sponsored as Tier 2 (General) migrants before November 24, 2016, are only required to meet the previous salary threshold of £20,800.

Tier 2 (Intra-Company Transfer)

  • The salary threshold for Tier 2 (ICT—Short-Term Staff) is increasing to £30,000.
  • The salary threshold for Tier 2 (ICT—Graduate Trainee) is decreasing to £23,000, and the number of places allocated per company annually for this subcategory is increasing from five to twenty.
  • Tier 2 (ICT—Skills Transfer) is closed to new applicants.

Ruling Issued on Brexit Case

In the case of R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court ruled that the government must first consult Parliament before giving notice of the UK’s withdrawal from the European Union. The government might appeal. If the appeal is denied, it could block or delay the Prime Minister’s proposed timetable of beginning ‘Brexit’ negotiations by March 2017.

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  1. Firm In The News…

Cyrus D. Mehta was a Speaker, I-140 Bombshells and Directed Recruitment, 16th Annual Advanced Corporate Immigration Conference, New Jersey Institute for Continuing Legal Education,  A Division of the New Jersey State Bar Association, Newark, NJ, November 30, 2016.

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Mid-November 2016 Immigration Update

Headlines:

  1. Atlanta NPC To Issue PERM Notifications Via Email Beginning in December – Starting December 1, 2016, the ANPC also will receive via email ETA Form 9089 audit responses and responses to Requests for Information, Additional Audit Information Requests, and Notices of Decisions for Appeals. The Department of Labor’s Office of Foreign Labor Certification offered related tips.
  2. St. Vincent and the Grenadines Added to H-2A, H-2B Visa Programs – St. Vincent and the Grenadines has been added to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.
  3. IRS Announces Changes to Individual Taxpayer ID Program – The changes require some taxpayers to renew their ITINs, which the IRS encourages people to do early.
  4. USCIS Updates Guidance on Health-Related Grounds of Inadmissibility – USCIS has updated guidance regarding health-related grounds of inadmissibility in accordance with an HHS final rule.
  5. Firm In The News

Details:

  1. Atlanta NPC To Issue PERM Notifications Via Email Beginning in December

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced on November 1, 2016, that the Atlanta National Processing Center (ANPC) will begin issuing PERM notification letters via email beginning December 1, 2016. OFLC said this will ensure that PERM stakeholders receive ETA Form 9089 application determination notifications in a timely, cost-effective manner without mail delivery delays.

OFLC said that those awaiting such notifications should add sr.processing@dol.gov and plc.atlanta@dol.gov to the address book or safe list in the recipient’s email system to avoid being filtered as spam. In addition, changes in email addresses for the authorized representative or employer should be emailed to either sr.processing@dol.gov (Supervised Recruitment cases) or plc.atlanta@dol.gov (all other correspondence). Provide the case number along with the updated contact information.

Stakeholders will receive the following letters/notifications via email:

    • Audit Notification Letters
    • Denial Notification Letters
    • Requests for Information Letters
    • Additional Audit Information Requests
    • Withdrawal Letters
    • Notices of Decisions from Appeals

OFLC noted that certified ETA Form 9089 PERM application letters will not be sent electronically due to the certification’s security paper requirements currently in place with U.S. Citizenship and Immigration Services.

Starting December 1, 2016, the ANPC will receive via email ETA Form 9089 audit responses and responses to Requests for Information, Additional Audit Information Requests, and Notices of Decisions for Appeals. Senders should ensure that each emailed response is no larger than 20MB. Email responses larger than 20MB should be separated into two or more documents of fewer than 20MB in size, indicated on the subject line of the email. For example, <Case Number>_Audit Response_1 of 3.

OFLC offered the following summary of tips:

    • Do not combine multiple audit responses for different cases in one submission packet.
    • Direct any questions via email to sr.processing@dol.gov (Supervised Recruitment inquiries) or plc.atlanta@dol.gov (all other inquiries) and include the case number in the subject line.
    • For audit responses specifically; scan, tab, or clearly identify the documentation into the following categories:
      1. Cover Letter
      2. Recruitment Report and any other supporting documentation
      3. Business Necessity and other supporting documentation
      4. Recruitment Content, including copies of newspaper advertisements, Notice of Filing, Job Order, and professional advertisements
      5. Copy of Audit Letter (if applicable)
      6. Resumes, including any applications, evaluations, and other supporting documentation
      7. Prevailing Wage (if applicable)
      8. Affidavits (if applicable)
      9. Signed ETA Form 9089 (if applicable)
      10. Postage Receipt (if applicable)

The notice is at https://www.foreignlaborcert.doleta.gov/news.cfm (scroll to “November 1, 2016. Electronic Notification of PERM Letters”).

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  1. St. Vincent and the Grenadines Added to H-2A, H-2B Visa Programs

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS), in consultation with the Department of State, have added St. Vincent and the Grenadines to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.

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 DHS 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 listing the eligible countries was published in the Federal Register on October 26, 2016, at https://www.gpo.gov/fdsys/pkg/FR-2016-10-26/html/2016-25872.htm.

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  1. IRS Announces Changes to Individual Taxpayer ID Program

The Internal Revenue Service recently announced changes related to revisions to the Individual Taxpayer Identification Number (ITIN) program made under a new law. The changes require some taxpayers to renew their ITINs, which the IRS encourages people to do early.

Under the new law, ITINs that have not been used on a federal tax return at least once in the last three years will no longer be valid for use on a tax return unless renewed by the taxpayer. In addition, ITINs issued before 2013 that have been used on a federal tax return in the last three years must be renewed starting this fall. The IRS is putting in place a rolling renewal schedule.

If taxpayers have an expired ITIN and do not renew before filing a tax return in 2017, they could face a refund delay and may be ineligible for certain tax credits until the ITIN is renewed, the IRS warned.

The IRS emphasized that ITIN holders do not need to take action if they don’t need to file a tax return next year. Two key groups of ITIN holders may need to renew an ITIN so it will be in effect for returns filed in 2017:

  • Unused ITINs. ITINs not used on a federal income tax return in the last three years (covering 2013, 2014, or 2015) will no longer be valid to use on a tax return as of January 1, 2017. ITIN holders in this group who need to file a tax return next year will need to renew their ITINs. The renewal period began October 1, 2016.
  • Expiring ITINs. ITINs issued before 2013 will begin expiring this year, and taxpayers will need to renew them on a rolling basis. The first ITINs that will expire under this schedule are those with middle digits of 78 and 79 (Example: 9XX-78-XXXX). The renewal period for these ITINs began October 1, 2016. The IRS said it is mailing letters to this group of taxpayers to inform them of the need to renew their ITINs if they need to file a tax return and explain steps they need to take. The schedule for expiration and renewal of ITINs that do not have middle digits of 78 and 79 will be announced at a future date, the IRS said.

How to renew. Only ITIN holders who need to file a tax return must renew their ITINs.  Others do not need to take any action.

To renew an ITIN, taxpayers must complete Form W-7, Application for IRS Individual Taxpayer Identification Number, follow the instructions, and include all information and documentation required. To reduce the burden on taxpayers, the IRS is not requiring individuals renewing an ITIN to attach a tax return when submitting their Form W-7. Taxpayers are reminded to use the newest version of the Form W-7 (“Rev. 9-2016”) available at the time of renewal.

There are three methods for submitting an W-7 application package to renew an ITIN:

Family Option.   The IRS is offering a family option for ITIN renewal. If any individuals having an ITIN middle digit of 78 or 79 receive a renewal letter from the IRS, they can choose to renew the ITINs of all of their family members at the same time rather than doing them separately over several years. Family members include the tax filer, the spouse, and any dependents claimed on their tax return.

The IRS said it is working closely with a variety of groups to share information about the ITIN changes and help raise awareness about the new guidelines. The IRS will be providing additional information and material to share with these groups and taxpayers in the near future.

New requirement for dependents. Beginning October 1, 2016, the IRS will no longer accept passports that do not have a date of entry into the United States as stand-alone identification documents for dependents from countries other than Canada or Mexico or dependents of military members overseas. Affected applicants now must submit either U.S. medical records for dependents under age six or U.S. school records for dependents under age 18 along with their passports. Dependents aged 18 and over can submit a passport along with a rental or bank statement or a utility bill listing the applicant’s name and U.S. address.

IRS noted that ITINs are for federal tax purposes only and are not intended to serve any other purpose. ITINs that are only used on information returns filed with the IRS by third parties do not need to be renewed. An ITIN does not authorize a person to work in the United States or provide eligibility for Social Security benefits or the Earned Income Tax Credit. ITINs are not valid identification outside the tax system and do not establish immigration status.

The IRS announcement is at https://www.irs.gov/uac/irs-works-to-help-taxpayers-affected-by-itin-changes-renewals-begin-in-october. Frequently asked questions are at https://www.irs.gov/individuals/itin-expiration-faqs. The ITIN changes are required by the Protecting Americans from Tax Hikes (PATH) Act enacted by Congress in December 2015. These provisions, along with new procedures to help taxpayers navigate these changes, are outlined in IRS Notice 2016-48 at https://www.irs.gov/pub/irs-drop/n-16-48.pdf. More information is at https://www.irs.gov/uac/newsroom/irs-now-accepting-itin-renewal-applications-taxpayers-encouraged-to-act-soon-to-avoid-processing-delays-in-2017.

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  1. USCIS Updates Guidance on Health-Related Grounds of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has updated guidance regarding health-related grounds of inadmissibility in accordance with a final rule updating Department of Health and Human Services regulations published in early 2016.

The guidance in the USCIS Policy Manual:

  • Updates the definition of a Class A condition to include failure to present documentation of having received vaccinations against vaccine-preventable diseases.
  • Updates the definition of a Class B condition to “health conditions, diseases, or disability serious in degree or permanent in nature.”
  • Updates the definition of physical and mental disorders with associated harmful behavior and the definition of drug abuse and drug addiction.
  • Removes three medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for immigration benefits inadmissible on health-related grounds of inadmissibility.

USCIS said the guidance in the manual “is controlling and supersedes any prior guidance.”

USCIS’s related policy alert is at https://www.uscis.gov/policymanual/Updates/20161102-MedicalConditions.pdf.

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  1. Firm In The News

Cyrus D. Mehta was a Speaker, Ethical Considerations Arising in Representation of Immigrant Victims of Human Trafficking, Human Trafficking in Immigrant Communities: Current Issues in Preparing Petitions for T Nonimmigrant Status, Practising Law Institute, New York, NY, November 9, 2016

Cyrus D. Mehta was a Speaker, L & E Visas: What, Where and When, AILA New York Chapter, NY, November 7, 2016.

 

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November 2016 Immigration Update

Headlines:

  1. DHS Extends TPS for Nepal – DHS is extending the designation of Nepal for TPS through June 24, 2018. The 60-day re-registration period runs through December 27, 2016.
  2. ABIL, Commenters Weigh In on USCIS Proposed Rule on Parole for Entrepreneurs – The comment period ended October 17, 2016, and yielded hundreds of comments.
  3. CW-1 Visa Limit Reached for FY 2017, USCIS Says – USCIS has received a sufficient number of petitions to reach the numerical limit of 12,998 workers who may be issued CNMI-Only Transitional Worker visas or otherwise provided with CW-1 status for FY 2017.
  4. ABIL Global: Australia, South Africa – Australia has announced changes to certain temporary activity visas effective November 19, 2016. Also, in South Africa, there are several options for the divorcing foreign spouse.
  5. Firm In the News

Details:

  1. DHS Extends TPS for Nepal

The Department of Homeland Security announced on October 26, 2016, that it is extending the designation of Nepal for temporary protected status (TPS) effective December 25, 2016, through June 24, 2018. The 60-day re-registration period began October 26 and runs through December 27, 2016. DHS urged re-registrants to timely re-register during the 60-day period and not wait until their employment authorization documents (EADs) expire.

DHS said this extension will allow eligible Nepalese nationals (and those having no nationality who last habitually resided in Nepal) to retain TPS through June 24, 2018, as long as they otherwise continue to meet the eligibility requirements for TPS. The agency has determined that an extension is warranted because conditions in Nepal supporting its designation for TPS continue to be met.

DHS also set forth procedures necessary for nationals of Nepal (or those having no nationality who last habitually resided in Nepal) to re-register for TPS and to apply for renewal of their EADs with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of Nepal and whose applications have been granted. Certain nationals of Nepal (or those having no nationality who last habitually resided in Nepal) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) at least one of the late initial filing criteria; and, (2) all TPS eligibility criteria (including continuous residence in the United States since June 24, 2015, and continuous physical presence in the United States since June 24, 2015).

USCIS will issue new EADs with a June 24, 2018, expiration date to eligible Nepal TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time frames involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on December 24, 2016. Accordingly, through the notice, DHS has automatically extended the validity of EADs issued under the TPS designation of Nepal for 6 months, through June 24, 2017. The notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the Employment Eligibility Verification (Form I-9) and E-Verify processes.

The notice is at https://www.gpo.gov/fdsys/pkg/FR-2016-10-26/html/2016-25907.htm.

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  1. ABIL, Commenters Weigh In on USCIS Proposed Rule on Parole for Entrepreneurs

A recently proposed U.S. Citizenship and Immigration Services (USCIS) rule would, among other things, allow the agency to use its discretionary authority to parole into the United States founders of startups with a minimum $345,000 investment from certain qualified U.S. investors with established records of successful investments. The comment period ended October 17, 2016, and yielded hundreds of comments.

The Alliance of Business Immigration Lawyers (ABIL) took issue with various “miserly and inflexible provisions,” noting that the USCIS proposal “falls short in several material ways”; for example, by:

  • Requiring voluminous and burdensome documentation to prove, by a preponderance of the evidence, “the substantial and demonstrated potential” likelihood that a start-up venture backed by a foreign entrepreneur will grow in revenue and add jobs rapidly;
  • Offering no way for a parolee to switch from or to another lawful immigration status in the United States;
  • Permitting startups and parolees too short a runway of initial and extended time for lift-off and stable cruising at higher elevations;
  • Mandating an unreasonably high investment amount, limiting the source of start­up capital to a small group of venture capitalists, and barring consideration of “friends and family”-backed investments;
  • Requiring re-submission of evidence and re-adjudication of the parole benefit virtually every time the entity’s ownership or strategic direction, or the job duties assigned to the foreign entrepreneur, may change after the initial approval of parole; and
  • Omitting any direct path for the parolee to become a lawful permanent resident.

ABIL made the following recommendations:

  1. Start-up companies in “stealth mode” should be allowed to participate in this program.
  2. The final rule should lower the parole and re-parole capital thresholds.
  3. Qualifying investment amounts obtained within three years after creation of the start-up should count toward the USCIS-proposed threshold of $345,000.
  4. The final rule should reduce the investment threshold of $345,000 for initial parole to $120,000.
  5. The final rule should revise the definition of “well-positioned” to substantially assist a start-up.
  6. The final rule should define “start-up entity” more clearly and accept reputable expert witness testimony.
  7. The final rule should allow parole for entrepreneurs in startup companies formed more than three years before the parole application is filed.
  8. The final rule should define “capital” broadly.
  9. The final rule should allow investments from family members and close friends.
  10. The final rule should include a more flexible definition of full-time employment.
  11. The proposed rule’s requirement to file a new parole application whenever a material change occurs is impractical and onerous.
  12. The final rule should extend parole beyond five years and allow a pathway to permanent resident status.
  13. The final rule should complement and not supplant prior USCIS policy on entrepreneurs.
  14. Spouses of entrepreneurial parole beneficiaries should automatically receive work authorization incident to status; i.e., without the need to apply separately for an Employment Authorization Document.
  15. The final rule should authorize premium processing and expressly permit review by motion to reopen and reconsider and administrative appeal, also with premium processing, with the assured continuity of the parolee’s employment authorization until the receipt of the final USCIS decision.
  16. The final rule should allow parolees to switch status to or from all employment-based nonimmigrant visa categories and to qualify for adjustment of status.
  17. The final rule should apply the authority granted to approve applications for adjustment of status to that of a lawful permanent resident where the parolee’s inability to adjust is “other than through no fault of his or her own or for technical reasons.”

ABIL’s 20-page comment is at https://www.regulations.gov/document?D=USCIS-2015-0006-0416. The proposed rule was published on August 31, 2016, and is at https://www.federalregister.gov/articles/2016/08/31/2016-20663/international-entrepreneur-rule.

Also see the Firm’s blog on this matter, “Reviving The National Interest Waiver For International Entrepreneurs,” (http://blog.cyrusmehta.com/2016/10/reviving-the-national-interest-waiver-for-international-entrepreneurs.html).

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  1. CW-1 Visa Limit Reached for FY 2017, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) reported on October 21, 2016, that the agency has received a sufficient number of petitions to reach the numerical limit of 12,998 workers who may be issued Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for fiscal year 2017. October 14, 2016, was the final receipt date for CW-1 worker petitions requesting an employment start date before October 1, 2017.

USCIS said it will reject CW-1 petitions received on or after October 15, 2016, that request an employment start date before October 1, 2017. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. USCIS will return the filing fees with any rejected CW-1 petition.

If an extension petition is rejected, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must leave the CNMI within 10 days after the CW-1 validity period has expired, unless they have some other authorization to remain under U.S. immigration law.

The following types of Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, are generally subject to the CW-1 cap: new employment petitions and extension of stay petitions.

All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 dependents.

USCIS encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. USCIS will reject a petition if it is filed more than 6 months in advance.

For more information on the CW-1 visa classification, see https://www.uscis.gov/working-united-states/temporary-workers/cw-1-cnmi-only-transitional-worker.

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  1. ABIL Global: Australia, South Africa

Australia has announced changes to certain temporary activity visas effective November 19, 2016. Also, in South Africa, there are several options for the divorcing foreign spouse.

Australia

Australia’s Department of Immigration and Border Protection has announced changes to certain temporary activity visas effective November 19, 2016. These changes do not affect the subclass 457 visa.

The following visas will be closed as of November 19:

(a) Subclass 401—Temporary Work (Long Stay Activity) Visa. This visa included four streams:

(i) Exchange stream—to work in a skilled position under a reciprocal staff exchange arrangement
(ii) Sports stream
(iii) Religious worker stream
(iv) Domestic worker stream

(b) Subclass 402—Training and Research Visa, which has permitted occupational trainees to undergo training in Australia;

(c) Subclass 416—Special Program Visa, allowing participation in cultural exchanges;

(d) Subclass 420—Temporary Work (Entertainment Visa); and

(e) Subclass 488—Super Yacht Crew Visa.

Beginning on November 19, 2016, four new visa subclasses will be introduced (or continued):

1.     Subclass 400—Temporary Work (Short Stay Specialist Visa)

The current subclass 400 visa enables the visa holder to live and work in Australia for a period of up to 3 months normally, but up to 6 months in special circumstances. It has proven to be an extremely useful visa. It allows the visa holder to undertake short-term highly specialized non-ongoing work or to participate in an activity or work relating to Australia’s interest.

2.   Subclass 403- Temporary Work (International Relations Visa)

This visa is for people wishing to enter Australia on a temporary basis:

(i) In relation to a bilateral agreement;
(ii) To represent a foreign government or to teach a foreign language in an Australian school;
(iii) To undertake full-time domestic work for a diplomat;
(iv) As a person with statutory privileges or immunities; or
(v) To participate in seasonal worker programs.

3.    Subclass 407—Training Visa

This visa supplants the current subclass 402 Training and Research Visa.

4.   Subclass 308—Temporary Activity Visa

This visa is available for those wishing to enter Australia on a temporary basis to:-

(i) Work in the entertainment industry;
(ii) Participate in non-ongoing cultural or social activities;
(iii) Observe or participate as an academic in a research project;
(iv) Undertake full-time or religious work;
(v) Participate in a special program to enhance international relations and cultural exchange;
(vi) Participate in high-level sports and/or training;
(vii) Work in a skilled position under a staff exchange arrangement;
(viii) Participate in an Australian government-endorsed event;
(ix) Work as a super yacht crew member; or
(x) Undertake full-time domestic work on behalf of senior foreign executives.

Related regulations have not yet been published. We do not know how any of the above activities are defined and whether such definition will expand or limit availability.

Parent Visa. Australia has a contributory parent visa system whereby each parent must pay a sum of AUD$43,600 before the grant of this visa. The Minister of Immigration and Border Protection has stated that parents have made substantial claims on the Australian national medical benefit scheme far in excess of the sums paid by them to obtain the visa. There is a strong possibility that the sum payable by a parent to obtain this visa will be substantially increased in the not too distant future.

South Africa

There are several options for a divorcing spouse in South Africa. Under South Africa’s Immigration Act, 13 of 2002, a foreign national can qualify for a visa to reside in South Africa as a spouse under two common scenarios: where he or she is (1) in a spousal relationship with a South African citizen (or permanent resident); or (2) accompanying another foreign national to South Africa who is coming on a long-term, temporary residence visa, such as to work.

Much like counseling newlyweds about the possibility of divorce, amid the excitement of moving to a new country little is said in law about what happens if things fall apart in the spousal relationship.

But as a starting point, for an expat to qualify for a visa based on being a spouse, the couple either must be in a formally registered union—for example, a civil union or marriage—or, if unmarried, must have been in an unregistered life partnership for at least two years.

Foreign spouses of South Africans can also get permission to work without their needing, or their employers needing, to meet the usual requirements for a work visa. Spouses traveling into the country to accompany their non-South African spouses who will be working in South Africa do not qualify for permission to work (unless they qualify for a work visa in their own right).

If the spousal relationship fails, the Act and regulations require the foreign national to notify the Department of Home Affairs as soon as the relationship ends. At that point, the Department may withdraw the foreign spouse’s visa and he or she will be required to leave the country.

But what does one do in certain special situations; for example, if the spouse wishes to remain in South Africa after a divorce because the children need to remain in the country or because South Africa has become the spouse’s home and he or she has nowhere else to go?

These types of situations have created a number of policy challenges for the Department. As a matter of logic, almost invariably the spousal relationship will end before the marriage is formally ended by a divorce. However, it is not unknown for couples to separate acrimoniously and with the intent of divorcing (at which point, strictly speaking, the notice referred to above should be given to the Department) only to reconcile before such divorce. As a result, the Department has adopted the practice that notice of termination of the relationship does not need to be furnished to the Department until the divorce occurs.

However well-intentioned the Department’s policy is, it can create a problem where the foreign spouse is in the middle of divorcing and needs to extend his or her spousal visa. A corollary of the termination policy is that the spousal visa must be deemed to be valid until the divorce happens. But the prescribed requirements to extend a spousal visa include that the “principal” visa holder (or South African) must formally confirm support for the extension application. Getting that confirmation in the midst of an acrimonious divorce is often either unlikely to happen or may only be obtained at the price of the principal’s securing some benefit in the negotiations.

In practice, the way to address this is for the foreign spouse to approach the Department separately to explain the circumstances and seek permission to file the extension application without the need for the spouse’s support. The applicant must show “good cause” for this request. This term is not defined, which allows the Department considerable leeway in determining what constitutes good cause in any given case.

If the Department is duly persuaded, it will issue a written authorization recording which requirements have been waived. The applicant then applies for the extension of the visa and submits the authorization letter to document what is not required. If the request is declined, an administrative appeal may be made.

A potential downside to this process is that it is entirely on an ex parte basis. This means that if the other party/spouse has valid grounds to oppose the extension application, he or she will not have an opportunity to be heard until becoming aware of the visa extension. However, at that time, he or she can approach the Department on the matter, as it does have the discretion to withdraw a visa.

Assuming a divorce is granted and the spouse needs to remain in South Africa, he or she must notify the Department of this development. The Department may then withdraw the visa, but in practice the applicant can ask for the fact of the divorce to be noted and to be allowed a reasonable opportunity to apply for and obtain a more appropriate visa.

If the expat ex-spouse needs a work visa because he or she now needs to work, whether for self-support, to support the family, or just for the sake of his or her own dignity, the applicant must use the same procedure as described above to seek a waiver of the “offending” requirements of the work visa with which the applicant cannot reasonably comply due to his or her circumstances.

Again, if either the special request or the visa itself is declined, the applicant has the right to appeal that decision.

In conclusion, while the process for addressing the post-spousal relationship for the expat spouse in South Africa is somewhat inelegant, it does work.

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  1. Firm In The News

Cyrus Mehta was a Discussion Leader, Protecting Your EB-5 Practice: Ethical Issues and Minimizing Risk, 2016 EB-5 Investors Summit: Representing EB-5 Investors & Regional Centers in a Time of Upheaval, AILA, Washington, DC, October 25, 2016.

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Mid-October 2016 Immigration Update

Headlines:

  1. U.S. Supreme Court Denies Rehearing in U.S. v. Texas – The Court’s refusal to reconsider the case means that DAPA and expanded DACA remain blocked. The original DACA program is unaffected.
  2. USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants – USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years.
  3. ABIL Submits Comments on DOJ Proposed Antidiscrimination Rule – ABIL argued that, among other things, the proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices.
  4. Firm In The News…

Details:

  1. U.S. Supreme Court Denies Rehearing in U.S. v. Texas

The U.S. Supreme Court denied rehearing of United States v. Texas on October 3, 2016. The Court’s refusal to reconsider the case, on which it was deadlocked 4-4 in June, means that several Obama administration deferred action programs remain blocked by the U.S. Court of Appeals for the Fifth Circuit’s order. The programs include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The original DACA program is unaffected and has continued since 2012.

President Barack Obama’s nomination of Merrick Garland to the Supreme Court has languished for more than 200 days as Senate Republican leaders have refused to take up the matter, holding out for the next presidential election. In its petition for rehearing, the Obama administration had argued that the Court should grant rehearing to provide for a decision when the ninth Justice is appointed, rather than leaving in place “a nationwide injunction of such significance”:

Unless the Court resolves this case in a precedential manner, a matter of “great national importance” involving an “unprecedented and momentous” injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States.

Other litigation is progressing or may be taken now that the Supreme Court has decided not to take up the case again. Meanwhile any efforts toward comprehensive immigration reform continue to languish. Stay tuned.

The petition for rehearing is at http://www.scotusblog.com/wp-content/uploads/2016/08/15-674-Petition-for-Rehearing.pdf. For more information on DAPA and DACA, see https://www.ice.gov/daca. For more on U.S. v. Texas, see http://www.scotusblog.com/case-files/cases/united-states-v-texas/.

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  1. USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants

Effective October 5, 2016, U.S. Citizenship and Immigration Services (USCIS) has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years. Applicants with pending asylum claims file applications for employment authorization (Forms I-765) under category “(c)(8).” This change applies to all (c)(8)-based applications that are pending as of October 5, 2016, and all such applications filed on or after October 5, 2016.

The announcement is at https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-asylum-applicants.

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  1. ABIL Submits Comments on DOJ Proposed Antidiscrimination Rule

The Alliance of Business Immigration Lawyers (ABIL) recently submitted comments on the Department of Justice’s proposed rule, “Standards and Procedures for the Enforcement of the Immigration and Nationality Act.” Among other things, the proposed rule would provide a new definition of the phrase “citizenship status,” amend a discriminatory intent requirement for employers, expand the time periods for investigation and deadlines to file discrimination complaints, and change the definition of “charging party.”

ABIL’s comments note:

[T]he proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices. These changes contravene the statutory text and the legislative history of the governing statutes, and would impose unreasonable burdens on employers, even though an employer’s actions were not motivated by immigration-related animus or hostility. The proposed rule would also substantially expand the authority of the Special Counsel to investigate allegations of immigration-related unfair employment practices and the time periods within which individuals and the Special Counsel must file complaints against employers with the Office of the Chief Administrative Hearing Officer (OCAHO).

ABIL member Angelo Paparelli wrote the comments on behalf of ABIL and submitted them to Attorney General Loretta Lynch and the Department of Justice on October 13, 2016. The proposed rule is at 81 Fed. Reg. 53965, with deadline extended at 81 Fed. Reg. 63155.

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  1. Firm In The News

Cyrus Mehta was a Speaker, Common Ethical Issues and Trends In Immigration Practice, AILA Ohio Chapter, Fall CLE Conference, Columbus, OH, October 7, 2016.

David Isaacson was a Panelist, Fighting the Agency in CARRP and Other Delayed Cases, 2016 AILA Advanced Business and Removal Issues Conference, New York, NY, October 10, 2016.

Cyrus Mehta, Cora-Ann V. Pestaina and David Isaacson are included in New York Super Lawyers 2016. (This listing is not approved by the Supreme Court of New Jersey.)

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October 2016 Immigration Update

Headlines:

  1. Congress Averts Government Shutdown, Extends Immigration Programs to December – The immigration-related programs extended by the bill include E-Verify, EB-5 regional centers, EB-4 non-ministerial religious workers, and Conrad 30 for J-1 medical workers.
  2. USCIS No Longer Requires 2 Photos With Naturalization Application – All Form N-400 (Application for Naturalization) applicants, except those who reside overseas, no longer need to submit two passport-style photographs.
  3. DHS Extends TPS for Guinea, Liberia, Sierra Leone for 6 Months – DHS is extending TPS benefits for beneficiaries under the designations of Guinea, Liberia, and Sierra Leone for 6 months “for the purpose of orderly transition before the designations terminate,” effective May 21, 2017.
  4. Firm in the News…

Details:

  1. Congress Averts Government Shutdown, Extends Immigration Programs to December

On September 29, 2016, President Barack Obama signed a continuing resolution (CR), H.R. 5325, that provides funding for the federal government through December 9, 2016. Among other things, the legislation extends four expiring immigration programs to December 9. The Senate passed the legislation 72-26 and the House of Representatives passed it 342-85. The CR allows Congress to return to work after the November 8 presidential election and take up an omnibus appropriations bill before the new deadline.

The immigration-related programs extended by the bill include E-Verify, EB-5 regional centers, EB-4 non-ministerial religious workers, and Conrad 30 for J-1 medical workers. EB-5 observers expect a battle between urban legislators like Sen. Chuck Schumer (D-NY), who wants to maintain the status quo, and rural legislators like Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), who are adamant about getting more EB-5 visas for rural projects.

U.S. Citizenship and Immigration Services (USCIS) said it would update the information related to the EB-5 and EB-4 programs on its adjustment of status filing charts from the October 2016 Department of State Visa Bulletin shortly. A related USCIS announcement is at https://www.uscis.gov/news/alerts/expiring-eb-4-eb-5-programs-extended-through-dec-9. The Visa Bulletin information will be updated at https://www.uscis.gov/visabulletininfo.

The full text of the bill is at http://www.appropriations.senate.gov/imo/media/doc/Continuing%20Resolution%20Legislation.PDF. A section-by-section summary is at http://www.appropriations.senate.gov/imo/media/doc/092216-CR-FY17-Section-By-Section.pdf.

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  1. USCIS No Longer Requires 2 Photos With Naturalization Application

U.S. Citizenship and Immigration Services (USCIS) informed its stakeholder list on September 22, 2016, that all Form N-400 (Application for Naturalization) applicants, except those who reside overseas, no longer need to submit two passport-style photographs. USCIS now captures photographs when applicants appear at the Application Support Center (ASC) for their biometrics appointment. Applicants will be scheduled for a biometric service appointment at a local ASC for collection of their fingerprints, photos, and signature, regardless of their age.

USCIS noted that formerly, the agency waived the fingerprint requirement for applicants 75 years of age or older, which meant they were not required to appear at an ASC. However, now that the N-400 is processed electronically, those applicants do need to appear at an ASC, USCIS said. Applicants 75 and older do not need to pay the biometrics fee. The agency also noted that improved technology allows fingerprints to be captured for applicants of all ages. USCIS said it can make special arrangements to accommodate the needs of applicants who are homebound or hospitalized, known as “homebound processing.”

The agency said it will update the form’s instructions, and the Policy Manual and Guide to Naturalization, as soon as possible.

More information on homebound processing is at https://my.uscis.gov/helpcenter/article/what-is-homebound-processing.

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  1. DHS Extends TPS for Guinea, Liberia, Sierra Leone for 6 Months

The Department of Homeland Security (DHS) is extending temporary protected status (TPS) benefits for beneficiaries under the designations of Guinea, Liberia, and Sierra Leone for 6 months “for the purpose of orderly transition before the designations terminate,” effective May 21, 2017. After reviewing country conditions and consulting with the appropriate U.S. government agencies, DHS determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their TPS designations. DHS noted that the widespread transmission of Ebola virus in the three countries that led to the designations has ended.

To provide for an orderly transition, current TPS beneficiaries will automatically retain their TPS, and the validity of their current employment authorization documents will be extended through May 20, 2017. Beneficiaries do not need to pay a fee or file any application, including for work authorization, to retain their TPS benefits through that date.

Although TPS benefits will no longer be effective as of May 21, 2017, DHS noted that TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. DHS said it urges those who do not have another immigration status to use the time before the terminations become effective in May to prepare for and arrange their departures from the United States or to apply for other immigration benefits for which they may be eligible.

The DHS announcement is at https://www.uscis.gov/news/news-releases/temporary-protected-status-benefits-under-designations-guinea-liberia-and-sierra-leone-extended-six-months-orderly-transition-termination-may-2017. A French version is at https://www.uscis.gov/news/news-releases/les-benefices-du-statut-temporaire-protege-sous-les-designations-de-la-guinee-du-liberia-et-de-la-sierra-leone-prolonges-de-six-mois-pour-une-sereine-transition-avant-leur-expiration-en-mai-2017. The Federal Register notices were published on September 26, 2016, at https://www.gpo.gov/fdsys/pkg/FR-2016-09-26/html/2016-23244.htm (Guinea), https://www.gpo.gov/fdsys/pkg/FR-2016-09-26/html/2016-23250.htm (Liberia), and https://www.gpo.gov/fdsys/pkg/FR-2016-09-26/html/2016-23249.htm (Sierra Leone). Information about TPS is at https://www.uscis.gov/humanitarian/temporary-protected-status.

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     4.    Firm In the News

Cyrus Mehta was a panelist at The H-1B Workshop, Bordering on the Brink: Cutting Edge Approaches for Business Immigration, 2016 AILA Fall Conference, Toronto, Canada, September 23, 2016.

Cyrus Mehta was a speaker at an ethics training entitled, Ethics In Immigration Representation, organized by the Immigrant Justice Corps Training, New York, NY, September 20, 2016.

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Mid-September 2016 Immigration Update

Headlines:

  1. State Dept. Announces Potential Visa Availability in the Coming Months – The Department of State’s Visa Bulletin for October 2016 provided an overview of potential visa number availability.
  2. State Dept. Announces Expiration of Two Employment-Based Visa Categories – The Department of State’s Visa Bulletin for October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers” category and the I-5 and R-5 employment fifth preference categories.
  3. Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill – A lot has been happening the last few days in the EB-5 world. Sens. Grassley and Leahy wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. Also, Rep. Goodlatte introduced an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 program.
  4. ICE Extends and Adds to Employment Authorization for Certain Syrian F-1 Nonimmigrant Students – The new notice will remain in effect until March 31, 2018.
  5. DHS Announces Annual Limit for CNMI Transitional Workers – The numerical limitation for the CNMI-Only Transitional Worker (CW-1) nonimmigrant classification for FY 2017 is set at 12,998.
  6. DHS Alerts Employers Re Documentation Options in Wake of Flooding – Individuals from affected areas who need to replace lost or damaged documents can consult FEMA fact sheets.
  7. DHS Updates Lists of Officials Authorized to Perform Various Immigration Functions – DHS said the lists are outdated and do not reflect the current DHS organizational structure, so the agency updated the lists with the specific officials who are authorized to perform various functions.
  8. United States, Mexico Sign MOU To Combat Employment Discrimination – The United States and Mexico agree to collaborate to provide Mexican nationals with information, guidance, and access to education and training resources to help them understand their rights.
  9. Firm In the News…

Details:

  1. State Dept. Announces Potential Visa Availability in the Coming Months

The Department of State’s Visa Bulletin for the month of October 2016 provided an overview of potential visa number availability in the coming months:

EB-1: Current

EB-2: Worldwide: Current China: Up to three months India: Up to four months

EB-3: Worldwide: The rapid forward movement of this final action date during the past year should generate a significant amount of demand for numbers. When such demand begins to materialize, the Visa Bulletin notes, it will be necessary to limit movement of this final action date.

China: Up to three months India: Up to one week Mexico: Will remain at the worldwide date Philippines: Up to three weeks

EB-4: Current for most countries El Salvador, Guatemala, and Honduras: up to two months

EB-5: Current for most countries China-mainland born: Slow forward movement

The Visa Bulletin notes that the above projections indicate what is likely to happen on a monthly basis through January based on current applicant demand patterns. However, determinations of the actual monthly final action dates are subject to fluctuations in applicant demand and a number of other variables, so the Visa Bulletin warns that these dates are not guaranteed.

The Visa Bulletin for October 2016 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-october-2016.html.

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  1. State Dept. Announces Expiration of Two Employment-Based Visa Categories

The Department of State’s Visa Bulletin for the month of October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers (SR)” category and the I-5 and R-5 employment fifth preference categories.

Employment fourth preference SR. The non-minister special immigrant program expires on September 30, 2016. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on September 29, 2016. Visas issued before that date will only be issued with a validity date of September 29, 2016, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight on September 29, 2016.

The final action date for this category has been listed as “Unavailable” for October. The Visa Bulletin notes that if there is legislative action extending this category for FY 2017, the final action date would immediately become “Current” for October for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a June 15, 2015, final action date.

Employment fifth preference I5 and R5. I5 and R5 visas may be issued until the “close of business” on September 30, 2016, 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 September 30, 2016.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for October. If there is legislative action extending them for FY 2017, the final action dates would immediately become “Current” for October for all countries except China-mainland born I5 and R5, which would be subject to a February 22, 2014, final action date.

Congress is expected to extend the EB-4 special religious worker and EB-5 immigrant investor categories as part of a bill to fund the federal government temporarily past September 30. The temporary extension is likely to last until early December. Stay tuned.

The Visa Bulletin for October 2016 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-october-2016.html.

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  1. Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill

A lot has been happening the last few days in the EB-5 world. The regional center part of the EB-5 immigrant investor green card program is scheduled to expire on September 30, 2016. On September 8, Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), chair and ranking member of the Senate Judiciary Committee, respectively, wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. According to the letter, the EB-5 regional center program “has become plagued with fraud and abuse, and if not reformed it should be allowed to expire on September 30th.”Then, late Friday afternoon, September 9, Rep. Bob Goodlatte (R-Va.), chair of the House Judiciary Committee, released a draft of an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 program, such as increasing the minimum investment amount from the current $500,000 to $800,000, and adding anti-fraud and securities law oversight provisions. The bill was re-released on September 12 with Rep. John Conyers (D-Mich.) as a co-sponsor. The revised bill contains a two-page addition for good faith defrauded investors. The revised bill was introduced as H.R. 5992. Among other things, the bill would:

  • Reauthorize the EB-5 regional center program for five years, until September 30, 2021
  • Set aside 4,000 EB-5 visas for rural and “priority urban investment” areas to take effect October 1, 2016
  • Allow investors 180 days after a regional center is terminated or debarred to associate the new commercial enterprise (NCE) with a new regional center or to invest in a new NCE
  • Require investors to be at least 18 years old, effective after enactment
  • Require an EB-5 investor’s tax returns for the last seven years

The Grassley-Leahy letter is at http://www.grassley.senate.gov/news/news-releases/grassley-leahy-senate-leadership-reform-investor-visa-program-now-or-let-it. A section-by-section summary of the draft Goodlatte bill is at http://millermayer.com/immigration-lawyers/eb-5/observer/initial-analysis-and-summary-goodlatte-eb-5-bill-91216.

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  1. ICE Extends and Adds to Employment Authorization for Certain Syrian F-1 Nonimmigrant Students

In an earlier notice, the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (ICE) suspended certain requirements for F-1 nonimmigrant students whose country of citizenship is Syria and who have been experiencing severe economic hardship as a direct result of the civil war in Syria since March 2011. A new notice extends the effective date of that notice and expands the application of such suspension to students whose country of citizenship is Syria and who lawfully obtained F-1 nonimmigrant student status between the date of the original notice and September 9, 2016. The new notice was effective September 9, 2016, and will remain in effect until March 31, 2018.

F-1 nonimmigrant students granted employment authorization through the notice will continue to be deemed to be engaged in a “full course of study” for the duration of their employment authorization if they satisfy the minimum course load requirement. This notice applies exclusively to F-1 nonimmigrant students whose country of citizenship is Syria and who were lawfully present in the United States in F-1 nonimmigrant status on or after April 3, 2012, through September 9, 2016, under INA § 101(a)(15)(F)(i), 8 USC § 1101(a)(15)(F)(i); and are:

  1. Enrolled in an institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 students,
  2. Currently maintaining F-1 status, and
  3. Experiencing severe economic hardship as a direct result of the ongoing civil unrest in Syria since March 2011.

ICE records show that as of August 2016, approximately 700 Syrian F-1 visa holders in active status are covered by this notice.

The notice is at https://www.gpo.gov/fdsys/pkg/FR-2016-09-09/pdf/2016-21525.pdf.

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  1. DHS Announces Annual Limit for CNMI Transitional Workers

The Department of Homeland Security (DHS) announced on September 2, 2016, that the numerical limitation for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrant classification for fiscal year (FY) 2017 (October 1, 2016, through September 30, 2017) is set at 12,998.

The notice announces the mandated annual reduction of the CW-1 numerical limitation and provides additional information about the new CW-1 numerical limit. 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 2017 CW-1 cap by one to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a statutory requirement to reduce the cap each year. Because the cap was reached for FY 2016 on May 5, 2016, DHS decided “to preserve the status quo, or current conditions, rather than aggressively reduce CW-1 numbers for FY 2017.” The agency encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker as early as possible within 6 months of the proposed start date of employment. USCIS said it will reject a petition if it is filed more than 6 months in advance.

DHS reminded CNMI employers that the CW-1 program requires that the foreign worker be ineligible for any other employment-based nonimmigrant visa classification under U.S. immigration law, such as the H-2B classification for temporary or seasonal workers and the H-1B classification for workers in a specialty occupation. DHS urged CNMI employers to reevaluate whether their employees are eligible for any other existing employment-based nonimmigrant category and, if so, to use other U.S. nonimmigrant classifications when appropriate. For workers employed in the CNMI, there is no cap on H-2B or H-1B visas during the transition period ending December 31, 2019.

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, 2016, and September 30, 2017, will generally count toward the 12,998 cap. The cap 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.

The notice is at https://www.gpo.gov/fdsys/pkg/FR-2016-09-02/pdf/2016-21325.pdf. A related announcement is at https://www.uscis.gov/news/news-releases/fiscal-year-2017-cap-set-cnmi-only-transitional-workers.

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  1. DHS Alerts Employers Re Documentation Options in Wake of Flooding

The Department of Homeland Security (DHS) issued a notice on September 9, 2016, stating that the agency “is aware of the hardship and ongoing recovery efforts resulting from the recent flooding in areas such as Louisiana and Texas.” DHS noted that individuals from these affected areas who need to replace lost or damaged documents can consult Federal Emergency Management Agency (FEMA) fact sheets for information on replacing lost or damaged documents in Louisiana (http://www.fema.gov/media-library-data/1461689325185-69ea3fe5a8b4db5b89dc2fb74f6bc6d0/FS006_Replace_Lost_Docs.pdf) or Texas (http://www.fema.gov/news-release/2015/06/19/after-disaster-replacing-lost-or-damaged-documents).

DHS reminded employers that they must complete Form I-9, Employment Eligibility Verification and, if enrolled in E-Verify, must create a case in E-Verify for all newly hired employees, including those affected by the flooding. DHS also reminded employers that they must accept receipts from employees who choose to present them when completing the I-9.

Details are at https://www.uscis.gov/i-9-central/e-verify-and-form-i-9-requirements-flooding-louisiana-and-texas.

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  1. DHS Updates Lists of Officials Authorized to Perform Various Immigration Functions

The Department of Homeland Security (DHS) amended its regulations on September 9, 2016, to update provisions that list specific immigration officials authorized to perform various immigration functions, including the issuance of notices to appear, warrants of removal, and arrest warrants. DHS said the lists are outdated and do not reflect the current DHS organizational structure, so the agency updated the lists with the specific officials who are currently authorized to perform these various functions. DHS is also making some technical corrections to update nomenclature and outdated references in the affected provisions.

The notice is at https://www.gpo.gov/fdsys/pkg/FR-2016-09-09/pdf/2016-21526.pdf.

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  1. United States, Mexico Sign MOU To Combat Employment Discrimination

The U.S. Department of Justice (DOJ) and Mexico’s Ministry for Foreign Affairs have established a formal partnership to protect workers from discrimination based on citizenship, immigration status, and national origin. On September 1, 2016, Principal Deputy Assistant Attorney General Vanita Gupta, head of DOJ’s Civil Rights Division, and Mexican Ambassador Carlos Sada signed a memorandum of understanding (MOU) between the embassy and its consulates and the Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

The MOU states the objective as “recogniz[ing] the collaborative relationship between the Participants to protect Mexican workers in the United States of America from employment discrimination in hiring, firing and recruiting or referring for a fee, based on their citizenship, immigration status, and national origin; unfair documentary practices; and retaliation.” To achieve this objective, the United States and Mexico agree to collaborate to provide Mexican nationals with information, guidance, and access to education and training resources to help them understand their rights under the antidiscrimination provision of the Immigration and Nationality Act, and to facilitate the referral of appropriate allegations of discrimination, unfair documentary practices, and retaliation to OSC for investigation.

Among other things, OSC agrees to conduct training sessions on the application and enforcement of the antidiscrimination provision at a mutually determined time and place to appropriate consular staff identified by each Mexican consulate; attend and participate in appropriate forums organized by the Mexican consulates for Mexican nationals and employers involving topics under OSC’s jurisdiction; disseminate compliance and educational materials through the embassy to the Mexican consulates and Mexico’s stakeholders in other locations; and publicize the MOU to interested parties.

The MOU is available in English (https://www.justice.gov/opa/file/889381/download) and Spanish (https://www.justice.gov/espanol/file/889436/download).

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  1. Firm In The News

Cyrus D. Mehta was a panelist at a seminar entitled Ethics in Immigration Law organized by Legal Services NYC on September 12, 2016.

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September 2016 Immigration Update

Headlines:

  1. USCIS Proposes Rule on Parole for Certain International Entrepreneurs– USCIS has published a proposed rule to allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States.
  2. ETA Announces iCERT Enhancement to Streamline H-2A, H-2B Processes for Employers – The iCERT system now permits submission of electronic documentation at the time of filing and while an H-2A or H-2B application is pending review.
  3. OFLC Publishes Names, Other Info on Foreign Labor Recruiters – By providing the Foreign Labor Recruiter List, OFLC said the agency “is providing a greater level of transparency to the H-2B worker recruitment process and facilitating information sharing between the Department and other agencies and the public.”
  4. USCIS Reminds About Immigration Relief in Wake of Louisiana Flooding – USCIS issued a reminder of immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe storms and flooding in Louisiana.
  5. USCIS Announces End of H-1B Workload Transfer Transition Period – USCIS announced that the H-1B workload transfer transition period ended August 31, 2016.
  6. September Visa Bulletin Shows Movement in Final Action Dates – The Department of State’s Visa Bulletin for the month of September 2016 shows much movement in the final action dates for various employment categories. For example, in August, the EB-1 final action date for China was January 1, 2010; in September it is Current.
  7. USCIS To Allow Additional Applicants for Provisional Waiver Process – USCIS announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process. USCIS said it expects to update its Policy Manual in the coming weeks to provide guidance on how it makes “extreme hardship” determinations.
  8. DHS Announces 18-Month Redesignation, Extension of TPS for Syria – For current Syria TPS beneficiaries, the 60-day re-registration period began August 1, 2016, and runs through September 30, 2016. Certain Syrian nationals and persons without nationality who last habitually resided in Syria may apply for TPS during the 180-day initial registration period that began August 1, 2016, and runs through January 30, 2017.

 Details:

  1. USCIS Proposes Rule on Parole for Certain International Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States.

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
    • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
    • Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or
    • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.

USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the United States to be granted parole; they may not change to nonimmigrant status within the United States. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and approve or deny the application with no right of rehearing or appeal.

Reaction. Some believe that venture capitalists and foreign entrepreneurs may be disappointed by this proposed rule. They may see the benefit of entrepreneurial parole as too little and too short in return for the substantial effort needed to meet the requirements. Moreover, they may be disappointed to learn that the USCIS proposal fails to take into account the harm associated with a revocation of parole (whether based on material business changes or otherwise) and the absence of any administrative or judicial review. Also disappointing is the fact that the proposed regulation would offer no pathway to lawful permanent resident status. However, if USCIS receives compelling and substantiated comments, the final rule could become a viable avenue to jump-starting innovation, job creation, and economic growth.

While this proposed rule may be useful for entrepreneurs to obtain temporary status in the United States, it does not provide any path to permanent residence. Entrepreneurs who want to live and work in the United States permanently will have to await guidance on a permanent residence option—national interest waivers for entrepreneurs. Guidance on that is expected shortly. Stay tuned.

The U.S. Alliance for International Entrepreneurs (USAIE) has written a summary and initial analysis of the proposed international entrepreneurs rule, available on the USAIE website at http://usaie.org/uscis-proposes-international-entrepreneur-rule-usaie-summary/.

The Firm’s blog by Cyrus D. Mehta, Harmonious Coexistence: Parole for International Entrepreneurs and Entrepreneur Pathways Under Existing Visas, is available at   http://blog.cyrusmehta.com/2016/09/harmonious-co-existence-parole-for-international-entrepreneurs-and-entrepreneur-pathways-under-existing-visas.html.

Meanwhile, the notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when it is published in the Federal Register. The proposed rule is at https://www.federalregister.gov/articles/2016/08/31/2016-20663/international-entrepreneur-rule.

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  1. ETA Announces iCERT Enhancement to Streamline H-2A, H-2B Processes for Employers

The Department of Labor’s Employment and Training Administration (ETA) has implemented a new enhancement to the iCERT Visa Portal System related to the submission of applications for temporary labor certification under the H-2A and H-2B temporary visa programs. The enhancement is intended to reduce burdens on employers and streamline processing of applications. As of August 26, 2016, the iCERT system permits submission of electronic documentation at the time of filing and while an H-2A or H-2B application is pending review.

ETA believes this new feature will eliminate the need for the employer (or, if applicable, its authorized agent or attorney) to submit responsive documents via U.S. mail, email, or fax, and will result in a more efficient review of applications by connecting the responsive documents directly to the Office of Foreign Labor Certification (OFLC) analysts assigned to the application.

ETA also noted that this new feature will enable an iCERT account holder to view all its pending H-2A or H-2B applications and select the application for which it wishes to upload documents electronically. Once a pending application is selected, the iCERT account holder associates one or more electronic documents with a response type (e.g., Response to NOD, Response to NOA) for more efficient storage and retrieval by the OFLC analyst assigned to the application. To maximize electronic security, the iCERT system will only accept electronic documents in Microsoft Word (.doc or .docx), Adobe Acrobat Portable Document Format (.pdf), or text (.txt) file formats.

The announcement is at https://www.foreignlaborcert.doleta.gov/. Additional details are at https://www.foreignlaborcert.doleta.gov/pdf/H-2A_H-2B_ElectronicDocumentUpload_iCERT.pdf. To review the features of this new iCERT System enhancement, see the Quick Start Technical Guide at https://www.foreignlaborcert.doleta.gov/pdf/iCERT_Quick-Start-Technical-Guide_Customer_Document_Upload_Enhancement.pdf.

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  1. OFLC Publishes Names, Other Info on Foreign Labor Recruiters

The Office of Foreign Labor Certification (OFLC) is publishing a list of the names of foreign labor recruiters and the identity and location of persons or entities hired by or working for the recruiter that employers have indicated they engaged, or planned to engage, in recruiting prospective H-2B nonagricultural workers to perform the work described on their Form ETA-9142B, H-2B Application for Temporary Employment Certification.

By providing this Foreign Labor Recruiter List, OFLC said the agency “is providing a greater level of transparency to the H-2B worker recruitment process and facilitating information sharing between the Department and other agencies and the public.” Among other things, by maintaining and publishing a list of foreign labor recruiters, OFLC said it “is better poised to enforce recruitment violations, and workers are better protected against fraudulent recruiting schemes by enabling them to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States.” OFLC noted that it “does not endorse or vouch for any foreign labor agent or recruiter” on the list, and inclusion does not signify that the recruiter is complying with the H-2B program. “The list is simply a list of current recruiters being used by employers in the H-2B program,” OFLC said.

OFLC noted that the list identifies the last six digits of the Chicago National Processing Center case number associated with the Form(s) ETA-9142B in which an employer identified the foreign labor recruiter. The six-digit number can be used to look up the H-2B Job Order and Application for Temporary Employment Certification in the H-2B Public Job Registry located at https://icert.doleta.gov/index.cfm?event=ehLCJRExternal.dspQuickJobOrderSearch by entering the number into the ETA Case Number field, selecting “H-2B” in the Case Type field, and clicking on “Search.”

The list, which will be updated quarterly, is at https://www.foreignlaborcert.doleta.gov/pdf/Foreign_Labor_Recruiter_List.pdf. FAQs on the list have been posted as “2015 H-2B IFR FAQs Round 16” at https://www.foreignlaborcert.doleta.gov/pdf/Round-16_Foreign_Labor_Recruiter.pdf.

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  1. USCIS Reminds About Immigration Relief in Wake of Louisiana Flooding

U.S. Citizenship and Immigration Services (USCIS) issued a reminder on August 19, 2016, of immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe storms and flooding in Louisiana.

USCIS noted that these measures may be available upon request:

  • Change of nonimmigrant status or extension of nonimmigrant stay 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
  • Replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (green card)
  • Rescheduling of a biometrics appointment

USCIS said requesters should “explain how the severe storms or flooding created a need for the requested relief.” The announcement is at https://www.uscis.gov/news/alerts/uscis-alerts-customers-affected-severe-storms-and-flooding-louisiana-available-immigration-relief. For more information, see https://www.uscis.gov/humanitarian/special-situations.

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  1. USCIS Announces End of H-1B Workload Transfer Transition Period

U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B workload transfer transition period ended August 31, 2016.

On July 1, 2016, as part of a workload transfer from the California and Vermont Service Centers, the Nebraska Service Center (NSC) began accepting certain H-1B and H-1B1 (Chile/Singapore Free Trade) I-129 petitions. The NSC also began accepting I-539 and I-765 applications for certain H-4 nonimmigrants that are concurrently filed with an I-129.

The California and Vermont Service Centers continued to accept these I-129 petitions, and any concurrently filed I-539 and I-765 applications, during the transition period until August 31. Starting September 1, only the NSC is accepting them. USCIS may reject any misfiled petitions or applications.

The following Form I-129 same-employer-without-change petitions have not been transferred to the Nebraska Service Center and will continue to be accepted only at the California Service Center, if:

  • The petition is for an employer that is statutorily exempt from the cap; or
  • The beneficiary is employed at a qualifying cap-exempt institution, entity or organization.

See filing addresses and cap-exempt filing instructions at https://www.uscis.gov/i-129-addresses. The latest USCIS announcement is at https://www.uscis.gov/news/alerts/reminder-h-1b-workload-transfer-transition-period-ends-aug-31-2016. The details released July 1, 2016, are at https://www.uscis.gov/news/alerts/nebraska-service-center-accept-certain-h-1b-petitions.

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  1. September Visa Bulletin Shows Movement in Final Action Dates

The Department of State’s Visa Bulletin for the month of September 2016 shows much movement in the final action dates for various employment categories. For example, in August, the EB-1 final action date for China was January 1, 2010; in September it is Current. The August EB-2 final action date for China was January 1, 2010; in September it has moved forward to June 1, 2013. Dates in several categories were specified in August for El Salvador, Guatemala, and Honduras; in September, that column has been dropped and all chargeability areas except those listed for China-mainland born, India, Mexico, and Philippines are Current.

The Visa Bulletin for September 2016 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-september-2016.html.

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  1. USCIS To Allow Additional Applicants for Provisional Waiver Process

U.S. Citizenship and Immigration Services (USCIS) announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process.

USCIS noted that the provisional waiver process “promotes family unity by reducing the time eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.”

The agency said the final rule builds on a process established in 2013 to support family unity. Under that process, certain immediate relatives of U.S. citizens can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. The final rule expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute.

To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.

USCIS said it expects to update its Policy Manual “in the coming weeks” to provide guidance on how it makes “extreme hardship” determinations. The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver. These changes will go into effect along with the final rule.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-allow-additional-applicants-provisional-waiver-process. The final rule is at https://www.gpo.gov/fdsys/pkg/FR-2016-07-29/pdf/2016-17934.pdf. The updated I-601A is posted on USCIS’s website at uscis.gov/i-601a.

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  1. DHS Announces 18-Month Redesignation, Extension of TPS for Syria

The Department of Homeland Security has redesignated Syria for temporary protected status (TPS) and extended the existing Syria TPS designation from October 1, 2016, through March 31, 2018. Nationals of Syria, or persons without nationality who last habitually resided in Syria, can register or re-register for TPS in accordance with the notice.

For current Syria TPS beneficiaries, the 60-day re-registration period began August 1, 2016, and runs through September 30, 2016. Syrian nationals and persons without nationality who last habitually resided in Syria and have: (1) continuously resided in the United States since August 1, 2016, and (2) been continuously physically been present in the United States since October 1, 2016, may apply for TPS during the 180-day initial registration period that began August 1, 2016, and runs through January 30, 2017.

The 18-month extension allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Syria TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of March 31, 2018. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending for an additional six months current TPS Syria EADs with a September 30, 2016, expiration date. These existing EADs are now valid through March 31, 2017.

The announcement, which includes additional details, is at https://www.uscis.gov/news/news-releases/dhs-announces-18-month-redesignation-and-extension-temporary-protected-status-syria.

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Mid-August 2016 Immigration Update

Headlines:

  1. USCIS Announces End of H-1B Workload Transfer Transition Period – USCIS announced that the H-1B workload transfer transition period ends August 31, 2016.
  2. September Visa Bulletin Shows Movement in Final Action Dates – The Department of State’s Visa Bulletin for the month of September 2016 shows much movement in the final action dates for various employment categories. For example, in August, the EB-1 final action date for China was January 1, 2010; in September it is Current.
  3. USCIS To Allow Additional Applicants for Provisional Waiver Process – USCIS announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process. USCIS said it expects to update its Policy Manual in the coming weeks to provide guidance on how it makes “extreme hardship” determinations.
  4. DHS Announces 18-Month Redesignation, Extension of TPS for Syria – For current Syria TPS beneficiaries, the 60-day re-registration period began August 1, 2016, and runs through September 30, 2016. Certain Syrian nationals and persons without nationality who last habitually resided in Syria may apply for TPS during the 180-day initial registration period that began August 1, 2016, and runs through January 30, 2017.

Details:

  1. USCIS Announces End of H-1B Workload Transfer Transition Period

U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B workload transfer transition period ends August 31, 2016.

On July 1, 2016, as part of a workload transfer from the California and Vermont Service Centers, the Nebraska Service Center (NSC) began accepting certain H-1B and H-1B1 (Chile/Singapore Free Trade) I-129 petitions. The NSC also began accepting I-539 and I-765 applications for certain H-4 nonimmigrants that are concurrently filed with an I-129.

The California and Vermont Service Centers will continue to accept these I-129 petitions, and any concurrently filed I-539 and I-765 applications, during the transition period until August 31. Starting September 1, only the NSC will accept them. USCIS may reject any misfiled petitions or applications.

The following Form I-129 same-employer-without-change petitions have not been transferred to the Nebraska Service Center and will continue to be accepted only at the California Service Center, if:

  • The petition is for an employer that is statutorily exempt from the cap; or
  • The beneficiary is employed at a qualifying cap-exempt institution, entity or organization.

See filing addresses and cap-exempt filing instructions at https://www.uscis.gov/i-129-addresses. The latest USCIS announcement is at https://www.uscis.gov/news/alerts/reminder-h-1b-workload-transfer-transition-period-ends-aug-31-2016. The details released July 1, 2016, are at https://www.uscis.gov/news/alerts/nebraska-service-center-accept-certain-h-1b-petitions.

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  1. September Visa Bulletin Shows Movement in Final Action Dates 

The Department of State’s Visa Bulletin for the month of September 2016 shows much movement in the final action dates for various employment categories. For example, in August, the EB-1 final action date for China was January 1, 2010; in September it is Current. The August EB-2 final action date for China was January 1, 2010; in September it has moved forward to June 1, 2013. Dates in several categories were specified in August for El Salvador, Guatemala, and Honduras; in September, that column has been dropped and all chargeability areas except those listed for China-mainland born, India, Mexico, and Philippines are Current.

The Visa Bulletin for September 2016 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-september-2016.html.

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  1. USCIS To Allow Additional Applicants for Provisional Waiver Process

U.S. Citizenship and Immigration Services (USCIS) announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process.

USCIS noted that the provisional waiver process “promotes family unity by reducing the time eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.”

The agency said the final rule builds on a process established in 2013 to support family unity. Under that process, certain immediate relatives of U.S. citizens can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. The final rule expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute.

To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.

USCIS said it expects to update its Policy Manual “in the coming weeks” to provide guidance on how it makes “extreme hardship” determinations. The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver. These changes will go into effect along with the final rule.

Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on August 29, 2016. If you do so before that date, USCIS may deny the application.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-allow-additional-applicants-provisional-waiver-process. The final rule is at https://www.gpo.gov/fdsys/pkg/FR-2016-07-29/pdf/2016-17934.pdf. The updated I-601A will be posted on USCIS’s website at uscis.gov/i-601a on August 29, 2016.

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  1. DHS Announces 18-Month Redesignation, Extension of TPS for Syria

The Department of Homeland Security has redesignated Syria for temporary protected status (TPS) and extended the existing Syria TPS designation from October 1, 2016, through March 31, 2018. Nationals of Syria, or persons without nationality who last habitually resided in Syria, can register or re-register for TPS in accordance with the notice.

For current Syria TPS beneficiaries, the 60-day re-registration period began August 1, 2016, and runs through September 30, 2016. Syrian nationals and persons without nationality who last habitually resided in Syria and have: (1) continuously resided in the United States since August 1, 2016, and (2) been continuously physically been present in the United States since October 1, 2016, may apply for TPS during the 180-day initial registration period that began August 1, 2016, and runs through January 30, 2017.

The 18-month extension allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Syria TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of March 31, 2018. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending for an additional six months current TPS Syria EADs with a September 30, 2016, expiration date. These existing EADs are now valid through March 31, 2017.

The announcement, which includes additional details, is at https://www.uscis.gov/news/news-releases/dhs-announces-18-month-redesignation-and-extension-temporary-protected-status-syria.

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