Category: Immigration

January 2016 Visa Bulletin Update

The Department of State’s (DOS) January 2016 Visa Bulletin showed minor movements in the employment-based visa categories. The most significant movement was in the Indian EB-2 category which advanced by another 8 months, to Feb. 1, 2008 (the December 2015 bulletin showed a 10 month jump). There was also movement in the Dates for Filing in the employment-based categories, except in both of the “All Chargeability Areas” and “Mexico” EB-3 and Other Workers categories, which moved from Sept. 1, 2015, to Jan. 1, 2016.

The January Visa Bulletin also advised about the upcoming, scheduled expiration of the immigrant investor pilot program (EB-5 Visas) on Dec. 11, 2015, unless Congress acts to extend these programs. The Visa Bulletin states that no I5 visas may be issued overseas, or final action taken on adjustment of status cases, after Dec. 11, 2015. The cut-off date for this category has been listed as “unavailable” for January. Congress is currently considering an extension of the I5 visa category, but there is no certainty when such legislative action may occur. If there is legislative action that extends this category for FY-2016, the cut-off dates would immediately become “current” for January, for all countries except China-mainland born I5.

Final Action Dates for Employment-Based Preference Cases

imm blog 1

Dates for Filing of Employment-Based Visa Applications

imm blog 2

Article By Patricia A. Elmas of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Department of Homeland Security Seeks Comments for New ‘Smart’ Form I-9

For its proposed 13th iteration, the I-9 form is getting “smart” new features. The suggested changes to the form from the Department of Homeland Security include:

  •  Validation of certain fields to ensure the entered information is correct;

  • Helpful on-screen text for various fields;

  • Space to enter more than one preparer or translator;

  • Drop-down menu for the list of acceptable documents to cut down on entry errors;

  • A dedicated notes area for information employers now have to note in the margins;

  • A QR code to facilitate ICE audit reviews;

  • Replacement of the “other names used” field with “other last names” used; and

  • Provision of either I-94 or foreign passport, instead of both.

While the “smart” form will facilitate on-screen data entry and completion of the Form I-9, it is not an electronic form. After completion, employers not using an electronic I-9 system will have to print out the Form I-9 for signature by the foreign national and the employer.

Public comments on the revisions will be accepted through January 25, 2016, here. After USCIS reviews the comments and makes changes it deems appropriate, it will publish a second notice in the Federal Register. After that, the public has 30 days to provide comment before the regulation becomes final.

The current I-9 form expires on March 31, 2016. After that date, USCIS will have to extend the validity of the current form or introduce its new form.

Article By Nicola Ai Ling Prall of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Supreme Court Rejects States’ Request for 30 Day Filing Extension on DACA, DAPA

On Tuesday, December 1, the U.S. Supreme Court handed the Obama administration a “small procedural victory” and refused the request of Texas and other states for a 30-day extension to file briefs in support of the lawsuit blocking the Obama administration’s immigration executive action on DACA and DAPA. Instead, the Court accepted the Justice Department’s eight day extension request. The Supreme Court will likely decide in January whether or not to hear the case this term. If the Supreme Court hears the case during the current term, the decision would likely be published in June, providing quite the fan-flaming event during the 2016 presidential election.

The lawsuit itself is related to President Obama’s executive action expanding the Deferred Action for Children and creating Deferred Action for Parents (of U.S. Citizen or permanent resident children).

On Monday, over 220 organizations filed in favor of lifting the injunction on the executive action. These groups focused on the tangible benefits of expanding DACA and implementing DAPA and left the legal arguments to the Department of Justice.

Article By Immigration Practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Client, Staffing Agency and E-Verify: What’s Permissible?

E-Verify LogoCompanies facing an I-9 audit by Immigration and Customs Enforcement (ICE) can be subject to heavy fines and penalties. Some companies that use staffing agencies may especially be concerned about their potential liability, particularly if they believe, after Browning-Ferris, they may be considered a joint employer with their staffing agencies due to the specific facts of the contract.  Can such a business, for its protection, demand that the staffing agency use E-Verify for all individuals placed with the client?

The issue of whether a business may demand that the staffing agency use E-Verify for all staffed individuals implicates the I-9 anti-discrimination provisions that the Department of Justice enforces.  A staffing agency may enroll in E-Verify as an employer or as an E-Verify employer agent with limited participation of hiring sites, but may not designate those hiring sites based on the national origin or citizenship status of employees hired at those sites. If the staffing agency only uses E-Verify at certain sites, it may create the appearance of a discriminatory practice, leading to complaints by employees.

Despite that, a recent TAL, a technical assistance letter, provided general guidelines for staffing agencies in this situation. It first reiterated compliance with the anti-discrimination provisions is required, but also stated that, to the extent E-Verify is used selectively by the staffing agency to meet the client’s demands for reasons “wholly unrelated” to the workers’ citizenship status or national origin, it likely will not violate any anti-discrimination provisions. As with guidance on other employment issues to employers, careful written documentation of the client’s legitimate reasons for the request, wholly unrelated to the citizenship status or national origin of the workers, is essential.

Article By Doreen D. Dodson of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California 

December Visa Bulletin Shows Little Movement But Contains Projections for Future Movement

The Department of State’s (“DOS”) December 2015 Visa Bulletin showed minor movements in the employment-based visa categories.  The most significant movement was in the Indian EB-2 category which advanced  by 10 months to June 1, 2007.  All other employment-based categories showed slow advances by few weeks, except for Mainland China EB-3 and Other Worker categories that advanced by 10 weeks to April 15, 2012, and by 12 weeks to August 1, 2006, respectively.  There was no movement in the Dates for Filing in the employment-based categories.

The December Visa Bulletin contained the following additional information:

  1. The Bulletin advised about the upcoming scheduled expiration of the non-minister special immigrant program and the immigrant investor pilot program (“EB-5 Visas”) on December 11, 2015, unless Congress acts to extended these programs.

  1. The Bulletin contained a prognosis of visa movement in the coming months.  For the employment-based visa categories, possible movements are as follows:

  1. EB-2 China:  Little or no movement

  2. EB-2 India:   Up to eight months

  3. EB-3 China:  Rapid forward movement with possible “corrective” action as early as April, 2016

  4. EB-3 India:  Up to three weeks

  5. EB-3 Philippines:  Four to six weeks

  6. EB-5 China:  Slow forward movement

  1. New 9 FAM-e.  The Visa Bulletin announced that on November 18, 2015, the printed Volume 9 of the Foreign Affairs Manual will be replaced by the 9 FAM-e and as of that date the e-version will become the authoritative source for visa guidance.  The new e-version overhauls language and organization of Volume 9 of the FAM, but does not alter the substance of the old printed version.

Final Action Dates for Employment-Based Preference Cases

december visa bulletin

Dates for Filing of Employment-Based Visa Applications 

december visa bulletin

Article By Shaoul Aslan of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

Customs and Border Protection Announces Expansion of Global Entry to UK Citizens

On November 3, the US Customs and Border Protection (CBP) commissioner announced the expansion of Global Entry to UK citizens. Global Entry, a CBP Trusted Traveler program, allows for expedited clearance of preapproved, low-risk travelers. As an added benefit, Global Entry members are also eligible to participate in the TSA Pre✓ expedited screening program.

The registration process is quite straightforward. UK citizens will apply through the UK Home Office’s website and pay a £42 processing fee. Successful applicants will receive an access code to enter when applying for Global Entry through CBP’s Global Online Enrollment System. The nonrefundable application fee for a five-year Global Entry membership is $100, and applications must be made online. Once an application is approved, a CBP officer will conduct a scheduled interview with the applicant and make a final eligibility determination. Although no traveler is guaranteed expedited screening, this expansion should facilitate travel for low-risk travelers from the UK significantly.

Similarly, US citizens are eligible to apply for the UK’s trusted traveler program, Registered Traveller. Members enrolled in Registered Traveller may use e-gates at airports in the UK. The service costs £70 to apply and an additional £50 a year thereafter. If an application is unsuccessful, the applicant will receive £50 back. To qualify for Registered Traveller, a US citizen must make four trips to the UK per year.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton, Tracy Evlogidis & Roland C. Lechner of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

E-Verify to Destroy Old Records

E-Verify LogoE-Verify has announced that effective Jan. 1, 2016, in compliance with the National Archives and Records Administration’s retention and disposal schedule, it will destroy all transaction records older than 10 years.  Thus, all transaction records created prior to Dec. 31, 2005 will be destroyed.  Further, E-Verify will delete, on an annual basis, all transaction records that are more than 10 years old.

E-Verify has created a new Historic Record Report that will include all transaction records over a 10-year period.  If you wish to get the Historic Record Report, it must be downloaded before Dec. 31, 2015.  To download the Report, please log into E-Verify where you will find instructions to download the Report.

It is always recommended as best practice to record the E-Verify case verification number on the related I-9 form.  It is now also recommended that employers also retain the Historic Records Report with the Forms I-9.

Article By Shaoul Aslan of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

Holiday Planning Should Include H-1B Cap Planning

While it may seem early, the holiday season is a good time for employers to start preparing for the H-1B Cap for Fiscal Year 2017, which begins October 1, 2016. Demand for the H-1B has steadily increased so that last year, only about 40% of the H-1B petitions were selected in the lottery. Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, April 1, 2016.

Background:

By way of background, the H-1B is a very significant visa category as it allows qualified professionals to enter the U.S. Only a limited number may be granted each fiscal year (which runs from October 1st through September 30th). Under current immigration law, only 65,000 new H-1B petitions may be granted each fiscal year with an additional 20,000 available for those individuals with advanced degrees from a U.S. academic institution.

For Fiscal Year 2016, USCIS received nearly 233,000 H-1B petitions during the filing period. For the prior year, USCIS received approximately 172,500 H-1B petitions. It is anticipated that more cases will be filed this year.

Because of the large number of cases being filed, there is a significant chance that cases could miss the filing date due to delays, particularly at the Department of Labor (DOL). As part of the H-1B petition, employers must have a Labor Condition Application (LCA) certified by the DOL. No H-1B petition will be accepted by USCIS without a certified LCA. Normal processing of LCAs generally takes about 7 to 8 days. However, as volume increased in March of 2014, many LCAs took longer. Proskauer recommends filing as many LCAs in earlier months as possible to ensure that the H-1B petitions are ready for filing in anticipation of April 1.

Evaluating your Potential H-1B Population:

Due to the increased demand for the H-1B, it is important that employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date. We outline below some of the types of employees to review when making decisions whether to file an H-1B petition.

  • F-1 Students: Students, particularly those on F visas and currently working for you pursuant to approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition on April 1st. The reason for this is simple. If you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT (unless they are able to extend it in the limited circumstance described below).

Moreover, even when employees may extend their OPT it is advised to file an H-1B for Fiscal Year 2017. This gives the employees two opportunities to obtain the H-1B. If more applications are filed than visas available and these employees do not obtain the H-1B this year, then the OPT extension may serve as a backup and you can file for the H-1B again next year.

  • L-1Bs: In recent years the L-1B visa category has faced increased scrutiny. The L-1B is for intracompany transferees who are being relocated to the U.S. to serve in a specialized knowledge capacity after having been employed by the company abroad for one year in either a managerial or specialized knowledge role. The strict interpretation of what qualifies as specialized knowledge has resulted in denials of many L-1B petitions. Therefore, rather than file an L-1B extension many employers are opting to file H-1Bs.

  • Certain Green Card Cases: Certain applicants for green cards may run out of authorized time in the U.S. unless they are in H-1B status. We recommend you consult with counsel on such cases.

Employers and HR professionals should take time during the holiday season to evaluate their nonimmigrant population and determine which employees should apply for the FY 2017 H-1B Cap. It is not too soon to send H-1B cap cases to the lawyers!

We encourage employers to reach out to our Immigration & Nationality group if they have questions. We will continue working with our clients to ensure that H-1B petitions are prepared and ready for filing by April 1.

Article By David Grunblatt, Hallie A Cohen, Erica Loomba, Valarie H McPherson, Praveena N Swanson & Jennifer Wexler of Proskauer Rose LLP

© 2015 Proskauer Rose LLP.

Department of State Issues Final Rule re: Procedures for Issuing Nonimmigrant Visas

The July 2015 Visa Bulletin Brings Little ChangeThe Department of State (DOS) issued a final rule effective November 2, 2015 updating its regulations regarding the nonimmigrant visa format and record retention procedures found at 22 CFR §41.114, which currently provides for the placement of a nonimmigrant visa stamp in the foreign national’s passport.

The DOS has now amended the regulation to reflect the current practice of issuing machine-readable visas on adhesive foils that are affixed to passports. The updated regulation also allows for the planned future practice of issuing such visas as electronic visas that U.S. Customs and Border Protection officers will be able to access via an electronic database after scanning the machine readable are of the visa holder’s passport to verify the foreign national’s biometrics and identity. Finally, the regulation has been amended to remove DOS procedures regarding visa review and file retention instructions found in the Foreign Affairs Manual.

The DOS’ final rule, available at the Federal Register, is in compliance with regulatory requirements including the Administrative Procedure Act and the applicable Executive Orders. The amendment is issued as a final rule as it is not subject to notice-and-comment rulemaking. The Department of State has certified that the rule will not have a significant economic impact on a substantial number of small entities; rather, only individual foreign nationals seeking consideration for nonimmigrant visas and foreign officials regulating the relevant documentation will be affected. Additionally, DOS does not consider the rule to be an economically significant rulemaking action, and is not aware of any monetary effect (including any increase in costs or prices) due to the update.

The amendments to 22 CFR §41.114 account for useful updates in technology that affect nonimmigrant visa holders. It remains to be seen exactly how the information contained in the electronic visa database available to CBP now provided for in the regulation will be accessible to other stakeholders, including employers.

Article By Lauren A. Tetenbaum of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

US Department of State Issues November 2015 Visa Bulletin

The new bulletin shows no movement in filing date cutoffs and little movement in approval date cutoffs for those chargeable to India and China.

The November 2015 Visa Bulletin shows little change from the October 2015 Visa Bulletin issued on September 25. The new category of filing date cutoffs remains exactly the same as in October, and only a few visa categories in the Application Final Action Dates chart have changed. This alert addresses employment-based classifications.

Application Final Action Dates for Employment-Based Preference Cases

The application final action cutoff dates for employment-based preference classification show movement in the following categories (changes shown in BOLD):

Employment-
Based

All Chargeability
Areas Except
Those Listed

China (mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01FEB12

01AUG06

C

C

3rd

15AUG15

01JAN12

01APR04

15AUG15

15JUN07

Other Workers

15AUG15

01APR06

01APR04

15AUG15

15JUN07

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th
Nonregional
Center
(C5 and T5)

C

22NOV13

C

C

C

5th
Regional
Center
(I5 and R5)

C

22NOV13

C

C

C

Movement in the Employment-Based Second Preference (EB-2) Classification

China second preference advanced to February 1, 2012 (one month): An individual chargeable to China in the second preference category may have his or her adjustment of status (AOS) or immigrant visa application approved if the person’s priority date is prior to February 1, 2012.

India second preference advanced to August 1, 2006 (15 months): An individual chargeable to India in the second preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to August 1, 2006.

Movement in the Employment-Based Third Preference (EB-3) Classification

China third preference advanced to January 1, 2012 (2.5 months): An individual chargeable to China in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to January 1, 2012.

India third preference advanced to April 1, 2004 (three weeks): An individual chargeable to India in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to April 1, 2004.

Philippines third preference advanced to June 1, 2007 (five months): An individual chargeable to the Philippines in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to June 1, 2007.

Movement in the Employment-Based Fifth Preference (EB-5) Classification

China fifth preference Nonregional Center (C5 and T5) advanced to November 22, 2013 (five weeks), and China fifth preference regional center (I5 and 45) is now available for those individuals whose EB-3 cases were filed prior to November 22, 2013.

Dates for Filing Employment-Based Visa Applications

Application filing date cutoffs are as shown below:

Employment- Based

All Chargeability Areas Except
Those Listed

China (mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01JAN13

01JUL09

C

C

3rd

01SEP15

01OCT13

01JUL05

01SEP15

01JAN10

Other Workers

01SEP15

01JAN07

01JUL05

01SEP15

01JAN10

4th

C

C

C

C

C

Certain Religious
Workers

C

C

C

C

C

5th Nonregional
Center (C5 and T5)

C

01MAY15

C

C

C

5th Regional Center
(I5 and R5)

C

01MAY15

C

C

C

First and fourth preference classifications remain current for all chargeable categories, as does the classification for certain religious workers.

Employment-based second preference classification for those chargeable to the worldwide quota, Mexico, and the Philippines remains current.

Employment-based fifth preference classification for the worldwide classification, India, Mexico, and the Philippines remains current.

For complete details, see the full Visa Bulletin for November 2015.

ARTICLE BY Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.