Tag: Immigration Law

Department of State Releases February 2016 Visa Bulletin

Employment-based adjustment of status applicants must file using the Application Final Action Dates chart.

The US Department of State (DOS) has released its February 2016 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

What Does the February 2016 Visa Bulletin Say?

The February 2016 Visa Bulletin includes both a Dates for Filing Visa Applications and Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visa, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If the US Citizenship and Immigration Services (USCIS) determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications. For February 2016, USCIS has announced that employment-based (EB) applicants may only use the Application Final Action Dates chart.

To be eligible to file an EB adjustment application in February, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from last month’s Visa Bulletin dates are shown in yellow):

EB

All Chargeability
Areas Except
Those Listed

China
(mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01MAR12—
(was 01Feb 12)

01AUG08
(was 01FEB08)

C

C

3rd

01OCT15
(no change)

01OCT12
(was 01JUL12)

15JUN04
(was 15MAY04)

01OCT15
(no change)

08JAN08
(was 01NOV07)

Other Workers

01OCT15
(no change)

22DEC06
(was 01AUG06)

15JUN04
(was 15MAY04)

01OCT15
(was 01SEPT15)

08JAN08

(was 01NOV07)

4th

C

C

C

C

C

Certain Religious Workers

C (was U)

C (was U)

C (was U)

C (was U)

C (was U)

5th
Nonregional
Center
(C5 and T5)

C

15JAN14
(was 08JAN14)

C

C

C

5th
Regional
Center
(I5 and R5)

C (was U)

15JAN14 (was U)

C (was U)

C (was U)

C (was U)

How This Affects You

The largest change in the Application Final Action Dates chart is in the EB-2 India category, which has advanced by six months to August 1, 2008. The EB-2 China category advanced by one month only, and the EB-3 China category advanced by two and a half months to October 1, 2012. Certain Religious Workers and EB-5 matters (Regional Center I5 and R5) became current once again, with the exception of China, which is backlogged to January 15, 2014, in the EB-5 category. Other classification categories saw only minimal advancement of three weeks to three months. Read the entire February 2016 Visa Bulletin.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP
Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Visa Waiver Program Changes Now Being Implemented

visaVWP nationals who have visited Iran, Iraq, Sudan, or Syria since March 1, 2011, or who hold dual nationality with one of the countries are no longer eligible for the VWP.

The United States on January 21, 2016, began to implement changes to the Visa Waiver Program (VWP) that were mandated under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). Under the Act, which was included as an amendment to the December 18, 2015, omnibus spending bill (H.R. 2029), certain individuals are no longer eligible to travel or be admitted into the United States under the VWP. The affected are

  • nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country) and

  • nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

Individuals who are ineligible for the VWP are still eligible to apply for a B-1/B-2 visitor visa at a US embassy or consulate. Individuals who need a US visa for urgent business, medical, or humanitarian travel to the United States may be eligible for expedited visa processing at a US embassy or consulate.

A waiver of these restrictions may be granted on a case-by-case basis by the secretary of homeland security if he determines that such a waiver is in the interests of US law enforcement or national security. Procedures for seeking a waiver are not currently available, but will presumably be published in the future. Waivers may be available for

  • individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of international organizations, regional organizations, and subnational governments on official duty;

  • individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of a humanitarian nongovernmental organization on official duty;

  • individuals who traveled to Iran, Iraq, Sudan, or Syria as a journalist for reporting purposes;

  • individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and

  • individuals who have traveled to Iraq for legitimate business-related purposes.

The VWP allows citizens of participating countries to travel to the United States without a visa for stays of 90 days or less. Travelers must be eligible to use the VWP and have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. ESTA approval is issued by US Customs and Border Protection through the ESTA portal. ESTA will usually inform a traveler within one to two days whether his or her application has been approved, after which the traveler may purchase a plane ticket and travel to the United States.

Beginning January 21, 2016, travelers who currently have valid ESTAs and who have previously indicated that they hold dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked. However, it is unclear how government agencies will implement revocations for individuals who have traveled to any of the four countries since March 1, 2011.

Individuals whose ESTAs are being revoked should receive notification that that they are no longer eligible to travel under the VWP; however, revocation can occur without notice. All individuals should confirm that their ESTAs remain valid prior to making final travel plans by checking the US Customs and Border Protection ESTA website.

A person whose ESTA is revoked remains eligible to travel to the United States but will first need to obtain a valid nonimmigrant visa issued by a US embassy or consulate. Travelers affected by these new rules should apply for a US nonimmigrant visa well in advance of desired travel to minimize the chance of delays. The visa application process requires every individual traveler to complete an online visa application. Such travelers will be required to appear for an interview and obtain a visa in their passports at a US embassy or consulate before traveling to the United States. Individuals who will require a visa should check the website of the US embassy in their country of residence for instructions on how to apply for the visa. Visa processing times range from as little as one week to several weeks for an appointment, depending on the specific embassy or consular office.

Canadian citizens are visa exempt and are not participants in the VWP; thus, the new restrictions do not apply to Canadian citizens who have dual nationality in one of the specified countries.

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

© 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

U.S. Supreme Court Agrees to Review Obama Immigration Action Case

The U.S. Supreme Court agreed today to hear a case challenging President Barack Obama’s executive action on immigration. The Supreme Court will decide whether President Obama can proceed with plans to defer deportation and provide work authorization to millions of individuals currently in the United States without lawful status.

The Supreme Court granted certiorari in Texas et al. v. U.S. et al. today and indicated that it will take up an additional issue on whether the Obama administration’s action violates a constitutional clause that requires the president to faithfully execute the law (i.e., the Take Care Clause in Article II of the Constitution). The Court will hear arguments this April and a decision is likely to be issued this June, before the end of the Court’s current session.

In November 2014, the Obama Administration issued new policies allowing certain undocumented immigrants to apply for deferred action and work authorization allowing them to remain and work legally in the United States.  These programs were to apply to certain individuals brought to the U.S. when they were under the age of sixteen (Deferred Action for Childhood Arrivals), and also to undocumented individuals who are parents of U.S. citizens or lawful permanent resident children (Deferred Action for Parents of Americans and Lawful Permanent Residents).  Twenty six states filed suit to stop these policies from being implemented in December 2014. The United States District Court for the Southern District of Texas issued a preliminary injunction in February 2015, and, on November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed the injunction. The Obama administration petitioned the Supreme Court on November 20, 2015 seeking immediate review of the Fifth Circuit’s decision

Article By Cynthia Liao of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

USCIS Issues New Rule for Highly Skilled Workers: U.S. Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (“USCIS”) issued its long-awaited final rule regarding highly skilled workers from Australia, Chile, Singapore, and the Commonwealth of the Northern Mariana Islands (“CNMI”), along with amendments favoring employment-based immigration. In summary, this rule:

  • facilitates more favorable processing of H-1B1 and E-3 treaty-based extension of status petitions;

  • adds E-3 Australian, H-1B1 Chilean/Singaporean, and CW-1 CNMI nationals to the list of those work-authorized nonimmigrants who can secure up to 240 days of continued employment authorization beyond their current expiration date simply by filing their timely extensions with USCIS before their current status expires;

  • clarifies that principal E-3 and H-1B1 nonimmigrants are authorized to work incident to their status and thus do not have to obtain independent employment authorization (applied in practice but not officially adopted as a formal regulation); and

  • expands the type of evidence that foreign nationals being sponsored under EB-1 outstanding professor and researcher permanent residency petitions can submit to include “comparable evidence” of their outstanding professor or research work.

This rule is expected to take effect on February 16, 2016.

Article By Robert S. Groban, Jr., Pierre Georges Bonnefil, Patrick G. Brady & Jang Hyuk Im of Epstein Becker & Green, P.C.
©2015 Epstein Becker & Green, P.C. All rights reserved.

New Rule Provides Additional Flexibility, Enhanced Opportunities for Certain Highly Skills Workers

visaOn January 13, 2016, the Department of Homeland Security (“DHS”) released an advance copy of an updated rule providing additional flexibility and enhanced opportunities for certain highly skilled workers. It covers workers who are in the U.S. in H-1B1 (from Chile and Singapore), E-3 (from Australia), temporary workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transition Worker (CW-1), and immigrant classification for outstanding professors and researchers (EB-1).

Current regulation (8 CFR § 2741.12(b)(20)) allows other high skilled workers in the following nonimmigrant visa categories to continue to work for up to 240 days beyond their current expiration date as long as they file a timely extension request before the expiration date:

  • H-1B specialty occupation workers,
  • L-1 intracompany/multinational corporation transferees,
  • O-1 extraordinary ability aliens,
  • E-1/E-2 treaty traders and investors,
  • TN NAFTA professionals, and
  • Certain international organizational workers and so on.

Because the nonimmigrant visa categories of H-1B1 and E-3 were created after the prior regulation was published, visa holders in these categories have not been able to continue to work unless they submitted their extension requests early or paid an additional $1,225 USCIS premium processing fee for expedited services.

Additionally, DHS added in its regulation allowing immigrant visa (“green card”) applicants to include important patents or prestigious peer-reviewed funding grants as evidence to establish their eligibility as an internationally recognized outstanding professor or researcher in their specialized academic field. Under 8 CFR 204.5(i)(3)(i), USCIS would accept an applicant’s claim to have met the statutory requirement for having satisfied two of the six criteria, such as receipt of major prizes or awards, original authorship of scholarly articles, serving as a judge of the work of others. Although important patents or prestigious peer-reviewed funding grants previously could be used to support the international recognition criterion for final merits review by USCIS, DHS has now codified this as threshold eligibility evidence to meet the statutory requirement.

The final rule is scheduled to be published in the Federal Register on January 15, 2016 with an effective date of February 16, 2016.

Article By Minnie Fu of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Exercise Care When Terminating Employee Who Holds H-1B Status

If an employer doesn’t follow certain requirements when it terminates an employee holding an H-1B visa, then the employer could be surprised to learn that employee wasn’t properly terminated, and the obligation to pay that employee wages and benefits continues despite the attempted termination. As background, Department of Labor (DOL) regulations at 20 CFR §655.731 provide guidance regarding wage obligations relating to H-1B (“specialty occupation”) employees.  Employers are required to pay to H-1B visa holders the higher of the prevailing wage for the occupation, or the actual wage for the position, as confirmed in the Labor Condition Application (LCA) that the employer must file during the H-1B petition process.

This wage obligation even applies to H-1B nonimmigrants who have been “benched” or are no longer actively working for the employer.  When an employer terminates an H-1B employee prior to the expiration date of the employee’s H-1B status, DOL considers this action to be a form of benching the employee UNLESS/UNTIL the employer has taken the following steps to effectuate a “bona fide” termination:

STEP 1 – The employer must notify the USCIS that the relationship has been terminated (USCIS will then cancel the petition); and

STEP 2 – The employer must provide the employee with offer of payment for return transportation abroad [for these purposes, the term “abroad” is defined in 8 CFR 214.2(h)(4)(iii)(E) as the foreign national’s last place of foreign residence].

Although not required by regulation, it is also advisable for the employer to withdraw the underlying Labor Condition Application (LCA), as long as the terminated employee is the only employee who has been covered by that particular LCA.

Failure to take Steps 1 and 2 above may result in DOL’s requiring the employer to pay back wages commencing on the date of attempted dismissal and continuing until the date upon which DOL determines that the termination has been perfected.

Note that these regulations do not apply to an H-1B employee who has voluntarily terminated his/her employment prior to the H-1B expiration date. Termination by the employer launches these stringent requirements.  In reality, many terminated H-1B employees are able fairly quickly to secure new employment and to transfer their H-1B sponsorship to the new employer; however, these two simple steps should shield the original H-1B sponsor from potential back-pay obligations.Article By

ARTICLE by Nancy M. Lawrence of Odin, Feldman & Pittleman, P.C.
© 2015 Odin, Feldman & Pittleman, P.C.

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.

Ever Evolving L-1B Adjudication Standards

Immigration law practitioners have been receiving Requests for Evidence (RFEs) on most L-1B (Intracompany Transferee-Specialized Knowledge) petitions for new issuance as well as L-1B renewals. These RFEs, requiring burdensome responses, in fact may misinterpret the term “specialized knowledge.”

  • In March, 2015 USCIS, in an effort to clarify adjudication standards, issued a draft L-1B Adjudication Policy Memorandum (PM-602-0111), soliciting comments from the public as well as stakeholders.

  • On July 17, 2015, USCIS issued a Request for Comments on Draft RFE Template for Form I-129 involving L-1B Intracompany Transferees-Specialized Knowledge.

  • On August 17, 2015, the final policy memorandum was published.

So how could an RFE template be proposed when an interpretive memorandum on which it is based has not been published in its final form? Moreover, has USCIS even considered the comments it solicited on the Draft Memorandum and Draft RFE Template in these proceedings?

The Draft RFE Template appears to be based upon language in the draft (now final) memorandum which was still the subject of considerable comment from stakeholders when the Draft RFE Template was issued. All of this leads to more confusion, ambiguity, and uncertainty in the application process. This also gives rise to a need for burdensome and generally unnecessary documentation at the initial filing in response to an RFE, or both.

The L-1 saga will continue.

Article By Gary A. Pappas of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

White House Releases ‘Modernizing & Streamlining Our Legal Immigration System for the 21st Century’

The White House has just released a new report titled “Modernizing & Streamlining our Legal Immigration System for the 21st Century,” which builds on the President’s executive actions of Nov. 21, 2014. This report provides for plans to improve the immigration system to modernize and streamline the processes for certain visa categories and to address security issues. The report also calls for plans to strengthen the United States’ humanitarian system by providing benefits for certain individuals.

The report specifically addresses the EB-5 program in important ways. The White House acknowledges that the U.S. Immigration and Citizenship Services (USCIS) has undergone significant changes in an effort to enhance the program’s processes and to improve its integrity, including the creation of a new team with expertise in economic analysis and specific EB-5 components, as well as the issuance of updated policy guidance to provide better clarity as to program requirements.

The White House recognizes that there is a need for additional enhancements and improvements to address the integrity and impact of the EB-5 program. Specifically, the White House recommends additional measures including enhancements to avoid fraud, abuse, and criminal activity; measures to ensure that the program is reaching its full potential in terms of job creation and economic growth; and recommendations to streamline the program to make it efficient and stable for participants in the program, including petitioners and Regional Centers.

The report announces that Homeland Security Secretary Jeh Johnson has adopted the creation of a new protocol, announced previously, intended to insulate the EB-5 program from “the reality or perception of improper outside influence.” Further, the report reiterates the Secretary’s recommendations to Congress to provide the department with authority to deny or revoke cases based upon serious misconduct; prohibit individuals with past criminal or securities-related violations from program participation, and a mechanism to ensure regional center compliance with securities laws. It is notable that these recommendations are included in the bill that Senator Leahy and Senator Grassley introduced on June 3, 2015.

The report makes two specific recommendations. First, it announces that DHS will pursue rulemaking to improve program integrity, including conflict-of-interest disclosures by Regional Center principals, enhanced background checks and public disclosure requirements, and an increase in the minimum qualifying level of investment. The department will also pursue new regulations to improve adjudication of Regional Center applications. Second, the report announces that the State Department will amend guidance in the Foreign Affairs Manual to permit potential EB-5 investors to obtain visitor visas for the purpose of evaluating investment.

In addition, DHS will propose a parole program for entrepreneurs who “provide a significant public benefit.” The examples of “significant public benefit” include innovation and job creation through new technology development.

ARTICLE BY Kristen W. Ng & Matthew Virkstis of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

White House Releases ‘Modernizing & Streamlining Our Legal Immigration System for the 21st Century’

The White House has just released a new report titled “Modernizing & Streamlining our Legal Immigration System for the 21st Century,” which builds on the President’s executive actions of Nov. 21, 2014. This report provides for plans to improve the immigration system to modernize and streamline the processes for certain visa categories and to address security issues. The report also calls for plans to strengthen the United States’ humanitarian system by providing benefits for certain individuals.

The report specifically addresses the EB-5 program in important ways. The White House acknowledges that the U.S. Immigration and Citizenship Services (USCIS) has undergone significant changes in an effort to enhance the program’s processes and to improve its integrity, including the creation of a new team with expertise in economic analysis and specific EB-5 components, as well as the issuance of updated policy guidance to provide better clarity as to program requirements.

The White House recognizes that there is a need for additional enhancements and improvements to address the integrity and impact of the EB-5 program. Specifically, the White House recommends additional measures including enhancements to avoid fraud, abuse, and criminal activity; measures to ensure that the program is reaching its full potential in terms of job creation and economic growth; and recommendations to streamline the program to make it efficient and stable for participants in the program, including petitioners and Regional Centers.

The report announces that Homeland Security Secretary Jeh Johnson has adopted the creation of a new protocol, announced previously, intended to insulate the EB-5 program from “the reality or perception of improper outside influence.” Further, the report reiterates the Secretary’s recommendations to Congress to provide the department with authority to deny or revoke cases based upon serious misconduct; prohibit individuals with past criminal or securities-related violations from program participation, and a mechanism to ensure regional center compliance with securities laws. It is notable that these recommendations are included in the bill that Senator Leahy and Senator Grassley introduced on June 3, 2015.

The report makes two specific recommendations. First, it announces that DHS will pursue rulemaking to improve program integrity, including conflict-of-interest disclosures by Regional Center principals, enhanced background checks and public disclosure requirements, and an increase in the minimum qualifying level of investment. The department will also pursue new regulations to improve adjudication of Regional Center applications. Second, the report announces that the State Department will amend guidance in the Foreign Affairs Manual to permit potential EB-5 investors to obtain visitor visas for the purpose of evaluating investment.

In addition, DHS will propose a parole program for entrepreneurs who “provide a significant public benefit.” The examples of “significant public benefit” include innovation and job creation through new technology development.

ARTICLE BY Kristen W. Ng & Matthew Virkstis of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.