Category: Immigration

Supreme Court Tie Blocks Expansion of DACA and Creation of DAPA

DACA DAPA Supreme Court ruling
Law concept for immigration reform, with a wooden court gavel and a plaque that reads immigration.

Disappointing many, the U.S. Supreme Court has tied 4-4 in a case appealing a nationwide injunction on the Obama Administration’s executive action expanding the Deferred Action for Childhood Arrivals (DACA) and creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. United States v. Texas, No. 15-674 (June 23, 2016).

The eagerly anticipated decision will have a far-reaching and adverse impact to millions of undocumented immigrants. The Supreme Court deadlock upheld the appeals court ruling and continues to block programs. The effect of the decision means that up to five million undocumented immigrants may not be allowed legal work authorization in the United States or be protected from deportation.

The Obama Administration utilized executive action to create DACA in 2012. Under DACA, certain undocumented immigrants who arrived as minors were able to defer deportation and receive employment authorization. The Administration expanded DACA and introduced DAPA in 2014 with further executive action. The DACA expansion would have increased the period of employment authorization for DACA beneficiaries to three years, instead of two. DAPA would have allowed parents of U.S. citizens or lawful permanent residents (green card holders) to apply for deferred deportation and employment authorization.

In February 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas entered a preliminary injunction, blocking the 2014 DACA expansion and DAPA creation. The U.S. Circuit Court of Appeals for the Fifth Circuit, in New Orleans, affirmed the lower court’s injunction. The Obama Administration appealed the decision to the U.S. Supreme Court.

The U.S. Supreme Court’s decision strongly indicates that executive action on immigration on a widespread basis may be difficult in the future and any chance of immigration reform may not be possible without Congressional involvement. It also indicates that immigration will continue to be a high priority in the upcoming Presidential and Congressional elections.

ARTICLE BY KoKo Ye Huang of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

July 2016 Visa Bulletin Released

july 2016 visa bulletinProjections include EB-1 Cutoff Date for China and India, Slow EB-2 and EB-3 Movement, EB-4 Backlogs for Latin America to ease, and EB-5 China to advance slightly.

 

This week, the Department of State (DOS) has released the July 2016 Visa Bulletin. We are three months from the end of the fiscal year and the dwindling visa numbers remaining are likely to bring about tepid advancement in many employment-based categories before October. This Bulletin brings several particular items of note relating to the anticipated movement of final action dates:

  • For the first time in recent collective memory, the State Department is predicting that EB-1 (which is usually “Current”) will have a cutoff date “no later than September” for China and India, but becoming current again in October 2016. Worldwide is expected to remain Current through all relevant times.

  • In the EB-2 category, a date for Worldwide chargeability is likely to be “imposed by September” with a return to “current” in October. The State Department predicts that there will be no forward movement for China EB-2, and India EB-2 will only move one week beyond India EB-3.

  • Limited movement is predicted in EB-3, with the exceptions of India reaching early 2005 and Philippines reaching late 2009 or early 2010.

  • Mexico, El Salvador, Guatemala, Honduras, and Mexico face an EB-4 priority date of Jan. 1, 2010. Although this 6.5 year backlog may appear daunting, the State Department does caution the following:

“Readers should be aware that the establishment of the Employment Fourth preference Final Action date of January 1, 2010 does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries under the FY-2016 annual limit, not to indicate how long it will be before applicants will be eligible for final action.”

In October, Mexico EB-4 is projected to become current. El Salvador, Guatemala, and Honduras are anticipated to have a 2015 cutoff date.

  • In the EB-5 realm, China has not advanced from June 2016. The “best case” scenario is a March 1, 2014, cutoff date by September.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for filing Form I-485.

The July 2016 Final Action Dates for Employment-Based Applications are as follows:

July 2016 visa bulletin 1

Likewise, the July 2016 Dates for Filing are:

Jule 2016 visa bulletin 2

ARTICLE BY Matthew T. Galati of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

Draft Form I-765V, EAD Application for Abused Nonimmigrant Spouse: Comments Open

nonimmigrant spouseOn May 27, USCIS posted for comment on the Federal Register draft versions of Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse and its instructions. Under section 106 of the Immigration and Nationality Act, abused spouses of certain nonimmigrants are eligible for employment authorization: i.e., the spouses of foreign nationals in the following nonimmigrant categories:

  • A-1, A-2, and A-3 (foreign government diplomats and officials and their immediate family members, attendants, servants, and personal employees);

  • E-3 (Australian specialty occupation workers);

  • G-1, G-2, G-3, G-4, and G-5 (employees of foreign governments and international organizations and their immediate family members, attendants, servants, and personal employees);

  • and H-1B, H-1B1, H-2A, H-2B, H-3, and H-4 (specialty occupation workers, Free Trade Agreement professionals from Chile and Singapore, temporary agricultural and non-agricultural workers, trainees and special education exchange visitors, and immediate family members of specialty occupation workers).

Earlier this year, March 8, 2016, USCIS released a Policy Memorandum regarding the eligibility of such applicants. Pursuant to the memo, along with the Form I-765V EAD application, credible evidence should be presented to prove various eligibility factors, including that the applicant resides in the United States, that the applicant is or was (under specific circumstances) married to the qualifying principal nonimmigrant spouse, that the applicant was last admitted to the United States in nonimmigrant status, and that the applicant or the applicant’s child was abused or subject to extreme cruelty by the principal nonimmigrant spouse. If approved, the EAD should be granted for two years. Supporting documentation should include copies of the marriage certificate, evidence of the abuse, and I-94 records and biographical identification documents of both the applicant and the principal spouse.

The draft EAD application Form for abused nonimmigrant spouses is six pages, while the regular Form I-765 used by applicants eligible for employment authorization under other bases is only one page. Form I-765V requests information not only on the applicant’s immigration status, but also on biographical physical features including ethnicity, race, height, weight, and eye and hair color. Form I-765V also allows for information to be completed regarding a safe mailing address and an interpreter. Further, the draft Form requests an Applicant’s Certification regarding the authenticity of documents and release of information. USCIS estimates that completing the application Form and preparing the documentation will take three hours per response.

USCIS encourages comments on the draft Form I-765V. Specifically, USCIS seeks feedback regarding whether the proposed collection of information on the form is necessary, the burden on the applicants to compete the form, the accuracy of USCIS’ estimate of the burden of the proposed collection of information, and the clarity, quality, and utility of the information to be collected. Comments will be accepted for 60 days, until July 26, 2016. All comments should reference OMB Control number 1615-NEW and Docket ID USCIS-2016-0004. Comments can be made online, by email, or by mail.

Article By Lauren A. Tetenbaum of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

USCIS Proposes Immigration Increase . . . in Immigration Fees that is

On May 4, 2016, U.S. Citizenship and Immigration Services published a notice of proposed rulemaking regarding changes to the USCIS filing fee schedule. USCIS is proposing to raise immigration benefit application filing fees by an average of over 20%. USCIS is primarily funded by immigration benefit request fees charged to the applicants, and these filing fees comprise 94% of USCIS’s annual budget of $3 billion. USCIS last raised immigration filing fees in 2010, and the agency has justified the increase as necessary to fully recover the costs of services, to maintain an adequate service level, and to allow for processing and technological improvements.

Over the last six years, USCIS has seen a significant increase in the number of benefits applications filed. While applications filed by employers have remained steady, applications filed by individuals for naturalization have increased 25%, applications for permanent residence by 15%, and applications to replace expiring permanent resident cards by almost 50%.

USCIS’s proposal would raise the base filing fees on employers sponsoring work visas between 20-40%. Foreign nationals filing for permanent residence will see the application fee rise to $1,140 from its current $985, a 16% increase. Those seeking US citizenship will pay an additional 8%, from $595 to $640. At the other end of the spectrum, high net worth investors seeking permanent residence through the EB-5 visa program will see the filing fee increase from $1,500 to $3,675, while the fee for entities seeking designation as EB-5 Regional Centers will skyrocket from $6,230 to $17,795, a raise of 186%!

The rule increasing the fees is expected to become final later this summer. In this case, time really is money, and we strongly suggest employers and foreign nationals file their benefits applications quickly to avoid the coming price hikes.

June 2016 Visa Bulletin Update

The Department of State (DOS) has released the June 2016 Visa Bulletin that includes the “Application Final Action Dates” and “Dates for Filing Applications.”

For both family-sponsored and employment-based filings, the United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for May 2016.

Please see below for the Application Final Action Dates for both family-sponsored and employment-based preference filings:

Application Final Action Dates for Family-Sponsored Visa Applications

June Visa Bulletin

Movement from the May 2016 Visa Bulletin shows gradual but insignificant jumps in processing dates for this category, with the exception of China, F4 dates retrogressing from July 22, 2003 to January 1, 2003.

Application Final Action Dates for Employment-Based Preference Cases

IBI blog june 2016

Of particular note is that China EB-2 and EB-3 preference categories saw a retrogression from September 1, 2012 to January 1, 2010; and August 15, 2013 to January 1, 2010, respectively; and India EB-2 preference category also experienced a four-year retrogression from November 22, 2008 to October 1, 2004.

©2016 Greenberg Traurig, LLP. All rights reserved.
  • See more at: http://www.natlawreview.com/article/june-2016-visa-bulletin-update#sthash.svy3O7QO.dpuf

Department of State Releases May 2016 Visa Bulletin

The US Department of State (DOS) has released its May 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. A new geographic sector encompassing El Salvador, Guatemala, and Honduras has been added to the employment-based (EB) charts.  A new geographic sector that includes El Salvador, Guatemala, and Honduras has been added.

What Does the May 2016 Visa Bulletin Say?

The May 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 May 2016, USCIS announced that EB applicants must use the Application Final Action Dates chart.

Application Final Action Dates

To be eligible to file an EB adjustment application in May 2016, 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 Charge-
ability
Areas Except
Those Listed

China
(mainland
born)

El Salvador,
Guatemala,
and Honduras

India

Mexico

Philippines

1st

C

C

C

C

C

C

2nd

C

01SEP12

C

22NOV08
(was 08NOV08)

C

C

3rd

15FEB16

15AUG13

15FEB16

01SEP04
(was 08AUG04)

15FEB16

08AUG08
(was 01May08)

Other Workers

15FEB16

22APR07
(was 01MAR07)

15FEB16

01SEP04
(was 08AUG04)

15FEB16

08AUG08
(was 01May08)

4th

C

C

01JAN10

C

C

C

Certain Religious Workers

C

C

01JAN10

C

C

C

5th
Nonregional
Center
(C5 and T5)

C

08FEB14
(was 01FEB14)

C

C

C

C

5th
Regional
Center
(I5 and R5)

C

08FEB14
(was 01FEB14)

C

C

C

C

How This Affects You

Most countries saw a relatively minor advancement in priority cutoff dates, generally three weeks at most. The largest changes in the Application Final Action Dates chart are in the EB-3 and Other Workers Philippines category, which advanced by three and a half months to August 8, 2008.

The Third Preference final action date for EB-3 China has been “held” for the month of May, with no change in priority date cutoff. The DOS indicated that continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY2016 annual limit. It is extremely likely that the India and Mexico Employment Fourth Preference categories will also become oversubscribed at some point during the summer months.

The addition of the El Salvador, Guatemala, and Honduras category is a result of extremely high demand in the E4 and SR categories for applicants from these areas. A determination about whether these countries will remain subject to E4 and SR final application dates under the FY2017 annual numerical limitation will be made in early September. Read the entire May 2016 Visa Bulletin.

Article By Eleanor Pelta & Eric S. Bord

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

Supreme Court’s Decision on Future of DACA and DAPA

Supreme Court argument has taken place in United States v. Texas, a high-stakes, hotly contested case on the Administration’s executive programs that deferred possible deportation of millions of undocumented individuals. The Court’s expected June decision is likely to have far-reaching implications for employers.

In 2012, the Obama Administration introduced through executive action Deferred Action for Childhood Arrivals (DACA), a program which deferred deportation of certain individuals who arrived to the United States unlawfully as minors. DACA allowed these individuals access to employment authorization. In late-2014, the Administration, again through executive action, expanded DACA, in part, by increasing the available periods of employment authorization for DACA beneficiaries from two years to three years, and introduced Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA is a program which deferred deportation of and created a basis for employment authorization for parents who, as of November 20, 2014, had a child who was a U.S. citizen or green card holder.

In February 2015, the U.S. District Court for the Southern District of Texas concluded the 2014 DACA expansion and DAPA creation were unconstitutional and enjoined the 2014 executive action. The U.S. Circuit Court of Appeals for the Fifth Circuit upheld the lower court’s injunction later that year. The Administration appealed that decision to the U.S. Supreme Court.

The case raises the threshold issue as to whether states have the right to bring such an action and carries with it broad implications for the limits on and use of executive power. The case is important for employers because hundreds of thousands of individuals have obtained employment authorization through DACA’s 2012 guidelines and more than 100,000 more received three-year employment authorization approvals through the 2014 expansion before the district court’s injunction.  It was expected that many individuals would continue to apply for three-year employment authorization under the DACA expansion and DAPA creation.  Since February 2015 and until the Supreme Court renders a decision, only individuals qualifying under the original 2012 DACA guidelines may obtain employment authorization, limited to two-year increments.  If the Supreme Court agrees with the Fifth Circuit, then the DACA expansion and DAPA program will be nullified.  Whether the pre-2014 DACA program and guidelines would survive a Supreme Court decision affirming the Fifth Circuit’s ruling is unclear.

Contributing to the interest in and speculation about this case is the vacancy on the Supreme Court created by Justice Antonin Scalia’s recent death. Should the Supreme Court’s deliberations end in a 4-4 tie, the lower court’s ruling  would remain intact and undisturbed, thus foreclosing the ability of individuals who would otherwise be qualified for employment authorization under DACA expansion and DAPA to receive employment authorization as the 2014 executive action intended.  However, because an affirmance by an equally divided 4-4 Court would be non-precedential, the issues could be raised again in another case, after a ninth justice was seated on the Court.

There will be great interest in the outcome of this case as the end of the current term approaches.

H-1B Cap: The Receipts Are Trickling In!

The July 2015 Visa Bulletin Brings Little ChangeOn April 7, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it received more H-1B petitions than available under the statutory cap of 65,000 general-category visas and 20,000 U.S. Master’s visas for the fiscal year. Another record-breaking year: USCIS received over 236,000 H-1B petitions during the filing period.

This is the fourth consecutive year that the H-1B quota has been reached during the first five business days of April. Before that, the last time the cap had been reached during the first week was in April 2008 for FY 2009. The decreased demand after FY 2009 was due to the effects of the financial crises. H-1B petition submissions have increased each year, as outlined below:

FY 2017

236,000

FY 2016

233,000

FY 2015

172,500

FY 2014

124,000

On April 9, USCIS ran the computer-generated lottery to select enough petitions to meet the 65,000 general-category cap and the 20,000 Master’s cap. As such, USCIS began issuing Receipt Notices for those cases that “won” the lottery this week. They are slowly “trickling” in. Once the case is “receipted” it still must undergo review and adjudication by USCIS. USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

Any cases not selected in the lottery will be returned with their filing fees.

We appreciate that, during this period, employers and foreign national employees will be anxious while awaiting the lottery results. Proskauer will continue to update its clients directly and through alerts as to H-1B cap developments.

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

© 2016 Proskauer Rose LLP.

Department of State Issues May 2016 Visa Bulletin

The Department of State (DOS) has released the May 2016 Visa Bulletin with the Application Final Action Date chart for employment-based applications which reflects some modest movement for some applicants.

The second and third preference categories for China-mainland born applicants had no movement. The second and third preference categories for India move ahead a few weeks to Nov. 22, 2008, and Sept. 1, 2004.  There was no movement in the third preference for all chargeability areas except those listed, and no movement for Mexico. The third preference and other workers categories for the Philippines move ahead a few months to Aug. 8, 2008.

There was no movement in the Dates for Filing chart for employment-based categories with the exception of the other workers category for China-mainland born applicants, which moved up several months to April 1, 2008.

The May 2016 Visa Bulletin states that “during the past month, there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status. If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.” The DOS also notes an oversubscription of applicants from El Salvador, Guatemala, and Honduras.

As previously reported, last month prospective adjustment of status applicants have been advised to use the Application Final Action Date chart to determine their eligibility to file applications, despite previous guidance that the Dates for Filing chart could be used. Greenberg Traurig will continue to monitor the movement of Visa Bulletins and consequences on eligibility for filing.

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

IBI May 2015 1

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

IBI May 2015 2

Article By Kristen T. Burke of Greenberg Traurig, LLP
©2016 Greenberg Traurig, LLP. All rights reserved.

April 2016 Visa Bulletin Release

visaThe Department of State (DOS) has released the April 2016 Visa Bulletin, with the Application Final Action Date chart for employment-based applications reflecting some substantial movement. The 2nd preference category for China-mainland born applicants has moved ahead one month to Sept. 1, 2012, and for India born applicants it has moved ahead a few weeks to Nov. 8, 2008. The 3rd preference and Other Workers categories have moved ahead at least one month for all applicants. The Final Action Date cut-off for China-mainland born applicants is now Feb. 1, 2014, for all 5th preference category applicants. There was no movement in the Dates for Filing chart for employment-based categories.

The family-based categories also showed slight movement in the Application Final Action Date chart, but there was no movement in the Dates for Filing chart.

As reported, last month prospective adjustment of status applicants were advised to use the Application Final Action Date chart to determine their eligibility to file applications, despite previous guidance that the Dates for Filing chart could be used. USCIS has not yet advised which April 2016 charts should be referred to in filing adjustment of status applications for family- or employment-based petitions, but anticipates that this information will be released within the week.

Article By Lauren A. Tetenbaum of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.