Category: Immigration

Quota Reserved for Most Desired Immigrant Applicants Retrogresses for Natives of India and China!

august 2016 student loansThe Department of State published its August 2016 Visa Bulletin and it has a few impactful surprises. This is not good news for companies and foreign nationals.  Indian and Chinese foreign nationals, as usual, are the hardest hit.  Specifically, the historically open First Preference Employment Based Category (EB-1) retrogressed to January 1, 2010 for Indian and Chinese nationals.  We can’t recall the last time the EB-1 category was not current.

This is astonishing when you consider that the EB-1 group represents some of the most talented foreign nationals that are immigrating to the US. Specifically, the EB-1 category includes:

  • Individuals of Extraordinary Ability – to qualify the individual must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.

  • Outstanding Researchers – to qualify the individual must demonstrate international recognition for his/her outstanding achievements in a particular academic field. The individual must have at least 3 years’ experience in teaching or research in that academic area and must be in the United States in order to pursue research in the field.

  • Multinational Managers/Executives – to qualify the individual must have been employed as a manager or executive outside the United States in the 3 years preceding the petition for at least 1 year by a parent, affiliate or subsidiary of a U.S. company where they will serve in the U.S. in a managerial or executive capacity.

There are additional delays for other nationalities and categories as well see: https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-august-2016.html. The most common employment based visa categories, beyond EB-1, are Second (EB-2) and Third (EB-3) preference. EB-2 is applicable for jobs that require an advanced degree or equivalent as a minimum, exceptional ability in the arts, sciences or business, and National Interest Waivers for individuals whose work is in the national interest. The EB-3 classification is for skilled workers, professionals and unskilled workers.

Chinese nationals are being treated the same this August, whether first, second or third preference. All three categories have a January 1, 2010 priority date. For Indian nationals, EB-1 is still the best category, but with the January 1, 2010 priority date – the news is not good! The EB-2 and EB-3 categories have a priority date of November 2004. Can you imagine waiting more than twelve years to complete a process once started?

Notably, the EB-2 “all other” category retrogressed to February 1, 2014 which is worse than the third preference category at March 15, 2016. So, EB-3 all other is better than EB-2! We haven’t see this type of movement in the “all other” category for a significant period of time.

What this Visa Bulletin represents is a “shutting off” of the flow of immigrant visas being issued for what is expected to be the remainder of the fiscal year. Fiscal Year 2017 starts on October 1, 2016 and new visa numbers will be available. In the August Visa Bulletin, the Department of State indicates that the EB-1 category will be opening back up in October. Assuming the State Departments calculations are generally on target, we should see movement in October or later in the fall that will resemble the dates where we left off in July 2016.

The Visa Bulletin and lack of visa numbers for skilled workers continues to be a daunting problem for employers and foreign nationals alike. The system for foreign nationals who want to “follow the rules” has broken down.   Further, there is no relief, or comprehensive immigration reform, in sight. Expect more whiplash inducing movement in the future.

ARTICLE BY Valarie H McPherson of Proskauer Rose LLP

Increased DOJ fines for Immigration-related Offenses go into effect August 1

New fines will apply to violations that occurred on or after Nov. 2, 2015 – Another good reason to conduct regular I-9 self-audits

The U.S. Department of Justice’s (DOJ) new penalties for immigration-related workplace violations including unlawful employment of aliens, I-9 paperwork violations and unlawful employment practices tied to immigration (discrimination) will take effect Aug. 1. The new penalties will cover activities that occurred on or after Nov. 2, 2015.

Penalties for unlawful employment of unauthorized workers – For the first offense, the minimum fine will increase from $375 to $539 per worker, while the maximum fine will increase from $3,200 to $4,313 per worker. Fines for second and subsequent offenses will also increase significantly, with a maximum fine possible of $21,563 per worker for companies with a poor track record.

I-9 self-audits
Penalties for Form I-9 paperwork violations – For all Form I-9 paperwork violations, the minimum fine will increase from $110 to $216 per violation. The maximum fine will increase from $1,100 to $2,156 per violation. This is a significant increase which will impact employers even if they are not employing unauthorized workers or are not involved in unfair immigration-related employment practices.

Penalties for unfair immigration-related employment practices – For the first offense, the minimum fine will increase from $375 to $445 per violation, while the maximum fine will increase from $3,200 to $3,563 per violation. Fines for second and subsequent offenses will also increase significantly, up to a maximum fine of $17,816 per violation. In addition, the minimum fines for document abuse (requiring employees to provide more and/or different evidence of work authorization than what is required) will increase from $110 to $178 per violation, and the maximum fines will increase from $1,100 to $1,782 per violation.

With the increase in fines, employers need to be confident that they are following best practices when recruiting and hiring and completing the Form I-9. As always, reviews of employment practices and regular self-audits of company Form I-9s are a good way to make sure that your company is complying with federal law. We are always willing to help with any questions you have regarding your policies and practices.

As Europe divides, Africa Unites with Common African Union E-passport

In 2015, African Union (AU) Commissioner for Political Affairs, Dr. Aisha Abdullahi, indicated that a plan was underway to implement a single African passport. After recent announcements that the AU passport would be unveiled at the AU Summit in Kigali this month, the long-awaited continental e-passport has finally been revealed. The first recipients of the pan-African passport were Rwandan President Paul Kagame, whose country hosted the summit, and Chadian President Idriss Deby, the chairperson of the AU. Others to receive some of the first pilot passports will include heads of state, foreign ministers and permanent representatives of the member states to the AU’s Addis Ababa headquarters. The timeline for the common passport roll-out to citizens of member countries is uncertain, although AU officials hope that citizens will have access by 2018.

african union e-passport

This long-awaited passport is targeted to address the perennial problem of border openness in sub-Saharan Africa; closed borders are cited as a substantial impediment to both intra-African trade and economic growth.

Out of the 54 countries in Africa, to date, only thirteen allow citizens from any other African country to travel without advance visas. These significant barriers to intra-African travel are believed to be a leading cause of the low levels of trade between nations on the continent. Whereas intra-European trade accounts for approximately 60% of all European trade and intra-North American trade accounts for 40% of all trade on the North American continent, intra-African trade only counts for about 13% of African trade. While a small portion of this difference may be explained by unrecorded informal trade across porous borders, the difference is nevertheless notable.

There is evidence that opening borders can lead to economic growth globally, and experiences on the African continent support this contention. For example, in 2013, Rwanda announced that travelers from any African country could receive a visa on arrival. After improving visa openness, Rwanda’s GDP growth increased to 7% in 2014, tourism revenues rose by 4%, and the number of African travelers to Rwanda increased 22%.

Rwanda has led the charge for the creation of an AU passport. Now, the Rwandan Minister of Foreign Affairs, Louise Mushikiwabo, has indicated that Rwanda is fully prepared to begin issuing the common passport to all of its citizens. In contrast, other African nations would need to enact legislation that would allow them to begin issuing the African Union passports to citizens. Based on the general response to the common passport—the AU has been “overwhelmed” by requests for the passport—it is likely that AU member countries will feel pressure from their own citizens to do so quickly.

Interestingly, Morocco—the only African country that is not currently a member of the AU—has asked to rejointhe organization after a decades-long absence during the same summit in which the AU passports were unveiled. The timing of Morocco’s request could allow the county to take advantage of the new common passport and the expanding perks of AU membership.

The unified passport will undoubtedly present challenges for countries with less advanced border-security technology and fewer resources to devote to border control. Currently, only nine African countries offer eVisas. The AU passport is biometric and considered secure, but the issuance and acceptance of these e-passports at entry points of countries currently without e-passports may present a problem.

Relaxed immigration restrictions may also lead to larger inflows of migrant workers to the more economically stable countries on the continent, which may stoke the sort of anti-immigrant sentiment that led to violence in South Africa last year.

Travelers who are not citizens of AU member countries will not be able to benefit from the common passport, and will still face the relatively restrictive entry requirements on the continent. However, the enhanced labor mobility resulting from the AU’s e-passport program  could have a catalytic effect on trans-African investments and commerce.

ARTICLE BY Khadijah A. Robinson of Covington & Burling LLP

© 2016 Covington & Burling LLP

New USCIS Policy Decision Broadens Permissible Bases for Visa Transfer of Multinational Managers

visa transferAfter four years of internal deliberations, U.S. Citizenship & Immigration Services (USCIS) recently issued a policy memorandum binding all USCIS personnel to follow the reasoning of a 2013 USCIS Administrative Appeals Office (AAO) decision. That AAO decision broadened the type of evidence a U.S. employer may cite in support of an L-1A intracompany transfer visa, which is used by U.S.-based entities that seek to transfer employment of a manager or executive from a foreign-based affiliate.

The 2013 AAO decision was petitioned by the U.S. subsidiary of a publically traded Japanese parent company that manufactures packaging solutions for the medical, pharmaceutical, and food industries. Its U.S. subsidiary imports, markets, and distributes the Japanese parent company’s product line in North America. In 2012, the U.S. subsidiary sought to extend the L-1A visa of a transferee employee, who acted as the U.S. employer’s vice president and chief operating officer. The USCIS California Service Center denied the extension request, claiming the transferee was not employed in a managerial capacity because the U.S. employer did not have an organizational structure large enough to support a managerial position. By citing the existence of only two payroll employees besides the L-1A transferee, USCIS denied the visa extension, claiming that in the absence of other employees, the transferee L visa beneficiary was primarily performing sales duties rather than managerial duties. The denial decision gave no weight to the fact that the transferred employee supervised contracted U.S. service providers and a foreign staff of eight employees, which included three sales employees, four engineers, and a shipping clerk.

AAO overturned that California Service Center decision, citing as error the denial’s emphasis on the small size of the U.S.-based operations. As the AAO noted, “That a petitioner may only have a few employees directly on its payroll, although a relevant consideration in the determination of whether a beneficiary qualifies as an L-1A manager, does not necessarily compel a conclusion that the beneficiary primarily performs day-to-day operational duties.”

By adopting as policy the guidance provided by the 2013 AAO decision, USCIS has now made it a requirement that all USCIS employees follow the reasoning of the AAO decision. U.S. multinational employers will be the prime beneficiaries of this reversal in longstanding USCIS practice. Now, even U.S. employers with quantitatively limited organizational structures can benefit from the advantages of the L employment visa category.

ARTICLE BY Roy J. Barquet of Foley & Lardner LLP

© 2016 Foley & Lardner LLP

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.