Category: Immigration

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.

DOS vs USCIS: Visa Bulletin Games

Last week USCIS issued guidance stating that it will advise which of the two visa bulletin charts; Dates for Filing Visa Applications or Application Final Action Date applicants should use.

Today, USCIS released it’s first update on its new visa bulletin website stating that applicants CAN use the new “Dates for Filing” chart in October and November.

Unlike for the October visa bulletin, no changes have been made to the visa bulletin dates after the original publication.

ARTICLE BY Immigration Practice Mintz Levin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

October 2015 Monthly AILA Check-In with Charlie Oppenheim

Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State, held his monthly meeting with AILA to shed light on the data in the recently-released Visa Bulletin.

Since the last AILA check-in with Charlie in September, the October 2015 Visa Bulletin, which was initially released on September 9, 2015, was republished on September 25, 2015, superseding the prior bulletin.

A class action law suit was filed against the U.S. Department of Homeland Security in response to these changes. This case was denied by the court and the Revised Visa Bulletin remains in effect.

The updated October Visa Bulletin listed the same Final Action Dates as the September 9 version of the Bulletin, but changed the Filing Dates in the following categories:

In this check-in with Charlie, the differences between the November 2015 and revised October Visa Bulletin are compared, and Charlie offers his predictions below:

november visa bulletin 

Final Action Dates and Family-Based Preference Categories: The family-based categories continued to progress slowly and steadily, advancing approximately one month in most cases. F-1 Philippines jumped ahead one year from June 1, 2001 in October to June 1, 2002 in November. However, this advancement is somewhat deceptive, since F-1 Philippines retrogressed towards the end of this past fiscal year, moving from February 1, 2005 in May 2015 to dates in 2000 from June through September 2015. The October and November advancements merely represent a recovery from that retrogression. Charlie predicts that this category will likely continue to advance for the next month or so, depending on the level of demand that materializes.

Final Action Dates and Employment-Based Preference Categories: The EB-5 Regional Center Pilot Program and “certain religious workers” categories were originally listed as “unavailable” in the October Bulletin while Congress considered an extension of these programs. On September 30, 2015, both programs were temporarily reauthorized (until December 11, 2015), which resulted in those cut-off dates immediately becoming “Current” (with the exception of EB-5 China) for October. China EB-5 advanced to November 22, 2013, up from October 8, 2013 in the October Bulletin. (AILA Doc No. 15081203)

China EB-2 will advance one month in November from January 1, 2012 to February 1, 2012. China EB-3 will advance approximately two and a half months in November from October 15, 2011 to January 1, 2012. China EB-3 Other Workers will also move forward three months to April 2006.

India EB-2 will move forward 15 months from May 1, 2005 in October to August 1, 2006 in November. While this appears to be a big leap, it is largely the result of a correction based on the retrogression of this category late last fiscal year as the number of available visa numbers dwindled: The Final Action Date for EB-2 India reached December 15, 2013 in August 2015, but then retrogressed to January 1, 2006 in September. Charlie predicts that this category will likely continue to move forward.

The Final Action Dates for India EB-3 and EB-3 Other Workers will advance less than one month in November to April 1, 2004. Usage in this category has been particularly high and it is too early in the fiscal year for unused numbers from other categories to trickle down. Forward movement in this category should remain limited.

Final Action Dates for all Mexico EB categories will remain the same in November, with all categories current except for EB-3 and EB-3 Other Worker which are almost current at August 15, 2015. Charlie is watching these categories closely to see whether the forward movement during the last fiscal year will spur demand and impact these cut-off dates.

Philippines EB-3 and Other Workers categories will advance five and a half months in November to June 15, 2007. All other Philippines EB categories remain current.

Filing Dates

All of the employment-based Filing Dates listed in the Revised October 2015 Visa Bulletin are the same for November. The family-based Filing Dates also remain the same with the exception of:

 november visa bulletin

Article By Patricia A. Elmas of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

USCIS Issues Further Guidance on the New Filing Date Visa Bulletin

In September, USCIS announced that some individuals would be eligible to file adjustment of status applications following a separate Dates for Filing Visa Applications (“filing date”) chart. This chart differed from the classic Visa Bulletin “priority date” chart now known as the Application Final Action Date chart. USCIS has now announced that it will provide information each month on when applicants should use the filing date versus the priority date chart to evaluate whether or not they can file an application to adjust status or immigrant visa application.

Timeline

The new USCIS process is slated to begin with the November 2015 Application Final Action Date chart, which was released on October 9th. Each month, USCIS will evaluate whether or not there are immigrant visa numbers available for each category and post on its website if individuals may use the filing date chart.

USCIS states that it anticipates, “making this determination each month and posting the relevant chart on our website within one week of DOS’ publication of the Visa Bulletin.”

Process

USCIS has clarified that the filing date chart may ONLY be used if the agency provides an update and information stating so on its website here. If no additional information is provided by USCIS, applicants should assume that they should follow the DOS Application Final Action Date chart to guide filing decisions and adjudication timing questions.

Original Visa Bulletin Not Restored

The July 2015 Visa Bulletin Brings Little ChangeOn September 28, 2015, several highly-skilled immigrant workers from India and China filed a federal class action lawsuit in the State of Washington against the U.S. Department of State (“DOS”) and U.S. Department of Homeland Security (“DHS”) over revisions to the October 2015 Visa Bulletin (Revised Visa Bulletin).  A temporary restraining order was subsequently filed on September 30, 2015.

Unfortunately on October 7, 2015, the court denied the plaintiffs’ request for a temporary restraining order. The court denied the request for a temporary restraining order because it found that (1) the plaintiffs failed to show a likelihood of success on the merits, and (2) the revision of the Visa Bulletin did not substantially alter the plaintiffs’ rights.  According to the court, the Revised Visa Bulletin only clarified a prior incorrect statement of their rights.

The immediate effect of this decision is that the Revised Visa Bulletin will remain in effect and DHS will not be required to accept Adjustment of Status applications that could have been filed under the Original Visa Bulletin but not under the Revised Visa Bulletin. The underlying lawsuit, however, is still ongoing.

Many foreign nationals who very recently found themselves one step closer to having a green card are now looking at lengthy wait times once again.  A good portion of these individuals have also incurred costs associated with their anticipated applications to adjust status including legal fees, medical exams, and passport photos.  We will continue to monitor the progress of the case moving forward.

Article By Courtney B. Noce of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

U.S. Consulates, Embassies Closed Friday October 9th for Systems Upgrade

Operations will be closed at U.S. Embassies and Consulates around the world on Friday, October 9th, for a systems upgrade.

“Although the closure was not publicly announced by the State Department’s Bureau of Consular Affairs, a DOS official confirmed to Law360 that consular operations across the globe will be off-limits to the public next Friday, thanks to a “consular systems upgrade.

“This is a vital step toward fully retiring our old Consular Consolidated Database infrastructure and moving to a larger, faster and more modern infrastructure,” the official said. “This upgrade will bring greater stability to our operations and will allow us to replace outdated hardware and software.”

Individuals with appointments scheduled for Friday are advised to reschedule.

Color us skeptical, after this summer’s debacle, but here’s hoping that this upgrade will go smoothly.

Article By Danielle Lifrieri, Immigration Practice Mintz Levin of Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

2017 Diversity Visa Lottery Registration Began Yesterday

On October 1, 2015, the US Department of State will began accepting requests to register for the 2017 Diversity Immigrant Visa Program (DV-2017), also known as the Green Card Lottery. The Diversity Lottery Program provides a path for foreign nationals to become permanent residents of the United States regardless of whether they have a family member or an employer willing to sponsor them. This program is a success, facilitating the immigration of people from across the globe. If you meet the eligibility requirements and wish to secure permanent residence status in the United States, you should consider registration in the lottery.

Registration begins October 1, 2015

The State Department will open online registration for the DV-2017 Program on Tuesday, October 1, 2015, at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and conclude on Tuesday, November 3, 2015, at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4). Individuals who meet the eligibility requirements and submit an application during the appointed time will be entered into a lottery from which 50‚000 green card entries will be selected. Applications must be submitted electronically by 12:00 noon EDT on Tuesday, November 3, 2015. Detailed instructions are at http://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html.

There is no fee to register for consideration in the lottery. Entries may not be submitted through the US Postal Service.

Am I eligible for a green card if I am selected in the lottery?

Selection in the lottery does not guarantee the applicant a green card; applicants must still meet all standards for admissibility and be able to process their green cards within the allotted time. Immediate family members of successful lottery applicants are eligible for green cards as well, provided they meet the same admissibility standards. Individuals who are selected and eligible for one of the 50,000 visa numbers may either secure an immigrant visa at a US Embassy or Consulate or, if they are in the United States and qualified to do so, adjust their status by filing an application and supporting documentation with United States Citizenship and Immigration Services (USCIS).

What countries are eligible?

Lottery visas are apportioned to foreign nationals hailing from the following six geographic regions: Africa; Asia; Europe; North America; Oceania; and South America‚ Central America, and the Caribbean. To qualify‚ a foreign national must claim nativity or country of birth in an eligible country and meet certain education or work experience requirements. The purpose of the program is to diversify and encourage immigration from countries that send lower numbers of immigrants to the United States.

Excluded Countries

Not all countries in the six eligible regions fall within the Green Card Lottery program. Natives of these countries will not be eligible for the DV-2017 Lottery: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. This list is unchanged from last year.

Persons born in Hong Kong (SAR), Macau (SAR), and Taiwan are eligible.

How do I know if I was selected in the lottery?

Official notifications of selection will be made through Entrant Status Check, available starting May 3, 2016, at the diversity lottery site.

Please note that the Department of State does not send selectee notifications or letters by regular postal mail or by e-mail. Any e-mail notification or mailed letter stating that you have been selected to receive a DV does not come from the Department of State and is not legitimate. Any e-mail communication you receive from the Department of State will direct you to review Entrant Status Check for new information about your application.

Article By Douglas Hauer, Kevin R. McNamara, William L. Coffman & Barbara Chin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.