Category: Immigration

September 30th Comes and Goes and the EB-5 Regional Center Program is Extended through December 11, 2015 in its Current Form

Today the U.S. Congress passed a government funding bill containing a short-term extension of the EB-5 Regional Center Program through December 11, 2015.  We wrote previously about the EB-5 Regional Center Program’s prospects for reauthorization in a post on September 14.  The bill, known as a continuing resolution, contains an extension for the EB-5 Program along with extensions for E-Verify, the Conrad-30 Waiver Program, and the Non-Minister Religious Worker Visa Program.  The bill would extend all four of these programs through December 11, 2015.  Section 131 sets out the duration of the funding authority.  Section 131 of the bill contains the language to extend the EB-5 program.

For months the EB-5 community has been concerned about what might or might not happen with the expiration of the EB-5 Regional Center program.  As Congress has been working toward an EB-5 reform package, many in the community have been viewing the September 30th sunset date as a hard deadline for filing regional center-related petitions.  In light of the complicated legislative process, filing I-526 Investor petitions as well as exemplar petitions before the September 30th potential expiration of the program was reasonably seen as a priority.

Going forward, it will be important for industry stakeholders to reflect on why September 30th was viewed as a meaningful date for either of these filings.  For instance, there was virtually no serious discussion about the possibility that Congress would simply let the Regional Center Program expire and not act to reauthorize it.  Based solely upon on introduced legislation in the Congress and public statements from lawmakers, it appears likely that some reforms will ultimately be made to the EB-5 Regional Center Program.  Over the coming months, industry stakeholders should take the opportunity to present their ideas about how any reforms could be implemented effectively and in a manner that supports the job creating efforts in which industry participants are engaged.

Now that Congress has passed a clean extension of the program through early December, we can only hope that real workable reform with reasonable transition dates can be enacted.  Such an approach will help meet the expectations of investors, regional centers, and the job creating projects in which investments are being made so that all participants can proceed with the predictability and stability necessary for a healthy program.

Article By Laura Foote Reiff & Matthew Virkstis of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

U.S. Chamber of Commerce Pens Op-Ed in Support of the EB-5 Program

Thomas J. Donohue, President and Chief Executive Officer of the U.S. Chamber of Commerce, has penned an op-ed  for The Hill  on the benefits of the EB-5 program that discusses how the program is simply smart government policy.  The op-ed breaks down the process and the nuances of the program under current law.  Mr. Donohue identifies several projects that have been crucial to the United States, including hotels, schools, technology centers, and nursing homes.  Infrastructure projects are also the latest type of developments that utilize the EB-5 program.  He recognizes that the EB-5 program is an important and critical part of turning these projects into reality, and due to the economic benefit (both in terms of job growth and investment capital) it brings to each local economy, it should not be allowed to lapse.

The op-ed includes recognition that major organizations around the United States have rallied around the EB-5 program, and that have supported and championed its use, including the U.S. Chamber of Commerce and other industry groups.  These groups have also recognized that there is a need for reform of the program to prevent fraud and abuse, and as such, should be updated to include provisions for integrity, security, and oversight measures.

Mr. Donohue identifies a current concern surrounding the use of the EB-5 program in certain areas, and he does not believe that Congress should direct EB-5 investment into certain areas of the United States at the expense of other areas, since the program was designed to encompass all the areas in the United States that need job creation.  Because job creation is one of the purposes of the program, the way that jobs are counted are important, but should not be unreasonably limited or restricted.

Lastly, Mr. Donohue discusses the current backlog EB-5 petitions are receiving- to date, there are currently more than 13,000 EB-5 petitions pending approval, and if there are any changes to the program, these petitions should not be unfairly affected.  By applying any changes to these pending petitions would be to unfairly penalize and disrupt both current and potential projects.

Mr. Donohue stresses that the purpose of the EB-5 program should be on job creation and also economic stimulus.  Thus, attracting foreign capital that leads to U.S. job creation is an important factor to boost the United States’ presence in the foreign marketplace.

Article By Kristen W. Ng of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Department of Labor Glitch Prevents PERM Filings re: Immigration

A programming glitch, which occurred during a software update implemented by the Department of Labor (DOL) on September 1, 2015, prevented some employers from being able to file their PERM applications, the DOL announced today on its website. The DOL explained that the malfunction precluded employers from completing some of the ETA Form 9089 online.

The problem with the Permanent Labor Certification Case Management System (CMS) continues and the DOL has directed employers who are unable to complete and file an ETA Form 9089 online to mail in their PERM applications to the Atlanta National Processing Center. The DOL is authorizing those employers who tried and could not file a PERM application online between September 1, 2015 and September 11, 2015, only, to include documentation demonstrating that information in their ETA Form 9089 was affected by the programming glitch.

If your PERM application was affected last week, you must submit your ETA Form 9089 and supporting documentation before September 30, 2015. Please see the DOL’s Employment & Training Administration’s web page for filing instructions here.

Article By Rebecca B. Schechter of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

DHS Expected to Issue STEM OPT Rule in Early Fall

The Council for Global Immigration (CGI) has updated its members regarding the recent decision of a District Court judge which vacated the 17-month STEM OPT rule, but stayed the order until February 12, 2016.  The CGI recognizes that this will put the Department of Homeland Security on a short timeline to issue a rule with a proper notice and comment period, but expects that a proposed rule will be issued in late September or early October, with a 30 or 60 day comment period to follow thereafter.

Stakeholders will have a chance to comment on the proposed rule once it is issued and provide valuable input.

Article By Kristen W. Ng of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

USCIS Announces Changes to ELIS Immigrant Visa Fee Payment Procedures

USCIS announced on August 31, 2015, that the agency has simplified the process for paying the $165 immigrThe July 2015 Visa Bulletin Brings Little Changeant visa (“IV”) fee through its electronic immigration system, known as ELIS. The IV fee is required of those foreign nationals immigrating to the United States to produce permanent resident cards, known as “green cards.” A “green card” will not be issued without having paid this fee, with the exception of very limited situations. This fee is payable to USCIS and is separate and apart from the immigrant visa fee payable to the National Visa Center in connection with the U.S. Department of State processing of immigrant visa applications.

Amongst the announced changes are a reduction in the amount of information an immigrant must provide to USCIS as part of creating an ELIS account and ordering the production of their green card. Of particular note is that USCIS will now permit other individuals, including family members, attorneys, or accredited representatives to submit payment on behalf of the applicant, so long as the payee possesses the applicant’s Alien Registration Number (“A-Number”) and their Department of State Case ID. Until this change was announced, USCIS restricted the ability to create an account and pay the IV fees through ELIS to the applicant herself.  These system improvements reflect the Agency’s continuing efforts to simplify its systems and procedures.

Article By Shaun K. Staller of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Uncertain Future of Extended Employment Authorization for STEM Graduates

In 2008, the Department of Homeland Security (DHS) issued an emergency regulation that added 17 months of employment eligibility to recent graduates holding student visas who received a degree in Science, Technology, Engineering and Mathematics (STEM). This 17-month period was in addition to the 12-month period of employment authorization that applies to all recent college graduates holding student immigration status.

Recently, a federal court vacated the 17 month additional employment eligibility period for STEM graduates.Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, U.S. District Court, District of Columbia. The Court upheld DHS’s authority to issue the regulation but vacated the regulation itself because no notice and comment period was provided before the regulation was issued. Furthermore, the Court stayed its decision until February 12, 2016, in order to allow DHS to issue a regulation using the appropriate notice and comment process. The Technology Workers Union, which filed the lawsuit challenging the 17 month addition of employment eligibility, is appealing the case to the D.C. Circuit Court of Appeals.

The President had noted in his November 2014 announcement regarding administrative steps to improve the immigration system that DHS would issue regulations expanding the employment authorization opportunities of recent college graduates. The result in the Washington Alliance case may encourage DHS to timely issue its new regulation using a notice and comment period so as to allow people already enjoying the use of a 17-month STEM graduate employment authorization period to continue working without interruption.

A component of the President’s proposed administrative steps to improve the immigration system referenced an enhanced role for colleges/universities in ensuring a connection between a student’s field of study and the job held by the recent graduate. We do not yet know what that additional role will be, nor do we know whether the Court of Appeals will agree with the lower court with regard to the authority of DHS to allow post-graduation employment authorization or at least the extended STEM authorization. Further, we do not know whether DHS will complete its work in time to avoid a disruptive gap in regulations after February 12, 2016. Given the fact that tens of thousands of people are currently working pursuant to extended employment authorization for STEM graduates, there is great interest in bringing clarity to this issue. If you have an employee working on extended employment authorization for recent graduates, please keep an eye on developments in this area. You may need to perform an I-9 re-verification in February of 2016.

Article By José A. Olivieri & Kelly R. Rourke of Michael Best & Friedrich LLP
© MICHAEL BEST & FRIEDRICH LLP

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

Department Of State Releases September 2015 Visa Bulletin

Cutoff dates for EB-2 China and India retrogress to January 1, 2006. Cutoff dates for EB-3 China, India, and the Philippines advance to December 22, 2004.

The US Department of State (DOS) has released its September 2015 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a US embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does The September 2015 Visa Bulletin Say?

The September 2015 Visa Bulletin shows a large retrogression of visa numbers for EB-2 China and India, and an advancement of six and a half months for the EB-3 China, Philippines, and India allotments. The cutoff date for F2A applicants in China, India, Philippines, and the worldwide categories will advance by two and a half months in September. The cutoff date for F2A applicants from Mexico will advance by three months.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to China will retrogress by nearly eight years, and the cutoff date for applicants in the EB-2 category chargeable to India will retrogress by two years and nine months. For both categories, the cutoff date has been set at January 1, 2006. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to the worldwide category and Mexico will advance by one month to August 15, 2015. The cutoff date for applicants in the EB-3 category chargeable to China, India, and the Philippines will advance by six and a half months to December 22, 2004.

EB-5: The cutoff date for applicants in the EB-5 category chargeable to China will advance by three weeks to September 22, 2013. The cutoff dates for applicants in the EB-5 category chargeable to the worldwide category remain current.

The relevant priority date cutoffs for foreign nationals in the EB-2 category are as follows:

China: January 1, 2006 (retrogression of 2,905 days)
India: January 1, 2006 (retrogression of 1,004 days)
Mexico: Current
Philippines: Current
Rest of the World: Current

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: December 22, 2004 (forward movement of 204 days)
India: December 22, 2004 (forward movement of 204 days)
Mexico: August 15, 2015 (forward movement of 31 days)
Philippines: December 22, 2004 (forward movement of 204 days)
Rest of the World: August 15, 2015 (forward movement of 31 days)

The relevant priority date cutoffs for foreign nationals in the EB-5 category are as follows:

China: September 22, 2013 (forward movement of 21 days)
Rest of the World: Current

Developments Affecting The Eb-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The September Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through September 2015.

China

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for EB-2 applicants chargeable to China. The September Visa Bulletin indicates a cutoff date of January 1, 2006, reflecting a retrogression of 2,905 days (nearly eight years). This means that applicants in the EB-2 category chargeable to China with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of October 1, 2008 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates a cutoff date of January 1, 2006, a retrogression of two years and nine months. This means that applicants in the EB-2 category chargeable to India with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

Developments Affecting The Eb-3 Employment-Based Category

China

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to China. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to China with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to India. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to India with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

The Philippines

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to the Philippines. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to the Philippines with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

Mexico

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to Mexico. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to Mexico with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Rest of the World

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to the worldwide category. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Developments Affecting The F2a Family-Sponsored Category

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from Mexico. The September Visa Bulletin indicates a cutoff date of February 1, 2014, an advancement of three months. This means that applicants from Mexico with a priority date prior to February 1, 2014 may file AOS applications or have applications approved in September 2015.

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from all other countries. The September Visa Bulletin indicates a cutoff date of March 1, 2014, reflecting forward movement of two and a half months. This means that F2A applicants from all other countries with a priority date prior to March 1, 2014 may file AOS applications or have applications approved in September 2015.

Developments In The Coming Months

It is anticipated that EB-2 visa numbers for China and India will advance again at the start of the 2016 fiscal year (October).

Regarding the Diversity Visa (“DV”) program, the US Department of State has warned that “[e]ntitlement to immigrant status in the Diversity Visa (“DV”) category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015. . . Numbers could be exhausted prior to September 30.”

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward, backward, or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the September 2015 Visa Bulletin in its entirety, please visit the DOS Website.

ARTICLE BY Eleanor Pelta & Eric S. Bord of Morgan, Lewis & Bockius LLP

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

Spring Forward, but Fall Behind: The September 2015 Visa Bulletin Brings Unwelcome News for Indian and Chinese “Green Card” Applicants in the Employment-Based Second Preference Category

Today, the Department of State (DOS) released the last visa bulletin for the 2015 fiscal year. Notably, major retrogressions are seen in the employment-based second preference category (EB-2) for both India and China. The EB-2 India category has retrogressed from October 1, 2008 toJanuary 1, 2006. The EB-2 China category has retrogressed almost eight years, from December 15, 2013 to January 1, 2006.

The employment-based third preference category (EB-3) for Mexico and Worldwide advances by one month. EB-3 China advances by six months and EB-3 India also saw an almost six- month advancement as well.

September is the last month of the government’s fiscal year and DOS has evaluated how many visa numbers are left to be issued. After performing this calculation, DOS adjusts the cutoff dates accordingly. Over the past six months, we have seen significant forward movement in the EB-2 category for India and China, and as such more petitions were filed and numbers were used. The retrogression stops this forward momentum for September, however once the new fiscal year begins October 1st more visa numbers should become available.

ARTICLE BY Michele D. Frangella of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

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

USCIS issued Draft Requests for Evidence Template for L-1B Petitions

USCISIn recent years, the USCIS has issued an increasing number of denials and Requests for Evidence (RFE) for L-1B specialized knowledge employees. As defined by regulations, specialized knowledge is special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. The RFEs were extensive and appeared to be “boiler-plate,” sometimes with no indication in the request issued that the examiner had reviewed the evidence that was submitted with the initial filing. The trend added burden to employers with the extra time and cost associated with responding to the extensive RFEs, which could result in unforeseen delays severely affecting projects and impeding on U.S. employer’s ability to conduct business or fulfill projects, contracts, and deadlines.

Currently, there is no standardized L-1B template for RFEs. In March 2015, USCIS issued guidance on the adjudication process for L-1B petitions in an L-1B Adjudications Policy Memorandum, PM-602-0111 (hereinafter L-1B Policy Memo). The March L-1B Policy Memo itself is a draft and is not set to go into effect until Aug. 31, 2015. Despite the fact that the L-1B Policy Memo is not yet finalized, USCIS subsequently requested comments (which were due on July 31, 2015) on the draft RFE Template for L-1B petitions. The draft RFE Template reflects changes outlined in the March L-1B Policy Memo and includes a list of evidence that could be used to established that the beneficiary has gained specialized knowledge as well as other threshold criteria for L-1B petitions including evidence that the beneficiary has met the one year of qualifying employment abroad; both the U.S. and foreign entities have a qualifying relationship and are actively doing business; and guidance on how to determine whether a beneficiary assigned to an off-site worksite with an unaffiliated employer remains eligible for L-1 classification.

The RFE Template indicates that merely stating the beneficiary’s knowledge is not as strong as providing documentary evidence to establish the beneficiary possesses specialized knowledge. The employer has the burden of providing documentary evidence to show that the beneficiary attained the specialized knowledge through prior education, training, and employment and comparing the beneficiary’s knowledge to that of other employees and workers in the same field. The list of “other evidence” as outlined in the RFE Template includes:

· An explanation of the beneficiary’s knowledge or expertise. Please identify the beneficiary’s knowledge as either “special” and/or “advanced.”

· Documentation of training, work experience, or education establishing the number of years the individual has been utilizing or developing the claimed specialized knowledge as an employee of the organization or in the industry;

· Evidence of the impact, if any, the transfer of the individual would have on the organization’s U.S. operations;

· Evidence that the alien is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations;

· Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the organization’s competitiveness in the marketplace;

· Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the organization’s productivity, competitiveness, image, or financial position;

· Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with that employer;

· Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;

· Evidence of patents, trademarks, licenses, or contracts awarded to the organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization;

· Payroll documents, federal or state wage statements, resumes, organizational charts, or similar evidence documenting the positions held and the wages paid to the beneficiary and parallel employees in the organization; and

· Any other evidence that shows the beneficiary has specialized knowledge.

ARTICLE BY Kristin Bolayir & Ian R. Macdonald of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.