Immigration Archives - Page 32 of 44 - The National Law Forum

SEVIS and SEVP System Outage – J, F, and M Students Travel Warning: Student and Exchange Visitor Information System

The Student and Exchange Visitor Information System (SEVIS) is used by the Department of State and The Student and Exchange Visitor Program (SEVP) to monitor nonimmigrant exchange visitors and students during their time in the United States. SEVIS is a web-based system used for critical processes such as issuance of documentation necessary to obtain visas, payment of fees required to participate in exchange programs, and evidence of maintenance of status required to re-enter the United States after travel.

A SEVIS system update is scheduled to be released on Friday, June 26, 2015. While the planned update/upgrade will provide improved functionality for users, it will also result in a service outage from 8:00 p.m. EDT Friday, June 26, 2015, to 8:00 pm EDT, Sunday, June 28, 2015. During the outage it will not be possible to access the system to input and/or update records. It will also not be possible for immigration officers to verify active SEVIS records. For this reason, it is recommended that J, F, and M visa holders refrain from non-essential travel requiring their re-entry to the United States during the outage. Visa holders who must travel during the outage should be prepared for long waits at the airport upon re-entry. Finally, it will not be possible to pay SEVIS fees necessary for the J visa program. J visa sponsors are recommending that these fees be paid prior to the outage in order to avoid any delays in proceeding with visa issuance.

ARTICLE BY Courtney B. Noce of Greenberg Traurig, LLP

Federal Register Announces TPS Extended for Somalia – I-9 Update Temporary Protected Status

As published in the Federal Register on June 1, 2015, Temporary Protected Status (TPS) designation was extended for Somalian nationals currently living in the United States. Somalia’s TPS extension and re-designation is for an additional 18 months, from September 15, 2015 through March 17, 2017. This action was taken after the Secretary of Homeland Security determined the ongoing armed conflict in Somalia posed a substantial threat to living conditions in the country. Employers should alert all company representatives responsible for the completion of I-9 forms about this development.

TPS Extension and Re-Designation

A country can be designated for TPS due to temporary conditions in the country that prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. Individuals granted TPS benefits are not removable from the United States, can obtain an employment authorization document (EAD) to work in the United States, and may be granted travel authorization to travel outside the United States. The granting of TPS does not, however, result in or lead to permanent resident status.

Somalia was initially designated under the TPS provisions in 1991, with re-designation in 2001 and 2012. The announced extension of TPS designation for Somalia for an additional 18 months, from September 15, 2015 through March 17, 2017, allows current TPS beneficiaries from Somalia to retain TPS through March 17, 2017, so long as they otherwise continue to meet the eligibility requirements for TPS.

For individuals who have already been granted TPS under one of the previous designations, the 60-day re-registration period runs from June 1, 2015 through July 31, 2015. USCIS will issue new EADs with a March 17, 2017 expiration date to eligible Somalia TPS beneficiaries who timely re-register and apply for EADs under this extension. DHS is NOT granting interim work permission through an automatic extension of work authorization, so applicants should file their EAD renewal applications as soon as possible before their current EADs expire in September 2015.

Certain individuals of Somalia who have never applied for TPS may be able to apply under the late initial registration provisions, as long as they (a) can satisfy one of the late initial filing criteria; and (b) meet all TPS eligibility criteria.

ARTICLE BY Ian R. Macdonald of Greenberg Traurig, LLP

The Supreme Court Takes the BIA to Task – Mellouli v. Lynch

Monday, in an opinion authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court brought a measure of hope to non-citizens facing deportation on the basis of certain minor criminal convictions. In Mellouli v. Lynch, the Court ruled that Moones Mellouli, a lawful permanent resident, could not be removed from the United States on the basis of his Kansas conviction for concealing unnamed pills in his sock.

The Court’s decision took the Board of Immigration Appeals (“BIA”) to task for routinely applying inconsistent standards in its decision-making. Under federal law, an individual is subject to removal from the United States on the basis of a state “drug-related” conviction if the controlled substance at issue appears on the federal government’s list of controlled substances. If the controlled substance is on the state list, but not on the federal list, the conviction does not render the individual removable from the U.S.

The BIA applied this standard to drug possession and distribution offenses, but with regard to drug paraphernalia-related offenses, the BIA applied a different standard, subjecting a far greater number of non-citizens to deportation. The BIA’s position was that state drug paraphernalia statutes relate to “the drug trade in general” and therefore relate to any and all controlled substances, whether federally listed or not. In Mr. Mellouli’s case, no controlled substance even figured as an element of the offense of which he was convicted. Yet the BIA ordered him to be deported and the 8th Circuit Court of Appeals denied Mellouli’s petition for review.

The anomalous result of the BIA’s inconsistent interpretations was that a non-citizen who was convicted of possessing a controlled substance not on the federal list would not face removal from the country, but a non-citizen convicted of using a sock to hold the very same substance, would indeed be removed from the country.

Countering the usual deference federal courts give to administrative agency legal interpretations, the Supreme Court properly took the BIA to task for its inconsistent, overbroad and careless reasoning. In so doing, the Court has articulated to those bearing responsibility for removing non-citizens from their homes and families in the United States, that they must exercise restraint and discipline in reaching their decisions.

USCIS Suspends Premium Processing for H-1B Extensions

USCIS has announced that it will suspend premium processing for all H-1B extension petitions between May 26, 2015, and July 27, 2015. It will use this time to implement the Employment Authorization for Certain H-4 Spouses and ensure that these applications for work authorization will be adjudicated in a timely manner.

Premium processing allows certain petitions and applications to be expedited. A decision or Request for Evidence (“RFE”) must be issued within 15 calendar days of filing the premium processing request. For this service, USCIS requires a $1,225 filing fee to be included with the petition.

USCIS will continue to process cases filed using premium processing prior to May 26, 2015. If an H-1B extension is filed under premium processing before May 26, 2015, but a decision is not issued within the 15-day period, USCIS will refund the premium processing fee. All other petitions are still eligible for premium processing.

ARTICLE BY Jessica Feinstein of Jackson Lewis P.C.

DOS June 2015 Visa Bulletin – Department of State

The Department of State’s June Visa Bulletin on a whole brought relatively few changes of note.

Progress was made in the EB-2 category, where priority dates for Indian nationals advanced six months from April to October 1, 2008. Similarly, Chinese nationals experienced forward movement of one year in priority dates, with the Department of State (DOS) now processing cases with priority dates of June 1, 2013 or before.

The EB-3 category remains virtually unchanged across all areas, with the exception of the Philippines which retrogressed nearly two and half years from July 2007 to January 2005. Filipinos whose immigrant petitions were filed under the EB-3 skilled and professional workers category are now subject to a ten-year retrogression backlog.

In the EB-5 category, Chinese nationals with approved I-526 petitions carrying a priority date of May 1, 2013 or earlier are now current. Those with later priority dates will have to wait until their number is called and there are no timeline estimates available at this time.

Those individuals that have been impacted by a visa retrogression of any kind are encouraged to check the DOS Visa Bulletin each month in order to see if visa processing dates have moved under their approval category.

DOS Visa Bulletin june 2015

ARTICLE BY Shaun K. Staller of Greenberg Traurig, LLP

USCIS Changes Policy on the Use of Loan Proceeds as a Source of Fund

During the past two USCIS Stakeholder’s Meetings on EB-5 issues, EB-5 stakeholders, have questioned USCIS on its policy of allowing loans to be a source of an investor’s lawful capital. For many years, USCIS has allowed investors to secure a loan by a relative’s property, so long as that relative gifted the use of the real property as collateral for the loan.

USCIS, however, has recently changed its policy through the course of adjudicating I-526 Petitions and many stakeholders have reported that I-526 Petitions are being denied when the investor does not wholly own the real property used to collateralize a loan. Following its April 22, 2015, stakeholders call, USCIS issued a written summary of the Immigrant Investor Program Office’s (IPO) Deputy Chief’s remarks on the issue. USCIS now is stating that proceeds from a loan may qualify as capital of the investor provided that: (1) the investor is personally and primarily liable for the loan and (2) the value of the collateralized asset actually owned by the investor must meet or exceed the value of the loan. In practice, many stakeholders are reporting Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) and denials of petitions stating that where the investor does not personally own the entire property, it cannot be used as the collateral for a loan. In other words, USCIS seems to be stating that the investor may only use loan proceeds as a source of funds if the loan is collateralized by the investor’s property and the investor solely owns the property, i.e. not jointly with a third party such as a parent, sibling or child. USCIS seems to be continuing to approve cases where investor owns the property with his or her spouse.

Unfortunately, not only does this shift in policy change more than a decade of adjudications allowing for these loans to be secured by assets of other individuals, but it also does not square with the statute, the regulations, or immigration precedent decisions, all of which allow such a scenario. The Immigration and Nationality Act does not require cash invested in an enterprise to be secured by assets of an investor. In the fact scenario described above, the investor is investing cash, as there is no debt arrangement between the investor and the new commercial enterprise. The Code of Federal Regulations only requires promissory notes contributed as “capital” to the new commercial enterprise to be secured by the assets of the investor. Binding case precedent, particularly Matter of Izummi, also does not require cash invested to be secured by assets of an investor and define “indebtedness” as a “promise to pay,” i.e. a promissory note between the investor and the new commercial enterprise. Additionally, the EB-5 Policy Memorandum only requires promissory notes to be secured by assets of the investor. So long as the investor has demonstrated a lawful loan secured by assets that were lawfully obtained, either by the investor himself or from a giftor, investor should have satisfied the burden of proof that the funds were lawfully obtained capital.

USCIS, however, disagrees with this interpretation. As a practical matter, it may be best to refrain from filing an I-526 petition where the source of funds is a loan that is secured by an asset that is not owned by the investor until this matter is resolved at a policy level or through litigation with USCIS.

Additionally, USCIS warned that loan agreements that are used as the source of funds often contain a provision that state the loan cannot be used for the purchase of investments or securities. The IPO Deputy Chief stated that a restriction on the use of proceeds contained in a loan agreement is relevant evidence and will be considered in determining whether the investor/petitioner has demonstrated, by the preponderance of evidence, a lawful source of funds. The Deputy Director further stated that where the petitioner obtains a loan from a lawful source (such as a reputable bank), the loan proceeds may, nevertheless, be unlawful if the capital was obtained by unlawful means (such as fraud on a loan application). Accordingly, if a loan contains any restrictions on the use of funds, it is best for the investor to deal with the bank ahead of time to remove any such restriction that may conflict with the stated use of funds of the loan. Additionally, the investor may get a letter from the bank that issued the loan confirming that the bank knew the investor was using the loan for EB-5 purposes when the loan was extended to the investor.

With this policy change, it is important to carefully examine investor strategy with source of funds documentation. If an investor chooses to take out a loan for the source of the EB-5 investment, it is important to examine the collateral and its ownership carefully. Equally important is having the bank’s permission to use the loan as the source of an EB-5 investment.

ARTICLE BY

Jennifer Hermansky

Greenberg Traurig, LLP

Canada to Implement Electronic Travel Authorization System

Starting in March 2016, Canada will require individuals who may visit Canada without a visa to first obtain approval from its electronic travel authorization system (eTA). Visitors to the United States will recognize eTA as similar to the ESTA (Electronic System for Travel Authorization), which is used by the United States to pre-screen its visa-exempt visitors. Applicants will be able to use the eTA system starting Aug. 1, 2015.

The eTA will only be required for visa-exempt individuals seeking to travel to Canada by air for a short-term visit. Applicants must pay a CAD $7.00 processing fee and the resulting electronic travel authorization will be valid for five years or until the applicant’s passport expires, the eTA is cancelled, or a new eTA is issued. The eTA will include the applicant’s name, date, place of birth, gender, address, nationality, and passport information.

Notably, U.S. citizens are exempt from the eTA requirement, as are individuals who already have a Canadian visitor visa in their passport.

Authored by Rebecca Schechter of Greenberg Traurig

Australian Federal Government Implements Changes to 457 Visa

Following the publication of the independent review into the Temporary Skilled (Subclass 457) visa program, the federal government announced on 18 March 2015 its intention to implement a number of the proposed changes to ‘increase flexibility and reduce restrictions on 457 programme users while maintaining integrity in the programme’.

Despite growing suspicions that this would be another ‘broken promise’, the government has now implemented the following changes from 18 April 2015.

English language

An applicant can now satisfy the English language requirement by obtaining an average score of five across all components of the International English Language Testing System (IELTS), rather than a score of five in each component (reading, writing, speaking and listening). The number of English language tests has also been increased to include the following in addition to IELTS:

Occupational English Test (OET)
Test of English as a Foreign Language internet-based test (TOEFL iBT)
Pearson Test of English (PTE) Academic test
Cambridge English: Advanced (CAE) test

Exemptions to the English language requirement will also be granted when an applicant can provide evidence of five cumulative (rather than consecutive) years of study in English at the secondary or tertiary level.

Standard Business Sponsorship term

The term of a standard business sponsorship has been extended from 3 years to 5 years.

Start-up businesses will also benefit from an increase in the term of their standard business sponsorship from 12 months to 18 months, giving start-up businesses a greater grace period to establish lawful operations in Australia. 457 visas granted to employees of start-up businesses will also now be granted for 18 rather than 12 months.

Market salary exemption threshold

Employers will no longer be required to demonstrate that highly paid 457 applicants will be paid in line with the Australian market in cases where the visa holder will be paid in excess of $180,000 (down from the existing threshold of $250,000). This brings the threshold in line with the marginal tax rate. The Temporary Skilled Migration Income Threshold (TSMIT) has also been frozen at $53,900.

MARN 1460940

ARTICLE BY

Jillian R. Howard

Adriana Bedon

Squire Patton Boggs (US) LLP

Employment Law Worldview

Department of State Releases May 2015 Visa Bulletin

Cutoff dates for EB-3 Philippines retrogress by six years and nine months, cutoff dates for EB-5 China retrogress by two years, cutoff dates in the EB-2 India category advance by seven and a half months, cutoff dates in the EB-2 China advance by 14 months, cutoff dates for EB-3 China advance by four months, and cutoff dates for EB-3 for the Rest of the World advance by three months.

The US Department of State (DOS) has released its May 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 May 2015 Visa Bulletin Say?

The May 2015 Visa Bulletin shows an advancement of seven and a half months for the EB-2 India category. EB-3 cutoff dates for the worldwide category will advance by three months, the EB-2 cutoff dates for China will advance by 14 months, the EB-3 cutoff dates for China will advance by four months, and the EB-3 cutoff dates for the Philippines will retrogress by six years and nine months. In addition, the EB-5 cutoff dates for China retrogress by two years.

The cutoff date for F2A applicants in all categories will advance by one month in May.

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

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will advance to April 15, 2008. The cutoff date for applicants in the EB-2 category chargeable to China will advance to June 1, 2012. 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 India will advance by one week to January 15, 2004. The cutoff date for applicants in the EB-3 category chargeable to China will advance by four months to May 1, 2011. The cutoff date for applicants in the EB-3 category chargeable to Mexico and the worldwide category will advance by three months to January 1, 2015. The cutoff date for applicants in the EB-3 category chargeable to the Philippines will retrogress by six years and nine months to July 1, 2007.

EB-5: The cutoff date for applicants in the EB-5 category chargeable to China will retrogress by two years. 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: June 1, 2012 (forward movement of 427 days)
India: April 15, 2008 (forward movement of 227 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: May 1, 2011 (forward movement of 120 days)
India: January 15, 2004 (forward movement of 7 days)
Mexico: January 1, 2015 (forward movement of 92 days)
Philippines: July 1, 2007 (retrogression of 2,649 days)
Rest of the World: January 1, 2015 (forward movement of 92 days)

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

China: May 1, 2013 (retrogression of 730 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 May 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 May 2015.

China
The April Visa Bulletin indicated a cutoff date of April 1, 2011 for EB-2 applicants chargeable to China. The May Visa Bulletin indicates a cutoff date of June 1, 2012, reflecting forward movement of 14 months. This means that applicants in the EB-2 category chargeable to China with a priority date prior to June 1, 2012 may file AOS applications or have applications approved in May 2015.

India
The April Visa Bulletin indicated a cutoff date of September 1, 2007 for EB-2 applicants chargeable to India. In May, the cutoff date for EB-2 applicants chargeable to India advances by seven and a half months to April 15, 2008. This means that applicants in the EB-2 category chargeable to India with a priority date prior to April 15, 2008 may file AOS applications or have applications approved in May 2015.

Developments Affecting the EB-3 Employment-Based Category

China
The April Visa Bulletin indicated a cutoff date of January 1, 2011 for EB-3 applicants chargeable to China. In May, the cutoff date for EB-3 applicants chargeable to China advances by four months to May 1, 2011. This means that applicants in the EB-3 category chargeable to China with a priority date prior to May 1, 2011 may file AOS applications or have applications approved in May 2015.

India
The April Visa Bulletin indicated a cutoff date of January 8, 2004. The May Visa Bulletin will advance slightly, with a cutoff date of January 15, 2004, an advancement of one week. This means that EB-3 applicants chargeable to India with a priority date prior to January 15, 2004 may file AOS applications or have applications approved in May 2015.

The Philippines
The April Visa Bulletin indicated a cutoff date of October 1, 2014. The May Visa Bulletin will retrogress by six years and nine months, with a cutoff date of July 1, 2007. This means that only EB-3 applicants chargeable to the Philippines with a priority date prior to July 1, 2007 may file AOS applications or have applications approved in May 2015.

Rest of the World
The April Visa Bulletin indicated a cutoff date of October 1, 2014 for EB-3 applicants chargeable to the worldwide category. The May Visa Bulletin indicates a cutoff date of January 1, 2015, reflecting forward movement of three months. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to January 1, 2015 may file AOS applications or have applications approved in May 2015.

Developments Affecting the F2A Family-Sponsored Category

The April Visa Bulletin indicated a cutoff date of July 8, 2013 for F2A applicants from Mexico. The May Visa Bulletin indicates a cutoff date of August 8, 2013, reflecting forward movement of one month. This means that applicants from Mexico with a priority date prior to August 8, 2013 will be able to file AOS applications or have applications approved in May 2015.

The April Visa Bulletin indicated a cutoff date of August 1, 2013 for F2A applicants from all other countries. The May Visa Bulletin indicates a cutoff date of September 1, 2013, reflecting forward movement of one month. This means that F2A applicants from all other countries with a priority date prior to September 1, 2013 will be able to file AOS applications or have applications approved in May 2015.

Developments in the Coming Months

Regarding the retrogression of visa numbers for EB-5 China, the DOS notes that “It is extremely likely that this category will remain subject to a cut-off date indefinitely.”

Regarding the retrogression of visa numbers for EB-3 Philippines, the DOS notes that “This cut-off date had also been advanced very rapidly in an effort to generate sufficient demand to fully utilize all available numbers. The current rate of increase in demand has required the retrogression of this cut-off date for the month of May, in an attempt to hold number use within the annual limit for this preference category.”

F2A Family-Sponsored Category

The cutoff date in the F2A category will likely advance by three to four weeks per month.

Employment-Based Second Preference Category

The worldwide category will likely remain current.
The cutoff date in the EB-2 China category will likely advance by three to six weeks per month.
The cutoff date in the EB-2 India category will likely advance by four to six months.

Employment-Based Third Preference Category

The cutoff date in the EB-3 worldwide category will most likely be adjusted in the coming months as demand increases.
The cutoff date in the EB-3 China category is expected to advance by three to six weeks per month.
The cutoff date in the EB-3 India category will advance up to two weeks.
The cutoff date in the EB-3 Mexico category will remain at the worldwide date.
The cutoff date in the EB-3 Philippines category will advance slightly. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

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 or 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 May 2015 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord

Lisa Stephanian Burton

Tracy Evlogidis

Eleanor Pelta

A. James Vázquez-Azpiri

Roland C. Lechner

Morgan, Lewis & Bockius LLP

USCIS Resumes H-2B Adjudications

The Department of Homeland Security (DHS) has announced that it will resume adjudications of H-2Bpetitions, even though it will continue to suspend premium processing until further notice.

The March 17, 2015, announcement follows the filing of an unopposed motion on March 16 by DOL to stay until April 15the U.S. District Court ruling in Perez v. Perez. That order vacated DOL’s H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue them. DHS suspended H-2B adjudications while it reviewed the decision. As stated in the motion, DHS will resume adjudicating H-2B petitions based on temporary labor certifications issued by DOL.

The DHS announcement follows pressure mounted by stakeholders to resume processing of H-2B petitions already filed, and to accept and process H-2B petitions supported by temporary labor certifications issued prior to March 4, 2015. The court in Perez enjoined DOL from enforcing DOL’s 2008 H-2B regulations. It did not invalidate H-2B temporary labor certifications already issued by the DOL, nor did it direct USCIS to end processing of H-2B petitions supported by previously issued temporary labor certifications. The stakeholders have argued that Perez does not require USCIS to cease processing of their H-2B petitions. They have lamented that the suspension of processing could potentially have a significant impact on a wide range of industries, including resort and hospitality, seafood, landscaping, grounds maintenance, and forestry, to name but a few. Businesses that use the H-2B program to supplement workforce needs will face serious labor shortages, and the potential for significant economic loss across several industries is tremendous.

To fill the regulatory gap occasioned by the court order, DOL and DHS announced on March 13, that they intend to issue a joint interim final rule by April 30, 2015.

ARTICLE BY

Otieno B. Ombok

Jackson Lewis P.C.

Category: Immigration

SEVIS and SEVP System Outage – J, F, and M Students Travel Warning: Student and Exchange Visitor Information System

Like this: