Tag: Immigration

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.

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