Tag: USCIS

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

©2015 Greenberg Traurig, LLP. All rights reserved.

USCIS Resumes H-2B Adjudications

Jackson Lewis P.C.

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.

USCIS to Accept Expanded Deferred Action for Childhood Arrivals Applications Starting February 18, 2015

Jackson Lewis P.C.

President Barack Obama’s November 20, 2014, Executive Order addressed many significant issues of immigration law and allowed more individuals to qualify under the Deferred Action for Childhood Arrivals program. Consequently, on January 29, 2015, the U.S. Citizenship and Immigration Service (USCIS) announced that it will start accepting applications for expanded DACA beginning on February 18, 2015.  To be eligible to apply for expanded DACA, an applicant must be in the U.S. without lawful status, have entered the U.S. before his 16th birthday, and meet certain other criteria.

In the spring of 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum on the new Deferred Action for Childhood Arrivals program as a measure of relief to “Dreamers” when the DREAM Act failed to pass in Congress. Since 2012, DACA has allowed thousands of young people to obtain work authorization and offered safety from deportation.

ARTICLE BY

Jessica Feinstein
OF
Jackson Lewis P.C.

Business Immigration: 2016 H-1B Cap, You’ve Been Warned, Now Here Are This Year’s Key Dates

Greenberg Traurig Law firm

Fiscal Year 2016 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) will start accepting new H-1B petitionsfor fiscal year 2016 on Wednesday, April 1, 2015. Employers must immediately start identifying current and future employees who will need to be sponsored for new H-1B petitions.

This chart identifies the absolute latest cut-off dates to file Labor Condition Applications (LCAs) and H-1B petitions for this year’s H-1B quota (H-1B cap).

It is extremely likely that this year’s H-1B quota (H-1B cap) will be met within five business days of it opening and USCIS will then stop accepting new petitions until next year’s H-1B cap, which will open on April 1, 2016. If USCIS receives more petitions than are available in the quota, then a lottery will be conducted to select the petitions that will be processed under the H-1B cap.

Please note that only new H-1B petitions are affected by the H-1B cap; H-1B petitions involving someone who has already been counted against the H-1B cap or who has previously held H-1B status are not affected by the H-1B cap.

H1-B Key Dates

By way of background, U.S. businesses use the H-1B program to employ foreign workers in specialty occupation positions that require theoretical or technical expertise in specialized fields, such as scientists, engineers or computer programmers. The number of initial H-1B visas available to U.S. employers (the H-1B cap) is 65,000, with an additional 20,000 numbers set aside for individuals who have obtained a U.S. master’s degree or higher.

The usage of the H-1B program is strongly connected to the health of the U.S. economy. The rate at which USCIS has received cap-subject H-1B petitions in the past few years has dramatically increased as the economy has improved. For example, last year USCIS received 172,500 H-1B petitions within the first week of filing, requiring a lottery in order to select the petitions needed to meet the regular cap of 65,000 and master’s cap of 20,000. Business immigration practitioners are predicting that this year’s H-1B demand will be even greater than last year (perhaps 200,000 or more filings during the first week of the filing season, April 1, 2015, through April 7, 2015) and as a result more than half of all H-1B petitions filed by employers may be rejected by USCIS due to the randomized lottery system.

Petitions not selected in the H-1B lottery will be rejected. Should such a rejection occur, an affected foreign national seeking immigration and employment authorization sponsorship with an employer will be unable to obtain an H-1B visa until at least Oct. 1, 2016, (with the filing season beginning April 1, 2016). Affected foreign nationals may also be required to forego employment with employers and possibly leave the United States. In such cases employers will need to look at alternative visa options for employees unable to secure an H-1B visa.

Recommended Action

Based upon the above, Greenberg Traurig’s Business Immigration & Compliance group strongly urges employers to file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2016: mailing of H-1B cap-subject petitions to USCIS on March 31, 2015, for delivery to USCIS on Wednesday, April 1, 2015, the very first day of filing. This will provide the best possible chance for acceptance of the H-1B petition.

It also is recommended that H-1B cases should be initiated immediately. It can take two to four weeks or more to gather all of the necessary information and documentation, and prepare the requisite forms and supporting documentation for filing of an H-1B petition. Required information from the employer will include: (1) job title; (2) job description; (3) job location; (4) minimum education and experience required for the position; and (5) offered wage/salary. Required information from the employee will include: (1) resume; (2) educational documents (diplomas and transcripts); and (3) any documents related to prior or current U.S. immigration status.

ARTICLE BY

Scott T. Decker
Ian R. Macdonald
OF
Greenberg Traurig, LLP

Holiday Update on USCIS Processing Time for I-526, I-829, and I-924 Petitions

Greenberg Traurig Law firm

Earlier this month, USCIS released updated processing times for EB-5 related petitions.  The following chart provides the average processing times for cases being adjudicated by the Immigrant Investor Program Office (IPO) as of October 31, 2014:

Form

Processing Timeframe as of December 11, 2014

I-526

14.7 months

I-829

8.6 months

I-924

9 months

Based on previously released processing time data issued in July 2014, the current processing time for all three petitions has unfortunately increased.  During the December 5, 2014 EB-5 Public Engagement, Nicholas Colucci, Chief of the Immigrant Investor Program Office, explained the IPO’s operational plan for FY 2015 includes streamlining I-526  petition adjudications on a first-in first-out basis.

USCIS reminds I-526 applicants that tools are available for checking the status of a filing online at www.uscis.gov or through an email to USCIS.ImmigrantInvestorProgram@uscis.dhs.gov for cases which are pending beyond the above referenced processing times.

ARTICLE BY

Ali Brodie
OF
Greenberg Traurig, LLP

Immigration Developments for Highly Skilled Workers: Changes the Business Community Can Expect as a Result of President Obama’s Executive Action on Immigration Reform

Mintz Levin Law Firm

On Thursday, November 20th, coinciding with President Obama’s announcement regarding his forthcoming executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memo to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) directing the agencies to take action on the president’s announcements. The DHS memo provides a framework for changes the government wishes to make, relating to skilled immigration, to alleviate some longstanding problems in our business immigration system.

Many of the suggested changes are laudable but regulatory rulemaking will be required for most of these changes to take effect. Unfortunately, whereas President Obama was very clear in his announcement about timelines for the changes he is taking to protect certain undocumented immigrants, timeframes for producing regulations or for most of the business immigration changes are lacking in the secretary’s memo. The business community is left to wonder when these announced changes will materialize and what specific forms they will take.

Modernize the Employment-Based Immigrant Visa System

There are caps (quotas) on various types of immigrant visas (green cards) that result in extremely long backlogs and delays for people born in certain countries such as India and China.  If two software engineers at the same company are sponsored for green cards at the same time, and one of them is from Germany and the other is from India, the German applicant will get his green card in about two years while it will likely take his Indian colleague ten years to conclude the process. During this excruciatingly long waiting period, the Indian software engineer is supposed to remain in the same position for which he was originally sponsored. This benefits neither the employer nor the software engineer.

The existing visa distribution is deeply flawed beyond the backlog problem. Every year tens of thousands of visas in some categories go unused. These unused visas go to waste because they don’t roll over from one fiscal year to the next. It’s like vacation days at a company – in many companies if you don’t use them, you lose them. Secretary Johnson directed USCIS to work with the Department of State to better understand immigrant visa availability over the course of the fiscal year and to rationalize the visa distribution system so available visas do not go unused.  Secretary Johnson also ordered the Department of State to modernize the currently unwieldy visa bulletin.

Reform “Optional Practical Training” for Foreign Students and Graduates from US Universities

Most foreign students on F-1 student visas are eligible for a year of post-graduate optional practical training (OPT) as long as the work experience that they gain is in a field that relates to their degree program. But 12 months of authorized OPT frequently is not enough time to bridge the time between the foreign student’s authorization to work on OPT and the granting of a temporary work visa status. The H-1B quota opens every year on April 1st, and the H-1B visas do not become effective until the following October 1st, at the beginning of the government’s new fiscal year. The quota has been exhausted immediately in the last several years, leaving no H-1B visas available until the next government fiscal year – resulting in a 17-month period with no H-1B visa availability.

This problem is less severe for F-1 foreign students who major in STEM (Science, Technology, Engineering or Math) fields. These students are eligible to apply to extend their OPT work authorization for an additional 17 months, as long as they are employed by US employers participating in the government’s E-Verify program. (E-Verify is a program that any employer can participate in, if it is willing to check its employees’ documents through a government database to ensure the employees are legally authorized to work in the United States. Some employers don’t have a choice: if they have certain federal government contracts, or operate in certain states, they must sign up for E-Verify.) Qualified foreign students who graduate with US STEM degrees are able to continue to work legally through multiple government fiscal years, increasing their chances of “winning” an H-1B visa before their OPT period expires.

The list of STEM “majors” that qualify a foreign student for a STEM OPT extension is limited, however, and the focus until now has been on the US degree program that the foreign student has just completed. It would be much more useful if the government would expand the program to allow for STEM-based OPT extensions for F-1 students who either graduate with a US STEM degree OR complete a STEM degree prior to studying in the United States. For example, many of our MBA students come to the United States with a STEM undergraduate degree. Furthermore, the list of STEM “degrees” should be expanded to be much more robust.

Accordingly, Secretary Johnson directed USCIS and ICE to “develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates.”  The business community would like to see a significant expansion of STEM eligibility in the new rules. But the business community may not appreciate some OPT restrictions that the Secretary has suggested might be paired with expanded STEM eligibility. Currently there is great flexibility associated with OPT. F-1 graduates on OPT can be self-employed or work as independent contractors, and if they work as employees on a W-2, there is no prevailing wage requirement associated with their employment. The flexibility associated with OPT has proven extremely helpful to foreign entrepreneurs and inventors who use the post-graduation period to refine their inventions, products and business ideas, form companies, and find investors.

Promote Research and Development in the United States

In his announcement regarding executive immigration reform, the president emphasized the importance to the United States of the contributions of foreign entrepreneurs, researchers, start-up company founders and investors. Secretary Johnson’s memo recognizes that the existing immigration law does not meet the needs of these creative individuals who contribute to the vitality of the United States. In his memo, he directs the agencies to expand two existing immigration law provisions. The first, the National Interest Waiver provision, provides a pathway for a permanent immigration status. The second, the “parole” authority in the law, provides a temporary status.

The National Interest Waiver application allows people with “exceptional ability” to bypass the labor market test required for most employment-based green card applicants if the individual can demonstrate that his or her work is in the national interest. USCIS takes a narrow view of who can qualify in this immigration category and therefore its usefulness as an immigration vehicle has been extremely limited. Secretary Johnson recognized this in his memo and directed USCIS to “issue guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.”  Hopefully we will see a significant expansion for eligibility, including for people who found companies and are stimulating the economy, even if it is a local economy. Stimulating the local economy is certainly in the national interest. Asking someone who founds a start-up company to demonstrate an immediate and obvious “national” impact across the entire United States would not be realistic and would run counter to the desire expressed in the memo to expand the reach and usefulness of the national interest waiver green card option.

The government’s parole authority in immigration law, which authorizes certain individuals to enter the United States without a visa, would be expanded by Secretary Johnson’s directive to accommodate entrepreneurs, inventors, and researchers. We have no viable visa option in the United States for entrepreneurs, researchers, and inventors. Over the past years, multiple “Start-up Visa” bills were introduced into Congress, only to languish and die there. Consequently, many of these brilliant individuals leave the United States and set up their businesses or engage in their research in more welcoming countries. This is a creative approach to solving the problem in the short term. It will be interesting to see the criteria that will be applied and the mechanism for implementing this change, especially for the applicants who may already be in the United States. In terms of eligibility criteria, we already know that applicants will understandably have to demonstrate that they have sufficient financial means to ensure that they will not become a burden on the US government.   Bring Greater Consistency to the L-1B Visa Program

Multinational companies in the United States use the L-1 visa program to transfer personnel to the United States from overseas offices. These transferees can either be “managers or executives” or individuals with “specialized knowledge” needed by the US employer. The Obama administration has heard the repeated outcries from the business community that the government’s interpretations of what constitutes “specialized knowledge” for L-1 intracompany transferee purposes are inconsistent, flawed, unreasonable, and unduly protectionist. Employers filing these petitions over the last many years have not been able to expect that a strong petition will be approved and have had to expend inordinate legal fees to fight and appeal incorrect government decisions and unjust denials. This has had a material negative impact on multinational US businesses.

Recognizing “vague guidance and inconsistent interpretation” of the term “specialized knowledge,” Secretary Johnson directed USCIS to “issue a policy memorandum that provides clear, consolidated guidance” for this visa category with the goal to “improve consistency in adjudications, and enhance companies’ confidence in the program.” Over the years, USCIS has issued plenty of policy memoranda regarding “specialized knowledge” but the accumulated guidance has been confusing. This time around the guidance must be crystal clear, reasonable, and consistent with the real-world business practices of multinational companies. But regardless of what the memo says, the guidance will be worthless if it is not actually implemented by the adjudicators in the field. At the end of the day, DHS must demonstrate a commitment to enforce the terms of the memo and USCIS officers who apply an inappropriate standard to their adjudications must be held to account by the US government.

Increase Worker Portability

It can take a decade for certain skilled immigrants’ green card applications to be approved.   These skilled workers find themselves “stuck” for years in the same position and with the same sponsoring employer. Their career development and job mobility are terribly hampered by the visa backlogs. Under current law, a green card applicant can only “port” his or her green card application to a new employer or accept a promotion with the same employer towards the very end of this lengthy green card process, which can take 10 years. In order for an applicant to take advantage of the green card “portability” provisions, he or she has to jump through many hoops: the first two (out of three) steps in the green card process have to be filed and approved, the third and final application must be lodged with the government, and on top of that, the new job must be “the same or similar” to the one for which the original employer tested the labor market. This “portability” rule has been particularly unhelpful, precisely because many of the affected green card applicants cannot take advantage of it. They can’t benefit from “portability” because of the ridiculously long backlogs: it takes them 8-10 years to reach the third and final step of the green card process, so effectively it does not help them at all.

Cognizant of the current limitations of green card “portability,” Secretary Johnson has directed USCIS to issue a policy memorandum clarifying the meaning of “same or similar” for this purpose. It remains to be seen how much flexibility will be built into the memo. The guidance in the memo should be designed to serve the needs of the business marketplace to facilitate career development and labor mobility.

Preregistration for Adjustment of Status

This development is quite radical. Dovetailing with the emphasis on facilitating worker portability, USCIS is expected to develop regulations to allow foreign nationals with an approved employment-based immigrant petition who are caught in the immigrant visa quota backlogs to preregister for adjustment of status in order to obtain the benefits of a pending application. This is expected to impact approximately 410,000 people. This is a marked departure from anything in the current business immigration regulations. It would not only benefit the employee who is the principal green card applicant, but would enable his or her dependents to obtain employment authorization and immediately enter the US labor market.  These impacted foreign nationals will be thrilled with this change.

Proposed Rule to Extend Work Authorization to Certain H-1B Spouses

The proposed rule published in May 2014 to extend work authorization to the spouses of H-1B employees with approved I-140 employment-based immigrant visa petitions is still outstanding, but is expected to be finalized in the next few months.

Summary

The Obama administration’s proposals to streamline and modernize key aspects of the country’s skilled immigration provisions are laudable and reflect that the administration has heard the lamentations and complaints from the users of these programs (employers and employees alike) that the current system is unworkable and archaic. Ultimately legislation must be passed to address the shortcomings in the US immigration system on a more fundamental and permanent basis. But no one knows how many more years it will take for the law to be changed.  Accordingly, the administration’s proposals for executive, administrative improvements may result in some significant temporary solutions and benefits for the business community in the United States. Now we must wait and see (a) what shape the concrete solutions will take, and (b) how long it will take to roll them out.

ARTICLE BY

Susan J. Cohen
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

USCIS Has a New Looking Website with Enhancements

Greenberg Traurig Law firm

U.S. Citizenship and Immigration Services (USCIS) launched its new-look website late last week.  Visitors to the website will find a cleaner looking page with better navigation tools than before.  The mobile device version of USCIS’s website has been updated with an enhanced Case Status tool that allows visitors to get updates on pending cases, including case history, next steps and more detailed case-related information than before.  The updated home page also makes finding USCIS news, outreach events, educational webinars, and other services easier.  Additional updates from USCIS are expected in the upcoming months as part of the agency’s effort to allow visitors to obtain more and more information online, rather than spending hours on the phone with USCIS Customer Service or visiting a local USCIS District Office.

Article by:
Ian R. Macdonald

Of:
Greenberg Traurig

November Visa Bulletin Confirms Fears of Significant Retrogression for EB-2 India

Greenberg Traurig Law firm

The Department of State released its November Visa Bulletin today. It is a mixture of good news and really bad news. The good news is that the EB-2 and EB-3 categories for all countries, except for India, continue to experience forward movement. Worldwide, EB-2 availability remains current and EB-3 availability advanced to June 1, 2012. China also experienced forward movement, with EB-2 advancing to December 8, 2009, and EB-3 advancing to January 1, 2010.

The really bad news in the Visa Bulletin relates to visa availability for India. As expected, EB-2 availability for India retrogressed by more than four years, from May 1, 2009, to February 15, 2005. EB-3, however, advanced by one week to November 22, 2003.

The Visa Bulletin also contains projections for future months. Visa availability in the EB-1 (all countries) and EB-2 (worldwide) categories are expected to remain current over the coming months. EB-3 worldwide availability is expected to experience rapid forward movement for the next several months. For China, EB-2 availability is projected to increase by three to five weeks per month, and rapid forward movement is also expected in the EB-3 category, with potential retrogression in February. India is not expected to have any forward movement in the EB-2 or EB-3 categories.

In short, individuals from India face a bleak outlook in green card availability over the next few months, while the future is brighter for individuals from all other countries.

EB   Category

Worldwide

China

India

EB-1

Current

Current

Current

EB-2

Current

12/08/2009

02/15/2005

EB-3

06/01/2012

01/01/2010

11/22/2003
©2014 Greenberg Traurig, LLP. All rights reserved.
ARTICLE BY

Scott T. Decker
OF
Greenberg Traurig, LLP

Department of State Releases September 2014 Visa Bulletin

Morgan Lewis logo

The bulletin shows continued forward movement in the EB-2 India category while the cutoff dates in most other employment-based categories remain unchanged.

The U.S. Department of State (DOS) has released its September 2014 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 U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the September 2014 Visa Bulletin Say?

After several months of significant movement in both directions, the September Visa Bulletin shows no movement in any of the employment-based categories other than continued forward movement in the EB-2 India and EB-3 Philippines categories. Such continued forward movement in the EB-2 India category cannot be guaranteed; once significant demand in this category occurs, the cutoff date is likely to once again retrogress.

The cutoff date for F2A applicants from all countries will advance significantly in September.

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

EB-2: The cutoff date of January 22, 2009 for applicants in the EB-2 category chargeable to India will advance by slightly more than three months to May 1, 2009. The cutoff date of October 8, 2009 for applicants in the EB-2 category chargeable to China will remain unchanged. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date of November 8, 2003 for applicants in the EB-3 category chargeable to India will remain unchanged. The cutoff date of November 1, 2008 for applicants in the EB-3 category chargeable to China will also remain unchanged. The cutoff date of June 1, 2010 for applicants in the EB-3 category chargeable to the Philippines will advance by 10 months to April 1, 2011. The cutoff date of April 1, 2011 for applicants chargeable to Mexico and the Rest of the World will remain unchanged.

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

China: November 1, 2008 (no movement)
India: November 8, 2003 (no movement)
Mexico: April 1, 2011 (no movement)
Philippines: April 1, 2011 (forward movement of 10 months)
Rest of the World: April 1, 2011 (no movement)

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 these categories. 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 2014.

China

The August Visa Bulletin indicated a cutoff date of October 8, 2009 for EB-2 applicants chargeable to China. The September Visa Bulletin indicates no change to this cutoff date. This means that applicants in the EB-2 category chargeable to China with a priority date prior to October 8, 2009 may file AOS applications or have applications approved in September 2014.

India

The August Visa Bulletin indicated a cutoff date of January 22, 2009 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates a cutoff date of May 1, 2009, reflecting forward movement of 99 days. This means that applicants in the EB-2 category chargeable to India with a priority date prior to May 1, 2009 may file AOS applications or have applications approved in September 2014.

The September Visa Bulletin notes that the use of potentially “otherwise unused” employment-based visa numbers prescribed by section 202(a)(5) of the Immigration and Nationality Act has allowed the cutoff date in the EB-2 India category to advance rapidly in recent months. The Visa Bulletin warns that continued forward movement of this cutoff date in upcoming months cannot be guaranteed, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in demand in this category, it will be necessary to retrogress the cutoff date, possibly as early as November, to hold numbers within the fiscal year 2015 annual limit. 

Developments Affecting the EB-3 Employment-Based Category

China

The August Visa Bulletin indicated a cutoff date of November 1, 2008 for EB-3 applicants chargeable to China. The September Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to China with a priority date prior to November 1, 2008 may file AOS applications or have applications approved in September 2014.

India

The August Visa Bulletin indicated a cutoff date of November 8, 2003 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates no change to this cutoff date. This means that only EB-3 applicants chargeable to India with a priority date prior to November 8, 2003 may file AOS applications or have applications approved in September 2014.

Rest of the World

The August Visa Bulletin indicated a cutoff date of April 1, 2011 for EB-3 applicants chargeable to the Rest of the World. The September Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to April 1, 2011 may file AOS applications or have applications approved in September 2014.

Developments Affecting the F2A Family-Sponsored Category

The August Visa Bulletin indicated a cutoff date of March 15, 2011 for F2A applicants from Mexico. The September Visa Bulletin indicates a cutoff date of April 22, 2012, reflecting forward movement of 404 days. This means that applicants from Mexico with a priority date prior to April 22, 2012 will be able to file AOS applications or have applications approved in September 2014.

The August Visa Bulletin indicated a cutoff date of May 1, 2012 for F2A applicants from all other countries. The September Visa Bulletin indicates a cutoff date of January 1, 2013, reflecting forward movement of 245 days. This means that worldwide, F2A applicants with a priority date prior to January 1, 2013 will be able to file AOS applications or have applications approved in September 2014.

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 September 2014 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian
Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
 
OF
Morgan, Lewis & Bockius LLP

E-Verify Update and Improvements

Poyner Spruill Law firm

​E-Verify has been operational since 1997 as part of a Basic Pilot Program to assist employers to verify electronically that a newly hired employee is authorized to work in the US.  A number of states have made use of E-Verify mandatory, including North Carolina which requires that employers with 25 employees to have been enrolled in E-Verify by July 1, 2013.

Update

Currently there are over 530,000 employers nationwide enrolled in E-Verify.  Statistically, the program has grown rapidly as has its accuracy, having verified close to 24 million cases.  Of those, 98.81% have been confirmed as employment authorized.  The US Citizenship and Immigration Services (USCIS) graphic below provides E-Verify’s latest statistics:

E-verify

The Monitoring and Compliance Branch (M&C Branch) was created by the USCIS in 2009 to ensure E-Verify is being used properly.  Its main function is to monitor and guide E-Verify participants by phone, email, desk reviews and site visits.  This unit does not fine employers, but does refer cases of suspected misuse, abuse or fraud to Immigration Customs and Enforcement (ICE) and the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).  There has been an uptick in complaints to the OSC resulting in some sizeable settlements.  All settlement agreements described on the OSC website have one thing in common: all employers participated in E-Verify and the OSC became involved, for the most part, by the USCIS referring the employer to OSC.  Thus, it is noteworthy that participation in E-Verify alone does not protect an employer from enforcement action and penalties.

Recent Improvements to E-Verify System

E-Verify has announced some needed improvements to its system to assist employers who, in doing so, will hopefully not attract M&C Branch attention:

  • Duplicate Case alert now notifies the employer if a social security number  matches any other social security number entered for an existing case with the past 30 days.
  • The user’s name no longer auto-fills: it must now be completed each time to ensure accuracy, providing a prompt to validate or update email and phone number whenever the user’s password expires, which is every 90 days.
  • An employee whose information is entered in E-Verify resulting in a tentative nonconfirmation will receive email notification if they provide their email address on the Form I-9.
  • There is a new photo tool that will display any photo on record with E-Verify, enabling the user to compare it to the photo ID being presented.
  • E-Verify now verifies a driver’s license as to authenticity by matching the data entered by the user against participating state motor vehicle department records. Currently, North Carolina does not participate in this so-called RIDE system.
  • If E-Verify detects fraudulent use of a social security number, it prevents that number from being used more than once.
  • Notices generated by E-Verify are now available in 18 languages.
  • There are monthly webinars in Spanish for employers.
  • E-Verify screens for typographical errors and requires employers to correct them.
  • The Further Action Notice that is generated after a Tentative Nonconfirmation from the Department of Homeland Security includes instructions on how to correct immigration records after resolving the Tentative Nonconfirmation on E-Verify.
  • Updated Further Action Notices are also no longer pre-populated, but are easy to complete.
  • Customer support has been improved and includes an “E-Verify Listens” link that can be accessed by the E-Verify user while in the E-Verify system to assist with E-Verify completion.

While the system is not perfect, it is increasingly pervasive and increasingly “user friendly.”  Further, employers have a strong incentive to use E-Verify properly to avoid settlements generated by  enforcement actions that appear to be directly linked to E-Verify misuse, abuse and fraud.

ARTICLE BY

Jennifer G. Parser
OF
Poyner Spruill LLP