Tag: visa

Department of State Releases February 2016 Visa Bulletin

Employment-based adjustment of status applicants must file using the Application Final Action Dates chart.

The US Department of State (DOS) has released its February 2016 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

What Does the February 2016 Visa Bulletin Say?

The February 2016 Visa Bulletin includes both a Dates for Filing Visa Applications and Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visa, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If the US Citizenship and Immigration Services (USCIS) determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications. For February 2016, USCIS has announced that employment-based (EB) applicants may only use the Application Final Action Dates chart.

To be eligible to file an EB adjustment application in February, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from last month’s Visa Bulletin dates are shown in yellow):

EB

All Chargeability
Areas Except
Those Listed

China
(mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01MAR12—
(was 01Feb 12)

01AUG08
(was 01FEB08)

C

C

3rd

01OCT15
(no change)

01OCT12
(was 01JUL12)

15JUN04
(was 15MAY04)

01OCT15
(no change)

08JAN08
(was 01NOV07)

Other Workers

01OCT15
(no change)

22DEC06
(was 01AUG06)

15JUN04
(was 15MAY04)

01OCT15
(was 01SEPT15)

08JAN08

(was 01NOV07)

4th

C

C

C

C

C

Certain Religious Workers

C (was U)

C (was U)

C (was U)

C (was U)

C (was U)

5th
Nonregional
Center
(C5 and T5)

C

15JAN14
(was 08JAN14)

C

C

C

5th
Regional
Center
(I5 and R5)

C (was U)

15JAN14 (was U)

C (was U)

C (was U)

C (was U)

How This Affects You

The largest change in the Application Final Action Dates chart is in the EB-2 India category, which has advanced by six months to August 1, 2008. The EB-2 China category advanced by one month only, and the EB-3 China category advanced by two and a half months to October 1, 2012. Certain Religious Workers and EB-5 matters (Regional Center I5 and R5) became current once again, with the exception of China, which is backlogged to January 15, 2014, in the EB-5 category. Other classification categories saw only minimal advancement of three weeks to three months. Read the entire February 2016 Visa Bulletin.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP
Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Year End Brings Major Changes to US Visa Waiver Program

Included in the 2016 Consolidated Appropriations Act (HR 2029), signed into law on December 18, 2015, were significant changes to the Visa Waiver Program (VWP). These changes will require “e-passports” of all VWP travelers and additional security standards. This follows “enhancements” to the program announced by the Obama Administration at the end of November.

The VWP permits visa-free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP visitors are admitted to the US as tourists or business visitors for 90 days. VWP countries include those in Western Europe, Australia, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan. Every prospective VWP traveler undergoes counterterrorism screening and must receive approval through DHS’ Electronic System for Travel Authorization (ESTA).

The Consolidated Appropriations Act imposes new restrictions to VWP eligibility for certain individuals who:

  1. Have been present in Iraq, Syria, Iran or Sudan (or other countries designated by the Secretary of Department of Homeland Security (DHS) as supporting terrorism or countries “of concern” as designated by the Secretary) at any time on or after March 1, 2011. The law exempts those performing military service in the Armed Forces of VWP countries or those who carry out official duties in a full-time capacity in the employment of a VWP country government. DHS may also wave exclusion from the VWP program if it would be in the law enforcement or national security interest of the US.

  2. The Act also excludes VWP individuals who are nationals of Iraq, Syria, Iran or Sudan.

  3. All participating VWP countries must issue electronic- and machine-readable passports.

These new restrictions are more expansive than may be apparent and could result in unintended consequences for not only nationals of VWP countries, but US citizens, as well. It is important to note, nationality typically depends on the laws of the designated country. For example, an individual born in Iran but holding German nationality and a German passport may now be excluded from the VWP even if they have not visited Iran for many years and does not possess an Iranian passport.

As the impact of these changes play out over the next several weeks and months, we could see retaliation by VWP countries that restrict visa waiver travel for certain US citizens. Stay tuned and Happy New Year.

ARTICLE BY Gregory A. Wald of Squire Patton Boggs (US) LLP
 © Copyright 2015 Squire Patton Boggs (US) LLP

USCIS Visa Bulletin Coming January 2016

On December 14, 2015, USCIS released an updated Visa Bulletin chart listing the dates to file adjustment of status applications starting in January, 2016.  Applicants can use the charts issued by USCIS as a guide to determine whether visas in particular categories are available for them and whether they are eligible to file I-485 adjustment of status applications.

As we previously reported, earlier in September 2015, USCIS and DOS revised the procedures for determining visa availability for individuals looking to file adjustment of status applications.  The Visa Bulletin now has two categories of cut-off dates:

  • Application Final Action Dates (dates when visas may finally be issued); and

  • Dates for Filing Applications (earliest dates when applicants are eligible to apply).

The two categories listed in the Visa Bulletin are Family-sponsored immigrant visas and Employment-based immigrant visas.  The Visa Bulletin charts jointly released from USCIS and Department of States are listed below[1]:

January 2016

DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

Photo 1

As indicated in the chart for Family-Sponsored visa categories, applicants may use the Dates for Filing Visa applications chart for January 2016.

Recent Procedural Changes by USCIS

On October 14, 2015, USCIS again changed its instruction for the adjustment of status process[2]. Under the new guideline, applicants will only be permitted to use the Dates for Filing chart if USCIS first determines there are more immigrant visas available for a fiscal year than available applicants.  This decision is made each month by USCIS, and applicants must use the Application Final Action Dates chart unless USCIS states otherwise.  The Visa Bulletin in January 2016 reflects this newly implemented instruction, and applicants must use the Application Final Action Dates.  The chart below lists the dates for Employment-Based preference visas:

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES Photo 2

Article By Ian R. Macdonald of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

[1] See Dept of State, Visa Bulletin For January 2016, Number 88, Vol. IX, available at  http://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-january-2016.html; see also USCIS, When to File Your Adjustment of Status Application for Family-Sponsored and Employment-Based Preference Visas: January 2016, available at:  http://www.uscis.gov/visabulletin-jan-16.

[2] USCIS, Updated Instruction for Using the DOS Visa Bulletin, available at http://www.uscis.gov/news/updated-instruction-using-dos-visa-bulletin.

January 2016 Visa Bulletin Update

The Department of State’s (DOS) January 2016 Visa Bulletin showed minor movements in the employment-based visa categories. The most significant movement was in the Indian EB-2 category which advanced by another 8 months, to Feb. 1, 2008 (the December 2015 bulletin showed a 10 month jump). There was also movement in the Dates for Filing in the employment-based categories, except in both of the “All Chargeability Areas” and “Mexico” EB-3 and Other Workers categories, which moved from Sept. 1, 2015, to Jan. 1, 2016.

The January Visa Bulletin also advised about the upcoming, scheduled expiration of the immigrant investor pilot program (EB-5 Visas) on Dec. 11, 2015, unless Congress acts to extend these programs. The Visa Bulletin states that no I5 visas may be issued overseas, or final action taken on adjustment of status cases, after Dec. 11, 2015. The cut-off date for this category has been listed as “unavailable” for January. Congress is currently considering an extension of the I5 visa category, but there is no certainty when such legislative action may occur. If there is legislative action that extends this category for FY-2016, the cut-off dates would immediately become “current” for January, for all countries except China-mainland born I5.

Final Action Dates for Employment-Based Preference Cases

imm blog 1

Dates for Filing of Employment-Based Visa Applications

imm blog 2

Article By Patricia A. Elmas of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Department of State Issues Final Rule re: Procedures for Issuing Nonimmigrant Visas

The July 2015 Visa Bulletin Brings Little ChangeThe Department of State (DOS) issued a final rule effective November 2, 2015 updating its regulations regarding the nonimmigrant visa format and record retention procedures found at 22 CFR §41.114, which currently provides for the placement of a nonimmigrant visa stamp in the foreign national’s passport.

The DOS has now amended the regulation to reflect the current practice of issuing machine-readable visas on adhesive foils that are affixed to passports. The updated regulation also allows for the planned future practice of issuing such visas as electronic visas that U.S. Customs and Border Protection officers will be able to access via an electronic database after scanning the machine readable are of the visa holder’s passport to verify the foreign national’s biometrics and identity. Finally, the regulation has been amended to remove DOS procedures regarding visa review and file retention instructions found in the Foreign Affairs Manual.

The DOS’ final rule, available at the Federal Register, is in compliance with regulatory requirements including the Administrative Procedure Act and the applicable Executive Orders. The amendment is issued as a final rule as it is not subject to notice-and-comment rulemaking. The Department of State has certified that the rule will not have a significant economic impact on a substantial number of small entities; rather, only individual foreign nationals seeking consideration for nonimmigrant visas and foreign officials regulating the relevant documentation will be affected. Additionally, DOS does not consider the rule to be an economically significant rulemaking action, and is not aware of any monetary effect (including any increase in costs or prices) due to the update.

The amendments to 22 CFR §41.114 account for useful updates in technology that affect nonimmigrant visa holders. It remains to be seen exactly how the information contained in the electronic visa database available to CBP now provided for in the regulation will be accessible to other stakeholders, including employers.

Article By Lauren A. Tetenbaum of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

US Department of State Issues November 2015 Visa Bulletin

The new bulletin shows no movement in filing date cutoffs and little movement in approval date cutoffs for those chargeable to India and China.

The November 2015 Visa Bulletin shows little change from the October 2015 Visa Bulletin issued on September 25. The new category of filing date cutoffs remains exactly the same as in October, and only a few visa categories in the Application Final Action Dates chart have changed. This alert addresses employment-based classifications.

Application Final Action Dates for Employment-Based Preference Cases

The application final action cutoff dates for employment-based preference classification show movement in the following categories (changes shown in BOLD):

Employment-
Based

All Chargeability
Areas Except
Those Listed

China (mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01FEB12

01AUG06

C

C

3rd

15AUG15

01JAN12

01APR04

15AUG15

15JUN07

Other Workers

15AUG15

01APR06

01APR04

15AUG15

15JUN07

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th
Nonregional
Center
(C5 and T5)

C

22NOV13

C

C

C

5th
Regional
Center
(I5 and R5)

C

22NOV13

C

C

C

Movement in the Employment-Based Second Preference (EB-2) Classification

China second preference advanced to February 1, 2012 (one month): An individual chargeable to China in the second preference category may have his or her adjustment of status (AOS) or immigrant visa application approved if the person’s priority date is prior to February 1, 2012.

India second preference advanced to August 1, 2006 (15 months): An individual chargeable to India in the second preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to August 1, 2006.

Movement in the Employment-Based Third Preference (EB-3) Classification

China third preference advanced to January 1, 2012 (2.5 months): An individual chargeable to China in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to January 1, 2012.

India third preference advanced to April 1, 2004 (three weeks): An individual chargeable to India in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to April 1, 2004.

Philippines third preference advanced to June 1, 2007 (five months): An individual chargeable to the Philippines in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to June 1, 2007.

Movement in the Employment-Based Fifth Preference (EB-5) Classification

China fifth preference Nonregional Center (C5 and T5) advanced to November 22, 2013 (five weeks), and China fifth preference regional center (I5 and 45) is now available for those individuals whose EB-3 cases were filed prior to November 22, 2013.

Dates for Filing Employment-Based Visa Applications

Application filing date cutoffs are as shown below:

Employment- Based

All Chargeability Areas Except
Those Listed

China (mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01JAN13

01JUL09

C

C

3rd

01SEP15

01OCT13

01JUL05

01SEP15

01JAN10

Other Workers

01SEP15

01JAN07

01JUL05

01SEP15

01JAN10

4th

C

C

C

C

C

Certain Religious
Workers

C

C

C

C

C

5th Nonregional
Center (C5 and T5)

C

01MAY15

C

C

C

5th Regional Center
(I5 and R5)

C

01MAY15

C

C

C

First and fourth preference classifications remain current for all chargeable categories, as does the classification for certain religious workers.

Employment-based second preference classification for those chargeable to the worldwide quota, Mexico, and the Philippines remains current.

Employment-based fifth preference classification for the worldwide classification, India, Mexico, and the Philippines remains current.

For complete details, see the full Visa Bulletin for November 2015.

ARTICLE BY Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP

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

DOS vs USCIS: Visa Bulletin Games

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

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

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

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

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.

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