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A quarterly newsletter on a variety of Immigration related news and topics.
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January/February 2012 Newsletter
• Key Administrative Fixes to Immigration Laws on the Horizon: Visa Interview Waiver, Regulatory Changes, and Other Improvements
• New Study Finds Dramatically Increased Rates of Denials and “Requests for Evidence” for H-1B, L-1, and O-1 Nonimmigrants
• H-1B Professional Visa – It’s Filing Season
• Stateside Waiver Process for “Unlawful Presence”
• Immigrant Visa Backlogs Continue to Decrease from Last Year
• Immigration Agencies Sued Over Asylum “Clock”
• News In Brief: Online “Self-Check” Employment Eligibility; DOJ Issues Employee Rights/Employer Guidance; TPS Extended for El Salvador
Key Administrative Fixes to Immigration Laws on the Horizon: Visa Interview Waiver, Regulatory Changes, and Other Improvements
On January 19, 2012, President Obama by Executive Order outlined several initiatives to improve visa and foreign visitor processing and promote travel as a way to create jobs and spur economic growth in the United States. The travel and tourism industry, he stated, is the country’s leading service sectors and sources of exports, yet its market share of spending by international travelers has dramatically fallen over the last 10 years. The President ordered all appropriate agencies to develop, within 60 days, an implementation plan to achieve a number of specific goals: (1) increase the nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year; (2) ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of their application; (3) increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and (4) expand reciprocal recognition programs for expedited travel, such as the Global Entry program. The President also established a Task Force on Travel and Competitiveness to develop the “National Travel and Tourism Strategy.”
Dovetailing with this Executive Order, the White House and the Departments of Homeland Security (DHS) and State (DOS) announced on January 31 steps they will take to attract and retain foreign-born entrepreneurs and highly skilled immigrants and stimulate economic growth. These include regulatory changes that would:
• positively affect F-1 foreign students and their spouses;
• permit spouses of certain H-1Bs to obtain work authorization;
• broaden the scope of allowable evidence for EB-2 outstanding professors and researcher; and
• make it easier for professional nonimmigrant workers from Australia, Chile, and Singapore to continue working while their extension of status requests are pending.
DHS also announced a new Entrepreneur in Residence Summit to seek information and ideas from the entrepreneurial community and academics on how to maximize current law to attract foreign entrepreneurial talent.
Waiver of Visa Interview
Several government initiatives aimed at reducing nonimmigrant visa wait times are now in play. Most significantly, DOS announced a new pilot program to waive the nonimmigrant visa interview requirement for certain visa renewals. Under the program, slated to run for two years, certain visa renewals that are more than 12 months but less than 48 months post-expiration will be eligible for renewal without a consular interview for the same visa category. The visa interview waiver will be available to foreign nationals who have previously had their 10-print fingerprint scan collected; it will not be available to applicants who were previously denied a visa or who are listed in the Consular Lookout and Support System (CLASS) or require a Security Advisory Opinion. Nor will the interview waiver be available to applicants who may have failed to comply with U.S. immigration laws or who are applying in a “high-threat” or “high-fraud” location. Only certain types of visas will be eligible for this benefit, and although DOS has not yet released a comprehensive list, it is projected that F, J and M visas will be included. On February 13, the U.S. Embassy, Beijing launched its visa interview pilot program for certain B, C, D F, J, M, and O visa holders consistent with the procedures outlined above by DOS. More details are likely to emerge over the next few weeks.
Additionally, Brazilian citizens younger than 16 or older than 66 who are applying for an initial visa or renewal visa (regardless of classification) and are citizens or residents of the country in which they are applying can forgo the consular interview and fingerprint requirement.
Expanded Service in Brazil and China
Besides the changes to the interview requirements in China and Brazil noted above, DOS has expanded its visa processing capacity in those countries by deploying additional personnel, expanding visa sections, and using new systems to facilitate travel from these countries. In late 2011, DOS had reported a record demand for visas for nationals from Brazil and China, a 50 percent increase in one quarter. For Brazil, the increase in demand reflected a 200 percent increase in five years; for China, a more than 30 percent increase from last year. Noting that every additional 65 international visitors to the U.S. translates into one additional travel and tourism-related job, Brazil and China are now considered key growth markets for the United States.
Visa Waiver and Global Entry Programs
The expansion of the Visa Waiver program to additional countries will mean that fewer international business and tourism visitors will need to apply for a visa. Citizens from 36 countries currently can participate; last month, Taiwan was nominated for inclusion. Pressure is now on DHS and DOS to increase the number of countries whose eligible citizens can travel without making a formal application.
In another move to ease the international-arrival process, DHS Secretary Napolitano announced a final rule, effective March 7, 2012, making the Global Entry program a permanent one and providing CBP with the ability to expand the program to additional U.S. international airports. Global Entry allows certain pre-approved, low-risk travelers to streamline the international arrivals and admission process at airports. Currently, the program is available to U.S. citizens, permanent residents, and certain other nationals. In addition, the rule changes the age eligibility criteria to allow more families to participate in the program: persons under age 18 who meet the general eligibility criteria and have the consent of a parent or legal guardian will now be eligible to participate in Global Entry. DHS advises that those individual currently enrolled will not experience a break in membership or need to re-apply when the program becomes permanent. Members currently participating in the pilot will have their time credited to the five year membership. According to DHS, the majority of travelers using Global Entry are processed in under five minutes.
Upcoming Regulatory Proposals
As mentioned above, DHS also announced a number of regulatory changes that would:
• expand the eligibility requirements so that more F-1 students would be eligible for 17-month optional practical training (OPT) rather than 12-month OPT now available to them;
• permit spouses of F-1s to enroll in part-time academic classes, rather than only vocational or recreational classes;
• provide work authorization for H-4 spouses while their H-1B spouse waits for his or her adjustment of status application to be decided;
• expand the scope of evidence of academic achievement to prove that a professor or researchers is outstanding; and
• permit E-3 Australians and H-1B1 Chilean and Singaporean nationals to continue to work for 240 days with their same employer while their extension of status requests are pending, provisions that are available to other nonimmigrant workers.
All of these initiatives come as welcome news, from the more modest to bold. The regulatory changes and visa interview waiver could positively impact American business and facilitate the entry and employment of needed talent at a time when the U.S. continues to struggle to recover economically and remain competitive. But, as highlighted below, real change must happen – and happen fast – at the adjudicatory level, where immigration and consular officers wield tremendous power and ability to keep out skilled foreign nationals. Rigid, restrictive interpretations of regulatory eligibility requirements by front-line decision makers will trump more generous policies time and time again.
New Study Finds Dramatically Increased Rates of Denials and “Requests for Evidence” for H-1B, L-1, and O-1 Nonimmigrants
With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear: Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008–09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:
• Denial rates for L-1B “specialized knowledge” petitions rose from 7 percent in FY07 to 27 percent in FY11. In FY11, 63 percent of L-1B petitions were delayed due to RFEs; in FY04, only 2 percent received RFEs.
• Denial rates for L-1A executives and managers petitions increased from 8 percent in FY07 to 14 percent in FY11. RFEs increased from 4 percent in FY04 to 51 percent in FY11.
• Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. (In FY09, the denial rate was 29 percent.) RFEs rose from 4 percent in FY04 to 26 percent by FY11. (In FY09, the RFE rate was 35 percent.)
• Denial rates for O-1A extraordinary ability petitions rose from 4 percent in FY08 to 8 percent in FY11. For O-1As, RFEs increased from 1 percent in FY04 to 27 percent in FY11,
• Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent FY08 to 13.4 percent in FY11. (In FY09, the rate was 22.5 percent.) The drop in FY11 Indian denials can be attributed to a 40 percent decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11.
Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.
As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.
H-1B Professional Visa – It’s Filing Season
On April 1, employers will be able to file H-1B petitions for their employees who require a first-time H-1B visa for work that will commence on October 1, 2012. Now is not too soon to identify new H-1B employees and begin preparing necessary petitions. With increased denial rates and skyrocketing requests for additional evidence, employers may be able to avoid costly delays or denials with meticulous, careful planning and preparation. (See more below.) A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance as well as to determine that valid employer-employee relationships have been maintained.
While we anticipate that visas will remain available beyond April 1, H-1B visas will be used up much more rapidly as the economy recovers. Under immigration rules, first-time H-1B visas are limited to 85,000 per fiscal year.
Stateside Waiver Process for “Unlawful Presence”
In early January, DHS announced its intent to propose a change that would allow spouses and children of U.S. citizens who are in the U.S. but need a waiver of ”unlawful presence” in order to get a green card to apply for that waiver while remaining in the United States. What does this mean and who is affected? Background: Under current immigration law, U.S. citizens can apply for green cards for their immediate relatives even if their relatives entered the United States without inspection or are otherwise out of status. However, in order for these individuals to receive their green cards, most applicants must travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. They cannot adjust their status to a lawful permanent resident (LPR) in the United States. Moreover, often those relatives have accrued a certain period of “unlawful presence” in the United States, and once they leave, they are barred from returning to the United States for as long as 3 or 10 years. Under the current process, these individuals must first have an initial interview at their home consulate, and only then can they apply for the required waiver at the home consulate. The rules also require that they show that their U.S. citizen spouse or parent would face “extreme hardship” as a result of the separation. (Extreme hardship to a U.S. child is insufficient.) All of this takes time, and as a result, waiver decisions often takes weeks, months, or even years to be completed.
DHS’s proposal would permit, for the first time, eligible spouses and children of U.S. citizens to apply for a provisional waiver before leaving the United States even though they would still need to show that a lengthy bar from the United States would cause their U.S. citizen spouse or parent “extreme hardship.” If approved, they will have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. Because this new streamlined process is limited to those individuals who are inadmissible based solely on having accrued a period of unlawful presence, if other grounds of inadmissibility are found, the individual would need to submit another waiver application while abroad.
The new process is limited, however, and would not apply to family members of lawful permanent resident (LPR) petitioners. Furthermore, individuals would still need to meet the extreme-hardship standard to obtain a provisional waiver, because USCIS does not intend to modify the standards.
While the proposed change is narrowly construed, the provisional waiver procedure as outlined by DHS is nevertheless a step in the right direction for those eligible. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years, will provide a more predictable process, and will encourage those eligible to begin the process to regularize their status. It is, in fact, this quirk in the immigration laws that has contributed to the large number of undocumented foreign nationals in the United States.
It is unclear when the new process will take effect but presumably by the end of the year. DHS first must issue a notice of proposed rule-making, invite public comment, and then issue a final rule.
Immigrant Visa Backlogs Continue to Decrease from Last Year
Highly skilled professional workers and close family members of green card holders (LPRs) and U.S. citizens continued to see a bit of a reprieve from the visa backlogs and priority date retrogression of just a year ago. The March 2012 Visa Bulletin reports that lighter demand for visa numbers has permitted the advance of priority dates, or green card availability, in a number of key categories.
The Family F2A category (spouses and children of lawful permanent residents) for March has a cut-off date of July 22, 2009 for all countries (in March 2011, the cut-off was January 1, 2007) except Mexico; for Mexico, the cut-off is July 1, 2009.
On the employment-based side, the wait for EB-2 Masters-level immigrant visas for China and India has dramatically improved and is now a little more than two years, or January 1, 2010. At this time just last year, the wait for these nationals was five years.
DOS cautions, however, that when the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off dates, and retrogression is a distinct possibility.
Immigration Agencies Sued Over Asylum “Clock”
In December 2011, a federal nationwide class action lawsuit was filed against the government, alleging widespread problems with the asylum “clock,” the system that the government uses to determine when immigrants with pending asylum applications become eligible to obtain work authorization in the United States. The lawsuit, filed by a number of organizations and a private law firm, argues that an untold number of asylum applicants have been wrongfully denied work authorization due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who have pursued their cases for years without work authorization — including a man from China who initially filed his asylum application in 2003. Under rules and procedures that date back to 1994, asylum officers (AOs) and immigration judges have the power to stop the EAD asylum clock — or the time period the applicant must wait — for any delay in the adjudication process that the judge or AO determines was requested or caused by the applicant. In August 2011, the American Immigration Council, one of the organizations that filed the complaint, issued a report that documented excessive delays and instances where an AO or immigration judge improperly stopped, or failed to start (or restart) the clock. The suit alleges that these practices, combined with growing backlogs in U.S. immigration courts, violate the Constitution, federal statutes, and governing regulations.
News In Brief: Online “Self-Check” Employment Eligibility; DOJ Issues Employee Rights/Employer Guidance; TPS Extended for El Salvador
The following additional items may be of interest to our readers:
Online “Self-Check” of Employment Eligibility Status for Workers: USCIS has expanded access of its free online “Self Check” service that allows workers to check their employment eligibility status, entering the same information that employers enter into E-Verify. The service also provides guidance on how to correct DHS and SSA records, which the individual can do prior to the hiring process. The service is available in English and Spanish. For more information, see www.uscis.gov/selfcheck.
DOJ Employee Rights and Employer Guidance: The Department of Justice (DOJ) recently issued two rights-oriented reminders for employees whose employer uses the E-Verify system, and for employers who are subject to an ICE audit. They are available at www.justice.gov/crt/about/osc.
TPS Extended for Eligible Nationals from El Salvador: USCIS announced an 18-month extension of El Salvador’s TPS designation through September 9, 2013. The 60-day TPS re-registration period is open until March 12, 2012; work authorization documents (EADs) are automatically extended for current TPS beneficiaries until September 9, 2012. See http://www.uscis.gov/portal/site/uscis/template.PRINT/menuitem.5af9b.
• New Study Finds Dramatically Increased Rates of Denials and “Requests for Evidence” for H-1B, L-1, and O-1 Nonimmigrants
• H-1B Professional Visa – It’s Filing Season
• Stateside Waiver Process for “Unlawful Presence”
• Immigrant Visa Backlogs Continue to Decrease from Last Year
• Immigration Agencies Sued Over Asylum “Clock”
• News In Brief: Online “Self-Check” Employment Eligibility; DOJ Issues Employee Rights/Employer Guidance; TPS Extended for El Salvador
Key Administrative Fixes to Immigration Laws on the Horizon: Visa Interview Waiver, Regulatory Changes, and Other Improvements
On January 19, 2012, President Obama by Executive Order outlined several initiatives to improve visa and foreign visitor processing and promote travel as a way to create jobs and spur economic growth in the United States. The travel and tourism industry, he stated, is the country’s leading service sectors and sources of exports, yet its market share of spending by international travelers has dramatically fallen over the last 10 years. The President ordered all appropriate agencies to develop, within 60 days, an implementation plan to achieve a number of specific goals: (1) increase the nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year; (2) ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of their application; (3) increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and (4) expand reciprocal recognition programs for expedited travel, such as the Global Entry program. The President also established a Task Force on Travel and Competitiveness to develop the “National Travel and Tourism Strategy.”
Dovetailing with this Executive Order, the White House and the Departments of Homeland Security (DHS) and State (DOS) announced on January 31 steps they will take to attract and retain foreign-born entrepreneurs and highly skilled immigrants and stimulate economic growth. These include regulatory changes that would:
• positively affect F-1 foreign students and their spouses;
• permit spouses of certain H-1Bs to obtain work authorization;
• broaden the scope of allowable evidence for EB-2 outstanding professors and researcher; and
• make it easier for professional nonimmigrant workers from Australia, Chile, and Singapore to continue working while their extension of status requests are pending.
DHS also announced a new Entrepreneur in Residence Summit to seek information and ideas from the entrepreneurial community and academics on how to maximize current law to attract foreign entrepreneurial talent.
Waiver of Visa Interview
Several government initiatives aimed at reducing nonimmigrant visa wait times are now in play. Most significantly, DOS announced a new pilot program to waive the nonimmigrant visa interview requirement for certain visa renewals. Under the program, slated to run for two years, certain visa renewals that are more than 12 months but less than 48 months post-expiration will be eligible for renewal without a consular interview for the same visa category. The visa interview waiver will be available to foreign nationals who have previously had their 10-print fingerprint scan collected; it will not be available to applicants who were previously denied a visa or who are listed in the Consular Lookout and Support System (CLASS) or require a Security Advisory Opinion. Nor will the interview waiver be available to applicants who may have failed to comply with U.S. immigration laws or who are applying in a “high-threat” or “high-fraud” location. Only certain types of visas will be eligible for this benefit, and although DOS has not yet released a comprehensive list, it is projected that F, J and M visas will be included. On February 13, the U.S. Embassy, Beijing launched its visa interview pilot program for certain B, C, D F, J, M, and O visa holders consistent with the procedures outlined above by DOS. More details are likely to emerge over the next few weeks.
Additionally, Brazilian citizens younger than 16 or older than 66 who are applying for an initial visa or renewal visa (regardless of classification) and are citizens or residents of the country in which they are applying can forgo the consular interview and fingerprint requirement.
Expanded Service in Brazil and China
Besides the changes to the interview requirements in China and Brazil noted above, DOS has expanded its visa processing capacity in those countries by deploying additional personnel, expanding visa sections, and using new systems to facilitate travel from these countries. In late 2011, DOS had reported a record demand for visas for nationals from Brazil and China, a 50 percent increase in one quarter. For Brazil, the increase in demand reflected a 200 percent increase in five years; for China, a more than 30 percent increase from last year. Noting that every additional 65 international visitors to the U.S. translates into one additional travel and tourism-related job, Brazil and China are now considered key growth markets for the United States.
Visa Waiver and Global Entry Programs
The expansion of the Visa Waiver program to additional countries will mean that fewer international business and tourism visitors will need to apply for a visa. Citizens from 36 countries currently can participate; last month, Taiwan was nominated for inclusion. Pressure is now on DHS and DOS to increase the number of countries whose eligible citizens can travel without making a formal application.
In another move to ease the international-arrival process, DHS Secretary Napolitano announced a final rule, effective March 7, 2012, making the Global Entry program a permanent one and providing CBP with the ability to expand the program to additional U.S. international airports. Global Entry allows certain pre-approved, low-risk travelers to streamline the international arrivals and admission process at airports. Currently, the program is available to U.S. citizens, permanent residents, and certain other nationals. In addition, the rule changes the age eligibility criteria to allow more families to participate in the program: persons under age 18 who meet the general eligibility criteria and have the consent of a parent or legal guardian will now be eligible to participate in Global Entry. DHS advises that those individual currently enrolled will not experience a break in membership or need to re-apply when the program becomes permanent. Members currently participating in the pilot will have their time credited to the five year membership. According to DHS, the majority of travelers using Global Entry are processed in under five minutes.
Upcoming Regulatory Proposals
As mentioned above, DHS also announced a number of regulatory changes that would:
• expand the eligibility requirements so that more F-1 students would be eligible for 17-month optional practical training (OPT) rather than 12-month OPT now available to them;
• permit spouses of F-1s to enroll in part-time academic classes, rather than only vocational or recreational classes;
• provide work authorization for H-4 spouses while their H-1B spouse waits for his or her adjustment of status application to be decided;
• expand the scope of evidence of academic achievement to prove that a professor or researchers is outstanding; and
• permit E-3 Australians and H-1B1 Chilean and Singaporean nationals to continue to work for 240 days with their same employer while their extension of status requests are pending, provisions that are available to other nonimmigrant workers.
All of these initiatives come as welcome news, from the more modest to bold. The regulatory changes and visa interview waiver could positively impact American business and facilitate the entry and employment of needed talent at a time when the U.S. continues to struggle to recover economically and remain competitive. But, as highlighted below, real change must happen – and happen fast – at the adjudicatory level, where immigration and consular officers wield tremendous power and ability to keep out skilled foreign nationals. Rigid, restrictive interpretations of regulatory eligibility requirements by front-line decision makers will trump more generous policies time and time again.
New Study Finds Dramatically Increased Rates of Denials and “Requests for Evidence” for H-1B, L-1, and O-1 Nonimmigrants
With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear: Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008–09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:
• Denial rates for L-1B “specialized knowledge” petitions rose from 7 percent in FY07 to 27 percent in FY11. In FY11, 63 percent of L-1B petitions were delayed due to RFEs; in FY04, only 2 percent received RFEs.
• Denial rates for L-1A executives and managers petitions increased from 8 percent in FY07 to 14 percent in FY11. RFEs increased from 4 percent in FY04 to 51 percent in FY11.
• Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. (In FY09, the denial rate was 29 percent.) RFEs rose from 4 percent in FY04 to 26 percent by FY11. (In FY09, the RFE rate was 35 percent.)
• Denial rates for O-1A extraordinary ability petitions rose from 4 percent in FY08 to 8 percent in FY11. For O-1As, RFEs increased from 1 percent in FY04 to 27 percent in FY11,
• Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent FY08 to 13.4 percent in FY11. (In FY09, the rate was 22.5 percent.) The drop in FY11 Indian denials can be attributed to a 40 percent decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11.
Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.
As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.
H-1B Professional Visa – It’s Filing Season
On April 1, employers will be able to file H-1B petitions for their employees who require a first-time H-1B visa for work that will commence on October 1, 2012. Now is not too soon to identify new H-1B employees and begin preparing necessary petitions. With increased denial rates and skyrocketing requests for additional evidence, employers may be able to avoid costly delays or denials with meticulous, careful planning and preparation. (See more below.) A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance as well as to determine that valid employer-employee relationships have been maintained.
While we anticipate that visas will remain available beyond April 1, H-1B visas will be used up much more rapidly as the economy recovers. Under immigration rules, first-time H-1B visas are limited to 85,000 per fiscal year.
Stateside Waiver Process for “Unlawful Presence”
In early January, DHS announced its intent to propose a change that would allow spouses and children of U.S. citizens who are in the U.S. but need a waiver of ”unlawful presence” in order to get a green card to apply for that waiver while remaining in the United States. What does this mean and who is affected? Background: Under current immigration law, U.S. citizens can apply for green cards for their immediate relatives even if their relatives entered the United States without inspection or are otherwise out of status. However, in order for these individuals to receive their green cards, most applicants must travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. They cannot adjust their status to a lawful permanent resident (LPR) in the United States. Moreover, often those relatives have accrued a certain period of “unlawful presence” in the United States, and once they leave, they are barred from returning to the United States for as long as 3 or 10 years. Under the current process, these individuals must first have an initial interview at their home consulate, and only then can they apply for the required waiver at the home consulate. The rules also require that they show that their U.S. citizen spouse or parent would face “extreme hardship” as a result of the separation. (Extreme hardship to a U.S. child is insufficient.) All of this takes time, and as a result, waiver decisions often takes weeks, months, or even years to be completed.
DHS’s proposal would permit, for the first time, eligible spouses and children of U.S. citizens to apply for a provisional waiver before leaving the United States even though they would still need to show that a lengthy bar from the United States would cause their U.S. citizen spouse or parent “extreme hardship.” If approved, they will have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. Because this new streamlined process is limited to those individuals who are inadmissible based solely on having accrued a period of unlawful presence, if other grounds of inadmissibility are found, the individual would need to submit another waiver application while abroad.
The new process is limited, however, and would not apply to family members of lawful permanent resident (LPR) petitioners. Furthermore, individuals would still need to meet the extreme-hardship standard to obtain a provisional waiver, because USCIS does not intend to modify the standards.
While the proposed change is narrowly construed, the provisional waiver procedure as outlined by DHS is nevertheless a step in the right direction for those eligible. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years, will provide a more predictable process, and will encourage those eligible to begin the process to regularize their status. It is, in fact, this quirk in the immigration laws that has contributed to the large number of undocumented foreign nationals in the United States.
It is unclear when the new process will take effect but presumably by the end of the year. DHS first must issue a notice of proposed rule-making, invite public comment, and then issue a final rule.
Immigrant Visa Backlogs Continue to Decrease from Last Year
Highly skilled professional workers and close family members of green card holders (LPRs) and U.S. citizens continued to see a bit of a reprieve from the visa backlogs and priority date retrogression of just a year ago. The March 2012 Visa Bulletin reports that lighter demand for visa numbers has permitted the advance of priority dates, or green card availability, in a number of key categories.
The Family F2A category (spouses and children of lawful permanent residents) for March has a cut-off date of July 22, 2009 for all countries (in March 2011, the cut-off was January 1, 2007) except Mexico; for Mexico, the cut-off is July 1, 2009.
On the employment-based side, the wait for EB-2 Masters-level immigrant visas for China and India has dramatically improved and is now a little more than two years, or January 1, 2010. At this time just last year, the wait for these nationals was five years.
DOS cautions, however, that when the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off dates, and retrogression is a distinct possibility.
Immigration Agencies Sued Over Asylum “Clock”
In December 2011, a federal nationwide class action lawsuit was filed against the government, alleging widespread problems with the asylum “clock,” the system that the government uses to determine when immigrants with pending asylum applications become eligible to obtain work authorization in the United States. The lawsuit, filed by a number of organizations and a private law firm, argues that an untold number of asylum applicants have been wrongfully denied work authorization due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who have pursued their cases for years without work authorization — including a man from China who initially filed his asylum application in 2003. Under rules and procedures that date back to 1994, asylum officers (AOs) and immigration judges have the power to stop the EAD asylum clock — or the time period the applicant must wait — for any delay in the adjudication process that the judge or AO determines was requested or caused by the applicant. In August 2011, the American Immigration Council, one of the organizations that filed the complaint, issued a report that documented excessive delays and instances where an AO or immigration judge improperly stopped, or failed to start (or restart) the clock. The suit alleges that these practices, combined with growing backlogs in U.S. immigration courts, violate the Constitution, federal statutes, and governing regulations.
News In Brief: Online “Self-Check” Employment Eligibility; DOJ Issues Employee Rights/Employer Guidance; TPS Extended for El Salvador
The following additional items may be of interest to our readers:
Online “Self-Check” of Employment Eligibility Status for Workers: USCIS has expanded access of its free online “Self Check” service that allows workers to check their employment eligibility status, entering the same information that employers enter into E-Verify. The service also provides guidance on how to correct DHS and SSA records, which the individual can do prior to the hiring process. The service is available in English and Spanish. For more information, see www.uscis.gov/selfcheck.
DOJ Employee Rights and Employer Guidance: The Department of Justice (DOJ) recently issued two rights-oriented reminders for employees whose employer uses the E-Verify system, and for employers who are subject to an ICE audit. They are available at www.justice.gov/crt/about/osc.
TPS Extended for Eligible Nationals from El Salvador: USCIS announced an 18-month extension of El Salvador’s TPS designation through September 9, 2013. The 60-day TPS re-registration period is open until March 12, 2012; work authorization documents (EADs) are automatically extended for current TPS beneficiaries until September 9, 2012. See http://www.uscis.gov/portal/site/uscis/template.PRINT/menuitem.5af9b.
November/December 2011 Newsletter
• Immigration and the Judiciary, the Executive, and the Legislature
• H-1B Professional Visa Cap Reached
• Update on PERM Labor Certification Program: Audits on Rise; Wage Determinations “Current”
• Traveling Over the Holidays? Review Your Documents Now
• News in Brief: USCIS Resumes Sending Original Approval Notices to Attorneys; New Medical Exam Form (I-693) Required 1/1/2012; Email of Non-Citizens Protected; Update on TPS
• Immigration and the Judiciary, the Executive, and the Legislature
Immigration and the Courts
Supreme Court Enters Arizona Fray: On December 12, the U.S. Supreme Court agreed to decide whether Arizona may impose its tough anti-immigration law, S.B. 1070, including a requirement that state-law enforcement officials determine the immigration status of anyone they stop or arrest if the officials have reason to believe that the individual might be an undocumented immigrant. The Ninth Circuit blocked the provision and others in this Draconian, controversial law, which was enacted in 2010 and spawned copycat legislation in a number of other states. By taking on the case, the Court has thrust itself into the center of American political life and will weigh in on what has been called one of the most combustible issues in American politics. The Supreme Court’s ultimate decision in the case, however, may not have precedential value. Justice Elena Kagan will not take part in the decision of the high court – she worked on the issue previously while solicitor general – which raises the prospect of a 4 to 4 vote. If that were to happen, the Court’s decision would carry no precedential significance for the other state laws being challenged. The Court is expected to hear the case in April.
Federal Court Challenges to Utah and South Carolina State Immigration Laws: In the wake of congressional inaction on immigration, state legislatures continue to attempt to reform the law and the federal government continues to wrestle with the states to maintain its control or preemptive rights over the issue. As these battles persist and are played out in the federal courts, the Department of Justice (DOJ) has been center stage. In addition to suits in Arizona and Alabama, DOJ recently filed a lawsuit in federal district court against a South Carolina law, Act No. 69, parts of which go into effect, on January 1. Filed on behalf of the Departments of State, Justice, and Homeland Security, the lawsuit argues that certain provisions of the South Carolina law are unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy. Then, on November 23, DOJ filed another suit, this time against Utah, to block implementation of HB 497, which mandates that local police enforce immigration laws. These laws are similar to those in Arizona (SB 1070) and Alabama. (The same day the Supreme Court accepted review of Arizona’s SB 1070, a federal court blocked a provision of Alabama’s immigration law that would have forced undocumented immigrants to leave their mobile homes. The ruling means that people paying for their annual mobile home registration tags required for residence will not have to prove their legal residency for now.) DOJ is also reviewing laws in Georgia and Indiana that already have been challenged by private groups and individuals.
In its press releases announcing these lawsuits, DOJ cited the irreparable harm caused by the laws, including “the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.” The reality of this concern was borne out recently when a German Mercedes Benz executive was arrested under Alabama’s anti-immigrant law while in town visiting the automaker’s facilities, followed by the arrest of a Japanese Honda employee also in Alabama.
Clearly, DOJ’s efforts in these cases reflect a commitment to protecting constitutional principles and individual rights, which we applaud.
Immigration and the Executive
While President Obama’s Justice Department efforts to protect individual rights and to preserve the right of the federal government to enforce immigration law have been laudatory, a number of other significant policies of the current Administration have angered pro-immigration supporters, not the least of which has been the record number of deportations that have transpired in the last three years. Some 1.2 million undocumented foreign nationals have been deported since President Obama took up office, compared to almost 1.6 million deported during the eight-year Presidency of George Bush. In FY2011 alone, an unprecedented 400,000 people were deported. However, just last month the Administration took real action to provide relief for the undocumented who pose no threat to the country and who commit no crime.
Prosecutorial Discretion. A new DHS-ICE policy encouraging the exercise of prosecutorial discretion in appropriate cases was launched in mid-November – complete with fairly comprehensive guidelines and procedures – and is being piloted in Baltimore and Denver, December 4 through January 13, 2012. DHS (the Department of Homeland Security) had announced in June its intent to eliminate low priority cases from the immigration court dockets and instead focus its enforcement priorities on the removal of those who have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law, and immigration court fugitives. In August, DHS and ICE (Immigration and Customs Enforcement) issued a directive to ICE attorneys to review pending court cases as well as cases where a charging document had not yet been filed to determine if the agency should decide not to prosecute the case. DHS also announced the establishment of a joint DHS-DOJ working group to review the approximately 300,000 pending cases and identify cases for administrative closure. The pilot program just launched was designed to identify cases most clearly eligible and ineligible for a favorable exercise of discretion. During a six-week period, USCIS, ICE, and CBP (Customs and Border Protection) attorneys are to review cases according to the agency’s general prosecutorial discretion guidance as well as by a set of more focused criteria. Ultimately, DHS expects to implement “best practices” on an ongoing basis nationwide. While it is still too soon to judge the results of the pilot program and the impact of the agency’s new policy, in Baltimore, at least, removal cases normally set in December and January have been scheduled well into the future. Stay tuned.
Other DHS guidance issued in November on when immigration charging documents should be issued dove-tails with its prosecutorial discretion policy.
Adjudications, Entrepreneurs, Small Business: More informally, the Administration has engaged the public and immigration stakeholders on a variety of issues and has done so more directly that ever before. Recently, the USCIS Ombudsman’s Office held an Annual Conference attended by 300 to discuss improving the delivery of immigration benefits and services. USCIS also has hosted a number of teleconferences with the public. A teleconference was held on USCIS’s then-changed policy on where and to whom I-797 approval notices are sent. (Feedback from the call contributed to USCIS changing its policy.) Another teleconference was held on small and start-up business immigration issues and involved not only immigration officials but those from the Small Business Administration and other federal agencies. On a related note, USCIS just launched an “Entrepreneurs in Residence” initiative and hopes to bring business experts in-house to work alongside USCIS staff to ensure that its policies are reflective of industry realities. This could be a valuable opportunity for business experts and immigrant entrepreneurs, especially those who have engaged in the U.S. immigration system through immigrant visa applications, to join USCIS’s tactical team and affect how the agency adjudicates cases. Business members, however, must be U.S. citizens. To apply for the Entrepreneurs in Residence program, see http://www.dhs.gov/xabout/careers/loaned-executive-business-expert-uscis.shtm
It’s anyone’s guess whether the Administration’s formal policy changes (prosecutorial discretion) or its informal meetings and public engagements will result is administrative fixes that have real teeth. At the end of the day, however, these changes represent only modest remedies to a system that cries out for wholesale reform.
Immigration and Congress
Fairness for High-Skilled Immigration Act: Ironically, of the three branches of government, the one specifically charged with enacting laws has been just about silent on the immigration front. The 112th Congress has neither passed nor significantly moved forward any important immigration proposal this year except, most recently, the now-stalled Fairness for High-Skilled Immigration Act, HR 3012. On November 29, the House of Representatives passed HR 3012, the first significant piece of immigration legislation passed by either the House or Senate all year. Passed with overwhelming bi-partisan support, the Fairness for High-Skilled Immigration Act eliminates entirely by fiscal year 2015 the current per-country cap on the employment-based visas and is designed to eliminate long wait times for workers from high-demand countries such as India and China. It also increases the family-based per-country cap from 7 percent to 15 percent. Before the bill can become law, the Senate must take up the legislation and President Obama would have to sign it into law. Meanwhile, Senator Grassley (R-IA), a long-time, staunch opponent of pro-immigration reform, placed a “hold” on the legislation in order to delay its consideration, citing his concerns about the impact of the bill on future immigration flows, among other things. It is unclear how long he intends to hold the legislation hostage. In any event, some are hedging their support for the bill by noting that backlogs will not be truly eliminated but instead merely passes the buck down the line, inevitably creating backlogs somewhere else in the immigration visa quota system. The bill does not make any change in the overall number of green card visas available each year for skilled and professional workers and their dependents – 140,000 – a number enacted into law more than 20 years ago.
Tinkering at the margins, congressional committees recently have conducted a number of recent hearings on important immigration issues. A round up includes the following:
Secure Communities: A House of Representatives hearing led by Representative Steve King (R-IA) was the first-ever congressional review of Secure Communities, the three-year-old program where the FBI shares the fingerprint data of arrestees from local (and state) law enforcement agencies with DHS. For several years now the program has been criticized for leading to racial profiling and interfering with community policing. Despite these claims, the Administration has directed ICE to expand the program, and an ICE official testified at the congressional hearing that DHS has safeguards in place to alert them of possible abuse. It is doubtful that any substantive changes will come from the hearing.
Visa Waiver Program: The Visa Waiver Program (VWP) is also subject of scrutiny as many call for its expansion. The program allows nationals from 36 countries to visit the United States for 90 days or less without securing a visa in advance. Many, especially the tourism industry, advocate for expanding opportunities to other nationals as good for the American economy, citing the VWP as the single largest program of inbound U.S. travel in 2010. It is unclear from the hearings whether any substantive changes will be made, though some countries, including Taiwan, are hopeful to be included if the program expands. The House hearing follows a recent State Department announcement that the U.S. is falling far short of meeting a growing worldwide demand for visas, undermining U.S. competitiveness now and into the future.
EB-5 Investor Program: The EB-5 Entrepreneur Investor Visa Program is up for review. Created in early 1990s and lauded as a job creator and a vehicle to drive the economy, the program has been perennially underutilized, issuing fewer than 2,500 visas in 2010 out of a possible 10,000. A Senate reauthorization hearing on December 7 was to review the Regional Center program, a component of the EB-5 program that permits a $500,000 investment in targeted employment areas in approved pooled investment programs instead of a $1 million, and is set to sunset in 2012. Most observers agree that the program will be reauthorized, perhaps permanently.
Foreign Students Educated in STEM Fields: Continuing the emphasis on economic competitiveness, hearings also have been held to examine options for reforms that do a better job of retaining foreign students who graduate in the fields of science, technology, engineering and math (STEM). Currently, foreign students must leave the United States upon graduation unless they are eligible for one of the few and limited ways to stay in the country. Many politicians are upset that we provide stellar education but don’t reap the benefits. On the presidential trail, hopefuls have also stepped up the rhetoric: Newt Gingrich said during the CNN debate in November that foreign students graduating with STEM degrees should automatically receive work visas.
Combined with the approaching 2012 election cycle and candidates staking out positions, we can expect continued hearings on Capitol Hill on immigration but no comprehensive reform, even though a new nationwide poll shows a large majority of Americans favor a path to citizenship for most undocumented immigrants.
http://www.nationaljournal.com/daily/public-wants-immigrants-to-be-able-to-stay-20111206
H-1B Professional Visa Cap Reached
On November 23, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary professional visa petitions for employment commencing during the current fiscal year (October 1, 2011 to September 30, 2012). Cap-subject employers seeking to employ new professional workers now must wait until April 1, 2012 to file new petitions for employment commencing October 1, 2012. H-1B visa petitions are filed by U.S. employers seeking to hire foreign nationals in specialty occupations involving the theoretical and practical application of a body of “specialized knowledge” (such as the sciences, medicine and health care, education, biotechnology). The minimum requirement for the foreign national is a bachelor’s degree or the equivalent work experience (or a combination of education and work experience). Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 “H-1B1” visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore).
While the vast majority of H-1B applicants in business are subject to the cap, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.
For the third year in a row, H-1Bs remained available for many months after the U.S. government began accepting applications. Prior to the financial crisis that took hold of the U.S. economy and American business, all 85,000 visas had been exhausted the first day of filing, April 1. This year, these visas were exhausted two months earlier than last year, a sign that the economy is, in fact, starting to recover.
Over the last many years, it is clear that the business marketplace has dictated the pace and demand for H-1B specialty workers. In times of economic prosperity and growth, H-1B visa numbers were exhausted immediately; in times of recession, visas numbers remained available much of each fiscal year. And, before 1990 when the H-1B numerical limitation was enacted for the first time, the needs and demands of U.S. business governed the number of visa petitions filed and granted each year.
With job creation and business expansion key to fueling our economy and America’s competitive edge, when will Congress wake up and change this outdated, quota system? The status quo keeps out some of the best and brightest skilled workers the world has to offer, and ignores the benefit immigrants bring to our shores. America needs a well-functioning business immigration system, one where immigration-related challenges and obstacles do not prevent or delay companies from launching a new venture, expanding an existing company, winning significant contracts for work, or missing opportunities. Changing the H-1B visa system would be a meaningful and important first step.
Update on PERM Labor Certification Program: Audits on Rise; Wage Determinations “Current”
PERM audits are on the rise again, and employers sponsoring foreign workers need to take care that they are strictly complying with the requirements of the PERM labor certification program. Job requirements, advertising, and recruitment are the key areas for PERM audits. In this time of high unemployment, recruitment is an area that is especially vulnerable to an audit. Because vetting applicants and managing applicant response is one particular part of the process for which employers are solely responsible, employers must maintain good records of their recruitment efforts and applicant pool. While they must document who applied and how they were notified about the selection process, employers are not, however, required to tell applicants why they weren't hired even though some audit notices ask for this information. Supervised recruitment – which can cost an employer thousands of additional dollars on advertising alone – also is on the rise, especially in professional occupations where the requirements include configurations that offer alternatives to bachelor’s degrees, where the job is entry level with no requirements, in lower level financial industry jobs, and in restaurant industry positions irrespective of the status of the foreign national.
Meanwhile, the Department of Labor announced that is has cleared up its backlog, and is again issuing prevailing wage determinations for PERM cases within 60 days of submission.
Traveling Over the Holidays? Review Your Documents Now
With the holidays rapidly approaching, now is a good time for foreign nationals who will be departing the United States for travel abroad to review their travel documents to ensure that their re-entry into the U.S. is as seamless as possible. Depending on an individual’s current status and whether he or she is “in process” for another status, different documentation may be required upon return to the United States. For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And, yet for others, changed circumstances (such as change in work, change in relationship, arrests and criminal matters) may have immigration consequences. Even travelers on the Visa Waiver Program should ensure that their ESTA authorization is still valid; if re-authorization is required and the individual is denied and a visa becomes required for re-entry, sufficient time will be necessary for that individual to make an application.
Foreign nationals planning to travel outside the United States within the next few weeks and who have questions about their documents are encouraged to contact their immigration lawyer.
News in Brief
The following additional items may be of interest to our readers:
USCIS Resumes Sending Important, Original Approval Notices (I-797) to Attorney of Record: USCIS announced that it has restored the practice of sending original I-797 receipt and approval notices to the applicant’s or petitioner’s G-28 attorney of record. In mid-September, USCIS began sending these important notices directly to applicants and petitioners, causing a myriad of unintended consequences.
New Medical Exam Form (I-693) Required as of January 1: Starting January 1, 2012, medical examination reports from civil surgeons required for adjustment of status applicants must be completed on a new Form I-693 dated 10/11/2011. Foreign nationals who have completed their medical exam but have not yet filed for adjustment of status and will not do so before the end of 2011, should check with the doctor who performed the exam to ensure that the correct form was used. E-mail of Noncitizens Protected under Federal Law: The Ninth Circuit recently ruled that the 1986 Electronic Communications Privacy Act (ECPA) protects the e-mails of both citizens and noncitizens alike from disclosure by their e-mail providers. Under the decision, Internet service providers (ISPs), including Microsoft’s Hotmail and Google’s Gmail (and, likely, Facebook in connection with its private messaging service), that store e-mails are prohibited from turning over to the government the contents of emails of “any person” without first going through the courts. The underlying case involved a lawsuit in Australia between an Indian citizen and an Indian company and Microsoft. Foreign companies who rely on American third party public ISP providers for hosting their email services are now on notice that in the Ninth Circuit those providers may invoke the ECPA to resist a warrantless request to turn over noncitizen employee emails. See http://www.slrno.com/November2011-webUpdate.htm
Update on TPS: Honduras, Nicaragua, Sudan, South Sudan, and Haiti: The following is an update on TPS effective dates, extensions, and EADs that apply to eligible nationals:
Nicaragua and Honduras: USCIS announced an 18-month extension of Nicaragua’s and Honduras’s TPS designation, effective January 6, 2012, through July 5, 2013. The re-registration period is until January 5, 2012; work authorization documents (EADs) are automatically extended for current Nicaraguan and Honduran TPS beneficiaries.
Sudan and South Sudan: USCIS announced an 18-month extension of TPS for Sudan through July 2, 2013, and the automatic extension of EADs for Sudanese TPS beneficiaries. Re-registration is in effect until April 10, 2012. South Sudan was designated for TPS for the first time, effective November 3, 2011 through May 12, 13. The registration period is in effect until April 10, 2012.
Haiti: USCIS reminds eligible nationals of Haiti who have not filed their TPS applications to follow guidance about late filing even though the registration periods have passed.
For more details about the process for each country, see www.uscis.gov/tps.
• H-1B Professional Visa Cap Reached
• Update on PERM Labor Certification Program: Audits on Rise; Wage Determinations “Current”
• Traveling Over the Holidays? Review Your Documents Now
• News in Brief: USCIS Resumes Sending Original Approval Notices to Attorneys; New Medical Exam Form (I-693) Required 1/1/2012; Email of Non-Citizens Protected; Update on TPS
• Immigration and the Judiciary, the Executive, and the Legislature
Immigration and the Courts
Supreme Court Enters Arizona Fray: On December 12, the U.S. Supreme Court agreed to decide whether Arizona may impose its tough anti-immigration law, S.B. 1070, including a requirement that state-law enforcement officials determine the immigration status of anyone they stop or arrest if the officials have reason to believe that the individual might be an undocumented immigrant. The Ninth Circuit blocked the provision and others in this Draconian, controversial law, which was enacted in 2010 and spawned copycat legislation in a number of other states. By taking on the case, the Court has thrust itself into the center of American political life and will weigh in on what has been called one of the most combustible issues in American politics. The Supreme Court’s ultimate decision in the case, however, may not have precedential value. Justice Elena Kagan will not take part in the decision of the high court – she worked on the issue previously while solicitor general – which raises the prospect of a 4 to 4 vote. If that were to happen, the Court’s decision would carry no precedential significance for the other state laws being challenged. The Court is expected to hear the case in April.
Federal Court Challenges to Utah and South Carolina State Immigration Laws: In the wake of congressional inaction on immigration, state legislatures continue to attempt to reform the law and the federal government continues to wrestle with the states to maintain its control or preemptive rights over the issue. As these battles persist and are played out in the federal courts, the Department of Justice (DOJ) has been center stage. In addition to suits in Arizona and Alabama, DOJ recently filed a lawsuit in federal district court against a South Carolina law, Act No. 69, parts of which go into effect, on January 1. Filed on behalf of the Departments of State, Justice, and Homeland Security, the lawsuit argues that certain provisions of the South Carolina law are unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy. Then, on November 23, DOJ filed another suit, this time against Utah, to block implementation of HB 497, which mandates that local police enforce immigration laws. These laws are similar to those in Arizona (SB 1070) and Alabama. (The same day the Supreme Court accepted review of Arizona’s SB 1070, a federal court blocked a provision of Alabama’s immigration law that would have forced undocumented immigrants to leave their mobile homes. The ruling means that people paying for their annual mobile home registration tags required for residence will not have to prove their legal residency for now.) DOJ is also reviewing laws in Georgia and Indiana that already have been challenged by private groups and individuals.
In its press releases announcing these lawsuits, DOJ cited the irreparable harm caused by the laws, including “the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.” The reality of this concern was borne out recently when a German Mercedes Benz executive was arrested under Alabama’s anti-immigrant law while in town visiting the automaker’s facilities, followed by the arrest of a Japanese Honda employee also in Alabama.
Clearly, DOJ’s efforts in these cases reflect a commitment to protecting constitutional principles and individual rights, which we applaud.
Immigration and the Executive
While President Obama’s Justice Department efforts to protect individual rights and to preserve the right of the federal government to enforce immigration law have been laudatory, a number of other significant policies of the current Administration have angered pro-immigration supporters, not the least of which has been the record number of deportations that have transpired in the last three years. Some 1.2 million undocumented foreign nationals have been deported since President Obama took up office, compared to almost 1.6 million deported during the eight-year Presidency of George Bush. In FY2011 alone, an unprecedented 400,000 people were deported. However, just last month the Administration took real action to provide relief for the undocumented who pose no threat to the country and who commit no crime.
Prosecutorial Discretion. A new DHS-ICE policy encouraging the exercise of prosecutorial discretion in appropriate cases was launched in mid-November – complete with fairly comprehensive guidelines and procedures – and is being piloted in Baltimore and Denver, December 4 through January 13, 2012. DHS (the Department of Homeland Security) had announced in June its intent to eliminate low priority cases from the immigration court dockets and instead focus its enforcement priorities on the removal of those who have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law, and immigration court fugitives. In August, DHS and ICE (Immigration and Customs Enforcement) issued a directive to ICE attorneys to review pending court cases as well as cases where a charging document had not yet been filed to determine if the agency should decide not to prosecute the case. DHS also announced the establishment of a joint DHS-DOJ working group to review the approximately 300,000 pending cases and identify cases for administrative closure. The pilot program just launched was designed to identify cases most clearly eligible and ineligible for a favorable exercise of discretion. During a six-week period, USCIS, ICE, and CBP (Customs and Border Protection) attorneys are to review cases according to the agency’s general prosecutorial discretion guidance as well as by a set of more focused criteria. Ultimately, DHS expects to implement “best practices” on an ongoing basis nationwide. While it is still too soon to judge the results of the pilot program and the impact of the agency’s new policy, in Baltimore, at least, removal cases normally set in December and January have been scheduled well into the future. Stay tuned.
Other DHS guidance issued in November on when immigration charging documents should be issued dove-tails with its prosecutorial discretion policy.
Adjudications, Entrepreneurs, Small Business: More informally, the Administration has engaged the public and immigration stakeholders on a variety of issues and has done so more directly that ever before. Recently, the USCIS Ombudsman’s Office held an Annual Conference attended by 300 to discuss improving the delivery of immigration benefits and services. USCIS also has hosted a number of teleconferences with the public. A teleconference was held on USCIS’s then-changed policy on where and to whom I-797 approval notices are sent. (Feedback from the call contributed to USCIS changing its policy.) Another teleconference was held on small and start-up business immigration issues and involved not only immigration officials but those from the Small Business Administration and other federal agencies. On a related note, USCIS just launched an “Entrepreneurs in Residence” initiative and hopes to bring business experts in-house to work alongside USCIS staff to ensure that its policies are reflective of industry realities. This could be a valuable opportunity for business experts and immigrant entrepreneurs, especially those who have engaged in the U.S. immigration system through immigrant visa applications, to join USCIS’s tactical team and affect how the agency adjudicates cases. Business members, however, must be U.S. citizens. To apply for the Entrepreneurs in Residence program, see http://www.dhs.gov/xabout/careers/loaned-executive-business-expert-uscis.shtm
It’s anyone’s guess whether the Administration’s formal policy changes (prosecutorial discretion) or its informal meetings and public engagements will result is administrative fixes that have real teeth. At the end of the day, however, these changes represent only modest remedies to a system that cries out for wholesale reform.
Immigration and Congress
Fairness for High-Skilled Immigration Act: Ironically, of the three branches of government, the one specifically charged with enacting laws has been just about silent on the immigration front. The 112th Congress has neither passed nor significantly moved forward any important immigration proposal this year except, most recently, the now-stalled Fairness for High-Skilled Immigration Act, HR 3012. On November 29, the House of Representatives passed HR 3012, the first significant piece of immigration legislation passed by either the House or Senate all year. Passed with overwhelming bi-partisan support, the Fairness for High-Skilled Immigration Act eliminates entirely by fiscal year 2015 the current per-country cap on the employment-based visas and is designed to eliminate long wait times for workers from high-demand countries such as India and China. It also increases the family-based per-country cap from 7 percent to 15 percent. Before the bill can become law, the Senate must take up the legislation and President Obama would have to sign it into law. Meanwhile, Senator Grassley (R-IA), a long-time, staunch opponent of pro-immigration reform, placed a “hold” on the legislation in order to delay its consideration, citing his concerns about the impact of the bill on future immigration flows, among other things. It is unclear how long he intends to hold the legislation hostage. In any event, some are hedging their support for the bill by noting that backlogs will not be truly eliminated but instead merely passes the buck down the line, inevitably creating backlogs somewhere else in the immigration visa quota system. The bill does not make any change in the overall number of green card visas available each year for skilled and professional workers and their dependents – 140,000 – a number enacted into law more than 20 years ago.
Tinkering at the margins, congressional committees recently have conducted a number of recent hearings on important immigration issues. A round up includes the following:
Secure Communities: A House of Representatives hearing led by Representative Steve King (R-IA) was the first-ever congressional review of Secure Communities, the three-year-old program where the FBI shares the fingerprint data of arrestees from local (and state) law enforcement agencies with DHS. For several years now the program has been criticized for leading to racial profiling and interfering with community policing. Despite these claims, the Administration has directed ICE to expand the program, and an ICE official testified at the congressional hearing that DHS has safeguards in place to alert them of possible abuse. It is doubtful that any substantive changes will come from the hearing.
Visa Waiver Program: The Visa Waiver Program (VWP) is also subject of scrutiny as many call for its expansion. The program allows nationals from 36 countries to visit the United States for 90 days or less without securing a visa in advance. Many, especially the tourism industry, advocate for expanding opportunities to other nationals as good for the American economy, citing the VWP as the single largest program of inbound U.S. travel in 2010. It is unclear from the hearings whether any substantive changes will be made, though some countries, including Taiwan, are hopeful to be included if the program expands. The House hearing follows a recent State Department announcement that the U.S. is falling far short of meeting a growing worldwide demand for visas, undermining U.S. competitiveness now and into the future.
EB-5 Investor Program: The EB-5 Entrepreneur Investor Visa Program is up for review. Created in early 1990s and lauded as a job creator and a vehicle to drive the economy, the program has been perennially underutilized, issuing fewer than 2,500 visas in 2010 out of a possible 10,000. A Senate reauthorization hearing on December 7 was to review the Regional Center program, a component of the EB-5 program that permits a $500,000 investment in targeted employment areas in approved pooled investment programs instead of a $1 million, and is set to sunset in 2012. Most observers agree that the program will be reauthorized, perhaps permanently.
Foreign Students Educated in STEM Fields: Continuing the emphasis on economic competitiveness, hearings also have been held to examine options for reforms that do a better job of retaining foreign students who graduate in the fields of science, technology, engineering and math (STEM). Currently, foreign students must leave the United States upon graduation unless they are eligible for one of the few and limited ways to stay in the country. Many politicians are upset that we provide stellar education but don’t reap the benefits. On the presidential trail, hopefuls have also stepped up the rhetoric: Newt Gingrich said during the CNN debate in November that foreign students graduating with STEM degrees should automatically receive work visas.
Combined with the approaching 2012 election cycle and candidates staking out positions, we can expect continued hearings on Capitol Hill on immigration but no comprehensive reform, even though a new nationwide poll shows a large majority of Americans favor a path to citizenship for most undocumented immigrants.
http://www.nationaljournal.com/daily/public-wants-immigrants-to-be-able-to-stay-20111206
H-1B Professional Visa Cap Reached
On November 23, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary professional visa petitions for employment commencing during the current fiscal year (October 1, 2011 to September 30, 2012). Cap-subject employers seeking to employ new professional workers now must wait until April 1, 2012 to file new petitions for employment commencing October 1, 2012. H-1B visa petitions are filed by U.S. employers seeking to hire foreign nationals in specialty occupations involving the theoretical and practical application of a body of “specialized knowledge” (such as the sciences, medicine and health care, education, biotechnology). The minimum requirement for the foreign national is a bachelor’s degree or the equivalent work experience (or a combination of education and work experience). Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 “H-1B1” visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore).
While the vast majority of H-1B applicants in business are subject to the cap, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.
For the third year in a row, H-1Bs remained available for many months after the U.S. government began accepting applications. Prior to the financial crisis that took hold of the U.S. economy and American business, all 85,000 visas had been exhausted the first day of filing, April 1. This year, these visas were exhausted two months earlier than last year, a sign that the economy is, in fact, starting to recover.
Over the last many years, it is clear that the business marketplace has dictated the pace and demand for H-1B specialty workers. In times of economic prosperity and growth, H-1B visa numbers were exhausted immediately; in times of recession, visas numbers remained available much of each fiscal year. And, before 1990 when the H-1B numerical limitation was enacted for the first time, the needs and demands of U.S. business governed the number of visa petitions filed and granted each year.
With job creation and business expansion key to fueling our economy and America’s competitive edge, when will Congress wake up and change this outdated, quota system? The status quo keeps out some of the best and brightest skilled workers the world has to offer, and ignores the benefit immigrants bring to our shores. America needs a well-functioning business immigration system, one where immigration-related challenges and obstacles do not prevent or delay companies from launching a new venture, expanding an existing company, winning significant contracts for work, or missing opportunities. Changing the H-1B visa system would be a meaningful and important first step.
Update on PERM Labor Certification Program: Audits on Rise; Wage Determinations “Current”
PERM audits are on the rise again, and employers sponsoring foreign workers need to take care that they are strictly complying with the requirements of the PERM labor certification program. Job requirements, advertising, and recruitment are the key areas for PERM audits. In this time of high unemployment, recruitment is an area that is especially vulnerable to an audit. Because vetting applicants and managing applicant response is one particular part of the process for which employers are solely responsible, employers must maintain good records of their recruitment efforts and applicant pool. While they must document who applied and how they were notified about the selection process, employers are not, however, required to tell applicants why they weren't hired even though some audit notices ask for this information. Supervised recruitment – which can cost an employer thousands of additional dollars on advertising alone – also is on the rise, especially in professional occupations where the requirements include configurations that offer alternatives to bachelor’s degrees, where the job is entry level with no requirements, in lower level financial industry jobs, and in restaurant industry positions irrespective of the status of the foreign national.
Meanwhile, the Department of Labor announced that is has cleared up its backlog, and is again issuing prevailing wage determinations for PERM cases within 60 days of submission.
Traveling Over the Holidays? Review Your Documents Now
With the holidays rapidly approaching, now is a good time for foreign nationals who will be departing the United States for travel abroad to review their travel documents to ensure that their re-entry into the U.S. is as seamless as possible. Depending on an individual’s current status and whether he or she is “in process” for another status, different documentation may be required upon return to the United States. For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And, yet for others, changed circumstances (such as change in work, change in relationship, arrests and criminal matters) may have immigration consequences. Even travelers on the Visa Waiver Program should ensure that their ESTA authorization is still valid; if re-authorization is required and the individual is denied and a visa becomes required for re-entry, sufficient time will be necessary for that individual to make an application.
Foreign nationals planning to travel outside the United States within the next few weeks and who have questions about their documents are encouraged to contact their immigration lawyer.
News in Brief
The following additional items may be of interest to our readers:
USCIS Resumes Sending Important, Original Approval Notices (I-797) to Attorney of Record: USCIS announced that it has restored the practice of sending original I-797 receipt and approval notices to the applicant’s or petitioner’s G-28 attorney of record. In mid-September, USCIS began sending these important notices directly to applicants and petitioners, causing a myriad of unintended consequences.
New Medical Exam Form (I-693) Required as of January 1: Starting January 1, 2012, medical examination reports from civil surgeons required for adjustment of status applicants must be completed on a new Form I-693 dated 10/11/2011. Foreign nationals who have completed their medical exam but have not yet filed for adjustment of status and will not do so before the end of 2011, should check with the doctor who performed the exam to ensure that the correct form was used. E-mail of Noncitizens Protected under Federal Law: The Ninth Circuit recently ruled that the 1986 Electronic Communications Privacy Act (ECPA) protects the e-mails of both citizens and noncitizens alike from disclosure by their e-mail providers. Under the decision, Internet service providers (ISPs), including Microsoft’s Hotmail and Google’s Gmail (and, likely, Facebook in connection with its private messaging service), that store e-mails are prohibited from turning over to the government the contents of emails of “any person” without first going through the courts. The underlying case involved a lawsuit in Australia between an Indian citizen and an Indian company and Microsoft. Foreign companies who rely on American third party public ISP providers for hosting their email services are now on notice that in the Ninth Circuit those providers may invoke the ECPA to resist a warrantless request to turn over noncitizen employee emails. See http://www.slrno.com/November2011-webUpdate.htm
Update on TPS: Honduras, Nicaragua, Sudan, South Sudan, and Haiti: The following is an update on TPS effective dates, extensions, and EADs that apply to eligible nationals:
Nicaragua and Honduras: USCIS announced an 18-month extension of Nicaragua’s and Honduras’s TPS designation, effective January 6, 2012, through July 5, 2013. The re-registration period is until January 5, 2012; work authorization documents (EADs) are automatically extended for current Nicaraguan and Honduran TPS beneficiaries.
Sudan and South Sudan: USCIS announced an 18-month extension of TPS for Sudan through July 2, 2013, and the automatic extension of EADs for Sudanese TPS beneficiaries. Re-registration is in effect until April 10, 2012. South Sudan was designated for TPS for the first time, effective November 3, 2011 through May 12, 13. The registration period is in effect until April 10, 2012.
Haiti: USCIS reminds eligible nationals of Haiti who have not filed their TPS applications to follow guidance about late filing even though the registration periods have passed.
For more details about the process for each country, see www.uscis.gov/tps.
September/October 2011 Newsletter
• Employers and HR Officers Take Care: Important Original Approval Notices Now Sent to Petitioner Not Attorney of Record
• October 28 is Deadline for Certain Widow(er)s to File for Green Card
• Most Immediate Relative Petitioners Residing Abroad Now Must File Their I-130s in the U.S.
• Update on H-1B Visas
• Driver’s Licenses and F, M and J Nonimmigrants
• Update on Visa Number Availability
• Certain Provisions of Alabama’s Anti-Immigration Law Blocked by Court; Others Go into Effect
• News in Brief: DV Lottery Now Open; Deferred Enforced Departure Extended for Liberians; Haitians are Reminded to File for TPS; TPS for South Sudanese
Employers and HR Officers Take Care: Important Original Approval Notices Now Sent to Petitioner Not Attorney of Record
In mid-September, USCIS began sending original I-797 receipt and approval notices directly to applicants and petitioners, while sending copies of the notices to their G-28 attorney of record. Previously, the original notice had been sent to the attorney listed on the G-28, while a copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form. According to USCIS, it implemented the change to ensure that documents are mailed directly to the address specified by the applicant or petitioner. A formal regulation will be promulgated governing the change in late November. However, the sending of original notices, especially those approval notices that contain an I-94, can cause problems for the foreign national if the document is lost or otherwise not timely received.
In a terse letter to USCIS Director Alejandro Mayorkas, the immigration bar association, AILA, requested that USCIS resume its prior practice of sending the original I-797 approval notice to the attorney of record. Not only does the change violates current regulations governing the representation of parties in immigration benefits proceedings, AILA expressed deep concern that the change could impair the ability of petitioners and beneficiaries to comply with obligations to verify employment authorization, to maintain status, and to comply with alien registration obligations. Serious harm could result from a misrouted, mishandled, or lost document. For example, when an I-797 notice is sent to an employer in a large operation, the document can easily be misrouted internally, resulting in delays in its reaching the proper unit and to the foreign national. In the worst case, it can be lost. Moreover, in large-scale operations, employers rely on immigration counsel to properly handle immigration-related documents. Finally, sending the original documents to attorneys of record allows for immediate review of key data, and, in the event there are errors (spellings, validity dates, etc.), immediate action to correct the errors can be taken.
During this transition, USCIS will permit petitioners for nonimmigrant workers to use the attorney’s address as the mailing address on the petition but the petitioner will not receive any I-797 notices. Special accommodations also are being made for cases that are premium processed.
For now, employers and human resource officers should pay close attention to the I-797 Notice of Action Approval Notices received on behalf of their foreign national workers, share copies with their immigration counsel, and make sure that original documents are distributed to their workers in a timely fashion.
October 28 is Deadline for Certain Widow(er)s to File for Green Card
A foreign national widow or widower who was married to an American citizen for less than two years prior to October 28, 2009 is eligible to file a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant; however, the deadline for that filing is October 28, 2011. Widow(er)s with pending I-130s, Petitions for Alien Relative, filed prior to the death of the spouse will automatically have their cases converted to an I-360 petition.
On October 28, 2009 a new law was enacted that eliminated the requirement that widow(er)s of U.S. citizens to be married for at least two years before becoming eligible to file an I-360. (Immigrants who were married for more than two years are governed by other provisions.) Under the 2009 provisions, a surviving spouse who was married a U.S. citizen for less than two years at any time in the past and who has not remarried can apply for his or her green card but may have to do so during the law’s transitional period, October 28, 2009 to October 28, 2011. In other words, if widow(er)’s spouse passed away prior to October 28, 2009, he or she is still eligible to apply for immigration benefits but is required to file by October 29, 2011. If the U.S. citizen spouse passed away on or after October 28, 2009, the I-360 must be filed within two years of the U.S. citizen’s death. USCIS advises that if a case was denied prior to October 28, 2009 based on evidence of less than two years of marriage, it may be considered a pending case.
Please contact our office if you believe your case would apply or seek related advice.
Most Immediate Relative Petitioners Residing Abroad Now Must File Their I-130s in the U.S.
In mid August, USCIS announced that petitioners residing outside the U.S. in countries without USCIS offices will no longer be eligible to file immediate relative green card petitions, Form I-130, with the Department of State (DOS) nor have the option of filing at the USCIS overseas office governing their jurisdiction. Instead, they will be required to file only with the USCIS Chicago Lockbox. Petitioners residing in countries where a USCIS office is located will continue to have the option to file either with that office or with the Chicago Lockbox.
Why is this significant for some? Because, the processing time for the overseas filing of Form I-130 is significantly shorter than the time for processing through the Lockbox. So, in most locations, a petitioner who can file locally abroad may have his immediate relative issued an immigrant visa within two to three months of filing an application whereas a petitioner filing via the Lockbox may not result in an immigrant visa being issued for nine or more months. Those who may be impacted may still be eligible for “local” processing if warranted by special circumstances and USCIS authorizes the DOS to accept and adjudicate an I-130 petition. USCIS provides examples of circumstances in which it would consider authorizing local DOS adjudication: certain military and medical emergencies; threats to personal safety; certain “aging out” cases; certain cases where the petitioner has recently naturalized; and certain cases involving adoption of a child.
Update on H-1B Visas
H-1B Professional Specialty Worker Cap Update: As October 1 marked the beginning of the new fiscal year, visas are now immediately available for new H-1B cap-subject petitions. As of October 7th, USCIS reports that 41,000 new H-1B cap-subject petitions were receipted and another 19,100 petitions for foreign nationals with advanced degrees for FY2012. There are 85,000 new H-1B visas available annually, of which 20,000 are designated for advanced degree holders. For FY2011, H-1B visas became unavailable as of January 26, 2011.
Tough Penalties Levied Against School District in Maryland for H-1B Violations Become Final: A Department of Labor Administrative Law Judge approved a settlement agreement with Maryland’s Prince George’s County School District (PGCSD), located in the Washington, D.C. metro area, to pay sizeable fines for major violations of the H-1B program, including failure to pay wages and to maintain documentation as required. Under the agreement, PGSCD is barred from hiring any new foreign workers for two years and must pay a civil penalty of more than $100,000 for violating the H-1B program and over $4 million in back wages to more than 1,000 teachers.
Over the last several years, government agencies involved with the H-1B program have stepped up their enforcement and auditing efforts. Employers and their human resource personnel are wise to make sure their public access files and other records relating to their H-1B employees are up to date and in good order.
Driver’s Licenses and F, M and J Nonimmigrants
Over past several years, obtaining a driver’s license from a state issuing authority has become tremendously difficult and confusing both for native born and foreign-born alike. Recently, Immigration and Customs Enforcement (ICE) issued a fact sheet for designated school officials (DSOs) and responsible officers (ROs) to help foreign students and exchange visitors (F, M or J nonimmigrants) obtain a driver’s license or state identification (ID) card. While DSOs and ROs can and often do provide guidance about the specific requirements, the following are some general, helpful tips:
• Wait at least ten calendar days from the date of entry into the United States to apply for a driver’s license or ID. Most states and territories use the Systematic Alien Verification for Entitlements (SAVE) Program to determine a noncitizen’s eligibility for many public benefits, including the issuance of a driver’s license. SAVE uses an online system to check the applicant’s immigration status information against records contained in DHS immigration databases. Since the verification process is reliant on the underlying data source, an applicant for a driver’s license or ID must allow time for arrival of that data.
• The nonimmigrant must be in Active status when he or she applies for a benefit; wait at least two business days from the activation date.
• Several states require that a nonimmigrant have at least six months left on the Form I-20 or Form DS-2019 to be eligible for a driver’s license.
• Make sure the name on all supporting documents as well as the date of birth is consistent. The earliest official document, usually the passport, sets the standard. Otherwise, DMV may and often will deny the application.
• The nonimmigrant must be within the program start and end dates in SEVIS, unless participating in optional practical training (OPT) or 17-month STEM OPT extension.
Finally, ICE advises that the nonimmigrant does not need an SSN to apply for a driver’s license or ID, but most states will require him or her to apply for one. A nonimmigrant who is ineligible for an SSN will receive a Form SSA-L676, “Refusal to Process SSN Application,” and may have to present this letter when applying at the DMV office to fulfill the SSN requirement, if any. The ICE fact sheet covers a myriad of other circumstances governing F, M, and J nonimmigrants and driver’s licenses and IDs. For details, please visit http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf
Update on Visa Number Availability
In the November Visa Bulletin, the Department of State (DOS) provides its prognosis on the likely availability and movement of visas for the next few months:
For Family (Worldwide) Categories: F1, expected to advance three to six weeks; F2A, three to six weeks; F2B, one to two weeks; F3, one to two weeks; and F4, up to one month. For Employment Categories: EB-1, current; EB-2, current for Worldwide, Mexico, and The Philippines. (For China EB-2 and India EB-2, DOS reports that the current EB-2 cut-off date is approaching the most favorable date previously reached for such applicants; the dates reflect an effort to generate demand based on new filings for adjustment of status at USCIS offices. DOS advises, however, that once the level of demand increases sufficiently, the forward movement may be slowed or stopped, and a retrogression of the cut-offs at some point during the year is possible); EB-3, for Worldwide, expected to advance up to one month; China EB-3, one to three weeks; India EB-3, up to two weeks; Mexico EB-3, up to one month; Philippines EB-3, up to one month; EB-4, current; EB-5, current.
Certain Provisions of Alabama’s Anti-Immigration Law Blocked by Court; Others Go into Effect
In late September, a federal district court blocked certain portions of Alabama’s controversial immigration law, HB 56, from taking effect, ruling that there is a substantial likelihood that the U.S. government can establish that the provisions are preempted by federal law. The provisions upheld, however, include those that authorize local police to inquire about a driver’s immigration status during routine traffic stops or arrests if reasonable suspicion exists that the person is in the United States illegally; and requires public schools to verify students’ immigration status. The law also provides that undocumented foreign nationals can be charged criminally for willful failure to carry federal immigration papers, and any contracts entered into by an individual who is undocumented as well as transactions between any division of the state and an undocumented immigrant are legally nullifiable. The Department of Justice (DOJ) sought an emergency stay of the decision at the 11th Circuit Court of Appeals on October 7th.
While the status of the law remains uncertain, its effects are already being felt. Many undocumented immigrants are fleeing the state, workers are no longer reporting to their jobs, and undocumented children (and children of undocumented parents) are no longer attending classes. In requesting the emergency stay, the DOJ claimed that the new law was highly likely to expose persons lawfully here, including schoolchildren, to new difficulties in their daily affairs, and that the legislation could impact diplomatic relations with foreign countries. DOJ set up a hot line to report potential civil rights concerns related to the impact of Alabama’s immigration law. Call 1-855-353-1010 or email hb56@usdoj.gov.
While clearly one of the most draconian new state laws, the National Conference of State Legislature reports that from January 1 to June 30, 2011, 40 state legislatures have passed 151 immigration-related laws and 95 resolutions. News in Brief: DV Lottery Now Open; Deferred Enforced Departure Extended for Liberians; Haitians are Reminded to File for TPS; TPS for South Sudanese
The following additional items may be of interest to our readers:
Diversity Visa “Lottery” Now Open Through 11/5/2011: The 2013 Diversity Visa Program or visa lottery registration period is now opened through noon on November 5, 2011. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) at www.dvlottery.state.gov. The Department of State advises applicants to register before the last week of the registration period when heavy demand may result in website delays. Under the program, visas are made available to persons from countries with low rates of immigration to the United States.
Deferred Enforced Departure Extended for Liberians until 3/31/2013; Work Authorization Extended to 3/31/2012: USCIS announced that it will automatically extend the validity of employment authorization documents for Liberians covered under Deferred Enforced Departure (DED) through March 31, 2012. The announcement follows President Obama’s decision to extend DED for Liberians until March 13, 2013.
Haitians are Reminded to File for TPS: Eligible nationals of Haiti (and persons without nationality who last habitually resided in Haiti) are reminded to file for Temporary Protected Status (TPS), which currently remains in effect through January 22, 2013. Individuals who have not yet applied may do so through November 15, 2011. Individuals who already applied but whose applications were still pending as of May 19, 2011 need not file a new application. In mid August, USCIS auto-extended employment authorization documents (EAD) through January 22, 2012. For more details on whose EADs were extended and on the program in general, see http://1.usa.gov/haitian-tps.
DHS Designates South Sudan for TPS: DHS has designated the new Republic of South Sudan (South Sudan) for TPS for a period of 18 months, effective November 3, 2011 through May 2, 2013. This designation allows eligible South Sudan nationals (and aliens having no nationality who last habitually resided in that region) who have continuously resided in the U.S. since October 7, 2004 to obtain TPS. In addition to demonstrating continuous residence, applicants for TPS under this designation must demonstrate that they have been continuously physically present in the U.S. since November 3, 2011.
• October 28 is Deadline for Certain Widow(er)s to File for Green Card
• Most Immediate Relative Petitioners Residing Abroad Now Must File Their I-130s in the U.S.
• Update on H-1B Visas
• Driver’s Licenses and F, M and J Nonimmigrants
• Update on Visa Number Availability
• Certain Provisions of Alabama’s Anti-Immigration Law Blocked by Court; Others Go into Effect
• News in Brief: DV Lottery Now Open; Deferred Enforced Departure Extended for Liberians; Haitians are Reminded to File for TPS; TPS for South Sudanese
Employers and HR Officers Take Care: Important Original Approval Notices Now Sent to Petitioner Not Attorney of Record
In mid-September, USCIS began sending original I-797 receipt and approval notices directly to applicants and petitioners, while sending copies of the notices to their G-28 attorney of record. Previously, the original notice had been sent to the attorney listed on the G-28, while a copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form. According to USCIS, it implemented the change to ensure that documents are mailed directly to the address specified by the applicant or petitioner. A formal regulation will be promulgated governing the change in late November. However, the sending of original notices, especially those approval notices that contain an I-94, can cause problems for the foreign national if the document is lost or otherwise not timely received.
In a terse letter to USCIS Director Alejandro Mayorkas, the immigration bar association, AILA, requested that USCIS resume its prior practice of sending the original I-797 approval notice to the attorney of record. Not only does the change violates current regulations governing the representation of parties in immigration benefits proceedings, AILA expressed deep concern that the change could impair the ability of petitioners and beneficiaries to comply with obligations to verify employment authorization, to maintain status, and to comply with alien registration obligations. Serious harm could result from a misrouted, mishandled, or lost document. For example, when an I-797 notice is sent to an employer in a large operation, the document can easily be misrouted internally, resulting in delays in its reaching the proper unit and to the foreign national. In the worst case, it can be lost. Moreover, in large-scale operations, employers rely on immigration counsel to properly handle immigration-related documents. Finally, sending the original documents to attorneys of record allows for immediate review of key data, and, in the event there are errors (spellings, validity dates, etc.), immediate action to correct the errors can be taken.
During this transition, USCIS will permit petitioners for nonimmigrant workers to use the attorney’s address as the mailing address on the petition but the petitioner will not receive any I-797 notices. Special accommodations also are being made for cases that are premium processed.
For now, employers and human resource officers should pay close attention to the I-797 Notice of Action Approval Notices received on behalf of their foreign national workers, share copies with their immigration counsel, and make sure that original documents are distributed to their workers in a timely fashion.
October 28 is Deadline for Certain Widow(er)s to File for Green Card
A foreign national widow or widower who was married to an American citizen for less than two years prior to October 28, 2009 is eligible to file a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant; however, the deadline for that filing is October 28, 2011. Widow(er)s with pending I-130s, Petitions for Alien Relative, filed prior to the death of the spouse will automatically have their cases converted to an I-360 petition.
On October 28, 2009 a new law was enacted that eliminated the requirement that widow(er)s of U.S. citizens to be married for at least two years before becoming eligible to file an I-360. (Immigrants who were married for more than two years are governed by other provisions.) Under the 2009 provisions, a surviving spouse who was married a U.S. citizen for less than two years at any time in the past and who has not remarried can apply for his or her green card but may have to do so during the law’s transitional period, October 28, 2009 to October 28, 2011. In other words, if widow(er)’s spouse passed away prior to October 28, 2009, he or she is still eligible to apply for immigration benefits but is required to file by October 29, 2011. If the U.S. citizen spouse passed away on or after October 28, 2009, the I-360 must be filed within two years of the U.S. citizen’s death. USCIS advises that if a case was denied prior to October 28, 2009 based on evidence of less than two years of marriage, it may be considered a pending case.
Please contact our office if you believe your case would apply or seek related advice.
Most Immediate Relative Petitioners Residing Abroad Now Must File Their I-130s in the U.S.
In mid August, USCIS announced that petitioners residing outside the U.S. in countries without USCIS offices will no longer be eligible to file immediate relative green card petitions, Form I-130, with the Department of State (DOS) nor have the option of filing at the USCIS overseas office governing their jurisdiction. Instead, they will be required to file only with the USCIS Chicago Lockbox. Petitioners residing in countries where a USCIS office is located will continue to have the option to file either with that office or with the Chicago Lockbox.
Why is this significant for some? Because, the processing time for the overseas filing of Form I-130 is significantly shorter than the time for processing through the Lockbox. So, in most locations, a petitioner who can file locally abroad may have his immediate relative issued an immigrant visa within two to three months of filing an application whereas a petitioner filing via the Lockbox may not result in an immigrant visa being issued for nine or more months. Those who may be impacted may still be eligible for “local” processing if warranted by special circumstances and USCIS authorizes the DOS to accept and adjudicate an I-130 petition. USCIS provides examples of circumstances in which it would consider authorizing local DOS adjudication: certain military and medical emergencies; threats to personal safety; certain “aging out” cases; certain cases where the petitioner has recently naturalized; and certain cases involving adoption of a child.
Update on H-1B Visas
H-1B Professional Specialty Worker Cap Update: As October 1 marked the beginning of the new fiscal year, visas are now immediately available for new H-1B cap-subject petitions. As of October 7th, USCIS reports that 41,000 new H-1B cap-subject petitions were receipted and another 19,100 petitions for foreign nationals with advanced degrees for FY2012. There are 85,000 new H-1B visas available annually, of which 20,000 are designated for advanced degree holders. For FY2011, H-1B visas became unavailable as of January 26, 2011.
Tough Penalties Levied Against School District in Maryland for H-1B Violations Become Final: A Department of Labor Administrative Law Judge approved a settlement agreement with Maryland’s Prince George’s County School District (PGCSD), located in the Washington, D.C. metro area, to pay sizeable fines for major violations of the H-1B program, including failure to pay wages and to maintain documentation as required. Under the agreement, PGSCD is barred from hiring any new foreign workers for two years and must pay a civil penalty of more than $100,000 for violating the H-1B program and over $4 million in back wages to more than 1,000 teachers.
Over the last several years, government agencies involved with the H-1B program have stepped up their enforcement and auditing efforts. Employers and their human resource personnel are wise to make sure their public access files and other records relating to their H-1B employees are up to date and in good order.
Driver’s Licenses and F, M and J Nonimmigrants
Over past several years, obtaining a driver’s license from a state issuing authority has become tremendously difficult and confusing both for native born and foreign-born alike. Recently, Immigration and Customs Enforcement (ICE) issued a fact sheet for designated school officials (DSOs) and responsible officers (ROs) to help foreign students and exchange visitors (F, M or J nonimmigrants) obtain a driver’s license or state identification (ID) card. While DSOs and ROs can and often do provide guidance about the specific requirements, the following are some general, helpful tips:
• Wait at least ten calendar days from the date of entry into the United States to apply for a driver’s license or ID. Most states and territories use the Systematic Alien Verification for Entitlements (SAVE) Program to determine a noncitizen’s eligibility for many public benefits, including the issuance of a driver’s license. SAVE uses an online system to check the applicant’s immigration status information against records contained in DHS immigration databases. Since the verification process is reliant on the underlying data source, an applicant for a driver’s license or ID must allow time for arrival of that data.
• The nonimmigrant must be in Active status when he or she applies for a benefit; wait at least two business days from the activation date.
• Several states require that a nonimmigrant have at least six months left on the Form I-20 or Form DS-2019 to be eligible for a driver’s license.
• Make sure the name on all supporting documents as well as the date of birth is consistent. The earliest official document, usually the passport, sets the standard. Otherwise, DMV may and often will deny the application.
• The nonimmigrant must be within the program start and end dates in SEVIS, unless participating in optional practical training (OPT) or 17-month STEM OPT extension.
Finally, ICE advises that the nonimmigrant does not need an SSN to apply for a driver’s license or ID, but most states will require him or her to apply for one. A nonimmigrant who is ineligible for an SSN will receive a Form SSA-L676, “Refusal to Process SSN Application,” and may have to present this letter when applying at the DMV office to fulfill the SSN requirement, if any. The ICE fact sheet covers a myriad of other circumstances governing F, M, and J nonimmigrants and driver’s licenses and IDs. For details, please visit http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf
Update on Visa Number Availability
In the November Visa Bulletin, the Department of State (DOS) provides its prognosis on the likely availability and movement of visas for the next few months:
For Family (Worldwide) Categories: F1, expected to advance three to six weeks; F2A, three to six weeks; F2B, one to two weeks; F3, one to two weeks; and F4, up to one month. For Employment Categories: EB-1, current; EB-2, current for Worldwide, Mexico, and The Philippines. (For China EB-2 and India EB-2, DOS reports that the current EB-2 cut-off date is approaching the most favorable date previously reached for such applicants; the dates reflect an effort to generate demand based on new filings for adjustment of status at USCIS offices. DOS advises, however, that once the level of demand increases sufficiently, the forward movement may be slowed or stopped, and a retrogression of the cut-offs at some point during the year is possible); EB-3, for Worldwide, expected to advance up to one month; China EB-3, one to three weeks; India EB-3, up to two weeks; Mexico EB-3, up to one month; Philippines EB-3, up to one month; EB-4, current; EB-5, current.
Certain Provisions of Alabama’s Anti-Immigration Law Blocked by Court; Others Go into Effect
In late September, a federal district court blocked certain portions of Alabama’s controversial immigration law, HB 56, from taking effect, ruling that there is a substantial likelihood that the U.S. government can establish that the provisions are preempted by federal law. The provisions upheld, however, include those that authorize local police to inquire about a driver’s immigration status during routine traffic stops or arrests if reasonable suspicion exists that the person is in the United States illegally; and requires public schools to verify students’ immigration status. The law also provides that undocumented foreign nationals can be charged criminally for willful failure to carry federal immigration papers, and any contracts entered into by an individual who is undocumented as well as transactions between any division of the state and an undocumented immigrant are legally nullifiable. The Department of Justice (DOJ) sought an emergency stay of the decision at the 11th Circuit Court of Appeals on October 7th.
While the status of the law remains uncertain, its effects are already being felt. Many undocumented immigrants are fleeing the state, workers are no longer reporting to their jobs, and undocumented children (and children of undocumented parents) are no longer attending classes. In requesting the emergency stay, the DOJ claimed that the new law was highly likely to expose persons lawfully here, including schoolchildren, to new difficulties in their daily affairs, and that the legislation could impact diplomatic relations with foreign countries. DOJ set up a hot line to report potential civil rights concerns related to the impact of Alabama’s immigration law. Call 1-855-353-1010 or email hb56@usdoj.gov.
While clearly one of the most draconian new state laws, the National Conference of State Legislature reports that from January 1 to June 30, 2011, 40 state legislatures have passed 151 immigration-related laws and 95 resolutions. News in Brief: DV Lottery Now Open; Deferred Enforced Departure Extended for Liberians; Haitians are Reminded to File for TPS; TPS for South Sudanese
The following additional items may be of interest to our readers:
Diversity Visa “Lottery” Now Open Through 11/5/2011: The 2013 Diversity Visa Program or visa lottery registration period is now opened through noon on November 5, 2011. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) at www.dvlottery.state.gov. The Department of State advises applicants to register before the last week of the registration period when heavy demand may result in website delays. Under the program, visas are made available to persons from countries with low rates of immigration to the United States.
Deferred Enforced Departure Extended for Liberians until 3/31/2013; Work Authorization Extended to 3/31/2012: USCIS announced that it will automatically extend the validity of employment authorization documents for Liberians covered under Deferred Enforced Departure (DED) through March 31, 2012. The announcement follows President Obama’s decision to extend DED for Liberians until March 13, 2013.
Haitians are Reminded to File for TPS: Eligible nationals of Haiti (and persons without nationality who last habitually resided in Haiti) are reminded to file for Temporary Protected Status (TPS), which currently remains in effect through January 22, 2013. Individuals who have not yet applied may do so through November 15, 2011. Individuals who already applied but whose applications were still pending as of May 19, 2011 need not file a new application. In mid August, USCIS auto-extended employment authorization documents (EAD) through January 22, 2012. For more details on whose EADs were extended and on the program in general, see http://1.usa.gov/haitian-tps.
DHS Designates South Sudan for TPS: DHS has designated the new Republic of South Sudan (South Sudan) for TPS for a period of 18 months, effective November 3, 2011 through May 2, 2013. This designation allows eligible South Sudan nationals (and aliens having no nationality who last habitually resided in that region) who have continuously resided in the U.S. since October 7, 2004 to obtain TPS. In addition to demonstrating continuous residence, applicants for TPS under this designation must demonstrate that they have been continuously physically present in the U.S. since November 3, 2011.