• DACA (Deferred Action for “Childhood Arrivals”) Adjudications Begin

• Three-Year Extension of EB-5, E-Verify, Religious Worker, and Conrad State 30 J-1 Visa Waiver Programs

• CBP Plans to Discontinue I-94s; No Longer Stamping I-20/DS-2019 Documents

• Applicants Under 14 or Over 79 Need Not Appear for Biometrics Appointment for Reentry Permit (or Refugee Travel Document)

• Obtaining Expedited Advance Parole Documents

• ICE Issues Guidelines on Applicability of Prosecutorial Discretion to Same-Sex Partners

• Immigrant Entrepreneurship Stalled for First Time in Decades

• Three-Year Multiple Entry Visas for Russian B-1/B-2 Visitors Now the Norm

• IRS Now Requiring Original Documentation for ITINs; Certain Non-Resident Foreign Nationals Exempted

• News in Brief: Worldwide EB-2 Becomes Current in November; TPS Extended for Haitians; Taiwan Designated for Visa Waiver Program (VWP); Recent Consulate Re-openings/Closings; Employee Rights Toolbox

DACA (Deferred Action for “Childhood Arrivals”) Adjudications Begin
It has been almost two months since eligible individuals brought to the U.S. as young children began requesting “deferred action for childhood arrivals” (DACA) relief. To date, USCIS reports that almost 180,000 cases have been accepted for processing and about 4,600 approved. As many as 1.76 million undocumented immigrants are estimated to qualify. (Of the first 80,000-plus cases filed, more than half were from Mexican nationals, 4,000 from El Salvador, and 2,800 from South Korea.)

DHS has been proactive in reaching out to the community to provide guidance on the program and documentary requirements, and has issued a number of FAQs to address the various questions that have arisen since the program started, another round of FAQs is expected shortly. One particularly vexing issue is whether a well-intentioned employer who gains knowledge about an employee’s lack of work authorization through the employee’s request for DACA documentation will become liable for employer sanctions penalties. While recent FAQs from DHS state that employers may provide individuals requesting DACA with documentation that verifies employment and that this information will not be shared with ICE for civil immigration enforcement purposes unless there is evidence of egregious violations or widespread abuses, greater assurances are needed — especially since FAQs do not have the force of law or regulation and can be withdrawn at any time. We hope these and other kinds of issues will be addressed squarely.

In addition to FAQs, DHS announced that it expects to process the initial group of DACA deferred action requests within four to six months of filing; biometrics appointments will be scheduled about one month from filing. USCIS also advises that it will first issue grants of DACA relief, then will process employment authorization applications. Where requests are not approved on the initial submission, USCIS intends to send either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Outright denials will occur only where the individual is clearly ineligible, such as when the individual was born in 1972 or later.

As the program picks up, we hope too that DHS can provide leadership and guidance to federal and state agencies about what DACA means. For example, will a state’s document requirements for a driver’s license be satisfied with a grant of deferred action, documents obtainable through a grant of deferred action, and other documents that DACA beneficiaries are likely to have? Arizona Governor Jan Brewer has already issued an Executive Order barring those individuals eligible for DACA from obtaining driver’s licenses or other state benefits. We hope other states do not follow suit.

Three-Year Extension of EB-5, E-Verify, Religious Worker, and Conrad State 30 J-1 Visa Waiver Programs
On September 28, President Obama signed into law a bill that extended several immigration provisions for three years. They are: (1) the EB-5 Regional Center program, which permits immigrant investors to invest $500,000 in certain regional programs and obtain, if approved, conditional residency; (2) E-Verify, the Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA), which allows participating employers to electronically verify the employment eligibility of their newly hired employees; (3) the Religious Worker program, a immigrant “green card” visa category for nonminister special immigrant religious workers; and (4) the Conrad State 30 J-1 Waiver program, which authorizes each state to request waivers of the two-year home residency requirement to certain foreign medical graduates in change for providing primary patient care for three years in medically underserved areas. While a more ideal outcome for all programs would have been making them permanent, the three-year extension gives important peace of mind to those in process and involved with these programs.

CBP Plans to Discontinue I-94s; No Longer Stamping I-20/DS-2019 Documents
U.S. Customs and Border Protection (CBP) is in the process of automating traveler arrival/departure records and will be eliminating at international airports and seaports the paper version of Form I-94, the white card placed in most foreign nationals’ passports that denotes the date of their admission as well as their status and authorized period of stay. Instead, the traveler will receive a stamp in their passport with a handwritten code of admission (such as H-1B or O-1) and period of admission. Under the plan, nonimmigrants arriving at land borders, and certain classes of arriving foreign travelers, such as refugees, will continue to be issued a paper Form I-94.

The reasons for eliminating the I-94 paper form are two-fold: (1) CBP already has access to the information gathered on the I-94 through the foreign national’s application for a nonimmigrant visa and the Web-based Advance Passenger Information System (APIS); and (2) eliminating Form I-94 will save the agency money and resources.

Since first announcing its plans to implement a paperless I-94, CBP has received concerns from federal and state agencies about the impact on their programs that use the document for an identifier. For example, what will state DMVs require? And, what will the Social Security Administration require for SSNs? CBP also has not yet fine-tuned an online systems query capability that must be in place before the paper record is eliminated. While implementation of the paperless I-94 is still some months away, it is clearly on the horizon.

Meanwhile, CBP has already implemented another change for certain arriving nonimmigrant visa holders. CBP officials are no longer stamping prospective or returning foreign students’ Form I-20s and exchange visitors’ DS-2019s at ports of entry. Instead, CBP is using an electronic system to adjudicate the individual’s status notation. The stamping of the Form I-20 / DS-2019 had been a longstanding USCIS procedure, and thus USCIS is apparently reaching out to other agencies to inform them of the change, since many agencies require these stamps prior to granting benefits.

Applicants Under 14 or Over 79 Need Not Appear for Biometrics Appointment for Reentry Permit (or Refugee Travel Document)
When a lawful permanent resident plans to depart the U.S. temporarily and does not expect to return to the United States for a year, often he or she is advised to obtain (before departing the U.S.) a Reentry Permit. A Reentry Permit is a travel document that helps to protect an individual from inadvertently abandoning permanent resident status. To obtain the Reentry Permit travel document, the individual must apply while in the U.S. and obtain biometrics (fingerprints and a digital photograph) prior to departing the U.S. Once the biometrics have been taken, the individual can leave the U.S. and the travel document can be mailed to him or her abroad. The rules regarding fingerprints and photographs have been confusing for those under age 14 or over 79 because these individuals are not required to pay a biometrics fee or have their fingerprints taken. They are, however, being notified by USCIS that they are to appear at application support centers for biometrics. Just recently, however, USCIS has advised that such individuals are not required to attend a biometrics appointment. Instead, applicants under the age of 14 or over 79 can submit two passport-style photographs when applying for the Reentry Permit (in addition to all other required documentation), and USCIS will issue the travel document without requiring the applicant to attend an appointment.

Obtaining Expedited Advance Parole Documents
Adjustment of status and other applicants often require “advance parole” travel documents in order to depart the United States and re-enter without abandoning their underlying application. Travel documents are normally issued within 90 days of filing. When the foreign national has an emergency and cannot wait for issuance of the travel document, he or she can request an emergency expedite. While there are several ways to make such a request, USCIS clarifies that for emergency advance parole, the individual will need to visit a USCIS district or field office. While clients report that field offices often advise them that they cannot issue the requested travel document and refer the foreign national to the National Customer Service Center to make a service request, USCIS confirms, in fact, that all field offices are equipped to adjudicate and issue advance parole documents. If you encounter problems, please contact our office.

ICE Issues Guidelines on Applicability of Prosecutorial Discretion to Same-Sex Partners
In the summer of 2011, U.S. Immigration and Customs Enforcement (ICE) issued guidelines on exercising prosecutorial discretion designed to focus its enforcement priorities on individuals who pose a threat to public safety, are recent border crossers, or repeatedly violate immigration laws. In a recent memo, ICE provides guidance to the field, clarifying how the existing guidelines relate to family relationships involving long-term, same-sex partners. Specifically, ICE has reminded its officers that one of the factors relevant to an assessment to decline to prosecute a case is the person’s ties and contributions to the community, including family relationships. And “family relationships,” it clarified, include two adults who are in a committed, long-term, same-sex relationship — specifically, it said, relationships in which the individuals:

• are each other’s sole domestic partner and intend to remain so indefinitely;
• are not in a marital or other domestic relationship with anyone else; and
• typically maintain a common residence and share financial obligations and assets.

While “family relationships” is only one of many factors that will be considered, this guidance is welcome news. Apparently, the guidance was prompted by a letter from 54 members of Congress requesting that DHS Secretary Napolitano issue written field guidance explicitly stating the policy that same-sex family ties are a positive factor to be considered for the exercise of prosecutorial discretion.

Immigrant Entrepreneurship Stalled for First Time in Decades
For almost two decades, immigrant-founded start-up companies — especially high-tech firms in Silicon Valley — have represented slightly more than a quarter of all such entrepreneurships in the United States and have been an important source of economic growth in our country. However, a new study from the Kauffman Foundation reports that immigrant-founded companies nationwide have slipped for the first time in decades, and its authors believe that the United States’ unwelcoming immigration system has created a “reverse brain drain.”

The report, The Immigrant Exodus: Why America Is Losing the Global Race to Capture Entrepreneurial Talent, evaluated the rate of immigrant entrepreneurship from 2006 to 2012 and updated findings from the period between 1995 and 2005. Immigrant founders, who are most likely to start companies in the innovation/manufacturing-related services (45 percent) and software (22 percent) industries, employed about 560,000 workers and generated an estimated $63 billion in sales from 2006 to 2012, underscoring the continuing importance of high-skilled immigrants to U.S. The report provides detailed statistical data on immigrant start-ups by region, nationality, and sector.

While the downward trend is still slight nationwide, the report confirms that the U.S. must embrace immigrant entrepreneurs to maintain a dynamic economy:
“The U.S. risks losing a key growth engine just when the economy needs job creators more than ever.” Yet, “[t]he U.S. can reverse these trends with changes in policies and opportunities, if it acts swiftly. It is imperative that we create a startup visa for these entrepreneurs and expand the number of green cards for skilled foreigners to work in these startups. Many immigrants would gladly remain in the United States to start and grow companies that will lead to jobs.”

We couldn’t agree more.

Three-Year Multiple Entry Visas for Russian B-1/B-2 Visitors Now the Norm
As of early September, Russian and American travelers for business or tourism will be eligible to receive three-year multiple entry visas under a new bilateral agreement between U.S and Russia. This is the new standard for U.S. citizens visiting Russia and Russian citizens visiting the United States. Also, no formal invitation will be required to apply for a business or tourism visa, although applicants seeking Russian tourist visas must continue to hold advance lodging reservations and arrangements with a tour operator. The agreement also simplifies and eases visa processing time for travelers from both countries, including a commitment to keep standard visa processing times under 15 days. In addition, the United States has reducing the fee charged to Russians for business or tourist visas to $20. (The $160 DS-160 nonimmigrant visa application fee still applies, and validity and fees for other visa types do not change.) For U.S. travelers, the agreement lifts the previous restriction limiting stays in Russia to 90 days within any given 180-day period. In addition, “exit visas” will no longer be necessary in the case of U.S. citizens who lose their passports while in Russia. U.S. citizens with current Russian visas are reminded that they are still subject to the terms and dates of the visas already in their possession. For more details, see http://moscow.usembassy.gov/russian-visas.html and http://www.ustraveldocs.com/ru/.

IRS Now Requiring Original Documentation for ITINs; Certain Non-Resident Foreign Nationals Exempted
From now until the end of the year, the IRS will no longer accept notarized or other copies of documentation (such as passports and birth certificates) for issuing individual tax identification numbers (ITINs) in an effort to “to strengthen and protect the integrity of the ITIN process while minimizing the impact on taxpayers.” During this interim period, people who need ITINs can do so by submitting original documentation (or certified copies by the issuing agency) by mail or at IRS walk-in sites. The IRS specifically states that apostille documents will not be accepted. The new rules specifically exempt military personnel and their families, as well as “nonresident aliens” who are applying for ITINs for the purpose of claiming tax treaty benefits or who are subject to third-party withholding for various income (such as certain gaming winnings or pension income, or otherwise need an ITIN for information reporting purposes). The IRS advises that while existing documentation standards will be maintained for these applicants, scrutiny of the documents will be heightened. ITIN applications by nonresident aliens that are accompanied by a U.S. tax return will, however, be subject to these new interim document standards. The IRS advises that it will return original documents within 60 days.

News in Brief: Worldwide EB-2 Becomes Current in November; TPS Extended for Haitians; Taiwan Designated for Visa Waiver Program (VWP); Recent Consulate Re-openings/Closings; Employee Rights Toolbox
The following additional items may be of interest to our readers:

Worldwide EB-2 Becomes Current in November: The worldwide employment-based second preference category (advanced degree/exceptional ability) becomes current again in November, as announced in the Visa Bulletin. The category became oversubscribed in July.

TSP Extended for Haitians: DHS has extended the designation of Haiti for temporary protected status (TPS) for 18 months from January 23, 2013 through July 22, 2014. The 60-day re-registration period begins October 1, 2012, and will remain in effect until November 30, 2012. DHS also announced the extension of the suspension of regulatory requirements so certain Haitian F-1 students experiencing severe economic hardship may obtain employment authorization.

Taiwan Designated for Visa Waiver Program (VWP): Effective November 1, 2012, eligible Taiwan passport holders will be able to use the streamlined Visa Waiver program. Taiwan joins 36 participants in the VWP, which permits visa-free travel to the United States for ESTA-approved travelers visiting the U.S. for 90 day or less for business or tourism.

Recent Consulate Re-openings/Closings: The Consular Section at the U.S. Embassy in Khartoum, Sudan, was recently closed indefinitely, and consular services in Cairo, Egypt and Tripoli, Libya, also have been suspended. The Consular Section at Tunis, Tunisia, was reopened on October 9, 2012. For more information on nonimmigrant and immigrant visa processing for nationals under the jurisdiction of these posts, see the individual websites.

Employee Rights Toolbox: USCIS has released an online resource page on its website to increase awareness about employee rights during the employment eligibility process, containing a variety of educational materials.

• Process for Deferred Action for “Childhood Arrivals” Begins

• Nonimmigrant Visa Interview Waiver Program Expands in Mexico

• Why Do Visa Numbers Surge Forward and Then Retrogress? Predicting Visa Availability for Backlogged Categories

• Expanded Use of Supervised Recruitment by DOL in the PERM Process – Be Prepared

• USCIS Update on Accommodating Photograph and Fingerprint Capture

• Pro-Immigration Political Action Committee (PAC) Targets Rep. Steve King

• News in Brief: DOS to Open 2014 Diversity Visa Program Registration on 10/2/12; Groups of Travelers Can Now Submit Multiple ESTA Applications; New EB-5 Program Office

Process for Deferred Action for “Childhood Arrivals” Begins
Effective August 15, 2012, individuals who were brought to the U.S. as young children and who can demonstrate that they meet key eligibility criteria may request consideration of “deferred action for childhood arrivals” (DACA). President Obama announced the program on June 15, 2012, and ordered that the program be in place within in two months. Eligible undocumented individuals will receive “deferred action” and work authorization for a period of two years. Deferred action means that the government will not seek to remove these individuals.

In order to be considered for deferred action, the individual:

• Must have been under the age of 31 and present in the U.S. on June 15, 2012;
• Must have been under the age of 16 when brought to this country;
• Must have continuously resided in the U.S. for at least five years before June 15, 2012;
• Must be physically present in the United States at the time of making a request for deferred action;
• Must be currently in school or have graduated from high school (or have received a GED certificate), or have been honorably discharged from the U.S. Armed Forces or Coast Guard;
• Must not be convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors, or otherwise pose a threat to national security or public safety;
• Must be at least 15 years of age at the time of application (unless in removal proceedings, have a final removal order, or have a voluntary departure order);
• Must complete a background check.

Deferred action does not provide lawful status or a pathway to citizenship or green card status but instead is a form of prosecutorial discretion that takes the immediate threat of deportation off the back of those young people who lived with the fear of being returned to a “home” country many know nothing about. It is a great start but does not change the law or the need for a permanent solution for these and other deserving undocumented residents.

As many as 1.76 million unauthorized immigrants under the age of 31 who were brought to the United States as children could gain a two-year grant of relief from deportation, according to the Migration Policy Institute (MPI). Of this number, MPI estimates that some 350,000 undocumented young adult immigrants (ages 16 and older) without a high school degree or GED could potentially be eligible for DACA relief if they meet the other enrollment criteria because DHS has clarified that individuals lacking a high school diploma would be eligible to apply as long as they have re-enrolled in school by the date of their application or obtained their GED certificate at the time of application. There is no time limit to apply, except for the age 31cut-off. To apply for deferred action for childhood arrivals, individuals must submit three forms: (1) a new form, Form I-821D, Consideration of Deferred Action for Childhood Arrivals; (2) Form I-765, Application for Work Authorization; and (3) Form I-765WS, Worksheet. The filing fee is $465. A fee exemption request may be made but is subject to stringent conditions and must be filed and favorably adjudicated before an individual files for deferred action. USCIS estimates that it will take several months to process a DACA request. Getting a work permit will allow an individual to obtain a valid Social Security number, apply for a driver's license, open a bank account, and other important benefits. This alone will be a huge benefit for those eligible applicants.

In addition to the filing fee, I-821 applications must be accompanied by documentary evidence that demonstrates that the individual meets the guidelines, including (1) proof of identity; (2) proof of immigration status; (3) proof that he or she came to the U.S. before his or her 16th birthday; (4) proof of presence in the U.S. on June 15, 2012; (5) proof of continuously residing in the U.S. since June 15, 2007; and (6) proof of student status at the time of requesting consideration of deferred action or proof of honorable discharge from the U.S. Armed Forces or the U.S. Coast Guard. USCIS provides a non-exhaustive list of acceptable documentation that may be used to support an application. Affidavits, a common form of evidence used in immigration processing when other documents are not available, generally will be insufficient on their own to document the requirements; they may, however, be used to support a gap in documentation demonstrating the five-year continuous residence requirement and a shortcoming in documentation with respect to “brief, casual and innocent” departures during the five years of required continuous presence. USCIS has made clear that DACA applicants may not travel outside of the U.S. after August 15, 2012. However, if DACA is granted, a DACA beneficiary can be permitted to travel outside of the U.S. if the individual applies for and receives advance parole from USCIS. USCIS has advised, however, that advance parole will be granted only if such travel is for humanitarian purposes, educational purposes, or employment purposes. In other words, advance parole is not likely to be granted for travel just to visit relatives abroad or for tourism.

Many otherwise eligible applicants will be ineligible for DACA relief because of certain offenses, including federal felonies and certain misdemeanors unless DHS determines that there are exceptional circumstances. The intersection of criminal law and immigration law is an area that is particularly complex and under this program these provisions are certain to require further interpretation and guidance.

Under the eligibility requirements, if an individual has been convicted of a “significant misdemeanor,” he or she is ineligible. Disqualifying significant misdemeanors include driving under the influence, burglary, unlawful possession or use of a firearm, domestic violence, sexual abuse or exploitation, drug distribution or trafficking, or where the individual was sentenced to time in custody of more than 90 days. A felony is a criminal offense punishable by imprisonment for a term exceeding one year.

Three or more non-significant misdemeanors also disqualify an individual. USCIS specifically states that minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “three or more” rule, but USCIS advises that it will consider an individual’s entire offense history along with other facts to determine whether, under a totality of the circumstances, an exercise of deferred action is warranted. Convictions that have been expunged as well as juvenile convictions will not automatically disqualify an applicant but will be assessed on a case-by-case basis. This is a departure from immigration law precedent, which treats expunged convictions as convictions for immigration purposes.

Because an individual must go through background checks, other disqualifying activities can be uncovered during those checks that could trigger a finding that the individual is a national security or public safety threat, another disqualifying factor. One such indicator is gang membership.

Those individuals who are currently in immigration detention or face imminent removal are subject to special rules and have been instructed to contact the Law Enforcement Support Center’s hotline at 1-855-448-6903 or the ICE Office of the Public Advocate through the Office's hotline at 1-888-351-4024 or by email at EROPublicAdvocate@ice.dhs.gov.

All in all, the application process seems fairly straightforward and USCIS has tried to issue thorough and thought-out instructions even though issues will arise as cases are processed and terms are further interpreted. In addition, issues surrounding the process may not be as straightforward. Each person will be revealing him- or herself to the government, and while DHS has offered some level of assurance regarding confidentiality, those assurances are fairly weak. For example, DHS states that information provided in the request for DACA is protected from disclosure to ICE and CBP for immigration enforcement proceedings, “unless the requestor meets the criteria for the issuance of a ‘Notice to Appear.’” Moreover, while information about family members will not be referred to ICE, “that information may be shared with national security and law enforcement agencies.” It remains to be seen how exactly the government implements information sharing.

Because of the overall complexity of immigration law, even the simplest process can be fraught with pitfalls and unintended consequences. Speaking with an immigration lawyer before applying is smart and safe. Those who believe they may qualify are strongly encourage to seek out an experienced immigration attorney, either through pro bono activities surrounding the DACA initiative or at private law firms who can further assess eligibility.

Nonimmigrant Visa Interview Waiver Program Expands in Mexico
In July, U.S. embassies in Mexico expanded the Department of State’s program to waive the nonimmigrant visa interview requirement to allow persons to obtain a new visa without scheduling a consular interview if they are applying for same visa within 48 months of their prior visa's expiration date. Previously, the visa interview waiver was only available to persons whose valid visas had expired within 12 months of the date of reapplication. The visa interview waiver program was initiated in January on an embassy-by-embassy basis to facilitate international travel to the U.S. by frequent business travelers and tourists. Currently, the program is in effect in only a limited number of countries.

Why Do Visa Numbers Surge Forward and Then Retrogress? Predicting Visa Availability for Backlogged Categories
Predicting when one’s priority date will become current and when the wait on the long immigrant visa queue will finally be over can often be pure guess work. With visas suddenly unavailable or unexpectedly within reach, preference-visa applicants and their attorneys have learned to accept this phenomenon as just another part of the immigration system. In a recent interview with the head of the Visa Control and Reporting Division at the State Department’s Visa Office – the office charged with establishing the monthly priority dates for the Visa Bulletin – Charles Oppenheim sheds some light on the process and provides his predictions for the months to come.

In October 2012, when new visas are allocated for fiscal year 2013, the employment-based second category (EB-2) worldwide will become current but, Mr. Oppenheim warns, the EB-2 category may retrogress or become unavailable for the rest of the year if USCIS adjudicates a significant number of cases in the summer. EB-2 cut-off dates for China (Mainland born) and India, currently “unavailable,” will only move to August or September 2007 and are not likely to move forward for at least six months due to pent-up demand. Many of these individuals were just two years away from obtaining their green cards in April 2012 when the priority date was May 1, 2010. Now, these foreign nationals can expect at least a five-year wait. Why did this happen? Why do priority dates move so far ahead and then retrogress so drastically?

Apparently, USCIS had approved many I-140 employment-based immigrant visa petitions but had not received a corresponding number of I-485 adjustment of status applications to adjudicate and thus urged DOS to move these priority dates forward. Moreover, USCIS expected that adjudication of EB-1 cases would be at the same rate as last fiscal year, and not more. All of these factors led to the forward movement of the EB-2 priority date. The dates then severely retrogressed when demand caught up with visa availability. Another factor for seesawing EB-2 priority dates was the increase in EB-5 investor immigrant visa cases. Unused EB-5 visas trickle down into the EB-1 category, and unused EB-1 visas fall into EB-2. This year, there was less of the normal trickle-down between categories.

Another issue that clouds prediction of visa demand and visa availability, as explained by Mr. Oppenheim, is that neither USCIS nor DOS maintains statistics on upgrades from the EB-3 category to the EB-2 preference category. This can occur, for example, when an applicant applies for an EB-3 visa petition but then advances in his or her career or changes jobs and becomes eligible for an EB-2 visa or marries an EB-2 applicant. In these instances, the individual then has two visa numbers allocated to him. The unused or duplicate visa number (EB-3) is only cancelled when the visa applicant uses the EB-2 visa number during green card issuance. According to Mr. Oppenheim, there are between 10,000 and 15,000 duplicate visas numbers as a result of “upgrades” each fiscal year – a wide variance. For 2013, that number is already at 17,000, which underscores the difficulty in predicting upgrades and thus visa availability.

Retrogressions are not good for anyone and neither agency likes them. For USCIS, it means it has to adjudicate more work authorization and travel documents without a fee, and for DOS, it means lack of predictability. For individuals, it means further uncertainty and futures delayed.

Expanded Use of Supervised Recruitment by DOL in the PERM Process – Be Prepared
In recent months, the Department of Labor (DOL) has indicated that it will expand its use of DOL-supervised recruitment in the permanent labor certification program. While previously certain specific kinds of applications were considered possible targets for supervised recruitment, such as those that did not require an educational requirement and certain financial positions in New York City, more and more applications have been designated for supervised recruitment. Supervised recruitment must be taken very seriously because a pattern or practice of not complying with supervised recruitment can debar an employer, attorney, or agent from filing PERM applications for up to three years. The following guidance is provided from materials prepared by the American Immigration Lawyers Association.

There are two types of supervised recruitment, converted and directed. Converted supervised recruitment occurs when an application that has gone through the normal pre-PERM filing recruitment process is ordered for supervised recruitment, normally following an audit. Directed supervised recruitment requires that all or some of an employer’s labor certification applications are subject to a supervised recruitment process at the outset, and no recruitment is done prior to filing the PERM application. (In addition, any employer who withdraws a PERM application after receiving an order of supervised recruitment will be subject to directed supervised recruitment on any new labor certification applications filed for the same foreign national and job.)

Under converted supervised recruitment, four specific notices are received during the process. The first, which initiates the process, is a “Notification of Supervised Recruitment,” which is sent to the employer or attorney. The notice requires the employer to submit a draft job advertisement within 30 days of the notice date. Extensions for good cause may be requested. Additional information can also be requested.

After the draft advertisement and other requested documentation are sent to DOL, the employer or attorney will receive “Recruitment Instructions.” The recruitment instructions will either approve the initial draft advertisement or require amendments and designate the newspaper where the ad must be placed. Other recruitment measures also may be required. Under supervised recruitment, all resumes are directed to a post office box under the control of the DOL. Resumes received by the DOL are forwarded to the employer with a cover letter entitled, “Notification of Resumes Received.” Because DOL requires that the employer include its name in the recruitment, it is possible that some resumes will be sent directly to the employer and these applicants must also be considered as part of the recruitment results.

Next, DOL will send a notice to the employer entitled “Recruitment Report Instructions.” This notice indicates that the recruitment period has ended, and the employer is given 30 days to submit copies of its recruitment efforts, including a detailed recruitment report that includes the names and addresses of all U.S. applicants who applied as well as the resumes of any U.S. workers who applied directly to the employer.

Supervised recruitment is extremely regimented and cases are highly scrutinized by the DOL. Employers must be particularly diligent to comply with all requests, meet the required deadlines, and maintain flawless documentary records. While all employers are strongly encouraged to keep proof of efforts to contact applicants, such as emails, notes from telephone calls, and/or certified mail, employers who are subject to supervised recruitment must be especially thorough.

Prudent employers will want to avoid the risk of supervised recruitment and prepare their cases defensively. For example, employers should avoid the use of job requirements that could be deemed unduly restrictive or too broadly drafted, or don’t articulate specific, identifiable bona fide job requirements, because these are likely to risk an audit and perhaps a denial if the case is converted to supervised recruitment. It may be better to include specific, job-related requirements in the original PERM application and be prepared to document the business necessity of these requirements than to omit them in an attempt to avoid audits.

USCIS Update on Accommodating Photograph and Fingerprint Capture
In response to guidance from the Office of Civil Rights and Civil Liberties on appropriately accommodating religious beliefs during fingerprinting or photographic identification, USCIS recently updated its policy to accommodate individuals wearing religious headwear or professing religious beliefs during photographs or fingerprint captures.

USCIS will continue to ask individuals to remove headwear that is not religious at the time of photograph capture. However, USCIS will now accommodate an individual who wears headwear as part of their religious practices. Religious headwear can be worn if a reasonable likeness can be obtained from an individual, the full face is visible, and the religious headwear does not cast a shadow on the face. USCIS will ask an individual to remove or adjust portions of religious headwear that covers all or part of the individual’s face. When USCIS requests that an individual adjusts or removes part of all of his or her religious headwear, the official will offer a private room or screened area to capture the photograph, when such space is readily available. The officer will also offer the individual a same-gender photographer. If either of these accommodations is unavailable, the individual will be offered to reschedule the appointment. USCIS will continue to deny requests for waiver for the photograph requirement, regardless of religious objection.

With respect to fingerprinting, USCIS officials and contractors often must physically assist an individual by holding his or her hand to obtain prints. Because some religions limit members of their religion from physically touching a person of the opposite gender, officials will accommodate individuals who request a same-gender fingerprint technician or Officer, if possible. If no same-gender technicians or officers are available, the appointment can be rescheduled.

Pro-Immigration Political Action Committee (PAC) Targets Rep. Steve King
Immigrants’ List (IL), the leading bipartisan pro-immigration political action committee (PAC), this election year is focusing its effort on one race in particular, the Congressional race in Iowa between anti-immigration incumbent Steve King and the former Iowa First Lady Christie Vilsack. Rep. King is the Chair of the House Judiciary Committee Subcommittee on Immigration Policy and Enforcement, the congressional subcommittee that has jurisdiction over immigration legislation. IL believes that Rep. King can be defeated as the newly redrawn congressional district is significantly more moderate, and Christie Vilsack outpaces King among independents, who compose 35% of voters in the district. Rep. King has the distinction of being one of ten new inductees into the group’s third annual National Hall of Shame – a list focused exclusively on the ten worst anti-immigration politicians in Congress. The complete 2012 Hall of Shame includes:

• Rep. Steve King (R-IA)
• Rep. Joe Walsh (R-IL)
• Rep. John Boehner (R-OH)
• Sen. Marco Rubio (R-FL)
• Rep. Chuck Grassley (R-IA)
• Rep. Lamar Smith (R-TX)
• Sen. David Vitter R-LA
• Sen. Jeff Sessions (R-AL)
• Rep. Elton Gallegly (R-CA)
• Rep. Ted Poe (R-TX)


As a PAC, Immigrants’ List works to elect pro-immigrant leaders and defeat anti immigrant politicians by giving direct contributions to political campaigns. While only U.S. citizens and lawful permanent residents can make donations to a PAC, others can join the organization and learn more about it. For more information, see www.immigrantslist.org.

News in Brief: DOS to Open 2014 Diversity Visa Program Registration on 10/2/12; Groups of Travelers Can Now Submit Multiple ESTA Applications; New EB-5 Program Office
The following additional items may be of interest to our readers:

DOS to Open 2014 Diversity Visa Program Registration on 10/2/12: Online registration for the Diversity Visa Program (DV-2014), or also known as the visa lottery, will begin on October 2, 2012, at 12:00 noon EDT, and conclude on Saturday, November 3, 2012 at 12:00 noon. Instructions for the program are not yet available.

Groups of Travelers Can Now Submit Multiple ESTA Applications: As of August 15, 2012, the Electronic System for Travel Authorization (ESTA) Web application will allow multiple applications to be submitted and paid for in one transaction. Applicants must enter biographic data and an email address to create a Group ID that will allow a family or group the ability to input up to 50 ESTA applications and complete the transactions in a single credit card payment. The change will benefit families and group travel by eliminating the redundancy of submitting each application as a separate transaction.

New EB-5 Program Office: USCIS will create a new office to oversee its administration of the EB-5 Immigrant Investor program. The EB-5 program has grown rapidly in the last few years; in 2012 alone, USCIS has approved more than 3,100 conditional investor (I-526) petitions, triple the number approved in all of 2009. The EB-5 program now has eight expert economists on staff and a Review Board process, granting all applicants for which denial is recommended the opportunity to discuss their cases in-person before any final adverse decision is rendered. Presumably, the new EB-5 program will improve efficiency and uniformity of adjudication.

• H-1B Cap Reached

• Expect Delays for Receipt Notices for Popular Nonimmigrant Visa Petitions Filed With USCIS

• Employment-Based Second Preference Visa Category Retrogresses to 1/1/09 Worldwide, Mexico and Philippines

• Departure With Valid Advance Parole Document Does Not Constitute a “Departure” to Trigger Lengthy Re-entry Bars

• ESTA Travelers: Don’t Risk a Misrepresentation Finding

• Comprehensive Immigration Reform – Remember That?

• TPS for Somalians Extended and Redesignated Through March 17, 2014

• More on Two-Year Foreign Residency Requirement and Waivers

• Further Guidance on Failure to Register for NEERS

• New I-9 Form on the Horizon

• A Glimpse at the Future: Immigration Benefits Filing Goes Electronic

• News in Brief: Korea Added to “Trusted Traveler Programs”; Beware: Limited Nonimmigrant Visitor Visa Interviews in London This Summer

H-1B Cap Reached
On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory H-1B cap for FY 2013. On June 7, 2012, it received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will now reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013. Employers wishing to hire first-time, cap subject H-1B workers will have to wait until April 1, 2013 to file their cases for work that will begin no earlier than October 1, 2013, the first day of FY 2014. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions as well as Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

Expect Delays for Receipt Notices for Popular Nonimmigrant Visa Petitions Filed With USCIS
On May 23, USCIS announced that due to the high number of recently filed I-129 petitions – in other words, H-1B petitions – USCIS anticipates a delay in issuing receipt notices. While petitioners normally can expect to receive a case receipt notice within 30 days of delivery confirmation, USCIS advises that it may be 45-60 days before such receipt notices are received. USCIS did not advise to what extent premium processed cases would be impacted, but it is presumed that those cases are unaffected given that the immigration agency is required to adjudicate a premium processing case (or return the additional fee) within 15 calendar days.

What this portends for actual petition adjudications remains to be seen but is likely to result in delays as well. Petitioners may want to consult with their immigration attorney whether converting cases to premium processing is advisable, especially where their foreign national employees need to travel abroad.

Employment-Based Second Preference Visa Category Retrogresses to 1/1/09 Worldwide, Mexico and Philippines
The July Visa Bulletin reports that the employment-based second preference (advanced degree/exceptional ability) immigrant visa category has retrogressed to January 1, 2009 for worldwide applicants and for Mexico and the Philippines due to heavy demand for green cards. This means that applicants whose immigrant visa applications are still pending will have to wait to at least until October 1 for their green cards to be issued. In late April, the annual limit in the EB-2 immigrant visa category for China-mainland born and India had been reached; no further visas for those categories would be authorized until at least the beginning of the next fiscal year, starting on October 1.

Departure With Valid Advance Parole Document Does Not Constitute a “Departure” to Trigger Lengthy Re-entry Bars
In a recent, important immigration decision, the Board of Immigration Appeals (BIA) held that a foreign national who leaves the United States temporarily with “advance parole” does not make a “departure” from the United States for purposes of triggering the three- and ten-year re-entry bars. The court found that foreign nationals with pending adjustment of status applications have a right to apply for and receive an advance parole or travel document, permitting them to travel abroad during the pendency of their applications. The BIA found that a departure under advance parole is different than other departures, because it presupposes that the foreign national will be permitted to return to the United States and continue to pursue his or her previously and properly filed application: “We do not believe that Congress intended an alien to become inadmissible. . . and, by extension, ineligible for adjustment of status solely by virtue of a trip abroad that (1) was approved in advance by the United States Government on the basis of an application demonstrating the alien’s qualification for and worthiness of the benefit sought, (2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.”

While this decision means that foreign nationals who have accrued unlawful presence in the United States by, for example, overstaying their authorized stay and have received advance parole pursuant to an adjustment application, cannot become inadmissible solely by virtue of a trip abroad, the decision does not protect that individual from other grounds of inadmissibility, such as criminal grounds, which may be triggered upon readmission to the United States. Thus, it is important that pending adjustment applicants, especially those who have had any contact with law enforcement officials, speak with an immigration attorney prior to travel outside of the United States.

ESTA Travelers: Don’t Risk a Misrepresentation Finding
U.S. Customs and Border Protection (CBP), the agency whose officers make the determination at ports of entry regarding admission to the United States, advises that failure to disclose visa refusals for administrative processing or for an incorrect visa category on visa application, Form DS-160, may be construed as a misrepresentation when completing the Electronic System for Travel Authorization (ESTA) form, and this misrepresentation could make the applicant inadmissible. The ESTA form is required for those foreign nationals who are eligible to enter the United States through the visa waiver program. ESTA applicants are advised to report visa “refusals” as “denials” even when the refusals are for administrative processing or for selecting the incorrect visa category on Form DS-160. This means that even when a consular officer suspends a visa application for administrative processing for receipt of additional documents or other information and those documents are subsequently submitted and the visa is granted, the ESTA applicant should consider that as a denial on the ETSA form. This is because the Department of State (DOS) treats a consular officer’s decision to suspend processing a visa as a visa refusal. Because DOS treats the suspension for administrative processing as a refusal, CBP requires that such refusals be reported on the ESTA application.

The ESTA application asks “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?” If the applicant’s visa application is under administrative processing by a consular post, the applicant should answer “yes” to this question on ESTA. CBP advises that it will manually review the ESTA application to determine whether the applicant is eligible for travel. Generally, CBP will issue a decision on such applications within 72 hours of submission. CBP also advises that if a visa applicant does not select the correct visa category on the nonimmigrant visa application, Form DS-160, the consular officer may require the applicant to complete a new Form DS-160 with the correct visa category before the visa may be issued. Because there may be a record of this error noted by a consular officer, the applicant should also disclose a visa refusal on ESTA as a denial and explain the circumstances in the space provided even if the applicant is not told that the consular officer has entered such a notation.

Immigration law… it’s crazy.

Comprehensive Immigration Reform – Remember That?
It’s almost shocking how little positive immigration reform makes the news these days. Yet the plight of those residing in the United States without papers continues, unabated. A banner, front-page article in the June 11 Washington Post poignantly described yet another heartbreaking story of an undocumented National Honor Society student, Heydi Mejia, who just graduated from high school in suburban Richmond. Mejia did not expect to go to college because in a few days she was to be deported back to Guatemala. Fortunately for her, a last minute, one-year reprieve was issued, but each year there are 65,000 high school graduates just like her who don’t get their stories in the Washington Post. While last year at this time all conceded that the prospects for comprehensive immigration reform remained dim until after the presidential election, Congressional attempts at least to keep some issues alive were underway and President Obama still spoke about immigration as being the bedrock of economic competitiveness and the DREAM Act as an important measure to allow hard-working, high-achieving immigrants to stay in this country. Neither Congress nor the President have uttered much about immigration reform lately.

In fact, of late, the Administration’s only real attempt to address the reality of 10 million undocumented foreign nationals living in the United States was its much publicized policy of reviewing over 400,000 cases of people in the “system” and implementing guidelines for exercising “prosecutorial discretion.” Prosecutorial discretion is an administrative decision not to deport an individual which provides very temporary relief and no status. But, figures just released by U.S. Immigration Customs and Enforcement (ICE) reveal that implementation of prosecutorial discretion has been far less effective or widespread than the Administration and its Department of Homeland Security (DHS) led the public to expect. While over 288,000 cases have been reviewed, less than 1.5 percent of those cases were actually granted prosecutorial discretion. Of over 56,000 detained foreign nationals, only 40 where granted this temporary reprieve.

In the absence of discussion on immigration reform, misconceptions about the system can only abound. The most recent comes from Senator Grassley, this time addressed to the Government Accounting Office, asking for an investigation into the alleged and unspecified “reports” of abuses of Optional Practical Training (OPT), the program under which foreign students graduating from U.S. colleges and universities may work in the U.S. in their fields for a period during or after completion of their degree programs. Much of the hostility that comes out of Senator Grassley’s office toward high-skilled immigration programs seems to be premised upon a perception that these programs are rife with fraud and abuse even though USCIS’s own statistics report that the incidence of fraud is relatively low. Previously, Senator Grassley targeted the H-1B program for fraud, and expressed public concern about the misuse of B-1 business visa in lieu of H-1Bs and specialized knowledge intracompany transferees. Senator Grassley’s inquiries seem to make more headlines than the various legislative proposals that have been introduced this year to improve our country’s attractiveness to the highly educated.

Too bad we can’t have some honest debate in Congress about these issues. After all, it is Congress’ job to tackle immigration.

TPS for Somalians Extended and Redesignated Through March 17, 2014
In May, DHS announced that it was extending the existing designation of Somalia for temporary protected status (TPS) for 18 months – from September 18, 2012 through March 17, 2014 – and redesignating Somalia for TPS for 18 months, effective September 18, 2012 through March 17, 2014. The extension allows currently eligible TPS beneficiaries to retain their TPS through March 17, 2014. The redesignation of Somalia allows additional individuals who have been continuously residing in the United States since May 1, 2012, to obtain TPS, if eligible. DHS has determined that an extension is warranted because the conditions in Somalia that prompted the TPS designation continue to be met: “There continues to be a substantial, but temporary, disruption of living conditions in Somalia based upon ongoing armed conflict and extraordinary and temporary conditions in that country that prevent Somalis who now have TPS from safely returning.”

More on Two-Year Foreign Residency Requirement and Waivers
The rules regarding J-1 exchange visitors and their J-2 derivatives who are subject to the two-year home residency requirement (HRR) are complex, as are the various waiver options available to them. The issues become more complicated when the J-2 changes status to J-1 and becomes subject to the HRR under another basis, or when the J-1 is subject to the HRR on account of two separate bases. In recent guidance released to the American Immigration Lawyers Association, the Waiver Review Division (WRD) of the Department of State advises on two scenarios involving potentially multiple residency requirements imposed on the foreign national exchange visitor.

First, WRD advises that where a J-2 visa holder enters the U.S. as a derivative of a J-1 principal subject to the two-year home residency requirement and changes status from J-2 to J-1 on a program that subjects him in his own right to the home residency rule, that individual must file two waiver requests. WRD advises – contrary to its past practice – that the J-1 waiver does not cover the period in J-2 status, and that a separate waiver would be needed to cover the J-2 time. This appears to be a change in WRD practice and policy, and the mechanics of applying for and successfully obtaining two separate waivers are not explained. Perhaps WRD will reconsider its now current position on this scenario.

Second, WRD advises that if a J-1 is subject to the HRR based on two separate grounds from two separate programs (i.e., Skills List and graduate medical education), the individual may apply for a waiver based solely on a Conrad request and a no objection statement is not required (except under limited circumstances when the individual is bound by a contractual obligation).

Further Guidance on Failure to Register for NEERS
Although DHS finally ended the NSEERS registration program last year, it recently issued guidance on the limited circumstances under which negative immigration consequences, such as a denial of a benefit, finding of inadmissibility, or commencement of removal proceedings, will result from a foreign national’s prior failure to comply with NSEERS requirements. NSEERS, or the National Security Entry-Exit Registration System, was a special registration process for male foreign nationals from certain countries who were over the age of 16 and who entered the U.S. as nonimmigrants prior to September 10, 2001. Implemented in 2002 in the wake of the September 11 attacks, it sought to record the arrival and departure of individuals mostly from Middle Eastern countries. The program failed as a counterterrorism policy and was discriminatory and relied on racial profiling. While in its latest memo DHS clarifies that only noncompliance, in and of itself, is not a sufficient basis for such consequences to adhere, DHS has not completely eliminated the lingering consequences of NSEERS: a determination of a willful NSEERS violations may still apply and have negative immigration consequences. We think this is wrong. DHS should, once and for all, remove the residual penalties associated with NSEERS.

New I-9 Form on the Horizon
USCIS has proposed revisions to Form I-9, Employment Eligibility Verification, which include:

• Expanded Form I-9 instructions and a revised layout.
• New, optional data fields to collect the employee's e-mail address and telephone number.
• New data fields to collect the foreign passport number and country of issuance. Only foreign nationals authorized to work in the U.S. who have also recorded their I-94 admission number on Form I-9 will need to provide the foreign passport number and country of issuance.

While these proposals must be issued as part of a final rule before they become effective, employers should be on the lookout for the new form in the coming months. The public comment period ended in late May.

A Glimpse at the Future: Immigration Benefits Filing Goes Electronic
For quite some time, USCIS has desired to implement a fully paperless, electronic case filing system to be used by attorneys as well as non-represented foreign nationals. Well, in May, USCIS launched its new system, ELIS (the Electronic Immigration System), for receiving and processing limited applications and petitions. For now, certain actions to change or extend status used on Form I-539 for nonimmigrants in B, F, J or M status can be directly or through counsel applied for – complete with document uploading and payment processing – online. New form types are expected to be released in four-to-six month cycles. Initial reports are that the new system contains features that are friendly to attorneys and their clients.

Because the platform does not yet have an interface with popular, commercial immigration forms processing and case management systems – USCIS has not yet released its code to software vendors while it works out the kinks of this initial release – it is unlikely that attorneys will use the system now. But, once the system is fully vetted and if it works, it can lead to costs savings and efficiencies, such as those seen at other agencies. Think IRS. Stay tuned.

News in Brief: Korea Added to “Trusted Traveler Programs”; Beware: Limited Nonimmigrant Visitor Visa Interviews in London This Summer
The following additional items may be of interest to our readers:

Korea Added to “Trusted Traveler Programs” Facilitating Quick Entry at US Airports: Under reciprocal agreements, eligible Korean nationals can now avail themselves of the “trusted traveler program” to enter the United States. Under the program, pre-cleared Korean nationals can use U.S. Global Entry kiosks and Korea Smart Entry Service available at 24 airports, which allow expedited clearance for pre-approved, low-risk travelers. Both programs allow members to be processed in a fraction of the time it takes travelers using the traditional inspection process. Travelers who wish to participate must apply via www.globalentry.gov or at https://goes-app.cbp.dhs.gov.

Visitors from the UK to the U.S. Beware: Limited Nonimmigrant Visa Interviews Available This Summer: The chief of the Nonimmigrant Visa (NIV) Section at the US Embassy in London recently advised of the NIV unit’s limited operations during the Olympics and Paralympics; specifically, that a limited number of NIV appointment slots for July 1 through August 17 will open up during the third week of June. The number of appointments available per day will be limited to 200, with priority given to student/exchange visitor and petition-based visa categories. In other words, there will be limited appointments for B-1/B-2 visitors (for business or for pleasure) during this time; applicants who have been refused B-1/B-2 visas in the past six months will only be able to schedule appointments after August 17.

• Visa Processing Fees Change April 13, 2012

• TPS Announced for Syrian Nationals; Certain Requirements for Syrian Foreign Students Relaxed

• Guidance for Certain Foreign Students (F-1) Now Applying for H-1Bs

• Religious Workers (R-1) Now Permitted to “Recapture” Time Outside of U.S.

• Expansion of Nonimmigrant Visa Interview Waiver Program: Russia (Moscow), New Delhi, and Bucharest

• USCIS Issues Proposal on Stateside Waiver Process for “Unlawful Presence”

• DHS-ICE Prosecutorial Discretion Policy Extended to Seven Additional Regions

• Certain Employment-Based Visas (EB-2) Retrogress in May for Chinese and Indian Nationals

• Over 46,000 Parents of U.S. Citizen Children Removed in First Half of 2011

• News In Brief: H-1B Visa Count as of April 9; Oral Arguments in Arizona Immigration Law April 25; Updated List of Countries with Limited or No Visa Services; Global Entry Program Now at 24 Airports; DOJ Resource Page for Extension of Work Authorization for TPS or DED Beneficiaries

Visa Processing Fees Change April 13, 2012
The Department of State (DOS) has adjusted the visa processing fees, effective April 13. While most nonimmigrant visa fees increase, all immigrant visa fees decrease. The following are the new fees for some of the most common visas: H, L, O, P, Q and R, $190; E, $270; K fiancé(e)s, $240; immediate relative and family preference application, $230; and employment-based applications, $405. Border crossing cards for those over 14 increase to $160. See http://1.usa.gov/fees_4-13-12.

TPS Announced for Syrian Nationals; Certain Requirements for Syrian Foreign Students Relaxed
Citing the violent upheaval and deteriorating situation in Syria, the Department of Homeland Security (DHS) announced that eligible nationals from Syria (and persons without nationality who last habitually resided in Syria) are now eligible for temporary protected status (TPS) effective March 29, 2012 through September 30, 2013. The application period is March 29 through September 25, 2012. Like other TPS beneficiaries, eligible nationals will be allowed to remain in the United States and obtain work authorization.

DHS also announced the suspension of certain regulatory requirements for Syrian F-1 students so that they may obtain employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 student status due to the current events in Syria.

Guidance for Certain Foreign Students (F-1) Now Applying for H-1Bs
Now that the filing period for new H-1B specialty occupation visas for work commencing October 1, 2012 has begun, we provide below a general overview of the special rules that apply to certain F-1 foreign students who are applying for H-1Bs.

Under the immigration regulations, certain students with pending or approved H-1B petitions are permitted to remain in the United States in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire. Under these special rules, the student’s F-1 status is extended and he or she can remain in the United States until the start date of the new, approved H-1B employment period. This special extension is called the “cap-gap” extension because it fills the “gap” between the normal end of F-1 status and the beginning of H-1B status. The gap often occurs because most students graduate or complete their post-completion Optional Practical Training (OPT) in May or June and H-1B visas, normally exhausted months earlier, are not available again until October 1.

To be eligible for the cap-gap extension, an F-1 student must have an H-1B petition filed on his or her behalf and that petition must be filed while the student’s authorized F-1 admission is still in effect. In other words, the petition must be timely filed during the academic course of study, the authorized period of post-completion OPT, or during the 60-day grace period. Once a timely filed request to change status to H-1B on October 1 has been made, the automatic cap-gap extension begins and continues until the H-1B petition adjudication process has been completed.

If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 (of that year). If, however, USCIS denies, rejects, or revokes the H-1B petition, the automatic cap-gap extension of status expires, and the student is granted (from the date of the notification of the denial, rejection, or revocation of the petition) the standard 60-day grace period before he or she is required to depart the United States. In some instances, however, where there has been a denial, the student is required to leave the United States immediately.

Other rules apply to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees as well as instances where the F-1 student is terminated or laid off during the pendency of their H-1B petition. The rules regarding work authorization and status for cap-gap foreign students are complicated and very specific. For example, an F-1 student who is already in his or her 60-day grace period when the H-1B petition is filed is unable to receive employment authorization even though F-1 status is automatically extended. Also, students whose status is governed by the cap-gap extension cannot re-enter the United States in F-1 status during this period if they elect to travel. Instead, they are required to apply for an H-1B visa at a consular post abroad prior to returning. And, the earliest they can re-enter the U.S. is ten days prior to October 1.

Student are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the petition processing, with their Designated School Official (DSO) to ensure their status is properly extended on their Form I-20, and with their immigration attorney.

Religious Workers (R-1) Now Permitted to “Recapture” Time Outside of U.S.
A foreign national can enter the United States in R-1 religious worker status to work as a minister or in a qualifying religious occupation or vocation, but can only do so for a period not to exceed five years. Unlike H-1B and L nonimmigrant visa holders, USCIS had previously not permitted the subtraction of time in which the R-1 religious worker was traveling or residing outside the United States following his or her initial admission in R-1 status when calculating that five-year period. This is referred to as “recapturing” time, which was not available to Rs. In a new memo, USCIS has finally extended its recapture policy to R-1 nonimmigrants. Now, any days an R-1 nonimmigrant spends outside of the United States during the validity period of his or her petition will not be counted toward the maximum five-year period of stay. Recapture is designed to permit a qualifying nonimmigrant to spend the maximum permitted time allowed by his or her classification in the United States before having to spend a specific period outside of the United States in order to file a new petition for the same status.

Expansion of Nonimmigrant Visa Interview Waiver Program: Russia (Moscow), New Delhi, and Bucharest
Early this year, DOS announced a pilot program, being implemented on an embassy-by-embassy basis, to waive the nonimmigrant visa interview requirement for certain visa renewals. Recently, the U.S. Embassy in Bucharest, Romania, announced the expansion of the visa interview waiver program to certain applicants seeking to renew a B1/B2, C1/D, or F/J/M visa that expired within the last 48 months. The U.S. Embassy in New Delhi, India announced the expansion of the program to certain applicants seeking to renew a B1/B2 visa (also expired within the last 48 months). And, the U.S. Embassy in Russia also announced the expansion of the program to applicants seeking to renew a B1/B2 or C1/D visa that expired within the last 47 months. Earlier, the U.S. Embassy in Beijing, launched its visa interview waiver pilot program for certain B, C, D, F, J, M and O visa holders, and special rules went into effect for certain Brazilian citizens waiving their consular interviews. See http://bit.ly/beijing-waiver and http://bit.ly/brazil-waiver.

USCIS Issues Proposal on Stateside Waiver Process for “Unlawful Presence”
In early April, USCIS issued a much-awaited proposal that would allow spouses and children of U.S. citizens who are in the United States 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. Interested individuals have until June 2 to submit formal comments to the USCIS on the proposed rule. As previously described, the proposal would permit 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 the waiver is approved, they will have to depart the United States to undergo visa processing and an interview at a U.S. consulate abroad.

Because the proposed change is narrowly construed, it is limited, and would not apply to family members of lawful permanent resident petitioners or to the adult children of U.S. citizens. It is unlikely that USCIS will extend this benefit to those excluded, but now is the time for interested parties to weigh in.

After the formal notice and comment period, the agency must issue a final or interim rule before the new procedures can go into effect.

DHS-ICE Prosecutorial Discretion Policy Extended to Seven Additional Regions
As previously reported, in late 2011, DHS and Immigration and Customs Enforcement (ICE) announced a new policy encouraging the exercise of prosecutorial discretion in appropriate cases and began piloting its plans in the Baltimore and Denver immigration courts. In the two pilot districts, 16 percent of cases were administratively closed, and individuals who were deemed not to pose security or public safety risks were permitted to remain in the United States, albeit without a change in their legal status. A 300,000 case review, also announced in 2011, remains ongoing.

On March 30, 2012, DHS announced the next phase of its case-by-case review and has agreed to temporarily and partially suspend non-detained dockets in seven additional immigration courts: Detroit, New Orleans, Orlando, and Seattle (April 23 to May 4); New York (May 7 to May 18); San Francisco (June 4 to June 15); and Los Angeles (July 9 to July 20).

Certain Employment-Based Visas (EB-2) Retrogress in May for Chinese and Indian Nationals
The visa priority date cut-off for May for highly skilled professional workers (EB-2 masters-level immigrants) from China and India will retrogress to August 15, 2007. The current cut-off date is May 1, 2010, which reflected a dramatic improvement from last year at this time. DOS cautions that it is impossible to speculate if the cut-off date will change before the next allocation of visas, effective October 1, 2012.

Over 46,000 Parents of U.S. Citizen Children Removed in First Half of 2011
Many people, including many U.S. citizens, are unaware that the immigration laws do not confer lawful status to parents of U.S. citizen children simply by virtue of their parent-child relationship. So, while any child born in the United States is automatically granted U.S. citizenship, their parents must obtain lawful status in the United States in order to remain here. In an effort to better understand the scale of the issue, Congress in 2010 required ICE to begin to track the number of parents of U.S. citizen children deported and to report those figures semiannually. ICE recently released its semiannual report for the period between January 1 and June 30, 2011, and reports that it removed 46,486 aliens who claimed at least one U.S. citizen child.

News In Brief: H-1B Visa Count as of April 9; Oral Arguments in Arizona Immigration Law April 25; Updated List of Countries with Limited or No Visa Services; Global Entry Program Now at 24 Airports; DOJ Resource Page for Extension of Work Authorization for TPS or DED Beneficiaries
The following additional items may be of interest to our readers:

H-1B Visa Count as of April 9: As of April 9, USCIS received 17,400 H-1B petitions counted toward the annual 65,000 cap and approximately 8,200 petitions toward the 20,000 cap exemption for those with advanced degrees.

Oral Arguments in Arizona Immigration Law on April 25: On April 25, the Supreme Court will hear arguments on the legality of the Arizona immigration law, SB 1070. The case involves a range of important questions regarding the role that states may play in the enforcement of federal immigration law.

Updated List of Countries with Limited or No Visa Services: U.S. embassies and consulates are sometimes forced to limit or, at times, suspend visa services because of natural disasters, civil unrest, war, and/or security concerns, among other reasons. The Department of State recently released an updated list of those countries with limited or no visa services. The list also provides information on where affected applicants can go to obtain visa services. See http://travel.state.gov/visa/temp/info/info_1302.html.

Global Entry Program Now at 24 Airports: Twenty-four airports now participate in the Global Entry program, a voluntary program that allows for the expedited clearance of pre-approved, low-risk travelers arriving in the United States. According to U.S. Customs and Border Patrol (CBP), the inspection and admission process takes only one minute at Global Entry kiosks. Travelers who wish to participate must apply via the CBP Global Entry website, www.globalentry.gov or through the Global On-Line Enrollment System (GOES) website, https://goes-app.cbp.dhs.gov. Applications must be completed and submitted electronically.

DOJ Resource Page for Extension of Work Authorization for TPS or DED Beneficiaries: The Department of Justice now maintains a resource page containing the particularities of work authorization extensions for TPS (temporary protected status) or DED (deferred enforced departure) beneficiaries from nine countries: Haiti, Honduras, Nicaragua, El Salvador, Liberia, Somalia, Sudan and South Sudan and the Syrian Arab Republic (Syria). See www.justice.gov/crt/about/osc/htm/work_extension.php.

• 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.