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Immigration View

Navigating Complex U.S. Immigration Laws

China EB3 Retrogresses significantly; No Change in EB2 India/China; F2A moves ahead quickly – Visa Office on Priority Dates, Demand, and Predictions

Posted in Consular Issues, Immigrant Visas, PERM Labor Certification, Priority Dates

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (July 14, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

HIGHLIGHTS FROM THE AUGUST VISA BULLETIN

EB-3 Update and Significant Retrogression in EB-3 China. In August, EB-3 China will retrogress seven years to June 1, 2004. It initially appeared that there would be unused family-sponsored numbers available in this category, allowing for advances in the cut-off date earlier in the year. But, demand in family-sponsored China has changed drastically, making the availability of additional numbers very unlikely. Another reason for the retrogression is that the advancement of the cut-off date for EB-3 China earlier in the fiscal year generated significant demand within the allowable annual limit. The good news is that this category will likely recover at the start of the new fiscal year, moving back to a 2010 or possibly 2011 cut-off date in October. EB-3 Other Workers will also retrogress two years to January 1, 2004. EB-3 China, EB-3 India and EB-3 Philippines all have the potential to move forward a few months in September, depending on demand for EB-3 Worldwide through early August. Charlie predicts EB-3 Worldwide and EB-3 Mexico will continue to advance in September but may hold steady starting in October for a month or two to see if significant demand from the recent advancement of the cut-off date materializes.

EB-2 India and China. EB-2 India remained unchanged this month as predicted. There is sufficient demand in this category based on the current cut-off date and this date is likely to hold until at least October. Movement would only be possible if there were a significant decline in EB-1 and EB-2 demand from all other countries prior to the determination of the September cut-off dates. This situation is being monitored very closely. EB-2 China moved forward by 2 1/2 months to December 15, 2003. Based on current demand, this date is likely to either move slightly or remain the same for September.

F-2A Worldwide. This category is moving very rapidly and is likely to continue to move rapidly due to a severe lack of demand. This will continue until demand materializes.

MEMBER QUESTIONS

QUESTION 1: What percentage of EB immigrant visa numbers are used by the U.S. Department of State at U.S. consulates versus USCIS?

ANSWER: Approximately 85-87 percent of the EB number usage comes from USCIS filings, with the remaining 13-15 percent consular filings. How that percentage breaks down within specific categories varies. Typically 50 percent of all EB-3 China cases are processed at the consulates while 90 percent of all family-based cases are processed at consulates.

QUESTION 2: Between the two service centers of USCIS – again for EB immigrant visa numbers – what percentage of approvals come from Texas versus Nebraska? I note that right now Nebraska seems to be adjudicating cases that were filed several months later than ones in Texas, meaning that presumably a lot more EB numbers are being used in Nebraska than Texas.

ANSWER: The percentage of visa usage between the two service centers is roughly the same. For this fiscal year through July 13, Texas requested only 1,500 more immigrant visa numbers than Nebraska.

QUESTION 3: I just read June’s check-in and listened to the audio from the AC on the Visa Bulletin with Charlie on the panel. On the panel, he said that he has good information from the posts/DOS on visa applications but not from USCIS, where 85 percent of the employment-based applications are filed for adjustment. Is it possible to get better information from USCIS so the dates for employment categories could become less volatile?

ANSWER: Charlie meets monthly with the CIS Ombudsman and the agencies are in discussion regarding USCIS providing additional data to the Visa Office. No further details are available at this time, other than to say that these meetings continue to provide positive results in the exchange of data. Charlie favors as much data transparency as possible since it enables the Visa Office to better predict immigrant visa demand within each category, enabling the State Department to more effectively manage the cut-off dates. The State Department uses a “qualifying date” system which provides the information required to minimize/prevent erratic movement in the family-sponsored cut-off dates. The National Visa Center uses this system to send out “Agent of Choice” letters requesting that applicants assemble/submit certain required information, based on expected cut-off date movement during a specific period of time. The end result allows for a much more accurate comparison of targeted number use versus the total number of applicants who could be scheduled for final processing, during the determination of the monthly cut-off dates.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

Can You Reject Permanent Resident Card Without Signature for I-9 Verification?

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates

Employees who attest to being a lawful permanent resident in Section 1 of Form I-9 may choose to present a valid Form I-551, Permanent Resident Card, for employment verification.  A Form I-551 Permanent Resident Card is a List A document which verifies both identity and employment authorization.

Permanent Resident Cards do not always include the holder’s signature.  USCIS previously only waived the signature requirement for children under the age of consent or individuals who were physically unable to provide a signature.  Beginning in February 2015, USCIS began to also waive the signature requirement for people “entering the United States for the first time as lawful permanent residents after obtaining an immigration visa abroad from a U.S. Embassy or consulate.”  Where USCIS has authorized the waiver of a signature, the card will state “Signature Waived” on the front and back of the card.

Pursuant to USCIS guidance, Permanent Resident Cards with the notation “Signature Waived” are acceptable documents for Form I-9, Employment Eligibility Verification, purposes, as long as they are reasonably appear to be genuine and related to the person presenting to them.

FY 2016 H-1B Cap: Remaining Unselected Petitions Processed for Return to Petitioners

Posted in Consular Issues, Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Startup Companies

H-1B petitioners and beneficiaries alike should soon have “closure” regarding the FY 2016 H-1B cap season.

A cap-subject H-1B petitioner (and beneficiary) may have held a glimmer of hope if it hadn’t yet received its returned H-1B petition, but the US Citizenship and Immigration Service (USCIS or the Immigration Service) announced today (July 14, 2015) that it has now completed processing the return of unselected fiscal year 2016 H-1B cap-subject petitions. 

USCIS has indicated that an FY 2016 H-1B cap-subject petitioner that has not received either an I-797 receipt notice nor the returned unadjudicated H-1B petition by Monday, July 20, 2015, may contact the Immigration Service for information.

H-1B beneficiaries with approved FY 2016 cap-subject petitions who were granted H-1B status or who are admitted to the US in H-1B classification may begin working in H-1B status no sooner than October 1, 2015. 

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Ms. Wadhwani is a partner in the Immigration Practice of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

Premium Processing Availability Resumes Today for H-1B Extension of Stay Filings

Posted in Consular Issues, Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Startup Companies

Good news.  The Immigration Service (USCIS) announced that starting today, July 13, 2015, it will again accept premium processing requests (Form I-907 Requests for Premium Processing Service) for H-1B extension of stay petitions.

This is ahead of schedule because USCIS had estimated that H-1B extension of stay premium processing would be temporarily suspended until July 27, 2015, due to the need to devote resources to the processing of applications for H-4 work authorization (EADs for certain H-4 Dependent Spouses).

Beginning today, a newly filed H-1B extension of stay petition may again include a premium processing request, and a pending H-1B extension of stay petition may be “upgraded” with the filing of an appropriate I-907 Request for Premium Processing Service.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP and may be reached at cwadhwani@foxrothschild.com.

 

DOS Still Reporting Technological System Issues with Overseas Passport and Visa Systems

Posted in Consular Issues, General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas

The Department of State (DOS) has issued an updated alert to report that 165 posts, representing more than 85% of the nonimmigrant visa demand worldwide, are now online and issuing visas.

On June 25, 2015, DOS updated their alert with the following language:

  • The Bureau of Consular Affairs reports that 165 posts, representing more than 85 percent of our nonimmigrant visa demand worldwide, are now online and issuing visas.
  • Posts overseas issued more than 82,000 visas on June 24.
  • Posts overseas have issued more than 238,000 non-immigrant visas this week. For context, if systems had been operating normally, posts would have issued approximately 540,000 visas since the outage started.
  • We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9.
  • We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9.
  • We deeply regret the inconvenience to travelers who are waiting for visas, as well as their families and U.S. businesses that have been affected.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Processing Times for USCIS Overseas Offices Now Online

Posted in Consular Issues, General Immigration News and Updates, Permanent Residence, Priority Dates

Beginning June 9, 2015, U.S. Citizenship and Immigration Services (USCIS) began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters.   Currently, processing times for Forms I-130, I-131, and I-730 are available online.  According to USCIS, if the field office completed less than 10 cases of one of these form types during the reported period, the average processing time will not be displayed.

The processing timeframes displayed show the average length of time it took to complete cases during the period noted on each chart.  The information on this page will be updated around the 15th day of each quarter (January 15, April 15, July 15 and October 15) to reflect current processing times as of the previous six-month period. The processing time of any individual case may vary because of the complexity of the case or the need for the applicant to provide additional information.

Applicants and their attorneys now can easily access this information by visiting USCIS Processing Time Information for International Operations Offices webpage. USCIS intends for availability of this information to aid in managing customer expectations and reduce phone and email inquiries regarding processing times.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Travelers Beware and Expect Delays: Visa Appointments Cancelled, Being Rescheduled Due to Technical Issues

Posted in Consular Issues, EB-5 Immigrant Investor Program, General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Intrcompany Transferees (L-1 and Permanent Residence), Investors, Traders and Entrepreneurs (E visas and Permanent Residence), J-1 Waiver, Non-Immigrant Visas (other than Es, Ls and H-1B), Permanent Residence, Priority Dates, Startup Companies

The US Department of State (State Department or DOS) computer systems are not expected to be online again before next week after experiencing “technological systems issues” (a hardware failure) on June 9th. This information came from the State Department yesterday, June 17th, in an update following their initial announcement regarding the problem last Friday, June 12, 2015.

This has caused DOS’s Bureau of Consular Affairs to experience issues affecting overseas passport and visa systems.  This systems issue is without restriction to particular countries, documents or visa types.  Indeed, the effect seems to reach everyone from the nonimmigrant visa applicant, to the US citizen in need of a passport abroad.

Assistance from the State Department is available to nonimmigrant visa applicants who need to travel for urgent humanitarian reasons and DOS has indicated that it is always able to issue an emergency passport to a US citizen who is overseas and has an urgent need to travel.

Yet, one should be prepared that visa appointments and issuance of some visas will be delayed.  A June 15th update from the State Department said that some visa applicants will “be contacted directly to reschedule their appointments”.

Affected parties will want to seek the guidance of immigration counsel to assess potential impacts on employment start dates and such questions as whether in-country processing is available and should be used for a change or extension of nonimmigrant status instead of processing abroad, among other possible issues.

DOS stated that the “failure is preventing the Department from processing and transmitting biometric data checks at visa-issuing embassies and consulates.”  This affects the Department’s ability to meet its legal  requirements to screen  visa applicants before issuing visas for travel.  The State Department offered its apologies to those affected and indicated that it has more than 100 private and public sector computer experts working “around the clock” to resolve the problems as quickly as possible while of course keeping in mind its responsibility to screen visa applicants as part of its critical border security responsibilities.

DOS stated that it will continue to provide regular updates on their website, travel.state.gov.

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Catherine Wadhwani is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

No U.S. visa for you! DOS unable to process visas, impacting thousands worldwide

Posted in Consular Issues, General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Non-Immigrant Visas (other than Es, Ls and H-1B)

The State Department continues to report that “technical problems” with overseas systems preventing the Bureau of Consular Affairs from issuing visas, passports and other travel documents, since last week.

Most U.S. Consulates and Embassies websites contain this (or similar posting):

“The Department of State’s Bureau of Consular Affairs is currently experiencing technical problems with our visa systems. This issue is not specific to any particular country, citizenship document, or visa category. We apologize for the inconvenience and are working urgently to correct the problem and restore full operability. As soon as the situation is resolved, we will update this message.

If you are applying for a nonimmigrant visa and you signed and submitted the nonimmigrant visa application form DS-160 on or after June 9, 2015 we will not be able to process your application. We recommend, therefore, that you continue to monitor this message for updates and only attend the appointment if the situation has been resolved.”   [The Embassy of the United States, London, U.K.]

The State Department has confirmed that the problem is global (not specific to any particular country or visa category) and that it does not believe these problems stem from cyber-security hacking issues. It could not, however, confirm when the system will be back online, other than to advise that “we do not expect the system will be online before next week.”

The State Department advised that issues with the Consular Consolidated Database are affecting passport applications that have been accepted overseas on or after May 26, complicated by a hardware failure that occurred on June 9, preventing biometric clearance requests from posts to the database.  This is preventing Consular Posts from being able to print most nonimmigrant visa applications approved after June 8, 2015 or process new applications submitted on or after June 9.

“The systems in place to perform required national security checks before we issue visas are experiencing technical difficulties,” the notice said. “As a result, we are unable to print visas, regular passports overseas, and other travel documents.”

The State Department indicated that it is working quickly to process the visa backlog and the technical problems have also “disrupted or prevented” data sharing partners from accessing visa records.

Individuals who completed and submitted Form DS-160 on or after June 9, 2015, are advised to monitor the consular post’s website to confirm whether the situation has been resolved prior to attending any scheduled appointment. Nonimmigrant visa applicants who submitted their DS-160 online application prior to June 9, 2015, should plan to attend their scheduled appointment.

Domestic passport operations are not affected.

The State Department added that the current problems are not the same issues that affected the database nearly a year ago. Clearly the current outage is not as sever at last year’s crash since U.S. passports are continuing to be issued (last year, passports were impacted also). See my prior post about the June 2014 outage here. http://immigrationview.foxrothschild.com/general-immigration-news-and-updates/need-a-u-s-visa-or-passport-prepare-to-wait-dos-passport-and-visa-issuance-database-crash-has-worldwide-impact/.  Let’s hope this is not the beginning of a (not-so-great) June tradition.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

 

ICE Imposes $2.25 Million in I-9 Civil Penalties on Employer

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement)

Jeremey Foster writes:

In a recent case, a Washington state apple orchard was fined millions of dollars for failing an ICE (Immigration and Customs Enforcement) audit. The audit apparently revealed that almost 950 employees of the company were suspected of not being authorized to work in the United States. The Employment Eligibility Verification forms (Form I-9s) of these employees contained inaccurate information regarding their employment eligibility, and the company continued to employ the unauthorized employees despite advisement by ICE of their ineligibility.

The Immigration Reform and Control Act (IRCA) requires all US employers to maintain original and accurate Form I-9s for all current employees with extremely limited exceptions. Failure to properly and timely complete and maintain I-9 Employment Eligibility Verification forms can result in a variety of penalties, with discretion given to ICE as to which is most appropriate. In this case, the orchard settled with ICE, resulting in a $2.25 million settlement in civil penalties.

Homeland Security Investigations (HSI), a department of ICE, carries out I-9 audits in order to target employers who knowingly hire unauthorized workers and to protect the interests and opportunities of the lawful workforce of the United States.


Jeremey Foster is a summer associate in Fox Rothschild’s Pittsburgh office.

What Director Rodriguez Said in Pittsburgh

Posted in General Immigration News and Updates

Jeremey Foster writes:

USCIS Director Leon Rodriguez met with a group of immigration attorneys, non-profit and community leaders in Pittsburgh as part of a “Welcoming Pittsburgh” event earlier this week. Mr. Rodriguez, who once lived in Pittsburgh, captivated attendees with a discussion of the current state of US Immigration law and practice, as well as the challenges facing his Department and the immigrant community in the wake of 5th Circuit decision enjoining the DAPA and DACA extensions of President Obama’s Immigration Executive Action.

Director Rodriguez was realistic about the challenges his agency faces, but was steadfast in his aim for improvement. He devotes significant time to community development and encourages the cooperation of local USCIS offices and community leaders to help immigrants adjust, live, apply for status, and ultimately thrive. Through these efforts, Rodriguez emphasized his Department’s current encouragement that immigrants naturalize. He discussed how soon the processes could be paid by credit card online and that perhaps there may be a fee waiver for individuals at the 150-200% poverty level.

One of the most pressing concerns of the audience was the processing backlog and waiting times. It was somewhat reassuring to many that USCIS is hiring, albeit at a pace to maintain a quality workforce, to keep up with the ramped-up demand.

Although the law provides various routes through which employment can lead to US permanent residence, attendees noted, and Rodriguez acknowledged, that the actual execution and practicality can be lacking. However, as much as immigration attorneys and immigrants may feel at the mercy of USCIS, USCIS feels the same way with regards to the law. Congressional action is required to fix the issues. Unfortunately, new regulations take time and legislation takes even longer.

A perfect example is the holdup of President Obama’s Executive Action in the courts. Although this process is frustrating to many, Director Rodriguez stated his belief that the President’s Executive Action is legal and he was confident that the provisions would eventually be deemed so.  Regardless of the hostility towards immigration reform by some, Rodriguez noted the bipartisan support for reform and that the issue isn’t going away anytime soon. He cited Pittsburgh as a city that has historically welcomed immigrants of all backgrounds and skill levels. He said that he sees Pittsburgh and cities like it as hope for a future where immigrants are welcome and respected for the contribution they provide to this country.


Jeremey Foster is a summer associate in Fox Rothschild’s Pittsburgh office.