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Immigration View

Navigating Complex U.S. Immigration Laws

H-1B Extensions Significantly Backlogged at CSC and VSC

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

As many of you are aware, the processing of H-1B extensions at both USCIS’ California Service Center (CSC) and Vermont Service Center (VSC) continues to be significantly delayed. Currently, the reported processing times for H-1B extensions at both service centers is mid-June 2015. This extreme delay is causing extraordinary hardship to affected employers and employees as the many pending petitions face the expiration of the automatic 240-day extension of continued status and employment authorization 8 C.F.R § 274a.12(b)(20).

American Immigration Lawyer Association (AILA) has been following up this issue with USCIS Service Center Operations (SCOPS). SCOPS has stated that “it is aware of the issue and is working closely with service centers to work through the backlog.” As to the reasons for the backlog, SCOPS reported a marked increase in H-1B filings, including Simeo filings, and noted that there has been an increase in premium processing petitions as well. SCOPS promised an update on its progress during next month’s call with AILA, which is scheduled for March 9, 2016. In the meantime, attorneys and employers should be cautious about the expiration of 240-day employment authorization and ensure that employees do not work without authorization.

Visa Waiver Program Changes – Certain Individuals No Longer Eligible

Posted in General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

On January 21, 2016 The Department of Homeland Security and The Department of State jointly issued a statement that the United States began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, where travelers in certain categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP).

The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.

Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.

Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.

The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.

An updated ESTA application with additional questions is scheduled to be released in late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.

Information on visa applications can be found at travel.state.gov.

Current ESTA holders are encouraged to check their ESTA status prior to travel on CBP’s website at esta.cbp.dhs.gov.

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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.

US Supreme Court to Consider Immigration Executive Action, DAPA Challenge

Posted in General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

This week, the US Supreme Court agreed to hear the challenge to President Obama’s Immigration Executive Action regarding the exercise “prosecutorial discretion” for certain undocumented parents of US citizen children.  The program was announced in November 2014 and enjoined before it was implemented.  The injunction that was affirmed by the United States Court of Appeals for the 5th Circuit was as a result of an action brought by a coalition of 26 states.  The program at issue, known as DAPA, is intended to allow several million people to be spared from removal from the US because of their being low priority, low risk undocumented aliens whose only offense is being out or status or having entered the US without inspection.   

The case has significant Constitutional implications as the Supreme Court directed the parties to address the “take care clause” of the Constitution.

 Set forth in Article 2, Section 3, Clause 5 of the United States Constitution is a clause which states that the President of the United States must “take care that the laws be faithfully executed”.  This means that the laws must be “faithfully executed” by the President, even if he disagrees with the purpose of the law.  As the clause relates to Deferred Action for Parents of Citizens (DAPA), it is a fascinating constitutional question of the balance of power of the 3 branches of government. The decision could redefine the limits of all Executive Action undertaken by a US President, not just in regard to immigration.

 For the millions of parents of US citizens who are undocumented, who fear removal and family separation and have been waiting for some relief, the answer to the question is not esoteric or scholarly or theoretical, it’s their lives. Millions of parents of US citizens whose only legal violation is being undocumented…not being criminals or terrorists or rapists or…only being the folks next door…the importance of the President’s exercise of prosecutorial discretion so that they can be lawfully present can’t be over stated.

 In 1986, Congress acted to address the millions of undocumented in the US by passing the Immigration Reform and Control Act (IRCA).  Those who qualified for amnesty under IRCA were on the road to citizenship.  Those who would benefit from DAPA are not on the road to citizenship, only lawful presence.  Before signing IRCA into law, President Ronald Reagan said:  ”I believe in the idea of amnesty for those who put down roots and lived here, even though some time back they entered illegally…”  I couldn’t say it any better than that.

 

Be cautious when conducting Internal I-9 Audits: Updated guidance from USCIS and USDOJ

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

The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices issued a new technical assistance letter, posted to their website Jan. 13, which updates a letter issued last October regarding internal audits of I-9 employment eligibility verification forms.

The updated letter maintains the OSC’s advice that any internal audit should be conducted consistently, treating similarly situated employees similarly. Employees shouldn’t be treated differently based on citizenship or immigration status or national origin, the letter states, further articulating that “employers should apply the same level of scrutiny to Form I-9 documentation and not apply different levels of scrutiny based on citizenship, immigration status, or national origin.”

In the letter, the OSC directs employers to recent guidance jointly issued by the DOJ and Immigration and Customs Enforcement on how to conduct internal I-9 audits and avoid discrimination charges.  That guidance, the OSC said, “reminds employers that they “are required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to 1he individual presenting the documentation.” and advises that employers “should recognize that it may not be able to definitely determine the genuineness of Form I-9 documentation based on photocopies of the documentation” .  The guidance goes on to specifically state that employers “should not request documentation from an employee solely because photocopies of the documents are unclear”.

However, the guidance does indicate that where the employer determines, based on the photocopy, that a document does not appear genuine or to reasonably relate to the employee, it should address that concern with the employee and “provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents”.

In a change from prior advice, the letter goes on to state that, “the employee also has the option to give the employer the originally presented document to resolve the employer’s concerns, and the employer is not prohibited from reviewing the original document and determining that it appears to be genuine and to reasonably relate to the employee. If after reviewing the originally presented document, an employer determines that it appears genuine and reasonably relates to the employee, then the employer must accept that document and not request additional documents. If the originally presented document is unavailable or if, after reviewing the original document, the employer concludes that it does not appear to be genuine or to reasonably relate to the individual, the employer should provide the employee with an opportunity to choose a different document to present from the Lists of Acceptable Documents.”

USDOJ OSC IRUEP Letter of January 7, 2016 may be found here.

Joint USCIS and USDOJ OSC IRUEP Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits may be found here.

Alka Bahal has extensive experience in conducting internal I-9 audits for employers of all sizes. Our audit protocol is, and remains, in accordance with USCIS and DOJ’s updated guidance. Although employers are welcome to conduct their own internal audits, we strongly encourage the use of experienced counsel, given the delicate balance between assuring I-9 documentation compliance and avoiding national origin and discrimination prohibitions.   Additionally, when choosing Alka Bahal and her team for I-9 audit assistance, employers benefit from the vast experience and knowledge gained from conducting numerous prior audits, in addition to the protections afforded by attorney-client privilege (something not available if a non-lawyer vendor is used).

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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.

H-1B Cap Season FY 2017 is Here: Be Prepared

Posted in General Immigration News and Updates, H-1B Temporary Workers

Demand for H-1B numbers is likely to remain high during Fiscal Year 2017 (FY2017).  It remains to be seen whether proposed and actual changes to the Immigration Regulations, such as extended STEM OPT EADs, H-4 EADs, etc., will reduce the demand or alleviate the lottery for H-1B numbers.

If you are a cap-subject employer, it’s time to think about your hiring needs if you are considering petitioning for H-1B status for a new foreign hire.

You may recall that during the past two fiscal years, FY2016 and FY2015, employers filed more than twice the number of cap-subject H-1B petitions than are available (see prior posts on this topic here and here). That left many employers in a difficult situation with regard to their staffing needs.  Approximately half of the H-1B petitioning employers didn’t receive H-1B approvals for their employees (e.g., F-1 OPT workers) or prospective employees.

Making your hiring decisions early won’t increase your chances of “winning” the FY2017 H-1B lottery, but it could make your life less stressful.  Having a plan in place should allow you a comfortable amount of time to contact us with the details of your case for assessment, gather and provide us with the necessary documents and information, etc.

Although most cases can be prepared quickly, it’s best to allow for the unexpected (e.g. a missing document needed from abroad, a problem with the issuance of Labor Condition Applications (LCAs), which are needed as part of the H-1B petition packages, etc.).

Wishing you a pleasant H-1B season.

H-1B and L-1 Petition Fees for Certain Petitioners Increase Significantly

Posted in General Immigration News and Updates, H-1B Temporary Workers, Intrcompany Transferees (L-1 and Permanent Residence), Non-Immigrant Visas (other than Es, Ls and H-1B)

On December 18, 2015, President Obama signed The Consolidated Appropriations Act, 2016 (Public Law 114-113) into law, which increased fees for certain H-1B and L-1 petitioners. This law effectively reinstates PL 111-230, which sunset on Sept. 30, 2014, but increases the applicable fees.  According to the new law, H-1B visa petitioners who employ 50 or more employees in the United States, where more than 50 percent of those employees are in H-1B or L (including L-1A and L-1B) nonimmigrant status, must pay an additional fee of $4,000 for the first H-1B petition it files for an employee and $4,500 for the first L-1A and L-1B petition it files.  These new fees apply to all filings postmarked on or after December 18, 2015.

The fee only apply to certain H-1B and L-1/B Petitions, as follows:

  • Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
  • To obtain authorization for a nonimmigrant in such status to change employers.

This fee DOES NOT apply to extension requests filed by the same petitioner for the same employee.

This fee is in addition to the form filing fee fee, Fraud Prevention and Detection Fee, American Competitiveness and Workforce Improvement Act of 1998 fee (when required), and the Premium Processing fee, if elected.

On January 13, 2015, USCIS sent out the web alert notifying the stakeholder that USCIS was “in the process of revising Form I-129, Petition for a Nonimmigrant Worker, and Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, to reflect the provisions of Public Law 114-113. Petitioners should continue to complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (Page 19 of Form I-129) and Item Numbers 4.a. and 4.b. of the L Classification Supplement (Page 22 of Form I-129).”

Petitioners and the attorneys should be on alert that USCIS may begin rejecting petitions received on or after Feb. 11, 2016 that do not complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement and Item Numbers 4.a. and 4.b. of the L Classification Supplement, or include the additional Public Law 114-113 fee, if applicable.  The additional fee required under PL 114-113 will remain in effect until September 30, 2025.

DHS Asks Court to Extend Stay on STEM OPT Until May 10, 2016

Posted in General Immigration News and Updates, H-1B Temporary Workers

On December 22, 2015, DHS filed a motion under Federal Rule of Civil Procedure (FRCP) 60(b)(6) requesting that the U.S. District Court for the District of Columbia extend the stay of vacatur of the 2008 STEM OPT interim final rule for 90 days, in order to give the government additional time to analyze the more than 43,000 comments that were received in response to the agency’s October 19, 2015, Notice of Proposed Rulemaking. In this Leadership Blog post, AILA President-Elect William Stock outlines the government’s options for delaying the February 12, 2016, deadline, and explains the upshot of this legal maneuvering.

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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.

Massive Employment-Based Immigration Changes Proposed: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

Posted in General Immigration News and Updates

This has been a tumultuous year in the immigration space and it ends with a massive proposed regulatory change announced on New Year’s Eve by the US Department of Homeland Security (DHS):  “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”.

This is a huge title with 181 pages of proposed regulations concerning employment-based immigration.  As a general statement, it will make policy into regulations and ease some of the pressure on employers and employees in their quest for a greencard. As stated in the summary:  “Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while increasing the ability of such workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.”

Regulations will address I-140 portability and other provisions of legislation passed more than a decade ago, ACWIA and AC21. They will also address issues in securing and maintaining employment authorization for employees transitioning from employers.  To give a taste of the proposed new regulations, DHS suggests a one-time grace period, during an authorized period of validity of up to 60 days when employment ends for individuals holding E-1, E-2, E-3, H-1b, H-1B1, L-1 or TN nonimmigrant status.  On the other hand, DHS would eliminate the regulation requiring adjudication of the employment authorization document (EAD) within 90 days.

The proposed regulations also clarify several ongoing issues, including H-1B visas for persons requiring a license to perform the duties.  The proposed rule would allow the employer to petition for an unlicensed worker, by demonstrating that the worker had applied for the appropriate license but was unable to obtain it because the issuing authority requires a social security number or employment authorization.

The headline is that a host of new regulations are being proposed to make the immigration lives of employers and employees somewhat easier and the path to permanent residency clearer.  Cause for some celebration on New Year’s Eve.

Happy 2016!

“EB-5 is Extended Without Any Changes Until September 30, 2016”

Posted in Consular Issues, EB-5 Immigrant Investor Program, General Immigration News and Updates, Immigrant Visas, Investors, Traders and Entrepreneurs (E visas and Permanent Residence), Permanent Residence, Priority Dates, Uncategorized

Since September 30, 2015 Congress has considered several immigration bills that would have completely overhauled the EB-5 program. All of us in the space, especially attorneys, had prepared ourselves for the inevitable change of the current EB-5 regulations. We all knew that the minimum capital threshold requirement would increase to $800,000. In addition, the targeted employment area (“TEA”) definition would change, thereby eliminating important metropolitan areas such as New York City from consideration. All of this was occurring against the backdrop of Congress trying to pass the appropriations bill so that our government would not run out of money.

Congress has been wanting to revamp the EB-5 program for a significant period of time. All of the recently introduced EB-5 bills contained measures to increase compliance and make the program safer for foreign investors that were seeking a “Green Card”.  Developers and attorneys lobbied for reform that would not be onerous and would provide a certain amount of compliance. Most of us did not want the new legislation to be the “death knell” of the EB-5 program.

Well, we all got our wish. Congress voted to renew the EB-5 program in its present state until September 30, 2016.  What will happen between now and the expiration of the legislation is anyone’s guess.  But I think the writing is on the wall. Congress seeks to reform the EB-5 program on two fronts. The first is the minimum investment capital threshold requirement. It is a foregone conclusion that prior to September 30, 2016 Congress will pass EB-5 legislation that increases the minimum investment in a targeted employment area (“TEA”) to $800,000. The second is on the compliance front. Congress will include provisions in the new bill that require “on-site audits” of projects and regional centers.  In addition, Congress will require all principals that have equity in a regional center to submit to a Federal background check. This will ensure that the players in the EB-5 space are not unscrupulous characters.

All in all, the changes would be welcome by most in the industry. The impact that the higher investment amount would have in China and other markets is something that is yet to be seen. All of us though are breathing a sigh of relief for the EB-5 extension.

 

USCIS Launches a Virtual Assistant and her name is EMMA

Posted in General Immigration News and Updates

U.S. Citizenship and Immigration Services (“USCIS”) launched a new virtual assistant named “EMMA” on December 2, 2015. Emma provides customers quick help allowing easier navigation in finding information from USCIS.

Emma is named after Emma Lazarus, whose famous words are inscribed at the base of the Statue of Liberty.

Emma was created in response to a developing need in self-help tools and to enhance customer service. Presently, USCIS call centers are the centralized mechanism for customer inquiries concerning general information requests that can be found via the Internet. Due to the increasing high volume of callers, Emma was developed to streamline customer questions and to provide that information online as a virtual assistant.

Similar to Apple’s SIRI, Emma can receive typed questions and guide users through USCIS website to find answers. Emma answers questions based on your own words and can provide immediate answers, navigate uscis.gov website and locate information based on the questions and search language entered.

Emma will type answers and also talk (only in English; EMMA is currently not yet available in Spanish however USCIS indicates that she will be speaking Spanish in early next year).

To get started, click here  ask a question and window will pop up allowing users to type a question. For example, when asked “What are the current processing times for H-1B visas filed at the Vermont Service Center?”, Emma will provide a link to retrieve the current USCIS processing time information.

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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.