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Immigration View

Navigating Complex U.S. Immigration Laws

Enhanced Immigration and Corporate Capacity

Posted in EB-5 Immigrant Investor Program, General Immigration News and Updates, Investors, Traders and Entrepreneurs (E visas and Permanent Residence)

The Fox immigration team has expanded in size and scope.  We have welcomed two prominent attorneys; one to the Miami office and one to the New York office.  Before coming to Fox, Scott Bettridge (Miami) and Rogelio “Roy” Carrasquillo (New York) worked together to develop a significant practice that combines immigration and corporate representation, particularly involving Latin America and Puerto Rico.  Scott and Roy have skill and experience in handling complex corporate transactions, including  broad EB-5 experience.   

Their addition greatly enhances both our corporate immigration and EB-5 practices.  The Fox EB-5 team combines immigration, corporate, tax, pre-immigration tax planning, IP and Real Estate attorneys in our comprehensive nation-wide practice. Scott and Roy are welcome additions and will assist Fox clients in navigating the tricky immigration waters.  To learn more about our new partners, see Scott Bettridge’s bio page and Rogelio “Roy” Carrasquillo’s bio page.

DOS Will No Longer Add Visa Pages to US Passport As Of January 1, 2016

Posted in General Immigration News and Updates

Currently, the U.S. Department of State (DOS) permits the addition of an additional 24 pages in you a U.S. passport which is valid and in good physical condition, however, as of January 1, 2016, the DOS will no longer accept applications for additional sets of pages to be added to the valid passports. Instead, U.S. passport holders must apply for a new passport. Note that the DOS began offering 52-page passports starting in October 1, 2014; presently passport applications may choose a 28-page or 52-page passport for the same cost. According to Department of State, “the decision to discontinue this service was made to enhance the security of the passport and to abide by international passport standards.” Passport holders who wish to obtain an additional 24-page insert must file their applications prior to December 31, 2015.

Immigrant Visa Processing Changes – EB2 India moves forward; EB2 & EB3 China stays the same – Visa Office on Priority Dates, Demand, and Predictions

Posted in General Immigration News and Updates, Immigrant Visas, PERM Labor Certification, Permanent Residence, 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” (November 12, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the December 2015 Visa Bulletin and provides his projections for monthly final action date movement through the first calendar quarter of 2016.

EB-2 India: In December, the final action dates for EB-2 India will advance ten months to June 1, 2007. This is largely the result of a necessary correction following a roll-back in the date at the end of last fiscal year. As noted in the Bulletin, Charlie projects that EB-2 India may advance monthly by as much as eight months over the course of the next few months. In speaking with AILA, Charlie mentioned that a monthly advancement of eight months would be the best case scenario, but that the actual advancement is likely to be around four to six months at a time. Charlie expects that this movement will spur EB-3 upgrades which will eventually impact demand, slowing EB-2 India advancement. He expects the upgrade demand will start to materialize in December/January which will slow advancement in early 2016. Should the demand fail to materialize at the expected rate, then the “up to eight” month movement could occur.

The EB-2 and EB-3 China Dynamic: The EB-2 China final action date will remain the same in December 2015 and Charlie does not anticipate much, if any movement in this category over the next few months as he already expects that number use will exceed the targeted usage for the first quarter of the fiscal year. Charlie received requests for 600 numbers in October and has already received approximately 200 requests for numbers to date in November. Therefore, holding the cut-off will allow the number use figure to fall back within the targeted level over a period of time.

Since the final action date for EB-3 China is later than the EB-2 China final action date, Charlie expects that some EB-2 China cases will downgrade to EB-3, which will take some of the demand pressure off of EB-2 China. This phenomenon has happened the last two years and ultimately results in increased EB-3 demand which slows movement or even retrogresses that category, while at the same time allowing EB-2 China to advance once again. Charlie expects this rebalancing to occur at some point next year, possibly as early as April.

F-2A and F-2B: Last year, the family-based 2B category advanced very quickly because the demand did not initially materialize. The dates have now advanced to the point where demand is materializing. A similar phenomenon is occurring with regard to F-2A. The agent of choice letters are not spurring sufficient demand, so until demand materializes, we can expect to see continued advancements in this category. As noted previously, the response rate is low in many of the family-based preference categories.

Impact of Addition of “Filing Dates” Concept: It is too soon to determine when the new process will begin to provide the Visa Office with better visibility into immigrant visa demand so as to even out priority date movements in the employment-based categories. While preliminary data does not suggest that the filing dates adopted by USCIS will show enough demand to be meaningful, the impact, if any, is not expected to be known until at least April 2016 when USCIS starts to request visa numbers based upon the October filings.

Coming Attractions . . .

  • Release of Revamped Foreign Affairs Manual (FAM): The December Visa Bulletin included an announcement that the State Department’s internal guidance, known as the Foreign Affairs Manual (FAM), will be replaced with 9 FAM-e, effective November 18, 2015. The new FAM upon release and updates will be available in the coming weeks.
  • Expect to See the “Visa Waiting List” in the January Visa Bulletin: Charlie and his team are currently compiling the “Visa Waiting List” which will provide information on the waiting list at the National Visa Center (NVC) as of November 1, 2015. An announcement should occur in next month’s Visa Bulletin, if not sooner.

You may access the November 2015 Visa Bulletin here and the December 2015 Visa Bulletin here.


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.


High Rate of I-9 Violations Does Not Necessarily Show Bad Faith

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

In a recent OCAHO decision, the Administrative Law Judge found that the even 90% I-9 violation rate is not sufficient to show bad faith and reduced the fine from $30,574.50 to $14,600.

In the case U.S. vs. Horno MSJ, Ltd., Company, the company is found to be liable for thirty-two violations of 8 U.S.C. § 1324a(a)(1)(B). In the process of penalty assessment, ALJ considered the following factors: “1) the size of the employer’s business, 2) the employer’s good faith; 3) the serious of the violations, 4) whether or not the individual was an unauthorized alien, and 5) the employer’s history of previous violations” under 8 U.S.C. § 1324a(e)(5).

ALJ found that the employer, Horno MSJ, Ltd. “is a small family business with no history of previous violations; the company is a quintessential ‘mom and pop’ operation that is modest both in terms of its number of employees as well as its resources” Although serious substantive violations had been found, such as failures to complete the Section 1 status box, to sign in section 2, and to record information in List A, B or C, the ALJ was not convinced by the government that the high rate of violations “demonstrates that Horno was not engaged in a good faith effort to comply with the law.” The ALJ stated that “OCAHO case law has long held that bad faith requires a showing of culpable conduct beyond merely a high rate of violations, and that even a dismal rate of I-9 compliance is not sufficient to make that showing.” Even though the unauthorized employment was found, ALJ found that the government did not prove all of its allegations. In conclusion, ALJ emphasized that the purpose of the penalty is to deter future violations but not to be “unduly punitive”. As such, the ALJ adjusted the rate of penalty to the midrange of the penalty schedule and significantly reduced almost 50% from the penalty ICE seeks.

Good News for Large H-1 & L-1 Employers – Additional Fees Expired Oct. 1, 2015

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), Uncategorized

H-1B and L-1 employers who were subject to Public Law 111-230 and required to pay an additional filing fee of either $2,000 (H-1B) or $2,250 (L-1) do not need to pay these fees for petitions filed on or after Oct. 1, 2015. This additional fee only applied to certain companies with large numbers of H1B and/or L-1 workers and expired on Sept. 30, 2015 because the law that mandated them, Public Law 111-347, enacted on Jan. 2, 2011 (amending the original law, Public Law 111-230, enacted on Aug. 13, 2010), extended the fees only through Sept. 30, 2015.

The additional fees imposed under this law dramatically increased the cost of filing H-1B and L-1 petitions for those companies with more than 50 employees in the United States, where at least 50 percent of the employees were in H1B or L-1 status.

All other H-1B and L-1 fees, including the Base fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee, when applicable, are still required.  Petitions with incorrect fees may be rejected.  Petitioners are reminded that USCIS prefers separate checks for each filing fee.


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.

E-Verify Enhancements Announced

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

On Oct. 28, 2015 U.S. Citizenship and Immigration Services (USCIS) announced new Enhancements to E-Verify designed to make use of the system easier:

E-Verify launched three new enhancements to improve effectiveness, efficiency and customer satisfaction.

  • Temporary Protected Status (TPS) Auto Extension upgrade makes it easier for E-Verify to confirm that employment authorization has been automatically extended for TPS beneficiaries. To learn more about how TPS affects the Form I-9 process, visit I-9 Central.
  • Case Details Page Redesign reduces data fields so that case details print on one page. This enhancement was the #1 E-Verify Listens idea. Visit E-Verify Listens today to discuss how we might improve your Form I-9, E-Verify and my E-Verify experience.
  • Updated Further Action Notices and Tentative Nonconfirmation (TNC) emails now include the myE-Verify Case Tracker link. myE-Verify Case Tracker increases transparency in the TNC process by enabling employees to check the status of their own E-Verify case, whether or not they have a myE-Verify account.

Find revised samples of the Further Action Notices, TNC emails and other resources in English, Spanish and 19 other languages on our Foreign Language Resources page.


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.

Visa Bulletin Dates for Filing and When USCIS will Follow Them

Posted in Immigrant Visas, Permanent Residence, Priority Dates

Confused as to when you may file an I-485 Application for Adjustment of Status?

Beginning with the October 2015 State Department Visa Bulletin additional information appears pertaining to when an intending immigrant may file an application for adjustment of status.  This is specifically relevant to those for whom a visa number is not immediately available, such as those in the EB-2 Category from China or India, or those in the EB-3 Category from China, India, Mexico or the Philippines, among others.

In particular, the Visa Bulletin now includes “Dates for Filing” along with “Application Final Action Dates”.  (Please see my blog post, “October 2015 Visa Bulletin Includes New “Dates for Filing of Visa Applications”; Immigrant Visa Availability Procedures Revised to Permit Possible Earlier Filings” for details.)

The Immigration Service (USCIS) stated from the outset that it “may” (not “will”) use the Dates for Filing Applications to determine when an application for adjustment of status may be filed.  But, what does this mean?  How can one tell when the Immigration Service will permit an I-485 filing based on the Dates for Filing of Applications?  The answer can be found on the Immigration Service’s website at http://www.uscis.gov/visabulletininfo.

Here is a summary of the information:

  • Unless “otherwise stated” on the USCIS website, plan to use the Application Final Action Date.
  • The “otherwise stated” information will appear on the USCIS website in the following charts, which USCIS anticipates updating within a week of the State Department’s release of each months’ Visa Bulletin):
    • Current Month Adjustment of Status Filing Chart, and
    • Next Month Adjustment of Status Filing Chart.

Currently, both of these charts contains a statement noting that USCIS has determined that one may use the Dates for Filing Visa Applications chart.  So, for October 2015 and November 2015, the Dates for Filing Applications may be used.

Of course, these dates were significantly rolled back from the originally announced October 2015 dates. (See my blog post, “October 2015 Visa Bulletin:  Dates for Filing Revised, Rolled Back,” for details.)

Perhaps December’s Dates for Filing Visa Applications will be favorable.


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

You’re Invited to the Fox Webinar “The Form I-9: How It Affects Your Business”

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

On Wednesday, November 18, 2015, from 12:00 pm to 1:00 pm, I’ll be presenting a webinar on that most complicated of two-page government forms, the Form I-9.

The U.S. Citizenship and Immigration Services (USCIS) changed the Form I-9 in 2013, doubling the Form in length and expanding the instructions (totaling nine pages). Join us for this webinar where we’ll review and explain:

  • Specifics about how to execute the I-9, under current rules
  • Penalties for non-compliance
  • How to deal with pitfalls in the process
  • how to develop a company-wide compliance program

To register in advance for “The Form I-9: How It Affects Your Business,” please visit the event’s page. I hope you’ll join me for this informative session.

STEM OPT for 24 months?

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

With the end of STEM OPT looming, the US Department of Homeland Security (DHS) published a much-awaited Proposed Rule on October 19, 2015, regarding STEM OPT and Cap-Gap Relief.  (See https://www.federalregister.gov/articles/2015/10/19/2015-26395/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and.)

Highlights of the Proposed Rule, captioned “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students”, include:

  • 24-months of employment authorization, an increase of 7 months from the current 17-month extension period (up to two times if the 2nd is based on a higher degree);
  • Oversight of STEM OPT extensions would be increased by such things as:
    • Formal employer Mentoring and Training Plans,
    • Wage and other protections for STEM OPT students and U.S. workers, and
    • Extensions only for students with degrees from accredited schools.

STEM OPT is “optional practical training” (OPT) for certain students who have earned degrees in a science, technology, engineering, or mathematics (STEM) field from a U.S. institutions of higher education and who will be employed by employers enrolled in E-Verify.  E-Verify is the Immigration Service’s (USCIS’s) electronic employment eligibility verification program.

The Proposed Rule, released after the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security case, includes a provision to continue “Cap-Gap” relief.  Cap-Gap relief, which was first introduced in 2008, enables an employer to continue uninterrupted employment of a student during the period after 12-month OPT ends and before October 1st when H-1B status may begin following a year when demand for H-1B numbers exceeds supply.  (For more information regarding the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, see Robert Whitehill’s ImmigrationView posts at http://immigrationview.foxrothschild.com/employment-verification-compliance-including-i-9s-e-verify-and-enforcement/stem-opt-in-jeopardy-after-judges-order/ and http://immigrationview.foxrothschild.com/general-immigration-news-and-updates/future-of-stem-opt-extension/.)

It is stated that the changes set forth in the Proposed Rule should:

  • Better ensure that students gain practical STEM experience that supplements their academic studies, while also preventing adverse effects to U.S. workers.
  • Enabling students to earn a functional understanding of how to apply their academic knowledge, thus better positioning them for careers in STEM fields.
  • Limiting STEM OPT employment to work with employers that commit to developing students’ knowledge and skills through practical application.
  • Ensuring that US colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.

Presumably, if implemented, the changes will provide a sense of stability to US employers in need of highly valued STEM OPT employees, but who face concerns that an H-1B lottery number may not be available for the employment to continue beyond 12 months, as well as to students with STEM OPT employment authorization who had incentive to use their STEM education abroad due to uncertainty here.  The comment period is open until November 18th so the Final Rule may include changes, but the Proposed Rule seems like a good start.


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

The Guessing Game

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

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What will Congress do with the soon to expire EB-5 regional center program?

That is the question that most everyone in the EB-5 world is asking each other. Congress chose on September 30th of this year to “kick the proverbial can down the road” until December 11, 2015 with an interim extension of the current legislation. As of the date of the writing of this blog Congress has before it several bills that seek to extend the EB-5 Pilot Program.

The possible changes on the horizon include increasing the minimum investment amount to $800,000.00 for TEA’s and $1,200,000.00 for other areas. Since there has been no change in the capital contribution amount since the creation of the program, most think this amendment will proceed.

The other change that would be controversial would modify the definition of a targeted employment area. The TEA’s would be limited and potentially not include state designations based on aggregated census tracts. This could eliminate many TEA’s.

In addition, it is anticipated that the regional centers will come under greater scrutiny by USCIS. This could include more comprehensive and frequent reporting requirements, as well as the ability of the agency to suspend regional center designation for those centers that do not fulfill reporting requirements or have little or no business activity.

Congress will also examine whether regional center principals can be non-resident aliens. Most regional centers currently are owned by U.S. Citizens or lawful permanent residents.  There are many non-resident aliens that are interested in creating regional centers and developing projects, especially in South Florida.

Developers, as well as investors are rushing to complete exemplars for projects and file individual I-526 immigrant visa petitions in order to “grandfather” their projects and/or investor applications under the present statutory requirements. It is noteworthy however, that no one is certain that “grandfathering” will be part of the final legislation. Will this all be for naught?

What we can be sure of are that changes to the EB-5 regional center program will occur before the end of the year. The changes to the program will hopefully make it better. The program will survive.