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Immigration View

Navigating Complex U.S. Immigration Laws

EB-2 India: Retrogression Imminent – Visa Office on Priority Dates, Demand, and Predictions

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

The new federal fiscal year begins on October 1, bringing an infusion of visa numbers.  Recently, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, recently shared his 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 October 2014 Visa Bulletin and Charlie’s predictions for future movement based on information available as of September 9, 2014.

EB-2 India: Retrogression Imminent

As articulated in Section D of the Visa Bulletin, retrogression of EB-2 India appears to be imminent, and could happen as early as November.  The October 2014 priority date for EB-2 India is May 1, 2009. Given current demand, the priority date will retrogress, possibly to a date in early 2005. Members should plan to file adjustment of status applications by the end of October for any eligible EB-2 India clients, as the window of opportunity may be closing.

A major factor in this anticipated retrogression is the large volume of EB-3 to EB-2 upgrades for Indian-born applicants. Based on filings at USCIS, Charlie anticipates a huge volume of India EB-2 demand in the coming months.

NOTE: In addition, the maximum number of EB-2 immigrant visas which are available for India for Fiscal Year 2014 has been reached.  Therefore, EB-2 India visas are “unavailable” until October 1, 2014. USCIS offices may continue to accept and process EB-2 India cases with priority dates earlier than May 1, 2009 during the month of September. However, instead of being acted upon immediately, those cases will be held in the Visa Office’s “Pending Demand” file until October 1, 2014, at which time they will be authorized.

EB-5 China

Following our last report, Charlie announced that EB-5 China numbers were depleted through the end of the fiscal year (September 30, 2014). Though EB-5 China remains current for the start of the new fiscal year in October, Charlie continues to predict that a cut-off date will be imposed at some point during the second half of the fiscal year, possibly as early as May. This prediction is based on the assumption that USCIS will continue to issue approvals of EB-5 petitions at the current rate, as well as an assumption that a significant portion of the more than 5,000 applicants with approved EB-5 petitions at the National Visa Center (NVC) will come forward to be processed. It is also likely that more applicants will come forward to finalize action on their cases as we enter the final year of the three-year regional center pilot program. It is hoped that sufficient demand data will be available in January which will help in predicting future movement in this category.

Philippines

Demand for both employment-based and family-based visas for the Philippines continues to decrease which accounts for the advancing priority dates in these categories. The cut-off date for the EB-3 and “Other Worker” categories for the Philippines is the same as it is worldwide, October 1, 2011. The NVC has been sending “Choice of Address and Agent” (DS-3032) forms to beneficiaries in an effort to spur demand but so far it is not materializing. Though demand is low and dates will remain favorable for the foreseeable future, this may change if many more applicants come forward to claim immigrant visas.

A Glimpse Into the Preference-Based Visa Process

Have you ever wondered exactly how DOS and USCIS coordinate to ensure preference-based visas are processed efficiently? This month, Charlie provides some insight into the process.

In spring 2007, DOS implemented a new system to address USCIS processing problems that resulted when cut-off dates retrogressed prior to final action on a case. Prior to that time, USCIS would request a visa number from DOS through an automated system upon completion of processing an adjustment of status application. DOS would either grant authorization and allocate a visa number, or deny authorization if the applicant’s priority date was not current. If authorization was denied, USCIS would place the file on the shelf and the adjudicating officer was required to monitor the Visa Bulletin and pull the case when the priority date became current. As a result of the spring 2007 upgrade, cases that are denied authorization due to a non-current priority date are now accepted by DOS and maintained in a “Pending Demand” file. When the priority date becomes current, DOS automatically authorizes the case and notifies the appropriate USCIS office.

This system enables greater efficiency for USCIS and is a safeguard against cases “slipping through the cracks.” It also provides DOS with greater visibility of the pre-adjudicated demand, thus enabling Charlie to better predict priority date movement.

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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.

Executive Action: Soon

Posted in General Immigration News and Updates, Immigrant Visas, Uncategorized

Immigration reform is a topic that is as old as it is controversial.  The administration of President Barack Obama, like the George W. Bush administration before it, has pushed for Comprehensive Immigration Reform (CIR)—to no avail.  There have been immigration crises brought on by the current law and also some relief from a “broken” system.   That relief has principally come from Executive action rather than Congressional initiative because Congress can’t seem to pass an immigration reform or related bill.  Among the executive actions taken by the Obama administration have been “Prosecutorial discretion” and Deferred Action for Childhood Arrivals (DACA).

 

Record numbers of aliens have been deported, but the government doesn’t have unlimited resources to prosecute every person who may be subject to removal—all 11 million+ of them.  The executive branch has the discretion to decide where to allocate its resources. This is true in every area of law enforcement.  In the immigration context, there has been executive action to focus on the removal of criminal aliens and to exercise discretion not to prosecute worthy individuals who have only technical immigration grounds for removal.   In addition, DACA has given the relief of “deferred action” to approximately 500,000 aliens who arrived as children under the age of 16, who have clean records, pursued their education at or above the High School level and are under 31 when they apply. This executive action was announced by President Obama in June 2012.  The DACA policy has allowed  many young people who have only known the US as their home to have comfort that the US is their home.

 

In the last few days, there have been lead articles about additional actions that the administration will be taking to effect reform of some aspects of the broken immigration system.  Typically, the articles discuss and debate the timing and the politics, but not the specifics.  While the administration has discretion to take or decline to take some actions that have profound effects on the lives of many aliens and their communities, executive action will not be able to increase the number of family- or employment-based visas nor do away with the H-1B cap.  Executive action may result in H-4 visa holders being granted employment authorization (see Blog posts by C. Wadhwani)  and changes in the process and treatment of unaccompanied minors and increase the resources spent on the Border patrol.  It will be up to Congress, however, to bring the US immigration system into the 21st century, Congress will need to get rid of the H-1B lottery that businesses face when seeking to employ foreign born professional workers and correct other measures that haven’t kept up with the times.  Stay tuned, some changes are coming.

H-4 Work Authorization? A Quick Update.

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Non-Immigrant Visas (other than Es, Ls and H-1B)

If you’re anxiously awaiting news regarding work authorization for certain H-4 nonimmigrants, here’s the latest:

  • The period for submitting comments regarding the proposed rule closed on July 11, 2014.
  • In an open call held on August 14, 2014, USCIS Director León Rodríguez stated that the Service is in the process of considering the comments received.  He acknowledged the importance of the proposed rule to families and stakeholders and said that the Service was working as quickly as possible to conduct its review of the comments.

That’s all we know for now.  Hopefully there will be more news soon, but no time-frame was provided at this point.

For background on this topic, please refer to my May 16, 2014, Immigration View Blog Post captioned, “H-4 Work Authorization?  Not for everyone.”  You may also want to view the Federal Register Proposed Rule that was published on May 12, 2014.

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

Technical problems continue for passport and visa issuance: DOS CCD system still not fully operational

Posted in Consular Issues, 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), Non-Immigrant Visas (other than Es, Ls and H-1B)

The U.S. Department of State’s Consular Consolidated Database (CCD), a system critical to visa issuance operations, is continuing to experience technical problems, which is limiting the State Department’s visa processing capacity.  As a result, are widespread delays in nonimmigrant visa issuance worldwide.  In conjunction with the Department of State (DOS), U.S. Customs and Border Protection (CBP) has indicated that in order to ease the situation, it will exercise its legal authority to waive nonimmigrant visa requirements for admission on a case-by-case basis.

CBP and DOS have provided the following information regarding the procedures that are being put in place to assist individuals who have applied for but have not been issued nonimmigrant visas due to ongoing CCD problems:

  • A nonimmigrant visa applicant whose U.S. travel is urgent because it either involves an “emergency” or impacts U.S. national interests, may request consideration for special travel permission to the United States if their visa issuance is delayed as a result CCD systems problems.
    • “Emergencies” in this instance include urgent humanitarian travel and life-and-death situations.
    • Upcoming business engagements and U.S. employment needs are not typically considered humanitarian emergencies and likely will not be considered as such in most cases. They may, however, be considered on a case-by-case basis.
  • DOS and CBP joint task force teams will confer on a 24/7 basis, regarding individual emergency travel requests in order to process such requests as      expeditiously as possible.
  • Travel permission, if approved jointly by DOS and CBP, will be facilitated by DOS. The consular post that accepted the visa application will release the traveler’s passport and will issue a transportation letter, which can be presented to common carriers to allow boarding of international U.S.-bound      flights. Upon arrival to a U.S. port of entry and presentation of the transportation letter, CBP will execute an I-193 application to waive the nonimmigrant visa requirement for admission. This will include waiving the $585 processing fee for the I-193.
  • Individuals requesting emergency travel must have a pending visa application with DOS, and the visa must be issuable but for CCD system problems. Applicants who have been issued a 221(g) notice indicating pending administrative processing on their visa applications are not eligible to request      emergency travel accommodations.
  • DOS may not directly inform visa applicants whether or not the delay in visa issuance is the result of CCD problems. Those who have emergency U.S. travel needs should affirmatively communicate with DOS to provide proof of their circumstances. This can occur during the visa interview, or through      e-mails after visa appointments to consular mailboxes or facilitation centers (whichever is the preferred method of communication for each individual consular post, as stated on its website).
  • If a request for emergency travel is not approved and facilitated by DOS, CBP strongly discourages petition-based applicants from traveling to the United States of their own accord using a visitor’s visa or Electronic System for Travel Authorization (ESTA) registration. CBP sent guidance to all ports of entry regarding the above-referenced procedures and will only consider CCD-related I-193 waiver through its joint interface with DOS. Individual requests made at ports of entry will be referred back to DOS. If an applicant is found to have previously requested travel permission that was not granted by DOS, it will be a significantly negative factor and could result in denial of the applicant’s I-193 request.

Currently reported on DOS website: “We have made significant progress and issued most of the worldwide backlog of nonimmigrant visa cases. We are working to bring the Consular Consolidated Database back to full operational capacity. We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases and all cases with very few delays. Please check with the embassy or consulate where you will apply for additional information. Please see our FAQs for more information.”

From DOS’ FAQs:  “Q: What is the outlook for NIVs [NonImmigrant Visas]?  When do we estimate the backlog will be processed? A: Current efforts are focused on restoring the system to normal operations, while continuing to adjudicate new applications.  We are committed to reducing the number of pending visa cases as quickly as possible. Applicants should anticipate that visa issuance may be delayed 10-14 days until the system is restored to full functionality and pending applications are printed.”

Since the CCD system continues to function in a limited state, travelers should expect delays in the issuance of visas and U.S. passports, and should plan accordingly.

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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.

Five Years of Arrival/Departure History Now Available on I-94 Webpage

Posted in General Immigration News and Updates, H-1B Temporary Workers, Intrcompany Transferees (L-1 and Permanent Residence), Investors, Traders and Entrepreneurs (E visas and Permanent Residence)

As many of you already know, the U.S. Customs and Border Protection (“CBP”) implemented an electronic Form I-94 process in 2013, which means that (most) nonimmigrant U.S. travelers no longer fill out a paper Form I-94 Arrival/Departure Record when they arrive in the U.S.  Instead, the CBP gather travelers’ arrival/departure information automatically from their electronic travel records and, once in the U.S., travelers must log onto the I-94 webpage in order to access and print their admission record information.

On May 1, CBP launched a new service which offers nonimmigrant U.S. travelers access to their arrival/departure records going back five years.  This online travel-history function is designed to permit travelers to avoid the need to file Freedom of Information Act requests to receive their arrival/departure history, greatly speeding this process.

Travelers may visit the I-94 webpage to retrieve their I-94 arrival/departure record number and/or five-year travel history by entering their required name, date of birth, and passport information.

Clicking on “Get Most Recent I-94” will return the current I-94 number, most recent date of entry, class of admission and admit-until date.  (Please recall that this does not reflect any changes of status, extension of stay or adjustments of status granted by U.S. Citizenship and Immigration Services after arrival into the U.S.).

Clicking on “Get Travel History” will return their five-year travel history based on their I-94 records, listing the date and port of entry of arrivals and departures.

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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.

Need a U.S. visa or passport? Prepare to wait – DOS passport and visa issuance database crash has worldwide impact

Posted in Consular Issues, General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Investors, Traders and Entrepreneurs (E visas and Permanent Residence), Non-Immigrant Visas (other than Es, Ls and H-1B)

U.S. PassportAn unspecified glitch in a global database used by the US government to issue passports and travel visas has left countless people around the world unable to travel for the last few days, according to State Department officials.

The database, known as the Consular Consolidated Database (CCD), is one of the largest Oracle-based data warehouses in the world, holding more than 100 million records of visa cases and 75 million photographs, with links to other federal agency security databases, including the FBI’s Integrated Automated Fingerprint Identification System (IAFIS) and the Department of Homeland Security’s Automated Biometric Identification System (IDENT). It is also the gateway to the Department of State Facial Recognition system and the NameCheck system.

The database was created to provide Consular Affairs a near real-time aggregate of the consular transaction activity collected domestically and at consular post databases worldwide by providing for a set of centralized visa and American citizen services to support U.S. consular posts and back office functions worldwide.

The CCD, which is used to print and approve U.S. visas and passports worldwide, reportedly crashed following scheduled maintenance earlier this week and was out of operation for as much as a few days.  Although service has been restored (only in a “limited capacity,”) it continues to have significant problems, including outages, since July 19, 2014

In a press briefing on July 24, 2014, Marie Harf, deputy spokesperson for the State Department, said “The Bureau of Consular Affairs has been experiencing technical problems with our passport and visa system.  The issue is worldwide, not specific to any particular country.”  She went on to confirm that the issue was “… a technical issue, and again, we are working to correct it and should be fully operational again soon. We’re operating at a little bit of limited capacity right now, though, so we’re trying not to overload the system.”

The downtime and ongoing limited use has resulted in a growing backlog of visa and passport processing in the U.S. and at consular posts abroad.  It is not clear just how many people have been impacted or left stranded waiting for their U.S. travel documents, but it is estimated that more than 50,000 applicants have been affected.

Harf could not say how long it would take to clear the visa backlog or when the database would be restored to fully operational status. “It’s going to take a little while, so we ask people to be patient,” she said.

Since the CCD is used to approve record and print visas and other documents, perform U.S. passport verifications, and to ensure that national security checks are conducted on applicants, these functions are currently compromised by the CCD crash and current limited operations.  As such travelers seeking a U.S. visa, passport or other travel document should expect delays.

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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.

Humanity’s Children

Posted in General Immigration News and Updates, Immigrant Visas, Uncategorized

Last week, the annual conference of the American Immigration Lawyers Association (AILA) became emotional over unaccompanied minors coming in unprecedented numbers to the US.  The Deputy Secretary of DHS,  Alejandro Mayorkas, followed prepared remarks with a Q&A.  He was asked what was being done to protect these children.  He paused and told the story about how his morning had begun.  He received a graphic report of an alien family, mother and 2 children,  who had crossed into Texas.  The mother and 1 of the children had been run over and killed in an auto accident.  He started his morning learning of a 5-year-old recently orphaned child on US soil—there was an emotionally charged silence by Sec. Mayorkas and by the audience of 3,000 immigration lawyers.

According to DHS Secretary Jeh Johnson in remarks this week before the House Committee on Homeland Security: ”To be clear, we face an urgent situation…Last year, CBP apprehended more than 24,000 unaccompanied children at the border.  By mid-June of this fiscal year, that number has doubled to more than 52,000. Those from Guatemala, El Salvador and Honduras make up about three quarters of that migration.”   http://www.dhs.gov/news/2014/06/24/statement-secretary-homeland-security-jeh-johnson-house-committee-homeland-security

His testimony and a statement by Vice-President Joe Biden describe actions and priorities.  In a White House press release of June 20th, Mr. Biden stated: ”Our first priority is to manage the urgent humanitarian situation by making sure these children are housed, fed and receive any necessary medical treatment.  We also are taking steps to improve enforcement and partnering with our Central American counterparts in three key areas:  combating gang violence and strengthening citizen security, spurring economic development, and improving capacity to receive and reintegrate returned families and children.”  http://www.whitehouse.gov/the-press-office/2014/06/20/fact-sheet-unaccompanied-children-central-america

June 20th was also World Refugee Day. In ceremonies throughout the world,  the United Nations’ Refugee Agency UNHCR tried to highlight the plight of the world’s record numbers of refugees.  According to UNHCR statistics, there is a worldwide population of over 43.7 million refugees and internally displaced people.  Undoubtedly, some of the unaccompanied children coming to the US are refugees—having a well-founded fear of persecution on account of their race, religion, nationality, political opinion or membership in a particular social group—some are not.

The US admits and resettles more refugees than any other country in the world, but the vast majority of the 43.7 million stay in camps or return to their homeland—only about 100,000 refugees per year are resettled in 3rd countries.  Those resettled in the US receive funding from HHS’ Office of Refugee Resettlement (ORR) .  In order to fund the services to the unaccompanied minors, ORR is using funds that had been allocated to refugee resettlement.  Which humanitarian crisis requires the funds more urgently?  Will Congress allocate funds specifically to assist with the humanitarian crisis of the inflow of unaccompanied minors?  We will see.

The US doesn’t have a monopoly on humanitarian crises from the inflow of unaccompanied minors.  The New York Times reports that this is also a problem in Europe, particularly Italy.   In a June 14th article focusing on the squalid conditions in a Rome facility  known to refugees as the “Palace of Squatters”, the Times quotes Rome’s Mayor, Ignazio Marino.  Marino is a transplant surgeon who had practiced at UPMC in Pittsburgh and at Jefferson Hospital in Philadelphia before entering Italian political life. The article states:  ”Mayor Marino sees the problem as extending beyond  Rome.  Europe as a whole ’has to offer opportunities to people, not just beds…’  He called for a strategic plan for refugees. ‘This is a challenge that has to be faced at the European Union level…”   http://www.nytimes.com/2014/06/15/world/europe/palace-of-squatters-is-a-symbol-of-refugee-crisis.html?_r=0

This is the approach the US seems to be taking and hopefully adequately funding, by facing the humanitarian crisis on a national and international level.

 

US Consulates in Canada Limiting Visa Appointments This Summer

Posted in Consular Issues, 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)

As reported by the American Immigration Lawyers Association (AILA), US consulates in Canada will be limiting visa appointments for 3rd-country nationals during the months of June, July and August of this year.  This will not affect those with already-scheduled appointments.

Demand for visa appointments is reportedly increasingly high during these months, resulting in difficulty for 3rd-country nationals to schedule visa interview appointments.

AILA reports that emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.

Otherwise, 3rd-country nationals are encouraged to schedule their visa applications at US consulates other than those located in Canada (e.g., applying through the US consulate in one’s home country) during the 3-month period.

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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.

H-4 Work Authorization? Not for everyone.

Posted in General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, PERM Labor Certification, Priority Dates, Uncategorized

On May 12, 2014, the US Department of Homeland Security (DHS) issued a Proposed Rule that would amend provisions of the US Citizenship and Immigration Service’s (USCIS’s) Regulations regarding work authorization for certain H-4 nonimmigrants.

An H-4 nonimmigrant is the spouse or child of an H-1B worker.  H-4 status does not currently provide eligibility for work authorization.

In a bold and seemingly well-considered move, DHS is proposing to change this.  Employment eligibility would not, however, be open to all who are in H-4 status.  Instead, if the proposed measure stands as it is, it would enable an H-4 spouse to apply for employment authorization if:

  • The H-1B spouse is either the beneficiary of an approved I-140 Immigrant Petition for Alien Worker, or
  • The H-1B spouse has been granted an extension of his/her authorized period of admission under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act. (Generally summarized, this is the provision which permits an H-1B petition to be extended beyond 6 years if the H-1B worker is the beneficiary of either a PERM application or I-140 petition pending for at least 365 days prior to reaching the 6th year of H-1B time.)

The stated goal in permitting certain H-4 nonimmigrants to apply for work authorization is the country’s interest in “attracting and retaining high-skilled foreign workers” for the benefit of the US economy, US employers, and alleviating possible economic burdens on the families of H-1B workers.  The benefit is also meant to encourage foreign workers who are stuck in what seems like an endless delay toward becoming US permanent residents, to remain in the US until the greencard process can be finished (i.e., a visa number becomes available and the case can be processed to conclusion).  In summary, if due to a priority-date backlog, an H-4 spouse can’t file an I-485 application to be eligible for employment-authorization, the Proposed Rule is the “fix” to permit the filing of the employment card application.

This proactive measure may also inadvertently help alleviate problems for US employers resulting from the limit on H-1B numbers.  Presumably, at least some of H-4 spouses were the beneficiaries of H-1B petitions that were selected in the H-1B cap lottery (and took a highly prized H-1B number) or were not selected (leaving a US employer without its prospective employee).

On another note, an interest of the country is also family unity.  Although this isn’t an economic interest, it would seem to me that consideration should be given to opening up eligibility for employment authorization to any spouse of a foreign worker who is maintaining lawful status and is the beneficiary of a Family-Based petition in a severely
retrogressed category.  Perhaps not many people would benefit, but…it’s a thought.

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