On May 1, 2017, the U.S. Citizenship and Immigration Services began issuing redesigned versions of the Permanent Resident Card (aka a “Green Card”) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project.

The redesigned cards use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

USCIS states that the new card designs are part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and f raud and demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud.

The new Permanent Resident and EAD Cards will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Have embedded holographic images; and
  • No longer display the individual’s signature.
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Permanent Resident Cards will have an image of the Statue of Liberty and a predominately green palette;
  • Permanent Resident Cards will no longer have an optical stripe on the back.

Some Permanent Resident Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Permanent Resident Cards and EADs will remain valid until the expiration date shown on the card. Additionally, older Permanent Resident Cards without an expiration date also remain valid. USCIS continues to encourage individuals who have Permanent Resident Cards without an expiration date to consider applying for a replacement card bearing an expiration date in order to reduce the likelihood of fraud or tampering if the card is ever lost or stolen, but have not mandated that they must do so.

The M-274 Handbook for Employers for Completing Form I-9 (Employment Eligibility Verification Form) was updated in July 2017 to depict the design of the new cards and those several still valid versions.

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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 Morristown, 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.

The US Citizenship and Immigration Service (USCIS) announced today, September 18, 2017, that it will again expand its resumption of premium processing for additional types of H-1B petitions.

Effective immediately, H-1B petitions subject to the Fiscal Year 2018 cap are eligible for premium processing.  This includes petitions under the 65,000 cap and the 20,000 additional petitions for beneficiaries with a US master’s or higher degree.  Readers may recall that the FY 2018 cap was reached in April 2017.  Those pending filings that were selected in the H-1B lottery, which generally have October 1, 2017 start dates, are the ones that are included under this expanded resumption of premium processing.  This is indeed welcome news for both the petitioning employers and beneficiaries who may now achieve decisions that could allow the H-1B employment to begin on or shortly after the anticipated start date.

Today’s expansion of premium processing is in addition to two prior resumptions of premium processing which included:

  • H-1B petitioners who are exempt from the H-1B cap as:
    • An institution of higher education,
    • A nonprofit related to or affiliated with an institution of higher education, or
    • A nonprofit research or governmental research organization.
  • H-1B  petitions that are exempt because the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.
  • H-1B petitions for physicians under the Conrad 30 or an IGA (interested government agency) waiver program, and

For now, USCIS continues its temporary suspension of premium processing for all other H-1B petitions including but not limited to extensions of stay.

The Agency stated that it will continue to expand eligibility for premium processing for other types of H‑1B petitions as workloads permit.  You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  This may yet be achieved.

In its announcement USCIS included a reminder that H-1B petitioners may request expedited processing based on specific criteria such as humanitarian need.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.

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Catherine Wadhwani is a partner in the immigration practice at Fox Rothschild LLP.

On September 5, 2017, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) officially rescinded the program known as Deferred Action for Childhood Arrivals (DACA) and implemented a six month phase out process. Pursuant to its official memorandum and FAQ, USCIS will allow current DACA recipients to keep their work authorization and deferred action status/benefits until they expire and take the following steps to end the DACA program:

  • Initial DACA Applications: USCIS will continue to adjudicate properly filed initial DACA requests and associated applications for work authorization that were accepted by USCIS as of September 5, 2017. However, USCIS will reject any initial DACA requests received after September 5, 2017.
  • Renewal DACA Applications: USCIS will continue to adjudicate renewal DACA applications and associated applications for work authorization that have been accepted by USCIS as of September 5, 2017. USCIS will also continue to accept renewal applications filed by DACA recipients whose benefits expire on or before March 5, 2018, until October 5, 2017. After October 5, 2017, USCIS will reject all DACA renewal requests.
  • Pending Applications for Advance Parole Based on DACA: Effective September 5, 2017, USCIS will no longer process or approve any DACA-based applications for Advance Parole (Forms I-131). Any pending applications for advance parole will be closed, and USCIS will return the filing fees to the applicant. Although DHS also stated that it will generally honor the validity period for previously approved applications for advance parole, the FAQs note that CBP retains the right to refuse admission to a person who presents themselves at a port of entry as a matter of discretion.
  • Current EADs that Are Lost, Stolen, or Destroyed: The DHS FAQs state that individuals can still apply to replace a valid EAD that has been lost, stolen, or destroyed.
  • Current Valid DACA EADs: Any individual with a currently valid DACA EAD can continue to work lawfully. DHS confirmed that it would not terminate or revoke previous approved DACA or EAD solely based on its decision to rescind the DACA program. However, if the applicant’s DACA status and EAD expires after March 5, 2018, they are not eligible for renewal.

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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.

This may be the last chance to participate in the lottery.  Not the Powerball Lottery that recently topped $700,000,000, but the Diversity Lottery that will provide 50,000 immigrant visas in fiscal year 2019.  The Diversity Lottery (DV) is for immigrants from countries with historically low rates of immigration to the US.

Although the proposed RAISE Act would eliminate the DV program, at least for now it is still alive and well.  On September 7, 2017, the Department of State announced that beginning noon EST (GMT-4) on Tuesday October 3, 2017 people from qualifying countries may apply online to be lucky.  Natives of Brazil, China, Colombia, Mexico, Nigeria and Viet Nam and other nations may NOT apply as their historic rate of immigration has not been low.  Natives of all other countries may apply electronically and only electronically at the Department of States lottery portal: dvlottery.state.gov.  Beyond having been born in an eligible country, the applicant must meet a rather modest education/work experience requirement. As with any other application to the government there are other details.  A full description can be found at: https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html

 Lottery applications are accepted until November 7, 2017 at noon EST (GMT-5) . Starting May 1, 2018 results will be available.  The application process is FREE and it is a true lottery.

 Applying for the lottery is not interpreted as “immigrant intent”. Those who are lucky may proceed to apply for permanent residency based on being a DV immigrant. So, you have to play to win…

 

On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the program known as Deferred Action for Childhood Arrivals (DACA) pursuant to President Donald J. Trump’s decision to terminate DACA.  On the same day the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) issued an official memorandum outlining how it will wind down the program. Former President Barack Obama established the Deferred Action for Childhood Arrivals (DACA) Program (https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca) five years ago with an executive order that granted temporary lawful status and work authorization to certain undocumented immigrants who had been brought to the United States as children.

The USCIS Memorandum on the Rescission of DACA, states that in recognition of the complexities associated with winding down the program, that USCIS will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters (specified below) and effective immediately, USCIS:

    1. Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by USCIS as of the date of this memorandum.
    2. Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after September 5, 2017.
    3. Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the USCIS as of September 5, 2017, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by USCIS as of October 5, 2017.
    4. Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
    5. Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods. [Emphasis added]
    6. Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will retain the authority to revoke or terminate an advance parole document at any time.
    7. Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
    8. Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

On September 5, the Department of Homeland Security also posted an FAQ on the Rescission of DACA on its website confirming answers to several key questions:

(i)          What is going to happen to current DACA holders?

Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.

(ii)        What happens to individuals who currently have an initial DACA request pending?

Due to the anticipated costs and administrative burdens associated with rejecting all pending initial requests, USCIS will adjudicate—on an individual, case-by-case basis—all properly filed DACA initial requests and associated applications for EADs that have been accepted as of September 5, 2017.

(iii)       What happens to individuals who currently have a request for renewal of DACA pending?

Due to the anticipated costs and administrative burdens associated with rejecting all pending renewal requests, USCIS adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017.  USCIS will reject all requests to renew DACA and associated applications for EADs filed after October 5, 2017.

(iv)       Is there still time for current DACA recipients to file a request to renew their DACA?

USCIS will only accept renewal requests and associated applications for EADs for the class of individuals described above in the time period described above.

(v)         Will individuals with expired DACA be considered illegally present in the country?

Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred.  When their period of deferred action expires or is terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment. Only Congress has the authority to amend the existing immigration laws.

(vi)       Once an individual’s DACA expires, will their case be referred to ICE for enforcement purposes?

Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

(vii)      Will USCIS share the personal information of individuals whose pending requests are denied proactively with ICE for enforcement purposes?

Generally, information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security or public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

(viii)    Can deferred action received pursuant to DACA be terminated before it expires?

Yes.  DACA is an exercise of deferred action which is a form of prosecutorial discretion. Hence, DHS will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

(ix)       Can DACA recipients whose valid EAD is lost, stolen, or destroyed request a new EAD during the phase out?

If an individual’s still-valid EAD is lost, stolen, or destroyed, they may request a replacement EAD by filing a new Form I-765.

(x)         Will DACA recipients still be able to travel outside of the United States while their DACA is valid?

Effective September 5, 2017, USCIS will no longer approve any new Form I-131 applications for advance parole under standards associated with the DACA program. Those with a current advance parole validity period from a previously-approved advance parole application will generally retain the benefit until it expires. However, CBP will retain the authority it has always exercised in determining the admissibility of any person presenting at the border. Further, USCIS retains the authority to revoke or terminate an advance parole document at any time.

The Department of Homeland Security reports that as of September 5, 2017:

  • From August through December 2017, 201,678 individuals are set to have their DACA/EADs expire. Of these individuals, 55,258 already have submitted requests for renewal of DACA to USCIS.
  • In calendar year 2018, 275,344 individuals are set to have their DACA/EADs expire. Of these 275,344 individuals, 7,271 have submitted requests for renewal to USCIS.
  • From January through August 2019, 321,920 individuals are set to have their DACA/EADs expire. Of these 321,920 individuals, eight have submitted requests for renewal of DACA to USCIS.

___________________________

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.

The U.S. Congress extended the EB-5 Regional Center Program through December 8, 2017, without reform, as part of a stopgap continuing resolution to fund the federal government (H.R.601), which the President signed into law on September 8.

The language in H.R.601 Section 106 states that the program is “extended to December 8,” which does not necessarily mean “guaranteed to remain unchanged until December 8.” Congress is reportedly actively working on a major EB-5 reform bill and they could come up with legislation before December that affects multiple visa categories including EB-5.

The extension was expected after the summer recess due to other congressional priorities, like hurricane-relief, tax reform, missile defense against North Korea and other military spending, and prolonged budget negotiations. Under the package approved Friday, government funding will run out on Dec. 8. The biggest fiscal fights of the year will now be pushed to December, when lawmakers typically are under pressure to reach deals before leaving for the holidays.

___________________________

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.

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” (August 11, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

As the September Visa Bulletin sets forth the final action dates for the last month of Fiscal Year (FY) 2017, this month Charlie provides his predictions on final action date movement in October and during FY 2018.         

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

EB-1 China and EB-1 India. The final action date of January 1, 2012, which was imposed in June 2017, will remain the same for EB-1 China and EB-1 India, as predicted. Based on current information, these categories will likely return to Current in October. However, Charlie will continue to monitor demand carefully between now and early September. A final action date will definitely be imposed again for EB-1 China and EB-1 India at some point during the summer of 2018.

EB-2 Worldwide. The final action date for EB-2 Worldwide advances nine months in September, from April 1, 2015, to January 1, 2016. This category will become current again on October 1, 2017, and it should remain current for the foreseeable future.

EB-2 India. Smaller than anticipated EB-3 to EB-2 upgrade demand allows EB-2 India to advance one month to August 22, 2008, for September. Members should expect additional, slow movement of a few weeks at a time starting in October. It is hoped that the final action date for EB-2 India will be advanced to a date in December 2008 at some point between January and April 2018, depending on the level of EB-3 upgrade demand. Charlie is also hopeful that the final action date for EB-2 India could advance to a date in 2009 at some point during the second half of FY 2018.

EB-2 and EB-3 China. In September, the final action date for EB-2 China will advance slightly to May 15, 2013, and the final action date for EB-3 China will hold steady at January 1, 2012. Members should expect to see a full recovery of EB-3 China in October, putting it once again ahead of the final action date for EB-2 China, creating conditions for EB-3 downgrades. EB-2 China should advance more swiftly than EB-2 India in the coming fiscal year, at a pace of three to six weeks per month.

EB-3 Worldwide. The EB-3 Worldwide final action date, which became current in August, is likely to remain current in October, absent significant demand materializing within the next few weeks. Demand for EB-3 Worldwide will have a significant impact on the ability of the EB-3 India final action date to advance significantly at the end of FY 2018, based on the availability of “otherwise unused” numbers.

EB-3 India. The final action date for EB-3 India advances three months in September to October 15, 2006, consistent with Charlie’s predictions. This category is expected to continue to advance at a pace of several weeks at a time as we enter the new fiscal year.

EB-3 Philippines. The final action date for EB-3 Philippines advances another five months to November 1, 2015, in September. Charlie speculates that demand in this category may materialize abruptly, but he does not expect that to occur until after the first of the year.

EB-5 China. The final action date for EB-5 China holds at June 15, 2014, in September. This category will sunset at the end of September if the program is not reauthorized by Congress. As in the past, the October Visa Bulletin will likely address the final action date that will apply to this category if it is reauthorized.

FB-1 and FB-4. As noted in the Visa Bulletin, high demand necessitated a temporary retrogression of the final action dates in the FB-1 and FB-4 Worldwide, China, El Salvador, Guatemala, India and Honduras categories for September. A full recovery of the final action dates for these categories will occur in October.

Special Immigrants. In September, the final action date for EB-4 India, Mexico, and El Salvador, Guatemala, and Honduras advances more than one month to October 22, 2015. EB-4 India will become current in October and will remain so until spring or summer 2018. Additionally, in October, it is possible that EB-4 Mexico will have a later final action date than the one imposed for EB-4 El Salvador, Guatemala and Honduras. If that should happen, it may only be temporary.

You may access the August 2017 Visa Bulletin here and the September 2017 Visa Bulletin here.

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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.

The US Citizenship and Immigration Service (USCIS) announced today, July 24, 2017, that it will again expand its resumption of premium processing for certain types of H-1B petitions.

Effective immediately, H-1B petitioners who are (or have a sound argument that they are) exempt from the H-1B cap, are eligible to request premium processing.  This includes petitioners that are:

  • An institution of higher education,
  • A nonprofit related to or affiliated with an institution of higher education, or
  • A nonprofit research or governmental research organization.

In addition, USCIS stated that it will resume premium processing for petitions that may be exempt “if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.”

This welcome news comes about a month after USCIS resumed premium processing of H-1B petitions for physicians under Interested Government Agency (IGA) J-1 waiver programs such as the Conrad 30 waiver program for shortage area physicians.  Employer’s petitioning for H-1B status for IGA-Waivered physicians became eligible for premium processing on Monday, June 26, 2017.

You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  In today’s announcement, USCIS indicated that it will further “resume premium processing of other H-1B petitions as workloads permit.”  So it appears that USCIS is on its way toward meeting the October time-frame.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.  Petitioners who aren’t eligible for premium processing, may of course, seek expedited processing based on such things as humanitarian reasons.

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2017 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

If you have enjoyed and valued our updates during the past year and believe the Immigration View blog deserves a spot in the top 100, we invite you to take a few moments to nominate us. Our goal is provide crucial updates and valuable information on the U.S. immigration landscape. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on July 30, 2017. Thank you in advance for your support!

Businesswomen filling paperwork for agreement
Copyright: bignai / 123RF Stock Photo

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17, 2017. On Sept. 18, 2017 and thereafter employers must use this revised form with a revision date of 07/17/17 N.  It is not necessary to complete new I-9 forms for current employees.  Use the new edition of the form for new hires and reverifications.

Revisions to the Form I-9 instructions:

  • USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • USCIS removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C.  Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3.  E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C#2 in List C.
  • USCIS renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C will change from List C #8 to List C #7.

These changes are also available in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also now available.

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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 Morristown, 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.