The State Department is expected to announce significant reforms to the employment-based immigrant visa (“green card”) categories in their monthly Visa Bulletin, the document used by the State Department to provide predictions on upcoming immigrant visa availability. The agency is expected to make an announcement in the coming week explaining how it will reform and modernize the way green card availability is regulated. These reforms are largely in response to President Obama’s November 2014 Executive Action on Immigration calling for measures to enable individuals to file their adjustment of status applications before their priority dates become current.
Read MoreUSCIS Releases Final L-1B Adjudications Policy Memorandum
This week, USCIS released a policy memorandum which consolidated previously issued guidance related to the L-1B nonimmigrant visa classification which permits multinational companies to transfer employees who possess “specialized knowledge” to the United States.
The policy memo, which supersedes and rescinds certain prior L-1B guidance, is applicable to all USCIS employees and directs officers adjudicating L-1B petitions to "apply the statutory and regulatory criteria for L-1B classification in a manner consistent with this guidance."
Read MoreUSCIS Modifies Preparer's Declaration on Form I-129
Today, August 17, 2015, USCIS published a new version of Form I-129, Petition for a Nonimmigrant Worker, which includes a revised version of the "Preparer's Declaration" section.
The revisions come following changes made to in the Preparer's Declaration in the version of the Form I-129 with an an edition date of October 23, 2014. In that version, the I-129 Preparer's Declaration included the following language:
By my signature, I certify, swear or affirm, under penalty of perjury, that I prepared this form on behalf of, at the request of, and with the express consent of, the petitioner. I completed the form based only on responses the petitioner provided to me. After completing the form, I reviewed it and all of the petitioner's responses with the petitioner, who agreed with every answer provided for every question on the form and, when required, supplied additional information to respond to a question on the form.
Many practitioners felt this wording, which appeared to dictate the procedures used by preparers and their clients to gather the information required to complete petitions for immigration benefits, imposed an undue burden on preparers and petitioners alike. The revised Preparer's Declaration now reads:
By my signature, I certify, swear, or affirm, under penalty of perjury, that I prepared this petition on behalf of, at the request of, and with the express consent of the petitioner or authorized signatory.
The petitioner has reviewed this completed petition as prepared by me and informed me that all of the information in the form and in the supporting documents, is complete, true, and correct.
The new language appears to be more in line with the applicable regulations which require that preparers and petitioners certify that the documentation and information submitted to USCIS is true and correct but does not mandate any specific procedures for preparation and review.
U.S. Federal Court Order Invalidates OPT STEM Extension Rule
The United States District Court for the District of Columbia issued an order finding invalid the 2008 interim Department of Homeland Security (DHS) rule that provides for a 17-month extension of F-1 Optional Practical Training (OPT) for students with degrees in Science, Technology, Engineering, and Math, commonly referred to as “STEM extensions” or “STEM OPT.”
The rule was issued as an interim rule without a notice and comment period in order to combat issues faced by U.S. employers in the technology sector who were unable to retain skilled workers due to the unavailability of H-1B visas. However, the Court found that in implementing the rule without providing the public adequate notice of the regulation or the opportunity to provide comment, DHS failed to comply with the requirements of U.S. administrative procedures law and held that the rule was invalid as a result.
The Court, however, recognized that immediately vacating the validity of STEM OPT would be unduly harsh causing both hardship to F-1 students currently working in the U.S. on STEM OPT as well as a significant labor disruption in the technology sector. Therefore, the Court suspended the ruling from taking effect until February 12, 2016, during which time DHS must comply with its notice and comment obligations.
What this Means
The Current STEM OPT regulation will remain in effect until February 12, 2016. Therefore, F-1 students working pursuant to STEM OPT will remain authorized to work, so long as their STEM employment otherwise meets the current STEM OPT criteria, which require that (1) the STEM worker’s employment is related to their STEM degree and (2) the STEM worker’s employer is a currently-enrolled E-Verify user.
Pending additional USCIS guidance clarifying how the agency will handle current and new STEM OPT extension requests, which the agency is expected to issue in the coming weeks, the current rules of the program should remain in effect meaning that (1) USCIS should continue adjudication of currently pending STEM OPT extension applications; (2) eligible STEM grads should be able to file new STEM OPT extension requests; and (3) timely-filed STEM extension applications should allow F-1 students to remain work authorized for 180 days following the expiration of their initial F-1 OPT work authorization.
Things to Keep in Mind
DHS is expected to comply with the notice and comment requirements by the February 12, 2016 deadline. The new proposed rule that DHS will issue for notice and comment is expected to also incorporate elements of President Obama’s proposed regulation enhancing employment authorization options for F-1 students in STEM fields and strengthening the ability of employers sponsoring high-skilled worker visas to simultaneously support education and training to grow the next generation of American workers in STEM careers.
D&S continues to closely monitor developments following the District Court’s ruling and will provide timely updates as further information becomes available.
EB-5 Alert: USCIS Message Warns that Certain Regional Center Naming Conventions May Violate Federal Law
This week, the Public Engagement Division of the United States Citizenship and Immigration Service (USCIS) issued an alert to Stakeholders reminding them that EB-5 regional centers and any related commercial enterprises affiliated with the regional center should not contain the words "United States," "U.S.," "US," and "Federal" in their names. USCIS explained that such words may falsely imply a relationship between the entity and the U.S. government and, thus, using these names on website and promotional materials could be considered a deceptive act or practice or constitute false advertising in violation of federal unfair trade and false advertising laws.
USCIS also warned that any business operating in the financial services sector should not have advertisements containing the words "Federal" or United States," as such language could constitute false advertising or misuse of names to indicate a federal agency, both of which are violations of federal law.
In cases where the Immigrant Investor Program Office (IPO) - the office that adjudicates EB-5 petitions nationwide - determines a regional center or related commercial enterprise has a questionable name or has employed questionable language in advertisements, it may refer the case to the Federal Trade Commission or Department of Justice, as appropriate, for further action.
EB-5 investors and practitioners should continue to review all regional center materials and advertisements closely and carefully to ensure that no questionable naming conventions or advertising language is used that could subject the regional center to federal investigation.
DEPARTMENT OF STATE SEPTEMBER 2015 VISA BULLETIN SUMMARY
The Department of State released the September 2015 Visa Bulletin today. D&S provides a monthly Summary of the family and employment based priority dates. This month, there was forward movement in most family-based and employment-based visa categories with the exception of EB-2 India and China, both of which retrogressed to January 1, 2006 (a retrogression of almost 3 years for EB-2 India and almost 8 years for EB-2 China). EB-3 India and China both progressed over 6 months from June 1, 2004 to December 22, 2004. EB-5 China, which retrogressed for the first time in June 2015, experienced a moderate progression from September 1, 2013 to September 22, 2013.
USCIS Issues Draft EB-5 Policy Guidance In Wake of EB-5 Priority Date Retrogression
USCIS issued a Draft Policy Memorandum today, August 10, 2015, in anticipation of continuing issues regarding visa availability in the wake of the August 2014 retrogression of EB-5 visas for nationals of mainland China, which marked the first time in the history of the EB-5 Program that demand for visas exceeded availability. Because EB-5 China retrogression is anticipated to extend into the foreseeable future, the Draft Memo provides additional guidance for two EB-5 eligibility grounds that may be affected by visa retrogression, namely, (1) the job creation requirement and (2) the requirement to sustain the investment during the conditional residence period. While doing little to change the actual policies in place regarding job creation and the sustained, at risk investment requirements, the Draft Memo does provide some examples of how investors may comply with these requirements even in the face of visa retrogression.
Read MoreDHS Announces Intention to Implement Security Enhancements to Visa Waiver Program
On August 6, 2015, Secretary of the Department of Homeland Security ("DHS"), Jeh Johnson, released a statement announcing DHS and the State Department's intent to implement a number of additional or revised security criteria for all participants in the Visa Waiver Program ("VWP"). These criteria will apply to both new and current members of the Program. In addition, these enhancements are intended to build upon the additional data fields of information added to the Electronic System for Travel Authorization ("ESTA") application last fall.
The most significant of the new security enhancements include:
- The requirement that VWP members use e-passports for all travel to the U.S.
- The requirement that the INTERPOL Lost and Stolen Passport Database be used to screen travelers crossing the borders of a VWP country.
- Permission for expanded use of U.S. federal air marshals on international flights from VWP countries to the U.S.
Secretary Johnson's statement emphasized that the new measures were intended to enhance security without hindering lawful trade and travel between VWP participating countries.
D&S Summary of White House REPORT on "Modernizing & Streamlining Our Legal Immigration System"
As a follow up to the directives in Presidents Obama's Executive Action on Immigration in November 2014, the White House has released a report detailing how technology can be used to create a comprehensive, clear, and user-friendly online visa processing system that would resolve many of the issues of the current “antiquated” system whereby physical documents travel thousands of miles, wasting both time and money. The report is aimed at boosting the American GDP by billions, expanding the labor force, and raising wages over the next decade using interagency digitization for data transparency, accuracy, and availability. There are also proposals for clearer and more accessible instructions, statistics, and policy guidance.
Read MoreU.S. EMBASSY IN HAVANA, CUBA NOW OPEN
A significant step towards the Obama Administration's normalization of diplomatic relations between the U.S. and Cuba occurred July 20, 2015, when the U.S. Embassy in Havana, Cuba was reopened after 54 years. The Embassy, which has been closed since January 1961, now has an active website and is accepting interview appointments for both nonimmigrant and immigrant visa processing.
USCIS Releases Final Guidance On When H-1B Amendments Are Required Following AAO's Simeio Decision
On July 21, 2015, USCIS issued a new policy memorandum providing final guidance on when employers are required to file H-1B amendments following a change in job site location for their H-1B employees. The final guidance clarifies issues raised both in the April 9, 2015, Administrative Appeals Office (AAO) decision, Matter of Simeio Solutions, LLC as well as in USCIS's draft guidance on this topic issued May 21, 2015.
Read MoreUSCIS Resumes Premium Processing Service for H-1B Extensions
USCIS announced that as of July 13, 2015, the agency has resumed Premium Processing Service for all H-1B extension petitions and will accept I-907 Premium Processing requests on any H-1B extension petition, including pending petitions filed during the premium processing moratorium. Premium Processing requests for these cases received by USCIS before July 13, 2015, however, will still be rejected.
DEPARTMENT OF STATE AUGUST 2015 VISA BULLETIN SUMMARY
The Department of State released the August 2015 Visa Bulletin this week. D&S provides a monthly Summary of the family and employment based priority dates. This month, there was forward movement in most employment-based visa categories with the exception of EB-3 China, which retrogressed over 7 years from September 1, 2011, to June 1, 2004, due to high demand. There was a progression of 4 months for EB-3 India to June 1, 2004. Additionally, EB-2 India remained unchanged and EB-2 China progressed 2.5 months to December 15, 2013. EB-5 China, which retrogressed for the first time in June 2015, remains at September 1, 2013.
All Consular Posts Back Online Following Technological Systems Issues
The most recent alert by the Department of State (DOS) indicates that all visa-issuing embassies and consulates are now back online, scheduling visa interviews and issuing nonimmigrant and immigrant visas.
DOS reports issuing more than 300,000 nonimmigrant visas during the week of June 22, 2015 alone and that Consular staff worked this past weekend to help clear the backlog created by the system issues. DOS expects the backlog will be cleared entirely by early this week.
UPDATE: 165 Consular Posts (85% of Nonimmigrant Visa Demand) Back Online
The most recent alert by the Department of State (DOS) indicates that 165 consular posts, representing more than 85 percent of the worldwide nonimmigrant visa demand, are now online and issuing visas. With the system largely restored, consular posts overseas issued more than 82,000 visas on June 24th and more than 238,000 non-immigrant visas this week alone.
D&S will continue to provide updates as they become available.
UPDATE: Technological Issues with Overseas Passport and Visa Systems
The Department of State (DOS) continues to experience technical difficulties with its overseas visa and passport systems but the most recent DOS alert indicates that the database responsible for handling biometric clearances has been rebuilt and that as of June 23, 2015, 39 posts are now online and issuing visas.
DOS will continue to bring additional posts online and expects the system will be fully reconnected and operational this week.
During the outage, applicants faced significant delays in visa issuance and appointment scheduling, though DOS issued approximately 1,250 visa to temporary and seasonal workers and more than 3,000 visas for urgent and humanitarian travel during this period.
While the residual delays persist, individuals have received their passports with visa stamps from several consulates, noting that most of these individuals appear to have submitted their DS-160, Online Nonimmigrant Visa Applications, before June 8, 2015. DOS indicates that interviews will now become available for those applicants who applied after June 8, 2015, and that many consular posts will begin rescheduling appointments as early as today, June 24, 2015.
Once fully operational, the DOS confirms it will continue to work as quickly as possible to clear the pending visa application backlogs, giving priority to assisting individuals with urgent humanitarian travel needs and confirms that adoption cases are still being processed.
D&S will continue to monitor the situation and provide updates as they become available.
D&S REMINDS INTERNATIONAL STUDENTS AND EXCHANGE VISITORS TO BE PREPARED FOR JUNE 26TH SEVIS OUTAGE
The United States Citizenship and Immigration Service (USCIS) issued a statement reminding F and M students as well as J exchange visitors to be prepared for the upcoming Student and Exchange Visitor Information System (SEVIS) outage scheduled to start the evening of June 26th. In it's statement, USCIS announced that there will be important updates made to SEVIS, which, as a result, will be unavailable beginning at 8:00 pm EDT on Friday, June 26, 2015, through 8:00 pm EDT on Sunday, June 28, 2015.
D&S encourages F, M, and J visa holders to be prepared for delays if they have scheduled international travel during which they will be applying for a new visa stamp or reentering the U.S. during the outage period.
USCIS indicates that several important SEVIS services will be unavailable during the outage including possible delays for U.S. student visa issuance, and directs potentially impacted individuals to check with their local U.S. Department of State embassy or consulate for more information about the effects of the outage of visa issuance.
Additionally, USCIS warns F and M students returning to the U.S. during the outage to expect delays at U.S. ports of entry and notes that international students whose "information cannot be verified during primary inspection will be sent to secondary inspection where they can expect additional significant delays in entering the country."
USCIS also indicates that the I-901 SEVIS Fee payments on FMJFee.com will be unavailable during this time and, thus, students and exchange visitors should make payments before June 26 to avoid the need to wait until the outage is over. USCIS notes that although payments will not be accepted, F and M students will still be able to print their payment confirmation receipts from the website.
Finally, USCIS notes that the outage could result in delays for students and exchange visitors applying for social security numbers or U.S. driver's licenses and advises potentially impacted individuals to check with their local Social Security Administration or Department of Motor Vehicles.
DEPARTMENT OF STATE ANNOUNCES TECHNICAL PROBLEMS WITH OVERSEAS VISA AND PASSPORT SERVICES
Today the Department of State (DOS) issued an announcement confirming that it is experiencing technical difficulties with its overseas visa and passport systems. The DOS confirmed that these technical problems are not specific to any particular country, document, or visa category but that the problem is a "global" one impacting all consular operations. The DOS does not expect the problem to be fixed before next week and, as a result, individuals with pending applications for visa stamps may experience delays in visa stamp issuance and those with upcoming visa interview appointments may be required to reschedule their appointments.
Once fully operational, the DOS confirms it will work as quickly as possible to clear the pending visa application backlogs. Currently, the DOS is giving priority to assisting individuals with urgent humanitarian travel needs and confirms that adoption cases are still being processed.
D&S will continue to monitor the situation and provide timely updates as they become available.
DEPARTMENT OF STATE JULY 2015 VISA BULLETIN SUMMARY
The Department of State released the July 2015 Visa Bulletin this week. D&S provides a monthly summary of the family and employment based priority dates. This month, EB-3 China remained unchanged and there was a modest progression of one week for EB-3 India. Additionally, EB-2 India remained unchanged and EB-2 China progressed 4 months from June 1, 2013 to October 1, 2013. EB-5 China, which retrogressed for the first time in June 2015, has progressed 4 months from May 1, 2013 to September 1, 2013.
DHS Publishes Final Rule on ESTA and Visa Waiver Program
On Monday, June 8, The Department of Homeland Security (DHS) published its final rule on the Electronic System for Travel Authorization (ESTA), which is the online pre-verification system used for individuals traveling to the U.S. under the Visa Waiver Program (VWP). DHS adopted the rule as final with one substantive change, interim amendments regarding requirements for use, and the establishment of a $4 fee for use of the system which will take effect starting in October 2020. The rule becomes effective on July 8, 2015.