Final DHS Rule Published: "240-Day Rule" Now Includes E-3, H-1B1, and CW-1 Nonimmigrants

Earlier this year the Department of Homeland Security (DHS) published a Final Rule which extends the 240-day employment authorization rule to H-1B1, E-3, and CMNI (CW-1) workers, adds a "comparable evidence" provision for outstanding professors and researchers, and clarifies and updates several point regarding work authorization and extension filing procedures for the above nonimmigrant visa classifications.  On February 16, 2016, the final rule became effective, thus permitting E-3, H-1B1, and CW-1 nonimmigrant workers to now benefit from the rule permitting a 240-day extension of employment authorization following a timely-filed request for extension of stay.

Employers should keep this new rule in mind when documenting continued employment authorization during I-9 re-verification and discuss with immigration counsel if they have any questions regarding what documents serve as acceptable proof of continued employment authorization following this regulatory change.

Department of State March 2016 Visa Bulletin Summary

The Department of State released the March 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference category, there was forward movement in the Final Action date for EB-2 India, which advanced 2.5 months from August 1, 2008 to October 15, 2008.  The Final Action date for EB-3 India progressed just one month to July 15, 2004.  There was forward movement in both the Filing dates and the Final Action dates for EB-2 and EB-3 China.  For EB-2 China, the Filing date progressed 5 months from January 1, 2013 to June 1, 2013 and the Final Action date progressed 5 months from March 1, 2012 to August 1, 2012.  For EB-3 China the Filing date progressed 1 year and 7 months from October 1, 2013 to May 1, 2015 and the Final Action date progressed 8 months from October 1, 2012 to June 1, 2013.  Moreover, the Filing dates for EB-3 Worldwide and EB-3 Mexico will be current and the Final Action dates will progress 3 months from October 1, 2015 to January 1, 2016. EB-5 China Final Action Dates advanced by just 7 days from January 15, 2014 to January 22, 2014.  As of today, February 9, 2016, USCIS has not advised whether in March 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

District Court Judge Grants DHS's Request for Extension in STEM OPT Litigation

On Saturday, January 23, 2016, the U.S. District Court for the District of Columbia granted DHS's request for an extension of time to implement new STEM OPT regulations.  Originally, the Court stayed the invalidation of the current STEM OPT regulations and gave DHS until February 12, 2016, to implement the new rule.  On October 19, 2016, DHS published the new rule as part of the required notice and comment period. On December 22, 2016, DHS requested an extension of this deadline in light of the large amount of comments (over 50,000) the agency received during the notice period. This weekend, the District Court granted DHS's request for an extension to May 10, 2016, giving the agency almost three additional months to review the comments received during the notice period and publish a final rule.  

This extension comes as a welcome relief to STEM students given the uncertainty surrounding their status and employment authorization if DHS did not meet the original February deadline. DHS will hopefully provide clarification as to whether individuals with STEM extension requests pending at the time the new regulation takes effect will be eligible for a 17-month extension under the old regulation or a 24-month extension under the new regulation .  Students who will become eligible to file a STEM extension between now and May 10 should contact immigration counsel to discuss the timing of the filing prior to submitting their extension request.

D&S will continue to monitor the situation and provide updates as they become available.

USCIS Issues Draft Policy Memo Discussing “Comparable Evidence” Provision for O Visa Category

This week the United States Citizenship and Immigration Service (USCIS) issued a Draft Policy Memo addressing the comparable evidence provision for O nonimmigrant visas.  The Draft Memo indicates that adjudicators can take a “more flexible” approach to their review of other comparable evidence and need not accept such evidence only where the petitioner has established that the majority of the listed criteria do not readily apply to the beneficiary’s occupation.  Rather, the Draft Memo advises adjudicators that the comparable evidence provision was considered as a “catch-all” criterion to allow for additional evidence to be considered when the other enumerated criteria do not readily apply “in whole or in part” when evaluating a beneficiary’s eligibility.  

The Draft Memo further clarifies that the the best interpretation of the regulatory language, as a matter of policy, is to consider comparable evidence “on a criterion-by-criterion basis.”  Thus, adjudicators are instructed to consider evidence of equal significance demonstrating the beneficiary’s extraordinary ability when one or more of the listed criteria do not readily apply to the beneficiary’s occupation. Thus, while petitioners must still show that any of the particular O-1 criteria do not apply before submitting comparable evidence, they need not demonstrate that the majority of the criteria do not apply.  

The Draft Memo also reiterates that adjudicators should use both a quantitative and qualitative approach when assessing whether the evidence submitted demonstrates the beneficiary’s extraordinary ability.

In addition to the Draft Memo, USCIS has also issued a revised Draft RFE Template.  Comments on the Draft Memo and Draft RFE Template are due by February 22, 2016.

Department of State February 2016 Visa Bulletin Summary

The Department of State released the February 2016 Visa Bulletin today.  D&S provides a Monthly Summary of the family and employment-based priority dates.  This month, there was no forward movement in any employment-based or family-based Filing Dates.  For the employment-based preference category Final Action Dates, there was forward movement for EB-2 India, which advanced 5 months from February 1, 2008 to August 1, 2008.  EB-2 China advanced one month from February 1, 2012 to March 1, 2012. EB-3 Worldwide and Mexico remained unchanged and EB-3 China, India, and the Philippines all saw forward movement of between 1 and 3 months. EB-5 China Final Action Dates advanced by just 7 days from January 8, 2014 to January 15, 2014.  As of today, January 8, 2016, USCIS has not advised whether in February 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

DHS Proposes New Rule Impacting High-Skilled Nonimmigrant Workers

On the last day of 2015, The Department of Homeland Security (DHS) published a proposed rule entitled the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.  Some of the principal changes that the new rule would bring include:

• Clarifying and improving longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
• Better enabling U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 Petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
• Improving job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
• Clarifying when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I-140 petitions because the employer withdrew the petition or because the employer’s business shut down.
• Allowing certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:
  1. Are the beneficiaries of an approved I-140 petition;
  2. Remain unable to adjust status due to visa unavailability; and
  3. Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.
• Clarifying various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
• Establishing a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

The proposed rule appears to be an implementation of the immigration executive actions announced in November 2014, although DHS does not state this affirmatively. DHS will accept comments through February 29, 2016, and should publish a final rule by December 19, 2016, prior to the end of the current Administration.

D&S will continue to monitor developments with the proposed rule and provide updates as they become available.

D&S Update: STEM OPT Regulation

What's Happening

Several months ago, in August of 2015, the United States District Court for the District of Columbia vacated the Department of Homeland Security's (DHS) 2008 Science, Technology, Engineering and Mathematics (STEM) optional practical training (OPT) interim final rule finding that DHS failed to comply with the Administrative Procedure Act (APA) because it lacked sufficient good cause to bypass the requirements of advance notice and an opportunity for public comment. The district court the Court suspended the ruling from taking effect until February 12, 2016, to permit DHS time to promulgate a new rule and avoid the disruptive effect of vacatur on STEM employers and STEM students.

In response to the district court's order, DHS proposed a revision on October 19, 2015, providing only a 30-day public comment period, which is close to the minimum amount of time permitted. Still, DHS received more than 50,700 comments during the public comment period and, as a result, on December 22, 2015, the Department of Justice (DOJ) asked the court to “extend the stay of vacatur for approximately ninety (90) days, through May 10, 2016, providing for approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community.” On December 24, 2015, the district court gave the plaintiffs until January 11, 2016, to respond to DHS' request for an extension. 

What this Means

While the expectation is that the request will be granted in an effort to avoid the serious adverse impact this would have on students and employers,  if the court does not grant DHS' extension request, the current rule would expire effective February 13, 2016. If that happens, DHS has suggested that the agency may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.   

D&S will continue to monitor this developing situation and provide updates as they become available.

Omnibus Appropriations Bill Contains Fee Increase for H-1B and L-1 Supplemental Fees

The omnibus appropriations bill, which was singed into law last week, includes a provision to increase the H-1B and L-1 supplemental fees for companies with more than 50 employees, that have 50% or more of their employees in H-1B or L-1 status. The supplemental fees for L-1 petitions will increase from $2,250 to $4,500 and the supplemental fees for H-1B petitions will increase from $2,000 to $4,000.  Under the new law, these fees must be paid upon initial filing as well as for extension petitions.

This provision is effective immediately, which may impact individuals who filed petitions on December 18, 2015, or shortly thereafter, with the old fee amount.  It is unclear whether a grace period will be put in place which will allow USCIS to accept the case and then request the proper supplemental fee by issuing a Request for Evidence (RFE). 

Employers and attorneys should keep these fee increases in mind as we approach H-1B cap filing season.  The fees will be in effect for at least 10 years, until September 30, 2025, and are not expected to have a substantial impact on demand for either the H-1B or L-1 visa. 

D&S will continue to monitor and provide updates as they become available.

D&S Legislative Update: Omnibus Spending Bill Passed by the House, Up for Vote in the Senate

In the late hours of Tuesday evening, December 15, 2015, after days of intense negotiations, Congressional leadership announced that it has reached a sweeping year-end deal on the omnibus federal spending bill needed to continue to fund the Federal government. This announcement follows the five-day continuing resolution passed by Congress on December 10, 2015, to allow for additional time for the omnibus federal spending bill to be finalized and avoid a government shutdown.

On Thursday, December 17, 2015, the House passed the spending bill by a vote of 318 to 109.  The Senate is expected to vote on and pass the bill on Friday, December 18, 2015.  The omnibus appropriations bill contains a recommendation to extend the EB-5 program in its current form through September 30, 2016, without the widely discussed changes to the minimum investment amounts or the definition of Targeted Employment Area (TEA).  In addition to extending the EB-5 program, the bill will also extend other expiring immigration programs, including the E-verify program, Conrad 30 waivers for J-1 medical workers, and R-1 visas for religious workers. Finally, the bill contains reforms to the Visa Waiver Program (VWP), including the requirement that program users have electronic passports with biometric and biographic information and restricting use of the program for certain individuals who have traveled to Iraq, Sudan, Iran and Syria.

UPDATE: On Friday, December 18, 2015, the U.S. Senate approved the spending bill by a vote of 65 to 33. President Obama is expected to sign the bill into law no later than December 18th.

USCIS Announces Adjustment of Status Filing Dates for January 2016

USCIS has announced that for January, Family-Based Adjustment of Status applicants can use the "Filing Dates" listed on the Department of State's January 2016 Visa Bulletin. Employment-Based Applicants, however, can only use the "Final Action Dates" to determine when they are eligible to submit Adjustment of Status applications. 

Senate Approves Five-Day Funding Measure to Prevent Government Shutdown at Midnight

On December 10, 2015, the Senate unanimously approved a five-day funding measure to prevent a government shutdown at midnight tonight.  This extension is in addition to the Temporary Spending Measures passed by Congress on September 30, 2015 to prevent a government shutdown starting October 1, 2015.  If passed, the extension would give Congress until December 16, 2015 to pass a comprehensive $1.1 trillion spending package.

According to numerous reports, today the House is expected to vote on and pass the measure and President Obama is expected to sign the short-term continuing resolution into law, thus avoiding the shutdown at midnight. Once passed, the short-term continuing resolution will also extend EB-5, Conrad 30, Special Religious Workers, and E-Verify for five additional days. Several experts have indicated that Congress is close to passing the omnibus federal spending bill.

D&S will continue to monitor this developing situation and provide timely updates.

Department of State January 2016 Visa Bulletin Summary

The Department of State released the January 2016 Visa Bulletin today.  D&S provides a Monthly Summary of the family and employment-based priority dates.  This month, there was forward movement in the Filing Dates and the Final Action Dates for many of the family-based preference categories. For the employment-based preference categories, there was forward movement in the Final Action Date for EB-2 India, which advanced 8 months from June 1, 2007 to February 1, 2008 with the Filing Date remaining unchanged.  The Filing Date and Final Action Date for EB-2 China remained unchanged. The Final Action Dates for EB-3 Worldwide, China, India, Mexico, and the Philippines all saw forward movement of between 1 and 3 months.  The Filing Dates for EB-3 Worldwide and EB-3 Mexico advanced from September 1, 2016 to January 1, 2016, with the other EB-3 Filing Dates remaining unchanged.  The Filing Date for EB-5 China remained unchanged and the Final Action Date advanced by just under 1 month from December 15, 2013 to January 8, 2014. 

House Passes Vote to Restrict U.S. Travel by Foreign Nationals Who Have Visited Syria, Iran, IraQ or Sudan in the Last 5 Years

Today, in a 407-19 vote, the House passed legislation restricting certain travel privileges to nationals of visa waiver participant countries. The legislation, which has the support of the White House, is expected to be wrapped into the much-discussed government spending bill and become law in the next few weeks.

Rather than a comprehensive approach, this new legislation appears to be the first of what will be a piecemeal approach to implementing enhanced security measures in response to the November 13th Paris terrorist attacks and the recent shooting in San Bernardino, CA.  The legislation comes in the wake of the White House's release of a  Fact Sheet outlining new security enhancements that would be implemented immediately to add additional security measures to the Visa Waiver Program (VWP), which is a program that allows nationals of 38 member countries to enter the U.S. as a visitor for up to 90 days without procuring a visa.

The legislation would ban nationals of visa waiver countries who have traveled to Iran, Iraq, Sudan, or Syria since March 1, 2011 from traveling to the U.S. under the VWP. Such individuals must now obtain a visa to travel to the U.S., which requires an in-person interview at a U.S. Consulate or Embassy overseas.

D&S will continue to monitor the changes that are anticipated to be made to the Visa Waiver Program in the coming weeks and provide timely updates outlining new developments.

White House Releases Fact Sheet on Enhancements to Visa Waiver Program

This week the White House released a Fact Sheet detailing enhancements that are to be made to the Visa Waiver Program (VWP), which included several new security changes. The Administration explained that these enhancements are being implemented in the wake of last month's terrorist attacks in Paris.  

In addition to enhanced security measures already made to the program over the course of the last year, including new security-related data fields and new traveler screening and information sharing requirements with VWP countries, the new changes announced in the Fact Sheet aim to aggressively strengthen the VWP and bolster relationships with VWP partner countries on an accelerated basis.  More specifically, the Fact Sheet states that the Department of Homeland Security (DHS) will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. Additionally, the new enhancements will includes measures to evaluate and further facilitate terrorism-related information sharing between the U.S. and VWP countries including piloting real time biometrics checks on refugees and asylum seekers in WVP countries and working with Congress to increase penalties and fines for failure to comply with passenger screening requirements.  The Administration indicated that it is working with Congress to provide statutory authority for many of the key security enhancements it has proposed to the VWP.

The Fact Sheet follows a Statement issued by DHS Secretary Jeh Johnson on August 6, 2015 discussing steps that have been taken to strengthen the screening of those who are traveling to the United States, including security enhancements to the VWP.

Elimination of Visa Page Inserts for U.S. Passports

The U.S. Department of State announced that beginning January 1, 2016, DOS will no longer add visa pages into U.S. passports. As a result of this policy change, applicants in need of additional pages in their valid passports must obtain a new passport by mail. Previously, U.S. passport holders had the option to pay for the insertion of 24 additional visa page inserts into their current, valid passport if it lacked adequate space for entry or exit visa stamps.

Requests for additional 24 page visa inserts will only be accepted until December 31, 2015. Beginning January 1, 2016, applicants in need of additional pages in their passports must obtain a new passport by mail.

DOS indicates that this decision was made to enhance the security of the U.S. passport and in adherence with international passport standards.

Applicants with passports without adequate space for visa stamps are encouraged to apply for their new passport as early as possible in advance of travel.