September 2016 – Monthly AILA Check-In with Charlie Oppenheim

Posted in Check-In with Charlie Oppenheim, Immigrant Visa, Visa Bulletin

After the release of the October Visa Bulletin, Charlie Oppenheim, Chief of Visa Control and Reporting Division for the U.S. Department of State (DOS), provided his predictions on the future movement in the employment-based green card categories.  They are summarized below:

EB-1 China and India

In the October bulletin, final action dates for India and China will be current. Charlie predicted that EB-1 China and EB-1 India will remain current for the foreseeable future unless demand gets higher than current levels.

EB-2 and EB-3 China

EB-2 China will have a final action date of February 15, 2012, almost one year behind EB-3 China’s final action date of January 23, 2013. Thus, many applicants may start considering the EB-3 downgrade again for FY2017.  Charlie indicated that he did not advance either of these final action date to the full number use target given the likelihood of demand at USCIS that is not yet visible and to minimize the need for corrective action later in the fiscal year.  He also noted that he hopes to keep the final action dates for EB-2 and EB-3 China as close to one another as possible.

EB-2 and EB-3 India

Charlie predicted the final action date for EB-2 India would advance to January 15, 2007 in October and he was correct. Charlie mentioned that he expects this category will advance at a pace of up to four months at a time.  Slower movements are anticipated for EB-3 India, which will advance to a March 1, 2005 final action date in October.  It is important to note that Charlie speculated that usage for EB-3 India is expected to be high in October, which will decrease the amount of numbers he can allocate in November and December. This will definitely slow the advancement of this category.

EB-2 and EB-3 Worldwide

As predicted by Charlie,  EB-2 Worldwide will again be current in October and ahead of EB-3 Worldwide which will have a final action date of June 1, 2016.  He also predicts that the demand EB-2 Worldwide will increase significantly in October and there could be a cut-off date during the first half of the fiscal year.

EB-3 Philippines

The final action date for EB-3 Philippines will be December 1, 2010 in October. Charlie predicts this category to initially move up to three weeks per month.  It is possible that the final action date will move through 2011 and that it will be well into 2013 by the end of the fiscal year, but that will be updated as it progresses.

 

USCIS Announces Fall 2016 Issuance of New Form I-9 Version; New Version Will Be Mandatory January 2017

Posted in Employment Authorization, Employment Verification, Form I-9, I-9 Audit

USCIS with flagOn Sept. 12, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification, on Aug. 25, 2016. After receiving over 130,000 stakeholder comments in response to the proposed issuance of a new Form I-9, USCIS will publish the revised form version by Nov. 22, 2016. Employers should continue using the current version of the Form I-9 (with a revision date of 03/08/2013 N) until the agency provides further notice about the new form version’s availability. The current form will be acceptable for use until Jan. 21, 2017. After this date, all prior versions of the form, including the current version, will be invalid. 

Please continue to visit the Inside Business Immigration blog for updates about the new Form I-9 and other immigration developments.

 

DHS Expands and Extends Employment Authorization and Suspension of Certain Conditions for Eligible F-1 Students with Syrian Citizenship

Posted in Department of Homeland Security, Employment Authorization, Immigration and Nationality Act

On Sept. 9, 2016, the U.S. Department of Homeland Security (DHS) extended the suspension of certain requirements for F-1 students with Syrian citizenship who can demonstrate severe economic hardship resulting from Syria’s continuing civil unrest.  The notice also extends the effective date of the previously announced authorization period through March 31, 2018 and expands the application of the suspension to Syrian nationals who lawfully obtained F-1 status between the date of the original notice and Sept. 9, 2016.

The agency’s action, which is expected to affect approximately 700 individuals, applies exclusively to F–1 students of Syrian citizenship who were lawfully present in the United States in F–1 status on or after April 3, 2012, through Sept. 9, 2016, under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i); and who are:

(1) Enrolled in an institution that is Student and Exchange Visitor Program (SEVP)-certified for the enrollment of F–1 students;

(2) Currently maintaining F–1 status; and

(3) Experiencing severe economic hardship as a direct result of the ongoing civil unrest in Syria since March 2011.

Importantly, this policy, which enables eligible F-1 students to receive employment authorization, work an increased number of during in-session periods of schooling, and reduce the minimum number of courses required to validly maintain F-1 status, applies to undergraduate and graduate students, as well as to elementary school, middle school, and high school students, with additional requirements.

Greenberg Traurig’s Jennifer Hermansky Selected as one of The Legal Intelligencer’s 2016 ‘Top Women in Law’

Posted in Awards & Recognitions

hermanskyThe Legal Intelligencer’s editorial staff selected the top 25 attorneys across Pennsylvania for the 2016 Top Women in Law recognition. This year, Greenberg Traurig attorney Jennifer Hermansky was recognized and included on the list.  The attorneys listed were selected for their notable achievements in the practice of law.  To read the full article, click here.

Jennifer Hermansky focuses her immigration practice on both employment-based and family-based immigration. Specifically, she focuses her practice on EB-5 immigrant investor visas. She has prepared and filed many immigrant investor visa petitions, both through individual investments and regional center investments. Additionally, she regularly works with developers across a variety of industries seeking capital for new projects that qualify for EB-5 investments.  She regularly counsels clients on raising EB-5 funds for real estate developments, hotels, and assisted living facilities, among many others; she has advised clients in the structuring of several billion dollars in capital raising activities that qualify for EB-5 financing. She is regularly featured as an author and speaker at both national and international conferences and she currently serves on the Board of Governors of the American Immigration Lawyers Association.

Department of State Issues October 2016 Visa Bulletin

Posted in Department of State, EB-3, EB-5 Program, USCIS, Visa Bulletin, Visas

This week, the Department of State released the Visa Bulletin for October 2016.

EB-5

Unfortunately, the expected movement as the U.S. government begins a new fiscal year did not materialize for the EB-5 visa category. The date for final action for the EB-5 visa category for mainland China born applicants advanced only one week from Feb. 15, 2014, in September, to Feb. 22, 2014, in October. Furthermore, the filing date chart retrogressed by over a year, retreating from May 2015 in September to June 2014 in October. Many in the EB-5 industry had been hoping for significant advancement. Lastly, due to the sunset of the EB-5 Regional Center Program on Sept. 30, 2016, the corresponding sections of the visa bulletin are listed as “U” for “unavailable.” Those sections will automatically become current without any changes to the posted visa bulletin if the laws authorizing the EB-5 Regional Center Program are extended.

EB-1 AND EB-2

With respect to the other visa categories, there was positive movement. The EB-1 category for mainland born China and Indians is now current, a significant jump of over six years from the September 2016 bulletin. Furthermore, the worldwide EB-2 category moved to current and the mainland born China and India categories moved forward approximately two years. The India category for EB-2 has now moved approximately three years in the past few months, which is surely welcome news for those individuals.

EB-3

In the EB-3 category, the cutoff date for worldwide chargeability, as well as El Salvador, Guatemala, Honduras, and Mexico moved forward a month from May 2016 to June 2016. There was further welcome news for mainland born China as the EB-3 category moved forward three years from January 2010 to January 2013. Unfortunately, this positive movement in the EB-3 category did not extend as far for India, as the EB-3 category for India only moved forward by two weeks from Feb. 15, 2005, to March 1, 2005.

With regard to those seeking to file applications for adjustment of status, the U.S. Citizenship & Immigration Service (USCIS) website indicates that the “Final Action Dates” chart for employment-based applications must be used in determining when an applicant is eligible to file Form I-485. It is expected that within the next few days USCIS will announce whether or not this chart can be used.

Please see below for the employment-based category Final Action Dates and Filings Date charts:

FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

Oct. Visa bulletin chart 1

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

USCIS Expands Eligibility for Unlawful Presence Provisional Waiver

Posted in Department of State, Immigrant Visa, USCIS, Visa Bulletin, Visa Waiver Program, Visas

shutterstock_149013524In July 2016, USCIS announced a final rule expanding eligibility of immigrant visa applicants to provisional waivers of unlawful presence under INA section 212(a)(9)(B). Under the former rule promulgated in 2013, only applicants immigrating as immediate relatives (i.e., spouses, parents, or unmarried children of U.S. citizens under 21) could qualify for the waiver of the three or 10 year bar due to unlawful presence. The new rule now allows anyone, regardless of their immigrant classification, to qualify for the waiver provided they meet the other requirements.

The waiver rule was established to promote family unity, and the 2016 changes contribute to this goal. The change in eligibility is significant, as it allows applicants who would have immigrant visas based on family, employment, diversity, or special immigrant status to apply. Additionally, under the previous waiver rule, an applicant was not eligible if the Department of State initially acted before January 3, 2013 to schedule the immigrant visa interview; now with the new rule, the temporal limitations based on interview scheduling have been eliminated, considerably expanding eligibility. However, there are still many critical nuances and limitations to the waiver rule.

For example, the requirement that the applicant must be able to demonstrate the risk of extreme hardship to a qualifying relative has not been changed – specifically, the guidelines of who is considered a qualifying relative have not expanded, as this is a statutory definition that USCIS cannot change. Under the 2016 rule, the qualifying relative must still be a U.S. citizen spouse or parent, and concrete evidence of the relationship must be provided. To be granted the waiver, the applicant must prove that its denial would cause extreme hardship to this qualifying relative, should he or she choose to remain in the United States without the applicant or choose to relocate outside the country with the applicant. Further guidance on what qualifies as “extreme hardship” is expected to be released by USCIS shortly.

Furthermore, waivers are still not available to immigrant applicants applying for adjustment of status; rather, the waiver is for those who undergo consular processing. As per the original rule released in 2013, the waiver is meant to reduce the time that applicants are separated from family members by allowing them to apply for the waiver with USCIS before departing the United States for their immigrant visa interview at a consular post abroad. Note that the Visa Bulletin will be an important consideration in the provisional unlawful presence waiver process now that applicants of all immigrant visa categories are eligible. Their Priority Date must be current for applicants to apply for the waiver with USCIS, and proof of payment of their visa fee bill should be included in the waiver application.

There are also very specific procedural issues applicable to foreign nationals in removal proceedings regarding when they should apply for the waiver with USCIS. The 2016 rule still does not provide interim benefits such as Employment Authorization Documents to waiver applicants. Importantly, the expansion of the waiver does not affect other grounds of inadmissibility: it applies only to unlawful presence grounds, and other inadmissibility concerns may still be considered aggravating factors. The decisions to grant the waiver and then the immigrant visa remain discretionary based on many considerations.

The rule, along with the corresponding changes to Form 601A, Application for Provisional Unlawful Presence Waiver went into effect on August 29, 2016. USCIS is now only accepting 601A forms with edition date 07/29/2016.

The Logic of Immigration Policy Reform – It’s about People and That’s why the Policy is so Difficult

Posted in Immigration Law, Immigration Reform

US governmentImmigration Policy is broken.  We all agree.  How should we fix it and why haven’t we been able to fix it over the last two decades?   There is a multifaceted answer to this question, but Congress has been unable to agree on how to deal with the policy changes.  We have had numerous attempts and even many pieces of legislation passed that address one or more parts of the policy reforms.  Although successful in addressing some policy reform issues, Congress still needs to pass legislation to complete the needed reforms.

Why is it so difficult?   It might have something to do with the complex policy issues.  Immigration is about people coming into our country as visitors, family members, and employees of our businesses and even as refugees; people from different parts of the world — different cultures, religion, and ethnicities.  This human component seems to have stymied our legislators.

There is a fair amount of rhetoric about why our policies should be changed in one way or another, but a lot of the rhetoric doesn’t address the real policy issues in a systemic way.

We know what needs to be addressed.  For simplicity sake let’s break it down into four parts:

(1) border security;

(2) interior enforcement;

(3) legal immigration reform for the immigrant and non-immigrant visa system; and

(4) a plan for the current undocumented people in the U.S.

We should be able to come up with revisions to our current law that address these issues.  Indeed the Senate has passed two major comprehensive immigration reform bills in the last 10 years that does just that. The Comprehensive Immigration Reform Act (S. 2611) was passed by the Senate in 2006. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S.744) was passed by the Senate in 2013. The House has also tackled these key issues in introduced bills and has proposed a step-by-step approach to a legislative fix. The architecture and blue prints for reform exist. We now need to address real policy issues and make our immigration laws function the way they should for our businesses, our economy, our families and for our national and our international obligations.

July 2016 “SEVIS by the Numbers” Report Indicates Growth in the Number of International Students Studying in the United States

Posted in E-Verify, Employment Authorization, H-1B, Immigrant Visa, OPT, STEM, STEM OPT, The Student and Exchange Visitor Information System (SEVIS)

shutterstock_98569004This week, the Student and Exchange Visitor Program (SEVP) published its quarterly “SEVIS by the Numbers” report announcing that there are over one million international students in the United States.  Many of these students will seek employment with U.S. companies using work authorization granted to them pursuant to their F or M visa status.  In response to this growing population, employers must familiarize themselves with certain compliance requirements that were passed in May 2016, as outlined below.

By way of background, the SEVP monitors F and M students and their dependents while in the United States to ensure that rules and regulations are followed by international students. Additionally, the SEVP manages the Student and Exchange Visitor Information System (SEVIS), which contains information on international students and the schools that enroll them.

According to the July 2016 “SEVIS by the Numbers” report, published on Aug. 30, there are 1.11 million international students with F (academic) or M (vocational) status enrolled at schools in the United States as of July 2016, demonstrating a 5.5 percent increase from July 2015. The top three countries of citizenship of these international students are China, India and South Korea. By continent, 77 percent of all F and M students originate from Asian nations, followed by 7 percent from Europe, 6 percent from North America, 5 percent from South America, 4 percent from Africa and 0.5 percent from Australia/Pacific Islands.  The report also provides statistics on F and M students by gender, indicating that 57 percent of all F and M students studying in the United States are male. According to the report, Eastern Europe sends the most females (57 percent of F and M females studying in the United States) and Western Asia the most males (76 percent of males studying in the United States).

Further, the July 2016 report indicates that 42 percent of all F and M students (or 466,964) are studying in STEM fields. Thus, the number of active STEM F and M students studying in the United States has increased by 15.2 percent since July 2015. Of the 466,964 F & M students studying in STEM fields in the United States, 87 percent (406,732) originate from Asia.

Pursuant to the May 10, 2016 STEM OPT extension rule, students who have earned a STEM degree from a U.S. school are eligible for a 24-month extension of their Option Practical Training (OPT), for a total opportunity of up to 36 months of employment authorization in the United States (a seven-month increase from the prior 17-month STEM OPT extension). The extended time period offers a number of benefits to both international students and U.S. employers wishing to hire them. Most notably, the seven-month extension provides F-1 STEM OPT holders additional opportunities to be selected in the annual H-1B lottery. As the number of international students continues to rise, the annual H-1B cap will continue to be challenged, heightening the benefit of additional opportunities to apply under the H-1B cap.

In addition to offering substantial benefits, the May 10 rule imposes additional compliance requirements on STEM OPT employees, their schools and their employers:

  • In order to employ an F-1 STEM OPT holder for the duration of his or her 24-month extension, the employer must have a Federal Employer Identification Number (FEIN) and be enrolled in E-Verify.
  • STEM OPT employees must work with their employer to complete Form I-983 “Mentoring and Training Plan.” Employers must evaluate student progress by signing an evaluation on an annual basis – first during the initial 12-month period and finally at the conclusion of the STEM OPT extension.
  • Employers are required to attest that they are not replacing full- or part-time, temporary or permanent U.S. employees with STEM OPT employees.
  • Employers must report the early departure of a STEM OPT employee to the student’s Designated School Official (DSO) within five days of departure when the student terminates or departs his or her employment before the end of the authorized OPT period.
  • Employers of STEM OPT employees are required to guard against adverse action to full- or part-time U.S. employees by ensuring the STEM OPT employee’s duties, hours, and compensation are commensurate with similarly situated U.S. employees; the company has sufficient resources and trained personnel available to provide training in the specified opportunity; and the opportunity will help the student attain his or her training objectives.
  • STEM OPT employees must update their DSO about any personal name or address changes, as well as any changes to his or her employer’s name or address.
  •  STEM OPT extensions are only available to students with degrees from school accredited by an accrediting agency recognized by the U.S. Department of Education.

Further, under the new STEM OPT rule, DHS will conduct announced and unannounced employer-site visits to ensure that international students and employers are following the formal training plans that were provided to DHS in order to obtain STEM OPT extensions.

In light of the increasing number of international students, employers should be aware of the updated requirements for STEM OPT extensions. U.S. employers should also verify these employees’ need to change to H-1B status to ensure continued work authorization beyond the expiration of their OPT. U.S. employers should plan to file all H-1B cap petitions for FY2018 by March 31, 2017.

U.S. Department of Justice Announces Proposed Rulemaking Revisions to Grounds for and Investigations of Unfair Immigration-Related Employment Practice Allegations

Posted in Department of Justice, Discrimination, Employment Verification

The U.S. Department of Justice (DOJ) has issued a notice of proposed rulemaking seeking to incorporate the intent requirement found in Section 274B(a)(6) of the Immigration and Nationality Act (INA), which sets forth the prohibition on unfair documentary practices during the hiring and recruitment or referral for a fee process, into the Code of Federal Regulations, namely 28 CFR Part 44. The proposed revisions would also impact the DOJ’s Office of Special Counsel’s (OSC) investigation of unfair immigration-related employment practices, as part of the office’s mandate to enforce the anti-discrimination provision of the INA, as well as cases adjudicated under 8 U.S.C. 1324b by the DOJ’s Executive Office for Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO). Members of the public may submit comments regarding the proposed changes by Sept. 14, 2016.

Importantly, the proposed revisions would substantively and, according to certain stakeholders, controversially, increase the DOJ’s capacity to investigate allegations of unfair immigration-related wrongdoing, most notably by increasing the maximum period of time for filing such claims from 180 days to five (5) years. Furthermore, the new changes would permit intentionally treating an individual differently based on national original or citizenship status to demonstrate discriminatory intent under the statute, thereby subjecting employers to possible penalties, irrespective of the explanation for the discriminatory practice or the presence of any animus or hostility by an employer. The proposed revisions, which also seek to clarify that employers may be found to have committed impermissibly discriminatory conduct at any stage of the employment eligibility verification and recruitment or referral for a fee processes, appear to noticeably expand the breadth of the agency’s investigative capacity and may pose important new challenges for employers. Accordingly, employers should monitor the outcome of these proposed revisions closely and, in collaboration with experienced counsel, proactively review their internal immigration compliance programs as well as their recruitment, on-boarding, and employment verification procedures and training materials.

By way of background, subsection (a)(6), as referenced above, was introduced as part of the Immigration Act of 1990 and amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which characterized unfair documentary practices as unlawful if they were done “for the purpose of or with the intent of discriminating against an individual in violation of” 8 U.S.C. 1324b(a)(1).  According to the agency’s release, the proposed revisions seek to incorporate the statutory intent requirement into 28 CFR Part 44; update how charges of discrimination may be filed and elucidate the procedures for processing such claims; expand the time frames within which complaints may be filed with OCAHO; and eliminate certain textual ambiguities. The proposed changes would also codify the OSC’s present authority to facilitate the preservation of evidence during its investigations of alleged unfair immigration-related employment practices as well as reflect the office’s name change from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section.

U.S. Increases Civil Penalties for Export Controls and Economic Sanctions Violations

Posted in Export Controls

9-1-2016 4-49-57 PMThe U.S. government has announced significant increases to the maximum civil penalties for U.S. export controls and sanctions violations. The increases are required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the FCPIA Act). Details of the penalty increases are described below and available in the Federal Register, Vol. 81, No. 109, 110, and 127. Additionally, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) has published updated guidance on how it will settle export controls enforcement cases.  To read the full GT Alert, click here.

 

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