October 2016 Visa Bulletin – Dates for Filing

Posted in USCIS, Visa Bulletin, Visas

visa application shutterstock_396494140In October 2015 the Department of State (DOS) visa bulletin saw significant revisions with the addition of a second chart entitled “Dates for Filing.”   The new chart was met with much excitement from foreign nationals who continue to experience significant retrogression as it provided earlier filing dates for adjustment of status applications.  These applications carry with them the opportunity to apply for numerous benefits, including advanced parole and employment verification documents.  Although the addition of a second chart was seemingly great news, it has provided little relief to date in the long green card wait times.  As discussed in last year’s blog post, the benefits anticipated from significant revisions made to the October 2015 visa bulletin were swiftly reversed by the DOS when they issued a new visa bulletin days before filings could begin.  The visa bulletin woes continued as we learned that the new Dates for Filing chart can only be used if USCIS announces they will honor the dates on a monthly basis.  Unfortunately, foreign nationals eagerly awaiting each month’s announcement have been continuously disappointed.  October of 2016 may finally bring good news.  At the AILA Spring Conference, representatives from USCIS indicated they anticipate the agency will honor the Dates for Filing chart in the new fiscal year.  Because October will mark the beginning of the 2017 fiscal year companies should consider beginning to look at employees who may be eligible to file if these dates are honored in October.

 

USCIS Proposes International Entrepreneur Rule to Spur Innovation and Job Creation

Posted in Immigrant Visa, USCIS, Visas

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On Aug. 26, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a notice of proposed rulemaking for an International Entrepreneur Rule, and provided an advance version of the proposed rule for public review.

According to an announcement from USCIS, the proposed rule will allow the Department of Homeland Security (DHS) to exercise discretion, on a case-by-case basis, to provide parole for foreign entrepreneurs who are directing the development of a startup business entity in the United States and whose involvement in the startup would provide a significant public benefit.  USCIS proposes to amend its regulations in connection with Section 212(d)(5) of the INA to provide a “transparent framework” for the exercise of agency discretion and the case-by-case adjudication of parole requests for start-up entrepreneurs.

In order to be considered for parole under the proposed rule, an immigrant entrepreneur would be required to:

  • Own at least 15 percent of the startup and be actively involved in its operation
  • Have formed the business in the United States within the previous three years.

The entrepreneur must also demonstrate that his or her business the potential for job creation and growth by showing:

  • Investment of a minimum of $345,000 from qualified U.S. investors with success in prior investments
  • The receipt of grants or awards from federal, state, or local government entities.

The proposed rule also provides flexibility for an entrepreneur who may only partially satisfy one or both of the above criteria, by permitting the entrepreneur to provide evidence of the start-up’s potential for growth and job creation.

Under the proposed rule, a qualifying entrepreneur may receive parole for a two-year period, and may be eligible for renewal based upon the success of the start-up.

When finalized, the proposed rule may hold potential for immigrants who find themselves caught in current immigrant visa backlogs, as well as individuals who seek to emigrate from countries that do not have E-1 or E-2 visa status.

Upon publication of the rule in the Federal Register, the public will have 45 days during which to provide comment on the rule.

As we review the text of the proposed rule thoroughly, we will provide additional insights and discussion about the potential opportunities it could present to immigrants in different contexts.

Greenberg Traurig’s Kristen Burke Featured in Law360 Article on New L-1 Visa Forms

Posted in L-1, Visas

BURKEKTIn a recent Law360 article, Kristen Burke, Of Counsel in Greenberg Traurig’s Houston office, provides insight on the new blanket L-1 visa forms. The new form requires employers to provide more detailed information about employees applying for L-1 visas at US Consular Posts.

To read the full article,  click here.

 

“Immigration Strategies for Employers During Layoffs” by Greenberg Traurig’s Kate Kalmykov Featured in The New Jersey Law Journal

Posted in Department of Labor Immigration Compliance, Immigration Law, Visas

KALMYKOVKKate Kalmykov, shareholder at Greenberg Traurig, recently authored an article in the New Jersey Law Journal (NJLJ) discussing immigration strategies during layoffs and reductions in force.  The article highlights proper protocol for employers to follow when terminating a foreign national population in compliance with federal regulatory requirements.  Likewise, it identifies specific strategies to utilize based on visa type and green card applications in process.   To review the full article, please click here.

 

Greenberg Traurig’s Immigration Team Listed in Best Lawyers in America 2017

Posted in Awards & Recognitions

The 2017 edition of Best Lawyers in America lists 23 attorneys from the international law firm Greenberg Traurig, LLP as “Lawyers of the Year.”  Among that list is Greenberg Traurig’s Martha J. Schoonover, co-chair of the Business Immigration and Compliance Practice.  Additionally, more than 350 Greenberg Traurig attorneys from across the firm’s U.S. offices are included in the Best Lawyers in America 2017 listing (see full list here), including Laura Reiff, co-chair of the Business Immigration and Compliance Practice, and Kristen Burke, of counsel.  For the 10th consecutive year, Greenberg Traurig has more attorneys listed in Best Lawyers in America than any other firm in the guide.  For more information, click here.

 

USCIS Issues Guidance Regarding Adjustment of Status Application Filing Dates for September 2016

Posted in Immigrant Visa, U.S. Department of State ("DOS"), USCIS, Visa Bulletin

On Aug. 9, 2016, following the release of the September 2016 Visa Bulletin, U.S. Citizenship & Immigration Service (USCIS) issued a statement explaining when to file Adjustment of Status applications for those seeking to become U.S. permanent residents under family-sponsored or employment-based preference immigrant visa categories.

By way of background, individuals who are present in the U.S. are eligible to file a Form I-485, Application to Adjust Status in connection with a family-sponsored or employment-based immigrant visa petition, as per the monthly Visa Bulletin published by the Department of State (DOS). The monthly Visa Bulletin contains information on current immigrant visa availability, specifically when statutorily limited visas will become available based on an individual’s priority date. The priority date is usually the date on which the immigrant visa petition is filed with USCIS; for immigrant visa petitions in which a labor certification is required, the priority date is the date the labor certification application is submitted to the Department of Labor. When immigrant visas are currently available based on preference category, country of chargeability and priority date, a prospective immigrant can file an adjustment of status application in connection with an underlying family-sponsored or employment-based immigrant petition.

In July 2015, USCIS and DOS revised the procedures for determining immigrant visa availability for individuals waiting to file adjustment of status applications in order to more accurately predict overall immigrant visa availability and to ensure annual issuance of the maximum number of immigrant visas. Per the revised process, the Visa Bulletin contains two charts for family-sponsored and employment-based preference categories: Application Final Action Dates (i.e., when visas may be issued) and Dates for Filing (i.e., earliest dates when adjustment of status applications may be filed). If USCIS determines that there are immigrant visas available, individuals can file adjustment of status applications pursuant to the Dates for Filing charts. If not, the Application Final Action Dates charts must be used to determine when a prospective immigrant is eligible to file an adjustment of status application with USCIS. To determine visa availability, USCIS compares the number of immigrant visas available for the remainder of the fiscal year with data including the qualified visa applications reported by DOS, the number of pending adjustment of status applications reported by USCIS, and prior drop-off rates for adjustment of status applicants.

For September 2016, USCIS indicates that the charts for Application Final Action Dates must be used for both family-sponsored and employment-based adjustment of status filings, rather than the Dates for Filing charts. Please see below for the Application Final Action Dates for both family-sponsored and employment-based preference filings:

Application Final Action Dates for Family-Sponsored Preference Cases

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Application Final Action Dates for Employment-Based Preference Cases

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It is possible that USCIS may allow for filing of adjustment of status applications based on the Dates for Filing charts when a new supply of immigrant visa numbers becomes available at the start of the government fiscal year in October 2016. If this does occur, we recommend contacting your immigration counsel immediately and filing any eligible adjustment of status applications as soon as possible, in order to take advantage of the opportunity for earlier filing of adjustment of status applications for many foreign nationals.  

September 2016 Visa Bulletin Released

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

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This week, the Department of State released the Visa Bulletin for September 2016. Given that visa numbers are issued based on the government fiscal year, we expect to see significant movement again in October 2016; for September 2016, the last month of FY2016, there were only minor changes with regard to movement of final action dates in most of the employment-based categories from the August 2016 Visa Bulletin:

  • The Worldwide EB-1 category remains current, but for individuals born in India and Mainland China, there continues to be a cutoff date in the EB-1 category of Jan. 1, 2010 (a change implemented in the August 2016 Visa Bulletin).
  • The cutoff date for Worldwide chargeability in the EB-2 category is still Feb. 1, 2014, but it is likely to return to current in October 2016 at the start of FY2017. The cutoff date for Mainland China remained constant at Jan. 1, 2010. However, there was significant movement in the EB-2 category for India, which moved forward from Nov. 15, 2004, to Feb. 22, 2005.
  • In the EB-3 category, the cutoff date for Worldwide chargeability, as well as El Salvador, Guatemala, Honduras, and Mexico moved more than a year (from March 15, 2016 to May 1, 2016). The cutoff date for Mainland China stayed constant at Jan. 1, 2010. However, the cutoff date for India in the EB-3 category advanced several months from Nov. 8, 2004, to Feb. 15, 2005, and the cutoff date for the Philippines moved over a year from May 15, 2009, to July 1, 2010.
  • For those in the EB-5 category, the priority date remains current for all applicants other than those born in Mainland China, which maintains a cutoff date of Feb. 15, 2014.

With regards 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.

The September 2016 Final Action Dates for Employment-Based Preference Categories are as follows:

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Finally, the Department of State also determined the Family and Employment preference numerical limits for FY2016, as outlined in Section 201(c) and (d) of the Immigration and Nationality Act (INA) as follows: 

Worldwide Family-Sponsored preference limit:           226,000

Worldwide Employment-Based preference limit:        140,338

         TOTAL                                                                                          366,338

The per-country limit is fixed at 7 percent of the combined annual limits or 25,644 for FY2016. The dependent area annual limit is fixed at 2 percent of the combined annual limits or 7,327 for FY2016.

Tips to Employers for Handling Site Visits

Posted in H-1B, L-1, National Security

On July 26, 2016 the American Immigration Lawyers Association Liaison Committee to the US Citizenship and Immigration Services Vermont Service Center published tips for employers for handling site visits by agency officers.  Under the Administrative Site Visit and Verification Program (“ASVVP”), officers from the Fraud Detection and National Security directorate (“FDNS”) of USCIS conduct worksite visits to verify the employment of H-1B and L-1 nonimmigrants.  Cooperation with officers during such site visits is voluntary, but normally it is in an employer’s best interest to cooperate.  When you are subjected to a site visit, alert your immigration attorney immediately, as counsel is permitted to be shutterstock_48484531_778x360present for these inspections.  Note, though, that the FDNS officer will not coordinate a site visit around counsel’s schedule.  If your attorney cannot attend the site visit, make sure to write a detailed description of what took place during the inspection and provide the summary to the attorney.

FDNS officers typically arrive unannounced, and their visits typically take no more than one hour.  When the FDNS officer arrives, s/he will typically ask for your HR representative or the company representative who signed the relevant immigration forms and documents in the petition.  During the visit, the officer will verify, through interviews with the employee, HR representative, and/or other personnel, or other means:

  • The legitimacy of the business operations (this could include taking photos of the facility)
  • The validity of the information in the H-1B or L-1 petition
  • Whether the employee is complying with the terms of the H-1B or L-1 petition (this could include requesting copies of paystubs or W-2s and questions regarding the employee’s salary, job title, and job duties)

If you are unable to provide all documents and information requested by the FDNS officer, you can request extra time.  However, you should meet any given deadlines to ensure the Compliance Review Report is submitted in a timely manner.  When you are visited by FDNS, make sure to ask for and record the officer’s credentials (name, title, contact information).

In completing site inspections, FDNS officers commonly raise red flags when the employee’s salary in pay statements does not match the amount listed on the H-1B or L-1 petition; or when reported income on the employee’s tax form does not match the stated salary.  Questions about the legitimacy of the worksite also raise issues, such as cases where the work location on the petition is not an actual worksite or where the employee has a “virtual office” or an “empty office without equipment.”  FDNS may also be concerned if the employee does not have a work email or telephone number.

To ensure you are adequately prepared for a site visit, employers hiring H-1B and L-1 nonimmigrants should develop policies and procedures for maintaining immigration files and handling site inspections.  You should communicate these policies and procedures to HR, departments, staff, and signatories.  In addition, H-1B and L-1 employees should be certain all information in their visa petitions is accurate.  If you notice any discrepancies in the petitions, you should be prepared to explain them.  Finally remember that any material changes in the H-1B or L-1 worker’s job duties, worksite or other facts could trigger an obligation to file amended petitions.  Make sure to report such changes to your immigration counsel right away.

July 2016 – Monthly AILA Check-In with Charlie Oppenheim

Posted in China, Department of State, EB-3, India, Visa Bulletin, Visas

shutterstock_338458820After the release of the August 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-2 and EB-3 China

The Final Action date of Jan. 1, 2010, will see no movement after regression in the June 2016 Visa Bulletin.  Charlie does not expect any forward movement in either of these categories for this fiscal year (which ends in September).  However, he has predicted some movement in October for EB-2.

EB-2 and EB-3 India

Charlie predicted that EB-3 India should move forward to a “2005 Final Action date” in the September Visa Bulletin.   Charlie also anticipates that the EB-2 final action date for India will remain one week out from India’s EB-3 date and that EB-2 India cut-off dates may advance in October.

EB-2 and EB-3 Worldwide

Charlie predicted that EB-3 worldwide will remain just shy of “current” through at least October.  The August Visa Bulletin set a Feb. 1, 2014, Final Action date for EB-2 Worldwide; but Charlie has predicted that it will advance to “current” in October.

EB-1 China and India

Due to high demand, cut off dates for both China and India EB-1 were set for Jan. 1, 2010.  Charlie predicted that EB-1 China and EB-1 India will become current again in October, or November at the latest.

E-Verify Launches New Self-Service Feature

Posted in E-Verify, USCIS

shutterstock_165020939USCIS has announced that effective Aug. 21, E-Verify users will be able to use a new self-service feature to unlock their own user ID by answering the same security questions used to create their account.  The announcement also notes that users will have the option of contacting their program or corporate administrator, or calling 800-741-5023, for assistance.

As a reminder, effective Aug. 1, 2016, E-Verify will begin deactivating user IDs that have not been accessed for 270 days.

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