Review of April 2016 Stakeholders’ Call on Proposed Revisions to Forms I-485 & I-485 Supplement A

Posted in Adjustment of Status, Immigration and Nationality Act, USCIS

shutterstock_171174860_778x360On April 26, 2016, USCIS held a stakeholder teleconference on the revised Forms I-485 (Application to Register Permanent Residence or Adjust Status) and I-485 Supplement A (which should be filed as a supplement by applicants seeking to adjust status under the provisions of the Immigration and Nationality Act, section 245(i)). On March 31, 2016, USCIS published proposed revisions to the forms, comments for which are due by May 31, 2016.

During the stakeholders’ call, USCIS representatives from the Office of Policy and Strategy spoke on the goals of the proposed revisions, which primarily aim to help make the forms more user-friendly to applicants. The new I-485 form, while longer than the current version, is meant to help applicants navigate the many different underlying bases for filing and determine the appropriate one. It is also designed to help them understand the required evidence and documentation they should submit to show eligibility for that particular basis. Importantly, the new Form I-485 incorporates the questions currently asked on the Form G-325A, making the latter no longer necessary for inclusion in adjustment of status applications. (Note, however, that Form G-325A will still be required for other applications until revisions to those application forms occur.) Additionally, Form I-485 will now be consistent with other USCIS forms in regards to requesting interpreter information and other items. Form I-485A’s proposed revisions also include further instructions on who is qualified to apply under INA §245(i) and the evidence required to demonstrate eligibility.

USCIS speakers took some comments and questions on the call, but overall encouraged stakeholders to send an email to public.engagement@uscis.dhs.gov with more detailed questions or suggestions. Some issues that arose included the new Form I-485’s list of grounds of inadmissibility and modified questions about criminal history. Regarding the Forms’ public charge questions, speakers advised stakeholders to review USCIS’ list of benefits that do not constitute inadmissibility based on likelihood of becoming a public charge, and confirmed that the proposed Form does not change eligibility grounds in connection with this issue.

Stakeholders may make comments (which must include the OMB Control Number 1615-0023 in the subject box, the agency name, and the Docket ID USCIS 2009-0020) on the proposed revisions via mail, email (USCISFRComment@uscis.dhs.gov), or online via the Federal e-Rulemaking Portal Website. Following the comment period’s close on May 31, USCIS will re-submit draft versions to the Federal Register for an additional comment period and try to address all suggestions before publishing the final version. Greenberg Traurig will keep readers updated on when the final versions of the Forms will be available for use.

 

Upcoming Backlog Risks the Fate of Certain Special Immigrant Juveniles

Posted in Adjustment of Status, Department of State, Lawful Permanent Residents, Special Immigrant Juvenile Status

Special Immigrant Juvenile Status (SIJS) is an immigration status through which young people under 21 who meet specific eligibility requirements are able to gain Lawful Permanent Residence (LPR) in the United States. This past month, working with Safe Passage Project (a New York City-based nonprofit organization that serves indigent immigrant youth), I secured a SIJS-based green card for a 15-year-old client from Honduras, which has the highest murder rate in the world. The client was abandoned by her parents in her home country; the family member with whom she lived no longer wished to care for her and sent her – unknowing at age 14 – by foot and by bus to the United States. My client’s eligibility to become a lawful permanent resident because of SIJS was not only life-changing, but also likely life-saving.

The Department of State has issued policy applicable next month that will limit LPR eligibility for children and teenagers like my client. The May 2016 Visa Bulletin requires that certain Special Immigrant and Religious Worker applicants who are charged to El Salvador, Guatemala, and Honduras must use the Application Final Action Date with the Priority Date cut off of January 1, 2010 in order to apply for Adjustment of Status (AOS). The Bulletin notes: “Any forward movement during the remainder of FY-2016 is unlikely although no specific prediction is possible.”

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USCIS to start processing premium processed H-1B Cap Cases on May 12

Posted in H-1B, USCIS

U.S. Citizenship and Immigration Services (USCIS) announced that it will begin premium processing all of this year’s H-1B cap cases on May 12, 2016.  This includes H-1B cases filed under the 20,000 U.S. Master’s degree exemption, and the regular 65,000 H-1B cap.

Most, if not all, of the receipt notices issued so far for this year’s H-1B cap cases have referenced a 15-day turnaround time from the receipt date – not the May 12 date.  Clients should ignore what is stated in the receipt notices and go with the May 12 processing date.

USCIS notes that cap-exempt H-1B petitions will continue to be processed within 15 calendar days of receipt.

May 2016 Visa Bulletin Update

Posted in USCIS, Visa Bulletin

Visa and passportAs previously reported, earlier this month the Department of State released the May 2016 Visa Bulletin reflecting some movement for applicants in specific categories. In addition to the Dates for Filing and Application Final Action Dates charts, the May 2016 Visa Bulletin noted: “…there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status. If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.”

On April 21, 2016, USCIS released an update that for both family-sponsored filings and employment-based filings, the Application Final Action Dates chart must be used for May 2016. Previously, USCIS had indicated that the Dates for Filing chart was to be used for family-sponsored filings. It therefore appears that USCIS has seen high levels of demand for family-sponsored filings as well.

The applicable charts regarding eligibility for filing adjustment of status applications are copied below. 

APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

IBI 4.22 1

*NOTE: For May, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 15AUG14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15AUG14 and earlier than 01NOV14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

IBI 4.22 2

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

Office of Special Counsel for Immigration-Related Unfair Employment Practices Issues Guidance on Requesting Documents from Applicants and New Hires for Export Control Purposes

Posted in Discrimination, Export Controls

shutterstock_30336412_778x360The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits the following employment-related conduct:

(1) Discrimination in hiring, firing or recruiting based on someone’s real or perceived national origin, citizenship or immigration status;

(2) “Document abuse” during the Form I-9 and E-Verify processes of employment eligibility verification, which includes requesting more or different documents based on an individual’s citizenship, immigration status or national origin; and

(3) Retaliation for filing a charge, assisting in an investigation or asserting rights under the anti-discrimination provision.

Thus, generally speaking, an employer may only ask a job applicant whether he or she is legally authorized to work in the U.S., or whether the applicant requires sponsorship for an employment visa, either now or in the future. Under the anti-discrimination provision of the INA, employers are not permitted to ask job applicants questions regarding nationality, country of citizenship, place of birth or U.S. immigration status in an interview or job application.

However, the anti-discrimination provision of the INA conflicts with certain employer compliance requirements under U.S. export control regulations. Specifically, to ensure compliance with U.S. export controls, employers and staffing agencies must determine the citizenship or immigration status of job applicants and new hires for positions that require access to export-controlled articles, technical data, or software. This is because U.S. export control regulations may require employers to obtain export licenses (or otherwise be authorized, under for example a license exception) before a non-U.S. person new hire begins his or her work, which includes any new hire who is not a U.S. citizen, permanent resident or protected individual such as a refugee or asylee.

By way of background, the U.S. government controls the export of sensitive equipment, software, technologies and information in order to promote the country’s foreign policy objectives and national security interests. The current U.S. export control system includes a number of laws and regulations, including the U.S. Department of Commerce’s Export Administration Regulations (EAR) and the U.S. Department of State’s International Traffic in Arms Regulations (ITAR). Under these measures, certain articles, services, technical data and software can only be shared with U.S. persons or non-U.S. persons of certain nationalities.

On March 31, 2016, the OSC issued a Technical Assistance Letter (TAL) stating that an employer may violate the anti-discrimination provision of the INA by requiring applicants and new hires to present documents and answer the following questions regarding their citizenship or immigration status, even if only to ensure compliance with U.S. export control laws and regulations, including EAR and ITAR:

(1) I am one of the following: (a) a citizen of the United States; (b) a lawful permanent resident of the United States; or (c) a person admitted into the United States as an asylee or refugee: YES or NO

(2) If you answered “NO” to Question 1, then please indicate your:

a. Citizenship

b. U.S. Immigration Status.

The abovementioned proposed employer hiring questions would be prefaced by a statement that the questions are for the sole purpose of ensuring compliance with U.S. export control laws and must only be answered if the applicant or newly hired employee wishes to be considered for such positions.

In its letter, OSC writes that an employer or staffing agency is unlikely to violate the anti-discrimination provision of the INA by asking the proposed questions regarding citizenship or immigration status to all applicants and new hires for the sole purpose of determining whether an export license is needed for certain individuals for particular positions. It would be reasonable for an employer to make a hiring decision for a position requiring an export license based on an applicant’s nationality, as U.S. employers are legally prohibited from obtaining export licenses to release sensitive information, equipment or technologies to persons of certain nationalities. For example, under ITAR, there is a prohibition on issuing licenses authorizing the disclosure of certain military or defense-related information and technical data to nationals of countries against which the U.S. maintains an arms embargo, including China, Burma, Venezuela and Vietnam, among others. Additionally, there is a prohibition on licensing many forms of export-controlled technology and technical data to certain Cuban nationals as a result of the U.S. arms and trade embargoes against Cuba. Thus, an employer who would require such a license for a particular position would need to ascertain an applicant’s nationality to determine his or her eligibility for the role.

Nevertheless, if an employer is hiring for both positions that would require export licenses for non-U.S. person hires as well as those that would not, OSC discourages asking questions regarding an individual’s citizenship or immigration status prior to offer and acceptance of employment, even if the questions are posed in a nondiscriminatory manner. This is because it may amount to citizenship status discrimination if an employer rejects a job applicant or limits the scope of a new hire’s potential assignments based on his or her responses. Moreover, such questions could lead a rejected applicant to assume this decision was based on his or her citizenship or immigration status and cause that individual to file a discrimination charge against the employer with OSC. Additionally, questions regarding immigration or citizenship status for positions that are subject to export control laws may deter refugees and asylees (who are protected from citizenship status discrimination) from applying due to confusion about eligibility for the position.

Finally, OSC writes that an employer is unlikely to violate the anti-discrimination provision of the INA by implementing a system of document verification to determine a new hire’s citizenship or immigration status solely for the purpose of complying with export control laws, as long as this process is separate and distinct from the employment eligibility verification process. However, it is important for employers to avoid any impression that such requests are made for employment eligibility verification purposes, which would violate the INA’s prohibition against document abuse and unfair documentary practices.

It is important to note that once a job applicant accepts an offer of employment, an employer should ask employees for information regarding nationality and U.S. immigration status if the individual indicates during the application process that he or she requires sponsorship. Only with this information can the employer apply for and obtain the proper nonimmigrant employment authorization for that individual. At this stage, an employer would not violate the anti-discrimination provision of the INA by asking these questions of such an employee.

The guidance provided in OSC’s TAL to resolve the tension between an employer’s compliance with the anti-discrimination provision of the INA and compliance with U.S. export control laws, including EAR and ITAR, is complicated and nuanced. It is therefore imperative for employers subject to U.S. export control laws to consult with experienced immigration attorneys prior to developing their company policies on interviewing and job applications.

 

New Bill Introduced for Lesser-Skilled Workers

Posted in Willing Workers and Willing Employers Act of 2016

US government

On April 20, 2016, Senator Jeff Flake (R-AZ) introduced S. 2827, the Willing Workers and Willing Employers Act of 2016.   This bill addresses a critical omission in our immigration laws – a mechanism to bring foreign lesser-skilled workers to the country when U.S. Workers can not be found.

The bill is a marker for the potential architecture of a  less-skilled immigrant workers program.  It would be the starting point for any future discussion of the issue in early 2017.

To read the full text of the bill click here.

April 20, 2016 Update on H-1B Cap-Subject Cases

Posted in USCIS, Visas

Visa and passportAs GT previously reported, this year USCIS received over 236,000 H-1B cap-subject petitions during the filing period, including petitions filed for the advanced degree exemption. USCIS has not released the data for how many of the petitions were filed for Premium Processing, but stated that it would begin the processing of such petitions no later than May 16, 2016.  USCIS appears to be on schedule, as GT has received a significant number of receipts for cases that were premium processed.

On April 20, 2016, USCIS released an alert stating that it will use regular mail to send out Premium Processing approval notices during the first two weeks of Premium Processing adjudication of cap-subject petitions.  Pre-paid mailers, such as FedEx and UPS, will not be used by USCIS (even if one was enclosed in the initial filing) during this two-week period.

GT recommends keeping abreast of updates regarding the H-1B cap season by visiting the USCIS H-1B Fiscal Year (FY) 2017 Cap Season web page or by subscribing to our blog.

USCIS Now (Sometimes) Permits Biometrics Collections Abroad

Posted in Adjustment of Status, Biometrics collection, Re-entry Permits, U.S. Citizenship and Naturalization Services

Biometrics collection appointments are required for Adjustment of Status, Re-entry Permits, U.S. Naturalization, and other specific applications for U.S. immigration benefits. At biometrics collection appointments, the foreign national applicant typically submits fingerprints, takes a photograph, and signs forms. Such appointments are virtually always processed in the United States at local Application Support Centers (ASCs).

However, USCIS has now confirmed that biometrics collection appointments may be held at a USCIS office abroad in certain limited circumstances, including:

  • The applicant must be a resident of a country where USCIS has an international office (a list of which can be found here).
  • The applicant must demonstrate that he or she tried to expedite or reschedule the originally scheduled ASC biometrics appointment in the United States (or explain the failure to do so) and prove that extenuating circumstances required him or her to depart the United States before that appointment.

Biometrics collection appointments will be permissible abroad only in rare and compelling circumstances, such as urgent work or family matters. Because the international offices have limited capacity for such appointments, it is best to have biometrics collection appointments completed in the United States. However, if extenuating circumstances arise, immigration counsel can assist in contacting the appropriate office to request the appointment be done abroad.

Greenberg Traurig Atlanta’s Kristin Aquino-Pham Attends Emory Law Diversity Speaker Series

Posted in Diversity, Events

Kristin Aquino-Pham, attorney in the Business Immigration & Compliance practice group and Chair of Greenberg Traurig Atlanta’s Associate Committee for Diversity & Inclusion, recently attended the Emory Law Diversity Speaking Series to hear a panel of Corporate General Counsels discuss the importance of diversity in the legal profession.  The panel of General Counsels provided useful insight into how diversity in the legal profession plays a role in having a deep understanding of our diverse clients’ needs and stressed the importance of having lawyers “with backgrounds as diverse as our customer base.” The panelists encouraged firm leaders to actively support diversity initiatives and focus on enacting change.

To learn more about how Greenberg Traurig actively supports diversity throughout the firm, click here.

Permanent Residency Through the EB-3 Program: What’s Lawful and What’s Not

Posted in EB-3, Visas

I recently returned from a month in Vietnam meeting with clients and potential immigrants to the United States.  Over the course of the past five years and in my travels to Vietnam, I have watched the EB-5 program grow in popularity as a tool for Vietnamese nationals to self-sponsor for a U.S. green card.  In fact, Vietnam now ranks second in EB-5 visa usage worldwide.

The growing interest in immigration to the U.S. has also spurned in Vietnam a new trend, with some immigration agents promoting the EB-3 visa program, to target clients that cannot afford the EB-5 program or wish to spend less money to immigrate to the U.S.  This development is alarming, as in many cases, the way the EB-3 program is being described and offered to the Vietnamese public is inconsistent with the U.S. Citizenship and Immigration Service (USCIS) and U.S. Department of Labor Regulations (DOL) laws and regulations.  In the most egregious cases, these EB-3 for sale programs intentionally circumvent the legal requirements and are fraudulent.

By way of background, EB-3 stands for Employment-Based Third preference category – a concept long existent in U.S. immigration law and a valid means to a green card when properly used.  Employment-based sponsorship in U.S. immigration is divided into several preference categories, with the Employment-Based Third category being reserved for sponsorship for positions requiring:

  • Less than two years’ training or experience (unskilled workers).  This is predominately the focus of the Vietnamese EB-3 for sale programs; or
  • At least two years of experience in the field of expertise (skilled workers); or
  • A Bachelor’s degree.

The process of employment-based sponsorship in the EB-3 category entails a three step process:

1.  A PERM application is processed and filed by the employer with the DOL.  The process involves the U.S. employer engaging in various methods of recruitment to find U.S. workers for the position.  This is because the DOL’s main purpose is to ensure that U.S. workers get preference for jobs.  The DOL determines the prevailing wage rate for the position that the employer is required to pay. Only after recruitment is completed, and if the employer can show that it was not able to find minimally qualified, able, or willing U.S. workers for the position, would the DOL certify and approve a PERM application.  If the sponsoring organization receives applications from interested individuals in the U.S. in response to the ads but does not review and interview the applicants or disclose receiving the applications to the DOL, the sponsoring company and all persons involved in the process can be subject to enforcement action.

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