Category: Department of Homeland Security


USCIS Announces Suspension of H-1B Premium Processing

March 5th, 2017 — 11:24am

What Happened?

On March 3, USCIS unexpectedly announced the temporary suspension of premium processing service for all H-1B petitions filed on or after April 3, 2017. Premium processing is a USCIS program that provides for a 15 day initial review in exchange for a $1,225 filing fee. USCIS has indicated that this premium processing suspension may last for up to six months.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. This includes extension and amendment petitions. Further, since new cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed under the fiscal year 2018 H-1B regular and master’s degree caps. The suspension also applies to petitions that may be cap-exempt, such as those filed by universities and other cap-exempt employers.

USCIS will continue to premium process H-1B petitions if the premium processing request was properly filed before April 3, 2017. Other types of petitions eligible for premium processing may continue to utilize the expedited service.

Why Did USCIS Make This Surprise Announcement?

According to USCIS, this suspension of premium processing is being implemented in order to help reduce overall H-1B processing times, which are currently running close to a full year in some instances. USCIS claims that by suspending premium processing, they will be able to focus on processing long-pending petitions that have gone unprocessed because of the large numbers of premium processing requests in the last few years. USCIS will also prioritize processing of H-1B extension petitions that are nearing 240 days pending, since the automatic extension of employment authorization only lasts for 240 days after the prior petition expiration.

Are There Any Exceptions?

During the premium processing suspension, petitioners may still request expedited processing if they meet certain criteria. USCIS reviews expedite requests on a case-by-case basis and requests are granted at their discretion. USCIS may expedite a petition or application if it meets one or more of the following criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error; or
  • Compelling interest of USCIS.

In our experience, expedite requests are rarely granted.

What Is The Practical Impact For Companies and H-1B Employees Who Need Extensions in 2017?

Many H-1B employers routinely utilize premium processing service, in part because USCIS processing times have become so unreasonably long, and H-1B extensions can be filed no more than six months prior to expiration. Lengthy H-1B processing times during the unavailability of premium processing will present the following significant challenges:

  • Many H-1B employees will lose the ability to travel for business or pleasure because they will be unable to obtain a new visa to reenter the U.S. without an extension approval notice;
  • H-1B employees and their H-4 spouses may be unable to renew driver’s licenses;
  • H-1B employees seeking to change employers will either have to resign their current position and “port” to the new employer using the filing fee receipt from the new employer’s H-1B petition (without the certainty of an approved petition) or wait many months for the new employer’s petition to be approved.

Zulkie Partners will be working closely with clients to minimize the disruption caused by the sudden policy shift at USCIS.

Comment » | Department of Homeland Security, H-1B

Cities and States Respond to Trump’s Immigration Plan

December 22nd, 2016 — 4:57pm

Throughout his presidential campaign, Donald Trump spoke on a platform of intensive immigration reform. His proposed immigration plan includes ending President Obama’s executive actions, Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). He is also proposing biometric visa tracking systems in all land, air and sea ports, and, of course, the wall.

Trump stated he’d cut federal funding to sanctuary cities in his first 100 days in office. In these cities — at least 130 of them, according to the Immigrant Legal Resource Center — local law enforcement agencies limit their interaction with federal immigration enforcement agents. Since his statement, officials from at least 37 of these cities said they would remain sanctuary cities for immigrant populations.

 Sanctuary cities across the country are stepping up protections for their undocumented immigrant residents. A $1 million legal defense fund was recently created in Chicago for immigrants facing deportation. Chicago Mayor Rahm Emanuel doubled down, saying that Chicago is, and will remain, a sanctuary city.

At the state level, lawmakers are working toward creating more laws to help their immigrant populations. In California, lawmakers are developing a bill that would create “safe zones” at public schools, hospitals and courthouses. The state is also considering creating a fund that would pay for legal counsel for immigrants facing deportation.

New York City Mayor Bill de Blasio vowed to protect the more than 500,000 undocumented immigrants registered in a municipal database. He stated that if the Trump administration requests data that may result in a NYC resident’s deportation, he would delete the database information.

Although the threat of cutting federal funding to these cities is ever present, some experts argue that defunding alone may not be realistically implemented. Phil Torrey, a Harvard Law School lecturer and supervising attorney of the Harvard Immigration Project, explained, “What the federal government can’t do at this point is basically pull funding wholesale from states and localities in order to get their local law enforcement agents to basically enforce federal immigration law.”

Torrey also explained that although the Department of Justice sets aside grants for these cities, the money lost would pale in comparison to the full amount federal funding they may receive.

Trump’s rhetoric may convey that the U.S. is shifting away from welcoming immigrants, but the sanctuary cities across the country are sending the opposite message. Whether the Trump administration will back down on this plan remains to be seen, but immigrants and activists continue to work toward more protections for their residents.

Comment » | Department of Homeland Security, Immigration and Customs Enforcement

What Would Trump’s Immigration Plan Really Cost the U.S.?

March 30th, 2016 — 3:57pm

In the 2016 presidential race, the people of the United States are witnessing campaigns and talking points, along with the sheer number of candidates, like no other race in recent history. GOP frontrunner Donald Trump most often makes headlines for his language, especially toward immigrants, and his support for violence against those who disagree with him.

One of Trump’s most controversial plans involves sending all undocumented immigrants back to their home countries and building a wall on the U.S-Mexico border. Many of Trump’s devotees are just as supportive of the plan as he is.

 Nearly 11 million undocumented immigrants currently live in the U.S., making up 5.1 percent of the labor force as of 2012. In a Trump administration, they might be rounded up and sent “home,” leaving thousands of jobs open. This does not mean a sudden surge of jobs for native-born American workers — rather, Americans may see fewer jobs and no raises. The service industry as we know it would collapse, as an estimated 35 percent of service industry jobs are made up of undocumented workers, according to Pew Research analyses based on Census data.

The actual process of deporting all 11 million or so undocumented immigrants is a costly plan, besides the blow the economy would take with the open jobs. In the two year timeframe that Trump is proposing, the overall cost would add up to at least $400 billion dollars, along with reducing the U.S. GDP by $1 trillion. Why such a high cost? The process of detaining undocumented immigrants, trying them in court and transporting them to their home countries is not built for a mass deportation; the number of federal agents would need to increase to 90,000, much higher than our current 4,000 agents. Detention facilities would require an increase in beds from 34,000 to nearly 348,831 beds, with 1,300 new courts needed to try all the individuals facing deportation. This, in turn, would require 30,000 more attorneys. The actual deportation itself would require about 87 buses and 47 chartered flights to be sent out every day for two years.

In addition to all the combined setbacks of a mass deportation, one of Trump’s biggest plans — building a wall between Mexico and the U.S. — would only add more to the financial burden the U.S. is facing. Although Trump and his supporters are adamant about making a border wall paid for by Mexico a reality, Mexican Treasury Secretary Luis Videgaray said, “Mexico will under no circumstance pay for the wall Mr. Trump is proposing.” The cost for the wall alone, based on the cost of highway panels, is about $10 billion — not including other factors like surveillance, labor, equipment, and security.

Trump’s plan to “make America great again” fails to acknowledge that much of the greatness that we know today can be credited to immigrants, both documented and undocumented. We’ve seen just fractions of the costs of Trump’s immigration plan, and his plans to cut off federal grants to sanctuary cities and triple the number of Immigration and Customs Enforcement officers only adds to the underlying economic problems the U.S. faces. What’s more, Trump is calling for a moratorium on green cards for foreign work, and could likely make the already complicated and drawn out process of legal immigration even more difficult.

Even so, immigrants, Mexican or otherwise, will not stop coming to the United States. Turning them away or ramping up security will help neither our economy nor those looking to live in the U.S. Under a Donald Trump presidency, the strides taken toward comprehensive immigration reform will likely be in vain, which we must keep in mind when voting in November. We know the positive impacts immigrants make on the U.S. economy through their entrepreneurship. Deporting undocumented immigrants and putting a hold on H1-B visas will not help the country continue to grow; comprehensive immigration reform will allow us to see America and its people become even greater.

Comment » | Customs and Border Protection, Department of Homeland Security, Immigration and Customs Enforcement, Immigration Policy Center, Immigration reform

DHS Publishes Major Regulation on High Skilled Foreign Workers

January 4th, 2016 — 9:40am

On December 31, 2015, the Department of Homeland Security (DHS) published a massive proposed regulation addressing both nonimmigrant working visa categories and green card sponsorship by employers. Comments on the proposal must be filed within 60 days.

DHS refers to the proposal as “Improvements Affecting High-Skilled Nonimmigrant Workers.” While the proposed regulation does contain some positive changes, there are other provisions that will be a step backwards from current practice (i.e., some EAD processing) or will fall far short of the promises made by President Obama in his November 2014 announcement on Executive Action on business immigration.

Job Portability for Certain Adjustment of Status Applicants

Under existing law when a foreign national has an approved immigrant visa petition and an adjustment of status application that has been pending for more than 180 days they may change jobs or even employers so long as the new position is the “same or similar” to the position for which an immigrant visa petition was previously approved.

The proposed regulation provides that an immigrant visa petition for EB-1 (but not “extraordinary ability”), EB-2, or EB-3 remains valid if the petition is approved and either:

  • The employment offer from the petitioning employer is continuing and remains bona fide; or
  • The beneficiary has a new offer of employment in the same or a similar occupational classification as the employment offer listed in the approved petition, the application for adjustment of status based on this petition has been pending for 180 days or more, and the approval of the petition has not been revoked. A new offer of employment may be from the petitioning employer, from a different U.S. employer, or based on self-employment.

A new supplementary form to the application for adjustment of status (Form I-485) will assist the Department in adjudicating “same or similar.” There is no fee attached to the supplement but DHS may consider a fee in the future.

The proposed regulation contains the following language modestly expanding the current DHS interpretation of “same or similar”:

The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based visa petition was approved.

Note: The proposed regulation does NOT expand portability to those foreign nationals who are the beneficiary of an approved I-140 immigrant visa petition but who do not have an I-485 application for adjustment of status that has been pending for more than 180 days. For both employers and foreign national employees, this is the most disappointing aspect of the proposed regulation. The proposed regulation does not change the existing requirement that a new PERM labor certification and I-140 immigrant visa petition must be approved for any material change in job duties.

Retention of Priority Dates

The proposal clarifies that the priority date of a properly filed employment-based immigrant visa petition that does not require a labor certification is the date the completed, signed petition is properly filed with DHS.

The priority date in an EB-1, EB-2, or EB-3 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition’s approval due to: (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition.

Note: If the prior I-140 petition can be revoked by DHS if they determine the earlier petition was approved in error then uncertainty will continue on the ability of foreign nationals to recapture an earlier priority date.

Changes to Rules on Revocation of Approved Immigrant Visa Petitions

The proposed rule also provides that EB-1, EB-2, and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. As long as the approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid for various purposes including: (1) the retention of priority dates; (2) job portability, and (3) extensions of status.

Exception to 6-year maximum stay rule for certain H-1B nonimmigrants

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 3-year increments, until USCIS adjudicates the adjustment of status application, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is already over-subscribed. This applies only to the principal beneficiary and not any dependents who may also be in H-1B status.

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 1-year increments, for certain H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status if 365 days or more have passed since the filing of a labor certification application or employment-based immigrant visa petition. Extensions are generally available until a final decision is made to grant or deny the labor certification application or immigrant visa petition, or to grant or deny permanent resident status.

Licensure

Under the proposed regulation, DHS may approve an H-1B petition for a 1-year validity period if a state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such license absent evidence that the beneficiary has been issued a social security number or granted employment authorization. A beneficiary who has been approved for a 1-year validity period may not obtain an extension of H-1B status without proof of licensure.

H-1B Cap Exemption Provisions

The proposed regulation implements current agency guidance and codifies which

H-1B nonimmigrants are exempt from the cap if they are employed directly by: (a) an institution of higher education, (b) a nonprofit entity related to or affiliated with such an institution, (c) a nonprofit research organization, or (d) a governmental research organization.

Miscellaneous H-1B Provisions

The proposed regulation implements current agency guidance and authorizes:

  • H-1B nonimmigrants who are beneficiaries of new H-1B petitions seeking an amendment or extension of their stay in H-1B status to commence new or concurrent employment upon the filing of a non-frivolous H-1B petition.
  • H-1B beneficiaries to recapture time spent outside the United States during the validity of an H-1B petition.

Grace Periods

The proposed rule provides a 10-day grace period (similar to that which is currently extended to H-1B nonimmigrants) to individuals in E-1, E-2, E-3, L-1, and TN classifications and their dependents.

It also authorizes a one-time grace period, up to 60 days, curing the period of petition validity (or other authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN nonimmigrants whose employment has ended. Such nonimmigrants may seek new employment, seek a change of status to a different nonimmigrant classification, or make preparations for departure from the United States.

Employment Authorization (EAD Cards) for Certain Employment-Based Nonimmigrants

The proposed regulation permits one year of employment authorization for an individual who: (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition; (3) does not have an immigrant visa number immediately available under the quota; and (4) can demonstrate compelling circumstances that justify an independent grant of employment authorization.

A limited number of individuals will be able to demonstrate compelling circumstances justifying an independent grant of employment authorization. The fact that the individual is approaching or has reached the statutory maximum period of time in nonimmigrant status is not deemed to be compelling. Employment authorization generally would not be available if the tendered compelling circumstances are within the individual’s control.

The proposed regulation does not define “compelling circumstances” in order to “retain flexibility” but DHS has identified four circumstances in which it may consider granting employment authorization under the proposed change:

  • Serious Illnesses and Disabilities. The nonimmigrant or his or her dependent is facing a serious illness or disability that entails moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.
  • Employer Retaliation. The nonimmigrant is involved in a dispute regarding the employer’s illegal or dishonest activity as evidenced by, for example, a complaint filed with a relevant government agency or court, and the employer has taken retaliatory action.
  • Other Substantial Harm to the Applicant. Due to compelling circumstances, the nonimmigrant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm.
  • Significant Disruption to the Employer. Due to compelling circumstances, the nonimmigrant is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such worker with that employer, and the worker’s departure would cause the petitioning employer substantial disruption to a project for which the worker is a critical employee.

The one-year EAD card can be renewed only if the individual can show that he or she continues to be the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition and either: (1) the worker continues to face compelling circumstances; or (2) the worker has a priority date that is less than one year from the current cut-off date for the relevant employment-based category and country of nationality in the most recent Visa Bulletin.

The proposal prohibits employment authorization (initial or renewal) if at the time of filing the EAD application, the beneficiary’s priority date is more than 1 year beyond the date on which immigrant visa numbers were authorized to be issued to individuals with the same priority date for the relevant employment-based category and country of nationality. The proposal also prohibits employment authorization if the applicant has been convicted of a felony or two misdemeanors.

The proposal requires biometrics and payment of biometrics fee. Also, it extends employment authorization eligibility to those dependent spouses and children who are also present in the United States in nonimmigrant status, but only if the principal spouse or parent is granted employment authorization under this rule and such authorization has not been terminated or revoked.

Note: Obtaining an EAD under this provision would require relinquishment of nonimmigrant status, thus restricting the ability to change status in the future. Also, the proposal does NOT provide the blanket EAD eligibility for all those with an approved I-140 immigrant visa petition that many immigrant advocates had hoped for.

Employment Authorization (EAD Card) Adjudication

 The proposed regulation authorizes an automatic 180 day extension of EAD of employment authorization if:

  • The individual files a request to renew his or her EAD prior to the expiration date.
  • The individual is requesting renewal based on the same employment authorization category under which the expiring EAD was granted, or the individual has been approved for Temporary Protected Status.
  • The individual either continues to be employment authorized incident to status beyond the expiration of the EAD or is applying for renewal under a category that does not first require adjudication of an underlying application, petition, or request.

The 180-day extension is automatically terminated upon issuance of a decision denying the individual’s renewal application, upon written notice to the applicant, notice published in the Federal Register, or any other applicable authority.

The expired EAD, in combination with a Notice of Action (Form I-797C) indicating timely filing of the renewal EAD application would be considered an unexpired EAD for purposes of complying with Employment Eligibility Verification (Form I-9) requirements.

The proposal removes the current regulatory requirement that DHS complete the adjudication of EAD applications within 90 days of receipt and the requirement that it issue interim EADs with validity periods of up to 240 days when such an application is not adjudicated within the 90-day period.

DHS will instead address processing timeframes through operational policy guidance that reinforces the Department’s continued commitment to a 90-day processing timeframe and provides recourse to individuals whose case is nearing the 90-day mark, including the ability to contact USCIS to request prioritized processing.

Note: DHS cannot process EAD applications in a timely basis and their approach to “fixing” the problem is to remove the 90-day mandate and treat EAD extension applications like H-1B extensions for I-9 purposes. This should work for those seeking an EAD extension but is likely bad news for those filing an initial EAD application such as newly arrived L-2 spouses.

Comment » | Department of Homeland Security, H-1B, I-129, I-140, I-485

Congress Reaches Deal on 2016 Omnibus Bill; Bill Contains Reforms to Visa Waiver Program, Extension of Four Popular Immigration Programs

December 18th, 2015 — 10:56am

On December 15, Congress reached a deal on the FY2016 Omnibus Appropriations Bill, which funds the federal government through September 30, 2016. Congress is expected to vote on the bill later this week. The bill contains significant changes to the Visa Waiver Program (VWP) that are contained in HR 158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, passed by the House of Representatives earlier in the month in the aftermath of the recent terrorist attacks in Paris and San Bernardino. The Omnibus Spending Bill also extends the EB-5, Conrad 30, Special Immigrant Religious Workers, and E-Verify programs through the end of FY2016, however, without any reforms. It does not, however, include proposals to end the resettlement of Syrian and Iraqi refugees.

The Visa Waiver Program Improvement Act, now part of the 2016 Omnibus Bill, revokes VWP travel privileges for all citizens of VWP countries who are dual nationals of Iraq, Syria, Iran, or Sudan. This revocation of VWP privileges would apply to all nationals of Iraq, Syria, Iran, or Sudan even if they have never resided in or traveled to any of these four countries. Because these countries confer citizenship through naturalization, marriage, or descent, many individuals will be barred from using the program, even if they have never been to Iraq, Syria, Iran, or Sudan. Some examples include:

  • Dual-national French citizen (born to Syrian father) traveling to U.S. for business conferences and meetings;
  • Dual-national German citizen (born to Iranian father) traveling to U.S. on vacation;
  • Dual-national British citizen (born to Syrian father) traveling to the U.S. to take care of grandchild.

VWP travel privileges are also terminated for all who have been present in Iraq, Syria, Iran, or Sudan at any time on or after March 1, 2011. There is a very narrow exception for certain military personnel and government officials. All other travelers would automatically lose their VWP privileges. Affected travelers would include scholars, refugee caseworkers, humanitarian aid workers, human rights investigators, and others.

New passport requirements are also incorporated into the bill. Starting April 1, 2016, VWP travelers will be required to use electronic passports that are machine-readable and fraud resistant. The program country will also be required to validate these passports.

Comment » | Department of Homeland Security, Department of State, Visa waiver program

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