Category: Department of Homeland Security


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of status based on this petition has been pending for 180 days or more, and the approval of the petition has not been revoked.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

Children at the Border

August 4th, 2015 — 3:57pm

Each year, thousands of children enter the U.S. in search of asylum. These refugee children, who are fleeing violence, persecution or trafficking of some sort, oftentimes do not even know that they are refugees — and that because of this, they have some protection under the law.

Recently, a federal judge critiqued the 1997 Flores v. Reno settlement, which guaranteed minimum standards for detention and the release of unaccompanied children being held in immigration detention. He stated that the settlement referred to all minors rather than simply those who are unaccompanied, and that they should be released from custody.

Along with this critique, the judge called for accompanying parents to be released so long as it would not “create a flight risk or a safety risk.” Many of the fleeing men and women seeking asylum in the U.S. are doing so for the same reason that their children are — for their safety in one way or another.

On June 24, Homeland Security Secretary Jeh Johnson announced that women who passed initial interviews establishing eligibility for protection under U.S. immigration law would be released. This was met with coercion from Immigration Customs Enforcement (ICE) officers persuading the women to wear ankle monitors, intimidation from officials, unclear instructions due to language barriers in official documents and delayed access to counsel in bond hearings.

On top of these infractions, the detention standards guaranteed in the Flores settlement are far from being enforced. Many immigrants are kept in holding cells called “hieleras” or ice boxes due to their freezing cold temperatures. These cells are often overcrowded, unsanitary and do not provide detainees with the proper nutrition and hygiene required under the Flores case. These centers are set up to be for short-term detention lasting no more than 12 hours. There are cases, though, where Border Patrol agents have individuals detained for days and sometimes weeks.

The United States has obligations to international law in regard to allowing refugees coming here to seek asylum. The fact that children are often held in detention, given little to no legal representation is a problem in itself. On Aug. 3, the government will submit their reasoning as to why the ruling on the release of detained children and their mothers, especially those with no criminal records, should not be implemented. Until then, we will have to count on organizations like the CARA Family Detention Pro Bono Project and other advocates to push for immediate reform of this flawed system.

Comment » | Department of Homeland Security, Immigration reform

Turning the Corner? Draft Memo Points to Limited Progress on L-1B Visas

April 28th, 2015 — 5:12pm

The U.S. Citizenship and Immigration Services (USCIS) has released a guidance memo on L-1B visas for “specialized knowledge” workers, finally fulfilling a promise made in 2012. Issued as a draft, the agency will accept comments through early May and the final version will go into effect at the end of August 2015.

Employees are said to hold “specialized” or “advanced” knowledge if their expertise isn’t easily transferrable to another employee. The L-1B visa category is one of few tools available to multinational companies to transfer staff with specialized knowledge from a foreign branch to a related U.S. office, but recent dramatic increases in L-1B denial rates have frustrated many businesses. This guidance offers modest clarification to the current USCIS concept of “specialized” and “advanced” knowledge and includes a checklist of acceptable conditions for L-1B applications.

Recent denial rates for L-1Bs have been staggering. Based on recently released data from USCIS, the National Foundation for American Policy (NFAP) found that the denial rate for L-1B petitions increased from six percent in 2006 to an historic high of 35 percent in 2014, even as applicable laws and regulations remained unchanged.1 Incredibly, the denial rate for L-1B petitions for Indian employees stood at 56 percent for 2012 through 2014, compared to an average denial rate of 13 percent for all other nationalities. The NFAP report also found that the number of applications received by USCIS dropped by 23 percent between 2012 and 2014, demonstrating that denials have discouraged U.S. employers from transferring these skilled individuals into the United States.

The American Immigration Lawyers Association (AILA) welcomed the draft of the long-awaited policy memo. “Uneven adjudication of L-1B visa applications over the last several years have stymied businesses trying to ramp-up production or services in the United States, hurting the economy and costing American jobs,” notes AILA President Leslie Holman. “The tenor and tone of the memo is a positive step forward, reiterating and expanding on many of the principles in previous memos. We hope for a more seamless, straightforward, and consistent adjudication system for L-1B visas. Training USCIS staff on the guidance laid out in this memo will be critical to making a real difference in how applications are evaluated, and essential to bringing common sense back to this process.”2

The principal concerns about the memo are whether certain restrictive adjudication practices will become institutionalized and if Service Center personnel will follow the guidance on recognizing an earlier approval for the same employer and employee when the approval was granted by a U.S. Consulate for a blanket L-1B petition.

 

References:

1“L-1 Denial Rates Increase Again For High Skill Foreign Nationals.National Foundation for American Policy, NFAP Policy Brief, March 2015.

 

2 “Welcome Changes to Business Visas but Implementation Means Everything.” American Immigration Lawyers Association, March 25, 2015. http://www.aila.org/advo-media/press-releases

Comment » | Department of Homeland Security, I-129, L-1

Obama Executive Action Includes Business Immigration Reforms

November 21st, 2014 — 10:22am

While most of the media attention concerning President Obama’s November 20 speech on immigration issues focused on the deferred action plan for certain undocumented immigrants, the White House also announced a number of significant business immigration initiatives.

Pre-Registration for Adjustment of Status and Enhanced Worker Portability

This was the big surprise of the night.

Individuals with an approved employment-based immigrant petition (Form I-140) who are caught in the green card quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment application.  Presumably this will include the ability to secure an EAD card and advance parole travel authorization for the employee and dependents. This is expected to impact about 410,000 people and  will be implemented by a formal regulation.

A memorandum released by Department of Homeland Security (DHS) Secretary Jeh Johnson stated that DHS will look to amend it regulations to “insure that approved, long standing visa petitions remain valid in certain cases where [the foreign national employees] seek to change jobs or employers.”

If adjustment of status (AOS) portability is expanded to include those who qualify for pre-registration, the implications for the businesses that sponsor foreign national employees for PERM labor certification are enormous. First, a company could promote an employee or transfer them to a new job location without having to file a second PERM application. Secondly, the foreign national employee would be able to change employers so long as the new job is the “same or similar” to the position for which a labor certification was obtained.

Secretary Johnson announced that DHS will issue policy guidance clarifying the “same or similar” standard. His memorandum included the following language: “This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for U.S. workers.”

Foreign Entrepreneurs

Certain “foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the U.S.” will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation. This will be done by regulation. Also, this group will be eligible for national interest waivers. This will be implemented through policy guidance.

L-1B Specialized Knowledge Workers

DHS will soon release a policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” We hope this guidance will reign in the arbitrary and capricious decisions coming out of the USCIS Service Centers in recent years as the denial rate for L-1B petitions has skyrocketed.

Work Permits for H-4 Visa Holders

A regulation will be finalized, probably in December or January, that will allow H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD card).

Optional Practical Training (OPT)

The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened. Other changes, such as allowing STEM OPT after receipt of a master’s degree where only the first degree is in a STEM field is under consideration. The number of degree programs eligible for OPT may be expanded. This will be done by regulation.

PERM Labor Certification

A full rulemaking will be undertaken to modernize the PERM program.

Visa Modernization.  A Presidential Memorandum will be issued directing federal agencies to look at modernizing the visa system with a view to making optimal use of the numbers of visa available under law.  Issues such as whether dependents should be counted against the employment based green card quota and whether past unused visa numbers can be recaptured will be included in this effort.

Important Reminder

None of the initiatives listed above have been implemented and no applications can be filed at this time. It could be weeks or even months before policy guidance or formal regulations are published. We will advise our clients as soon as any additional information is available.

Comment » | Department of Homeland Security, Department of Labor, I-140, I-485

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