Business Immigration Monthly for May 2013

Date: 5/7/2013
 Business Immigration Monthly for May 2013

By Bob White and Esther Contreras

USCIS Makes Accommodation in the Benefit Adjudication Process as CBP Implements Form I-94 Automation

As previously indicated in our Immigration Update dated April 1, 2013, Customs & Border Protection ("CBP") began implementing the automated version of the Form I-94 Arrival/Departure Record at air and seaports of entry on April 30, 2013. CBP will roll out the automated Form I-94 at air and seaports of entry over a four week period from April 30, 2013 through May 21, 2013. Nonimmigrants entering the United States at air and seaports of entry will not be provided with a paper Form I-94. Instead, the nonimmigrant will need to access their electronic Form I-94 record by visiting www.cbp.gov\I94. CBP National has indicated that CBP ports of entry will be providing nonimmigrants affected by Form I-94 automation with instructions on how to look up their electronic record on the CBP's website. However, some CBP ports of entry have not yet been providing these instructions to affected nonimmigrants.

Nonimmigrants may need their Form I-94 when requesting certain benefits from the U.S. Citizenship & Immigration Services (USCIS) and when requesting for public benefits from other governmental agencies, including Social Security Number (SSN) from the Social Security Administration (SSA) and/or a driver's license from a state Department of Motor Vehicles. However, the USCIS has indicated that it will be making an accommodation in its adjudication process in order to not disrupt the adjudication of benefits requests. USCIS has stated that it has begun updating certain forms requesting applicant and petitioners to enter admission numbers from their Form I-94 and/or their: 1. Passport information, including passport number, country of issuance and expiration date; and 2. Travel document information, including travel document information, country of issuance and expiration date. USCIS has stated that in addition to accepting the electronic Form I-94 from the CBP's individual's biographical information, visa and admission stamp. The USCIS stated that it will also accept photocopies of passport pages that contain the individual's biographical information, visa and admission stamp. The USCIS stated that this alternative will allow applicants and petitioners more ways to provide proof of lawful entry into the United States and to establish eligibility for certain immigration benefits.

Additional information about the implementation of Form I-94 automation will be contained in our firm's future Immigration Updates when it becomes available.

CBP National Orders CBP Ports of Entry to Verify That Every International Student Has a Valid SEVIS Record

CBP National issued a memorandum on May 2, 2013 instructing CBP officers at the ports of entry to verify that every international student arriving in the United States has a valid SEVIS record. This new procedure is the U.S. Department of Homeland Security's (DHS) initial security change directly related to the Boston terrorist bombings. The memorandum was released one day after DHS acknowledged that a student from Kazakhstan accused of hiding evidence from one of the Boston bombing suspects was allowed to return to the United States in January 2013 without a valid SEVIS record. Under the new procedures, CBP officers will verify the student's status before the student arrives in the United States using information provided in the flight manifest through the APIS system which is part of the TECS system. However, currently, information from the SEVIS system is not integrated automatically into the TECS system. Therefore, until DHS is able to integrate the SEVIS system into the TECS system so that flight manifest information can be automatically cross-referenced against the SEVIS records and so that CBP officers have access to the SEVIS records in primary inspection, CBP officers will have to refer students to secondary inspection so that the students' visa status may be manually checked against the SEVIS system. Therefore, students will have to plan to spend potentially a couple of hours in the secondary inspection process and plan flight connections accordingly. Additionally, students who have had their SEVIS records terminated and are traveling internationally in order to reinstate their records should be prepared to provide detailed information and evidence as to why their initial SEVIS record was terminated. Please note that this new procedure has already been applied to F and M nonimmigrant students and may be expanded to J students in the future.

Additional information about the new admission procedures for students will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Reminds Employers that the New Form I-9 Employment Eligibility Verification Form is Required to Be Used Beginning on May 7

As previously discussed in our firm's Immigration Update dated April 1, 2013, the USCIS has introduced a new Form I-9 Employment Eligibility Verification form (with a revision date of "03/08/13N"). The new Form I-94 was released on March 8, 2013. Although employers were allowed to begin using the new Form upon its release, the mandatory use of the new Form I-9 begins on May 7, 2013. Employers that fail to use the new Form I-9 on or after May 7 may be subject to penalties.


DHS and DOL Issue a Joint H-2B Wage Rule and Resume Processing of H-2B Applications

DHS and the U.S. Department of Labor (DOL) issued a joint interim final rule establishing a new methodology for calculating prevailing wages in the H-2B program. As indicated in our firm's Immigration Update dated April 1, 2013, a district court enjoined the DOL from using its previous prevailing wage methodology in the H-2B program. As a result of the district court's injunction, both the DOL and the USCIS suspended adjudication of applications in the H-2B program. However, upon the release of the joint interim final rule, both the USCIS and DOL have indicated that they will resume adjudications of applications in the H-2B program.

Under the interim final rule, the DOL will not use its Occupational Employment Statistics (OES) wage survey four-level prevailing wage approach on the H-2B program. Instead, the DOL will use either the OES wage survey collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act or employer-provided surveys. If the DOL uses the OES wage survey, the prevailing wage will be based on the arithmetic mean wage. Therefore, employers that rely upon the OES wage survey in the H-2B program will encounter a significant increase in the DOL's prevailing wage for their H-2B positions.

DOL has indicated that the new wage methodology is not only prospective in nature. The DOL will be issuing revised prevailing wage determinations to employers that currently employ H-2B workers. The DOL has indicated that even though the H-2B application may have already been approved based on the previous prevailing wage, the employer does have a responsibility to offer the new prevailing wage based on the revised prevailing wage methodology when it receives the revised prevailing wage determination from the DOL.

DOS Releases 2014 Diversity Visa Lottery Results

The U.S. Department of State (DOS) recently indicated that the fiscal year 2014 Diversity Visa Lottery results are now available. Applicants in the lottery can now check the status of their application online at the DOS' website. Applicants will need their confirmation number which was issued when they applied for the lottery in order to access whether they "won" the lottery. The DOS reminded applicants that it will not e-mail results to applicants. The DOS warned applicants to "be suspicious" of any e-mails that claim that you have won the lottery. Additional information about how to spot and report lottery scams is available on the DOS' website. 50,000 immigrant visas (a/k/a "green cards") are available each year through the Diversity Visa Lottery program. Applicants who are notified through the DOS system that they have "won" the lottery will then need to apply for the immigrant visa either through the DOS' consular processing procedure or through the USCIS' adjustment of status procedure.

ICE SEVP Issues Withdrawal on Notice to School

On April 10, 2013, Immigration and Customs Enforcement's (ICE) Student and Exchange Visitor Program (SEVP) issued a Withdrawal on Notice (WON) to College Prep Academy. Upon issuance of the WON, SEVP indicated that the school is no longer certified to enroll nonimmigrant students and Designated School Officials (DSO) at the school no longer have access to the SEVIS system. SEVP indicated that College Prep Academy nonimmigrant students have 30 days from April 10, 2013 to either: 1. Seek transfer to another SEVP-certified school; or 2) If the student is unable or unwilling to transfer, the student must depart the United States. Initial students who have not yet entered the United States will not be admitted into the United States using the school's Form I-20. SEVP indicated that students currently attending the school must continue to attend their full course of studies at the school until their transfer release date to another SEVP-certified school in order to maintain their status.

This is the second school that has been issued a WON within the past year by SEVP. In August 2012, SEVP issued a WON to PC Tech Learning Center.

Proposed Immigration Law Overhaul

Eight U.S. senators have released their proposal for overhauling the U.S. immigration laws. The bill attempts to modernize the current U.S. immigration system by making it more attractive to highly skilled and educated foreigners as well as resolve the issue of undocumented immigrants. The bill contains several provisions that if enacted would have a major impact on our clients, these are summarized below:

1) Major Changes to Green Card Preference Category System

A. The following immigrants will no longer be counted toward the employment-based preference categories: extraordinary ability aliens in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; holders of doctoral degrees; certain classes of physicians; and immediate family members of employment-sponsored immigrants.

B. Allocation of a greater number of green cards to those who have:

(1) Advanced degrees and will be sponsored by a US employer in a position related to the sciences, arts, professions or business; or

(2) A master's degree or higher in a science, technology, engineering or mathematics field from a U.S. university or college; earned their degree within five years of the petition filing; and have an offer of employment from a U.S. employer in a related field.

C. Allocation of a greater number of green cards to individuals applying as skilled workers, professionals, and other professionals.

D. Creation of a new green card category for individuals who are establishing a startup in the United States.

E. Creation of a merit-based green card system whereby immigrants are awarded points based on their education, employment history, residence length in the United States, and "other considerations." The more points an individual has, the greater possibility of a green card. This category will have a minimum of 120,000 green cards available per year and this number will increase if the US unemployment rate remains lower than 8.5% to a maximum of 250,000. The allocation of these visas will begin on October 1, 2014 for immigrants (family and employment-based) who have been in the green card process for several years.

F. From fiscal year 2015 to 2023, additional green cards will be allocated to family and employment-based immigrants who are already in the process using certain formulas.


2) Mandatory E-Verify for All Employers

A. Over the course of five years, all U.S. employers will have to register and begin using the E-Verify system to check the work authorization of their workforce. Larger employers will be phased in during the first two years and smaller employers through the fourth year.

B. All non-US citizens will be required to present a biometric Employment Authorization Document (EAD) or biometric Green Card, the photos of which will be stored in the E-Verify system so that it can be compared to existing photos kept in other government databases. Additionally, the employer will have to certify that the photos are identical matches to documents presented.

3) H-1B Visa Changes

A. Annual quota is raised from 65,000 to 110,000 with an additional 25,000 visas allocated toward individuals with advanced degrees from U.S. universities in the fields of science, technology, engineering or mathematics. The quota can be raised/lowered by 10,000 visas to a maximum of 180,000 according to certain formulas.

B. Sponsoring employers will have to pay H-1B workers more than US workers for the same position.

C. H-4 dependent spouses will be able to seek work authorization.

D. H-1B holders will have a 60-day grace period in which to look for a new job.

E. H-1B Dependent Employers will have to pay higher wages and higher fees:

– Payment of an additional $5,000 fee per petition by employers with 50 or more employees, of which 30% to 50% are H-1B or L-1 holders (that are not in the green card process) when they sponsor a new worker in either H-1B or L-1 status.

– Payment of an additional $10,000 fee per petition by employers with 50 or more employees, of which more than 50% are H-1B or L-1 holders (that are not in the green card process) when they sponsor a new worker in either H-1B or L-1 status.

F. All Sponsoring Employers will have to recruit before hiring an H-1B worker via a website to be created and maintained by the Department of Labor.

G. Establishment of new procedures and greater penalties to intercept and prevent H-1B fraud.

4) H-1B and L-1 Caps on Employers with High Certain Percentages of Foreign Workers

Prohibitions are placed on employers sponsoring more H-1B or L-1 workers for: (1) Employers "whose U.S. workforce largely consists of foreign guestworkers"; (2) In fiscal year 2014, employers with an H-1B/L-1 workforce of more than 75%; and (3) In fiscal year 2015, employers with an H-1B/L-1 workforce of more than 65% and in fiscal year 2016, with an H-1B/L-1 workforce of more than 50%.

5) Creation of the W Visa for Lower Skilled Workers

This visa will require employers to register with the government, will allocate a certain number of visas per year and will require an employer to recruit in the US for the position before hiring the worker.

Other provisions in the bill include:

1) Increase in Border Security – this provision would allocate funds to the creation and implementation of a strategy that would better secure the U.S./Mexico border which includes surveillance systems and greater numbers of agents.

2) Legalization of Undocumented Immigrants – the bill would allow undocumented individuals to apply for permanent residence if they meet a physical presence requirement, pay a $500 fee, have not committed certain crimes, and meet several other criteria. These individuals would receive their permanent residence after 10 years if they remain physically present in the United States, have paid all of their taxes, have worked regularly, pass an English and Civics exam, all other individuals who are waiting for permanent residence under the family and employment sponsored categories are able to apply for permanent residence and pay an additional fine of $1,000.

3) In the E-Verify system, employees will be able to "lock" their Social Security number so that it will be completely unusable until they unlock the number (when they are starting with a new employer). Additionally, individuals will be able to view their E-Verify history so that they can alert authorities of unauthorized use.

USCIS Clarifies Expiration of Old Form I-9, Employment Eligibility Verification

The US Citizenship and Immigration Services (USCIS) has clarified that effective May 7, 2013 all U.S. employers must begin using the revised Form I-9, Employment Eligibility Verification. In March, the USCIS issued a new form and instructed employers to begin using the form, however, there was some uncertainty as to when the old form would no longer be valid. The Form I-9 is a form that is used to verify an employee's authorization to work in the United States. Section 1 of the Form I-9 must be completed by employees on the first date of hire and Section 2 must be completed by employers by the third date of hire after the employee presents documentation to verify his/her work authorization. The Form I-9 is available at: http://www.uscis.gov/files/form/i-9.pdf and the employer's handbook which provides guidance in completing the form is available at: http://www.uscis.gov/files/form/m-274.pdf.

Elimination of Paper Form I-94

On April 30, 2013, the CBP will begin eliminating the paper Form I-94, Arrival-Departure Record that is completed by foreign travelers at the time they are being processed for entry into the United States. Instead, foreign travelers will only receive an entry stamp in their passports which will include their date of entry, class of admission, port of entry and their status expiration date. The CBP has already eliminated the paper Form I-94 for foreign travelers entering the United States under the Visa Waiver Program.

Foreign travelers who will need a record of their entry to submit to other government agencies when applying for a benefit or service, such as the US Citizenship and Immigration Services (USCIS), Social Security Administration, the various state Departments of Motor Vehicles, etc., will be able to go to www.cbp.gov/I94 and by entering their biographical information, date of entry and class of admission, will be able to print a paper Form I-94 which will include an eleven digit record number. This paper Form I-94 can then be submitted to apply for their respective benefit. The USCIS will continue to issue paper Forms I-94 on extension of status and change of status petitions and applications.

CBP will begin eliminating the paper Forms I-94 on April 30th, 2013 in four phases. The first week the Forms I-94 will be eliminated at the following international airports: Charlotte, Orlando, Las Vegas, Miami and Chicago O'Hare. The second week will continue at major air and sea ports in New York, Boston, Atlanta, Puerto Rico, Chicago, New Orleans and Houston. The third week will continue at major air and sea ports at pre-clearance, San Francisco, Hawaii, Guam, El Paso, Seattle, Portland, Los Angeles, San Diego and Laredo. During the fourth week, CBP will institute these procedures at all remaining air and sea ports.

Our firm expects that it will take a significant period of time for CBP and all government agencies to completely transition to the elimination of the paper Form I-94. If you have any questions regarding these procedures or would like further guidance, please contact us.

May 2013 Visa Bulletin Update

1) Current Availability

The U.S. Department of State ("DOS") recently released its May 2013 Visa Bulletin which shows the availability of employment-based immigrant visa categories for the month of May. This month's Visa Bulletin features the following highlights:

  • The EB-2 China category continues to advance steadily advancing one month to May 15, 2008.
  • Due to continued high demand, the EB-2 India category has completely stalled at September 1, 2004 and there has been no movement since October 2012 when the new fiscal year's annual quota opened.
  • The EB-3 India category has advanced slightly from November 22, 2002 to December 22, 2002.
  • The EB-3 World category has also shown significant advancement to December 1, 2007.

2) Forecasted Availability to June 2013

The DOS has also forecasted future immigrant visa availability through June 2013. The following is a quick summary:

  • EB-2 India category will show no advancement and this category will most likely have to be retrogressed to contain the high demand.
  • EB-1 category and EB-2 World, Mexico and Philippines category will remain current.
  • EB-2 China category will continue to advance three to six weeks at a time.
  • EB-3 category will advance per the following: World – four to six weeks; China – two to three months; India – two weeks; Mexico – four to six weeks; and Philippines – one week.
  • EB-5 China category will remain current and will not have to be cut off as the DOS had previously stated in its December 2012 Visa Bulletin.

3) Comparison to Prior Months

The following is a comparison of priority date movement since the inception of the current retrogression in 2007:


Dec 2007

Jun 2008

Aug 2009

Mar 2010

Sept 2012

Oct 2012

May 2013

EB-3 World

09/01/02

03/01/06

U

12/15/02

10/01/06

10/22/06

12/01/07

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

U

07/15/07

05/15/08

EB-3 China

10/15/01

03/22/03

U

12/15/02

12/15/05

02/06/06

12/01/07

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

U

09/01/04

09/01/04

EB-3 India

05/01/01

11/01/01

U

07/01/01

10/08/02

10/15/02

12/22/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

10/01/06

10/22/06

12/01/07



Additional information about the movement of the employment-based immigrant visa priority dates will be contained in our firm's future Immigration Updates when it becomes available.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com.

Weekly Immigration Updates are provided under the Legal Update link of the Immigration Group Section of our firm's website at www.masudafunai.com.