Business Immigration Monthly - November 2013
Business Immigration Monthly November 2013
USCIS Clarifies Eligibility Requirements for F-1 STEM OPT Extensions
The U.S. Citizenship and Immigration Services (USCIS) recently released an interim policy memorandum to clarify eligibility requirements for a 17-month extension of post-completion optional practical training (OPT) for F-1 students who are enrolled in Science, Technology, Engineering and Mathematics (STEM) degree programs. Although the policy memorandum is an interim memorandum and the USCIS is soliciting comments on the memorandum, the USCIS has indicated that the policy is effective immediately until further notice.
The policy memorandum clarifies that the USCIS will issue an F-1 STEM OPT extension even if an F-1 student has not yet completed his/her thesis requirement or equivalent in order to be awarded the STEM degree. The USCIS indicated that this new policy is consistent with the guidance released by Immigration and Customs Enforcement's (ICE) Student Exchange Visitor Program (SEVP) in April 2010. The USCIS stated that because F-1 students who have completed all of their course requirements toward their degree, excluding any applicable thesis requirement or equivalent, are currently eligible for post-completion OPT, it is therefore "logical" to conclude that students who are applying for the extension of a post-completion OPT are also eligible for the extension, even if they have not completed their thesis requirement or equivalent. The USCIS also stated that the new policy is also compelling given the "nation's interest in attracting and retaining the world's best and brightest individuals." Although ICE SEVP previously released similar guidance in April 2010, the policy was not uniformly implemented by the USCIS. Therefore, with the issuance of this guidance from USCIS Headquarters which is binding upon all USCIS employees, the guidance should now be uniformly applied by the USCIS during STEM OPT extension application adjudications.
BIA Determines That a Foreign National is Ineligible for "Green Card" Based on Misrepresentation on Form I-9
The Board of Immigration Appeals (BIA) recently upheld the denial of an adjustment of status application due to the fact that the foreign national indicated on a Form I-9 Employment Eligibility Verification document that he was a U.S. citizen when he in fact entered the United States as an F-1 nonimmigrant. Subsequently, he married a U.S. citizen and then applied for adjustment of status. During the adjustment of status interview, the foreign national admitted that he did not have employment authorization to work for his employer. The foreign national admitted that when he completed the Form I-9 he checked the box indicated that he was a "citizen or national of the United States." The BIA held that a foreign national who falsely claims U.S. citizenship on a Form I-9 is seeking a benefit under the Immigration and Nationality Act (Act). Therefore, the BIA determined that he was not admissible because he falsely represented himself to be a U.S. citizen for any purpose or benefit under the Act or any other federal or state law. The BIA then noted that there is no waiver available for this misrepresentation under the Act and upheld the Immigration Judge's removal order.
DOS Releases November 2013 Visa Bulletin – Some Employment-Based Immigrant Visa Categories Continue to Advance
The U.S. Department of State ("DOS") recently released its November 2013 Visa Bulletin. Although the government's Fiscal Year 2014 commenced on October 1, 2013, the DOS continues to advance some of the employment-based immigrant visa categories in order to ensure that demand continues so that the available numbers in these categories are fully used. In the November 2013 Visa Bulletin, the DOS continues to significantly advance the EB-3 World category (which currently has the same cutoff date for the EB-3 Chinese national and Mexican national categories) from July 1, 2010 to October 1, 2010. At this time, the EB-3 Chinese national category is more advanced than the EB-2 Chinese national preference category which has been set at October 8, 2008. The DOS indicated that although it is rapidly advancing the EB-3 Chinese national category, this category may retrogress in the future if there is a sudden increase in demand. Both the EB-2 Indian national category and the EB-3 Indian national category do not advance in the November 2013 Visa Bulletin. The EB-2 Indian national category remains at June 15, 2008 after significantly advancing in the past six months. The EB-3 Indian national category remains at September 22, 2003. Also, the EB-3 Filipino national category remains at December 16, 2006.
The following is a comparison of the movement of the employment-based immigrant visa categories since the inception of the current retrogression:
EB-3 Other Workers
Additional information about movement in the employment-based immigrant visa categories will be contained in our firm's future Immigration Update when it becomes available.
CBP Continues to Expand Global Entry
Customs and Border Protection ("CBP") recently announced an expansion of its Global Entry program. Global Entry allows pre-approved, low-risk travelers the ability to bypass traditional CBP screening and use automated kiosks to complete their entry into the United States upon arrival. Global Entry kiosks are available at 34 U.S. airports and 10 CBP pre-clearance locations in Ireland and Canada, serving 98% of all incoming air travelers. CBP recently announced that it is expanding eligibility for participation in Global Entry to citizens of the Republic of Korea, Germany, Qatar and the United Kingdom. Nationals of these countries also join U.S. citizens, U.S. lawful permanent residents, Dutch citizens and Mexican nationals who are eligible to participate in Global Entry.
On Thursday, October 17, 2013, the federal government reopened its doors after fifteen days of a general shutdown. Congress was able to finally pass legislation funding the government and President Obama signed the bill allowing the federal agencies that had been closed to reopen.
E-verify and all of its features are now operational. As our earlier IPG update indicated when the government shutdown began, all employers continued to be responsible for preparing Forms I-9, Employment Eligibility Verification throughout the government shutdown. Employers that utilize the E-verify program are instructed to do the following:
1. Tentative Non-confirmation (TNC) – employees who were not able to resolve a TNC received between September 17, 2013 and September 30, 2013 should add 12 federal business days to the date indicated on the Referral Letter or the Referral Date Confirmation. This will be the new date by which an employee must contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to contest the TNC. Employers who were unable to initiate a referral process in E-verify for employees who wanted to contest their TNCs can now initiate the referral process.
2. Employers who received a Final Non-confirmation (FNC) or No Show should close the case and when prompted, select "the employee continues to work for the employer after receiving a Final Non-confirmation result" or "the employee continues to work for the employer after receiving a No Show result." Afterward, employers should submit a new case in the E-verify system for the employee.
3. Employers are given until November 5, 2013 to create a case in E-verify for all employees hired during the federal government shutdown. If employers are prompted to indicate a reason for the delay in creation of an employee case, they are instructed to select "other" from a dropdown field and then select "federal government shutdown".
4. Federal Contractor missed deadlines. The federal contractor rule requires federal contractors to enroll and use E-verify, however, organizations may have missed certain deadlines because of the federal government shutdown. If this is the case, employers are instructed to follow the indications listed above and to notify their contracting officer.
5. Customer Support. E-verify customer support anticipates additional wait times due to an increase in assistance requests. Employers and other stakeholders are asked to email Eemail@example.com or call 888-464-4218.
Green Card Visa Lottery for FY-2015 Opens October 1st through November 2nd
The U.S. Department of State (DOS) recently released information regarding the Diversity Immigrant Visa Lottery Program (DV-2015) for fiscal year 2015 (October 1, 2014 through September 30, 2015). The Lottery Program for DV-2015 registration will only last 32 days. The DOS will make available 50,000 "green cards" annually to persons from countries with low rates of immigration to the United States. Similar to last year, the most significant change in the program for fiscal year 2015 is the DOS' notification of a participant's selection exclusively online. Beginning on May 1, 2014, applicants can check the status of their registration online via Entry Status Check at http://www.dvlottery.state.gov to check whether they were selected. Entry Status Check will also notify selected participants and provide them with instructions on the procedures for the application process and will confirm appointments for visa interviews. All entrants must check on the DOS website via the Entry Status Check to determine whether they have been selected to participate in the Lottery. The Entry Status Check is the ONLY manner in which entrants will be notified of their selection. The DOS will NOT mail any correspondence to the selected applicants nor will it send out an email. Furthermore, the Entry Status Check will be the only way in which selected individuals will be provided further instructions on immigrant visa procedures.
The annual DV Lottery Program makes "green cards" available to foreign nationals meeting certain eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing, The Diversity Visa "green cards", however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration and with no visas going to citizens of countries sending more than 50,000 immigrants to the United States in the past five years. Within each region, no country may receive more than 7% of the available Diversity Visa "green cards" in any one year.
Countries Ineligible to Participate in DV-2015 Lottery Program
For the DV-2015 Lottery Program, natives of the following countries are not eligible to apply because they are the principal source countries of Family-Sponsored and Employment-Based immigration, or "high admission" countries: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (which includes Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcaim, St. Helena, Turks and Caicos Islands – but not Northern Ireland) and Vietnam. Foreign nationals born in Hong Kong SAR, Macau SAR and Taiwan are eligible for the Diversity Visa Lottery. A list of the countries whose natives are qualified for the DV-2015 Visa Lottery Program is contained in Exhibit A below.
NOTE: Unlike last year, Nigeria born are now not eligible.
NOTE: Even if you were born in one of the ineligible countries you may still qualify for a Diversity Visa if you spouse was born in an eligible country (and you are applying for the visa together) or if one of your parents was either born in or at the time of your birth was a legal resident of an eligible country.
The entries for the DV-2015 Lottery Program must be submitted electronically between noon (E.S.T.) Tuesday, October 1, 2013 through noon (E.S.T.) Saturday, November 2, 2013. The DOS will only accept entries made on an electronic diversity entry form which will be available at www.dvlottery.state.gov during the registration period. The DOS will not accept mail-in entries. Only one entry by and for each person during each registration period is permitted. Receipt of more than one entry per person will disqualify the person from registration, regardless of the source of the entry.
The procedures for submitting an entry in the DV-2015 Lottery Program are as follows:
Entry Form Contents. The DOS will only accept completed Electronic Diversity Visa Entry Forms submitted electronically at www.dvlottery.state.gov during the registration period. All entries by an applicant will be disqualified if more than one entry for the applicant is received, regardless of who submitted the entry. The entry form will ask the applicant to submit the following information:
1. Full name; (exactly as shown on your passport);
2. Date of birth;
4. City/town of birth;
5. Country of birth;
6. Country of eligibility or chargeability;
7. Photograph according to the specifications described below;
8. Current mailing address;
9. Country where you live today;
10. Phone number (optional);
11. Email address;
12. Highest level of education completed;
13. Marriage status;
14. Number of children that are unmarried and under the age of 21 years of age and each child's information including name, date of birth, gender, city/town of birth, country of birth and photograph that meets the previously described specifications.. (Failure to list all children, who are eligible, will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.); and
15. Spouse's information, including name, date of birth, gender, city/town of birth, country of birth and spouse's photograph that meets the previously described specifications. (Failure to list your spouse will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.).
Photograph Requirements. The entry will be disqualified if photographs are not submitted of the applicant, his/her spouse and each child under the age of 21 (including all natural children as well as legally-adopted and stepchildren, except a child who is already a U.S. citizen or lawful permanent resident) even if the child no longer resides with the applicant and does not intend to immigrate under the Lottery Program. The photographs must be submitted electronically with the entry form. Group or family photos will not be accepted. There must be a separate photo for each family member. Each applicant, his/her spouse and each child will therefore need a computer file containing his/her digital photograph which will be submitted on-line with the entry form. The image file can be produced either by taking a new digital photograph or by scanning a photographic print with a digital scanner. The submitted digital images must conform to the following specifications:
New Digital Image
1. The image must be in the Joint Photographic Experts Group (JPEG) format;
2. The image must be in color - 24 bits per pixel (black and white or 8-bit images will not be accepted);
3. The maximum image size accepted is 240 kilobytes (240KB);
4. The minimum dimensions accepted are 600 pixels (width) by 600 pixels (height) and the height must equal the width;
Scanning a Submitted Photograph
5. Scanner Resolution must be at least 300 dots per inch (dpi);
6. The image must be in the Joint Photographic Experts Group (JPEG) format;
7. The maximum image file size accepted is 240 kilobytes (240KB);
8. Image resolution must be 600 by 600 pixels;
9. The image must be in color - 24 bits per pixel (black and white or 8-bit images will not be accepted);
10. The applicant, spouse or child must be directly facing the camera;
11. The head of the person being photographed must directly face the camera and should not be tilted up, down or to the side;
12. The head should cover about 50% of the area of the photograph;
13. The photograph should be taken with the person being photographed in front of a neutral, light-colored background (photographs taken with a very dark or patterned background will not be accepted);
14. Photographs in which the face of the person being photographed is not in focus will not be accepted;
15. Photographs in which the person being photographed is wearing sunglasses or other paraphernalia which detracts from the face will not be accepted; and
16. Photographs of applicants wearing head coverings or hats are only acceptable due to religious beliefs and still may not obscure any portion of the face of the applicant.
DOS Processing of Entries
After an applicant submits his/her entry, the DOS will send him/her an electronic confirmation notice of receipt of a completed entry form. Applicants will be selected at random by computer from among qualified entries. All entrants must check on the DOS website via the Entry Status Check whether they have been selected to participate in the Lottery on or after May 1, 2014 through June 30, 2015. The Entry Status Check is the ONLY manner in which entrants will be notified of their selection. The DOS will NOT mail any correspondence to the selected applicants nor will it send out an email. The DOS normally notifies approximately 100,000 applicants that they have been selected through the DV Lottery Program. However, only 50,000 "green cards" are available annually. The green cards based upon the DV-2015 Lottery Program will be issued between October 1, 2014 and September 30, 2015. However, because more individuals will be registered than there are immigrant visas available, a registered applicant who wishes to receive his/her immigrant visa must be prepared to act quickly after being notified, especially if he/she is assigned a favorable lottery number in the random selection process. The DOS emphasized that random selection in the lottery process does NOT guarantee that an applicant will receive a "green card."
Education or Work Experience Required
In order to qualify for a "green card" through the Diversity Visa Lottery Program, each applicant must have at least a high school education or its equivalent or, within the past five years, have two years of work
experience in an occupation requiring at least two years of training. A high school education or its equivalent is defined as successful completion of a 12-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to a high school education in the United States. Evidence of educational work experience should not be submitted with the lottery entry but must be submitted to the consular official or U.S. Citizenship and Immigration Services (USCIS) officer at the time of the visa or adjustment of status interview. In order to determine eligibility based on work experience, definitions from the Department of Labor's (DOL) O*Net On-Line database will be used.
DOS Does Not Charge to Enter the DV Lottery Program
There is no charge to enter the annual DV Lottery Program. The DOS does not employ outside consultants or private services to operate the program. A qualified entry submitted electronically directly by the applicant has an equal chance of being selected by the computer at the DOS Kentucky Consular Center as does an entry submitted electronically through a paid intermediary who completes the entry for the applicant. However, if an applicant or a paid intermediary submits more than one entry per person, the person will be disqualified from the program. A special DV Lottery Case processing fee will be payable later by persons who "win" the lottery and are processed for a "green card" based upon the lottery program.
REGIONAL CLASSIFICATION OF COUNTRIES
ELIGIBLE FOR THE DV-2015 LOTTERY PROGRAM
Except as noted, the list below shows the countries qualified within each geographic region for the DV-2015 Diversity Immigrant Visa Lottery Program.
Central African Republic
Congo, Democratic Republic of
Cote D'Ivoire (Ivory Coast)
Sao Tome and Principe
* Persons born in the areas administered by Israel, Jordan and Syria prior to June 1967 are chargeable, respectively, to Israel, Jordan and Syria. Individuals born in the Gaza Strip are chargeable to Egypt; individuals born in the West Bank are chargeable to Jordan; individuals born in the Golan Heights are chargeable to Syria)
NOTE: Individuals born in Nigeria are not eligible for DV-2015.
Hong Kong Special Admin. Region*
United Arab Emirates
*Natives of the following Asian countries do not qualify for this year's Lottery Program: Bangladesh, China (mainland-born), India, Pakistan, South Korea, Philippines and Vietnam. The Hong Kong S.A.R., Taiwan, and Macau S.A.R. do qualify.
Bosnia and Herzegovina
*Including components and areas overseas.
**Great Britain (United Kingdom); including: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena and Turks and Caicos Islands does not qualify. Northern Ireland does qualify.
In North America, Canadian and Mexican natives do not qualify for this year's Lottery Program.
Micronesia, Federated States of
Papua New Guinea
*Including components and dependent areas overseas.
South America, Central America, and the Caribbean
Antigua and Barbuda
Saint Kitts and Nevis
Saint Vincent and the Grenadines
Trinidad and Tobago
Natives of the following countries do not qualify for this year's Lottery Program: Brazil, Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, Jamaica, Mexico and Peru.
The Affordable Care Act: What are the immigration-related aspects?
In 2010 President Obama signed the Patient Protection and Affordable Care Act ("ACA") which brought forth unprecedented reforms to the American healthcare system. With the opening of the Health Insurance Marketplace ("Exchange") earlier this month, the press has focused primarily on how the ACA will affect Americans, that is U.S. citizens, but little attention has been placed on whether the ACA will apply differently to the various classes of non-U.S. citizens that reside in the United States whether legally or illegally. The following will summarize how the ACA applies to these groups.
The Individual Mandate requires that individuals have a certain level of minimum healthcare coverage, as defined in the ACA, after 2013 or otherwise face tax penalties imposed by the Internal Revenue Service (IRS). All individuals who are lawfully present in the United States must comply with the Individual Mandate with certain limited exceptions.  The Individual Mandate does not apply to the undocumented and as an extension to Deferred Action for Childhood Arrivals ("DACA") applicants. Furthermore, tax penalties are not assessed when an individual does not maintain minimum healthcare coverage for less than three continuous months in one year. Thus, the Individual Mandate potentially applies to anyone lawfully present in the United States for three months or more, such as nonimmigrants entering on a B visa as tourists or business travelers, work visas, exchange visas, etc. Although an individual may be covered under the Individual Mandate, noncompliance may nonetheless be a non-issue for those who are not required to file a tax return in any given year since that is the only manner in which a tax penalty will be assessed.
Eligibility for ACA Benefits: Exchanges, Premium Credits & Cost-Sharing Subsidies
Only individuals who have a reasonable expectation of being lawfully present in the United States for an entire enrollment period will be eligible for participation in an Exchange and the Temporary High Risk Preconditions Pool and to receive premium credits and cost-sharing subsidies. This can also potentially encompass the vast majority of individuals in the United States since eligibility only requires lawful presence. The initial period of enrollment for the federal Exchange runs from October 1, 2013 until March 31, 2014, and in subsequent years, will run from October through December of that year. State run Exchanges may have different enrollment periods, therefore, it is difficult to state with certainty who will and will not be eligible for these ACA benefits. Eligibility for participation will be verified electronically using the Systematic Alien Verification for Entitlements (SAVE) database. As with the Individual Mandate, undocumented individuals and DACA applicants are not eligible for any benefit under the ACA. Furthermore, the ACA will not signify a change in alien eligibility requirements for coverage under the Medicaid, Medicare or the Child Health Insurance Program (CHIP) programs.
The applicability of many ACA provisions to the various classes of individuals lawfully in the United States remains unclear and it is unlikely that further guidance will be issued by the various federal agencies until specific problems arise. We will continue to provide any new information to you via our Immigration Updates.
Illinois Introduces New Temporary Visitor Driver's License (TVDL) for Undocumented Individuals
The Illinois Secretary of State recently officially introduced the new Temporary Visitor Driver's License (TVDL) program for undocumented individuals. Additional information about the new TVDL program was contained in our firm's Immigration Update dated January 30, 2013. The Illinois Secretary of State stated that his office will begin issuing TVDLs for undocumented individuals beginning on December 3, 2013. Although the Illinois Secretary of State will begin accepting applications on December 3, 2013, an appointment will be required to apply for the new TVDL. The Illinois Secretary of State stated that undocumented individuals may now begin to schedule appointments by either calling the Secretary of State's Office at 855-236-1155 or by visiting the Secretary of State's website at www.cyberdriveillinois.com. The Illinois Secretary of State stated that services will be provided in English, Spanish, Polish, Mandarin, Chinese and Korean. Initially, applicants' appointments will be scheduled at one of four designated offices. During the appointment, applicants will complete tests and paperwork, including documenting that they have lived in the State of Illinois for at least one year. TVDLs for undocumented individuals will not be issued immediately. Instead, they will only be issued after the Secretary of State's Office can verify application information and perform a facial recognition search against certain undisclosed databases. The Illinois Secretary of State stated that information collected during the application process will not be shared with federal immigration officials but that some data may be given to police during the course of an investigation or if such information is subpoenaed. The Secretary of State stated that it could take between 15-20 business days for the license to be issued. However, the license once issued will be valid for three years. The cost of the license will be $30.
The Secretary of State estimates that there may be as many as 500,000 undocumented individuals who will qualify for new TVDLs. However, he stated that it is estimated that his office will only be able to process approximately 100,000 a year. Therefore, the Illinois Secretary of State estimates that it will take many years for the new program to be completely rolled out.
It appears that the Illinois Secretary of State's Office will have two different types of TVDL programs, one for documented individuals who are not eligible for a Social Security Number (SSN) from the Social Security Administration (SSA) and one for undocumented individuals. Unofficially, officials from the Illinois Secretary of State's Office have stated that the TVDL program for documented individuals will not change, except that an ineligibility letter from the SSA will no longer be required. However, Illinois Secretary of State officials have not officially stated how the current TVDL program for documented individuals will be changed by the new TVDL program for undocumented individuals. Additional information about the TVDL programs for both documented and undocumented individuals will be contained in our firm's future Immigration Updates when it becomes available.
Infosys, Ltd. Reaches $34 Million Settlement in U.S. Immigration Case
Infosys Ltd., India's second largest Information Technology (IT) services company and exporter of IT services to the United States, has agreed to pay the U.S. government $34 million to settle an investigation by the U.S. government into its immigration practices. U.S. Department of Homeland Security (DHS) and U.S. Department of State (DOS) officials have been investigating Infosys' use of B-1 visas since 2011. According to the New York Times and the settlement documents, prosecutors charged that Infosys systematically submitted misleading information to immigration authorities and U.S. consular officials to obtain B-1 visas. Additionally, the New York Times reports that investigators also found extensive omissions and errors in the company's Form I-9 process. Finally, according to the settlement document, investigators found issues with the company's H-1B practices. Infosys denied the charges in the settlement and any accusations of visa abuse. The company said its use of business visitor visas "was for legitimate business purposes and not in any way intended to circumvent the requirements" of the H-1B process. The $34 million settlement is the largest monetary payment in an immigration case.
USCIS Introduces New Change of Address Tool
The USCIS recently introduced a new version of its online tool that allows individuals to notify the USCIS of a change of address. All nonimmigrants and permanent residents are required by law to notify the USCIS of a change of address within ten days of moving. The change of address process is located on the USCIS website at www.uscis.gov/ar-11. Individuals may notify the USCIS of a change of address by mail. However, individuals may also notify the USCIS of a change of address through its new version of its online change of address tool that is available at https://egov.uscis.gov/coa/displayCOAForm.do. This new tool allows individuals to complete a single form with questions that guide them through the change of address process. The new tool will confirm by e-mail that the USCIS has received the change.
 Other exceptions apply, including those that are incarcerated or receive religious exemptions.
For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at firstname.lastname@example.org.