Business Immigration Monthly for June 2014

Date: 6/3/2014
 Business Immigration Monthly June 2014

Validity of Green Card Application Medical Exams Shortened to One Year

The US Citizenship and Immigration Services (USCIS) issued a notice limiting the validity of the medical examination that is submitted by a green card applicant. Any medical examination that is reviewed by the USCIS after June 1, 2014 must have been signed by a USCIS designated civil surgeon within the last year. This new procedure was prompted by the Centers for Disease Control and Prevention for unknown reasons.

In order to obtain a green card, an applicant must demonstrate that he or she will not be a public health threat to the United States. Therefore, as part of the green card application process, an applicant must have a medical exam conducted by a USCIS designated civil surgeon who will complete the Form I-693, Report of Medical Examination and Vaccination Record, and will provide it to the applicant in a sealed envelope. The applicant then submits the Form I-693 in the sealed envelope to the USCIS along with the green card application, Form I-485, Application to Register Permanent Residence or Adjust Status.

If the immigration system worked as it was intended to, green card applicants would have their applications processed shortly after a green card became available to them. However, from one month to the next an immigrant visa may be unavailable to thousands of foreign nationals and their dependents. One example is the extreme retrogression that immigration lawyers have become used to in categories that have a high subscription, such as the EB-2 and EB-3 categories for Indian and Chinese nationals. In the last month, the EB-3 category for Chinese nationals went from October 1, 2012 in May to October 1, 2006 in June. Therefore, all of the Chinese nationals that submitted their green card applications in May are now left in


limbo until their priority date becomes current again. Unless the priority date becomes current within the next year and the USCIS processes the applications within the year, the USCIS will ask these individuals to obtain a new medical examination prior to adjudication of their application whenever that may be.

H-1B FY2015 Cap Update - USCIS Returns Rejected Cap Petitions

After much anticipation, the USCIS has begun returning H-1B petitions that were rejected for the statutory cap for Fiscal Year 2015. Our office has begun receiving these petitions as of June 2nd. On Friday, May 2nd, the USCIS announced that it had completed receipting all H-1B petitions that were selected. All petitions that were not selected in the quota are being returned via regular mail to the mailing address listed on the petition. These returned petitions will include uncashed government filing fee checks. An employer should not assume that their petition was not selected in the quota until the employer receives an unprocessed petition in the mail.

On April 10th the USCIS began issuing email notifications for petitions that were selected in the quota that requested premium processing. On April 28th the USCIS began processing these petitions and many employers received decisions or requests for additional evidence for these petitions throughout May. The USCIS has indicated that its goal for processing regular (non-premium processing) petitions will be 60 days. However, we anticipate that it may take the USCIS up to several months to process these petitions. Case in point, last year's cap when the USCIS took over six months to process some petitions. If a faster decision is required, a petitioner always has the option of upgrading the petition to premium processing with the payment of the additional government fee of $1,225.

Similarly to last fiscal year, the cap was reached within the first week that the statutory cap opened. The USCIS received 172,500 petitions, more than the statutory cap of 65,000 visas for the regular quota and the additional 20,000 allotted for individuals who earned a U.S. Master's degree or higher. When the USCIS receives too many petitions for the limited number of visas available per fiscal year, it conducts a random, computer-generated lottery to choose which petitions it will accept and process. Employers should evaluate other work visa options, if any are available, and plan ahead to understand the ramifications of non-selection of their cap-subject H-1B petitions.

Employers Beware: When A USCIS Approval Notice Is Not Actually An Approval Notice

As part of the H-1B process, employers have to determine whether an applicant is subject to the H-1B quota because this will determine when an applicant may be able to commence his/her H-1B employment with the employer. If the applicant is subject to the H-1B quota, the employer would have to file an H-1B petition on April 1 (with a requested H-1B start date of October 1) because for the past two fiscal years, the H-1B quota was met during the H-1B initial filing period from April 1 through April 7. However, if an applicant was already counted under the H-1B quota, he/she may not be subject to the H-1B quota and may more immediately be able to commence his/her employment with the employer.

In the past, when an applicant presented an H-1B approval notice which was filed by an H-1B non-Cap exempt organization, many employers assumed that the applicant had been counted against the H-1B quota and thus would not be subject again to the H-1B quota. However, within the past year, the USCIS' California Service Center (CSC) has been issuing Notices of Intent to Deny (NOID) or Requests for Evidence (RFE) when the applicant never previously "activated" the H-1B status. These applicants' H-1B status may not have been activated because their H-1B quota petition was withdrawn prior to the H-1B status becoming effective on October 1 or the applicant with a petition approved for consular processing never obtained an H-1B visa and entered the United States using the H-1B visa. Our office successfully responded to multiple NOIDs on this issue during the past year citing to both the Immigration and Nationality Act (INA) and the H-1B regulations. However, USCIS Headquarters has recently indicated to the American Immigration Lawyers Association (AILA) that the CSC's interpretation is accurate and that if an individual has not "activated" his/her H-1B status then the individual is still subject to the H-1B quota even though he/she had an H-1B quota subject petition previously approved on his/her behalf. Therefore, prior to filing a quota exempt H-1B petition due to the applicant having been previously counted under the H-1B quota, employers are going to have to determine whether an applicant actually "activated" his/her H-1B status after the approval of the H-1B quota petition. If the employer does not accurately assess whether the H-1B status was properly activated, the employer's H-1B quota exempt petition may be denied and the employer may lose its filing fees.

Government Arrests and Indicts Five DSOs - SEVP Removes all PDSO/DSOs of the School From the SEVIS System

On May 29, 2014, the government arrested and indicted five Designated School Officials (DSOs) for student visa and financial aid fraud. The DSOs were all employed by Micropower Career Institute, a for-profit school with five campuses in New York and New Jersey, or the Institute for Health Education, a for-profit school located in New Jersey. According to Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI), the DSOs were arrested for allegedly orchestrating a wide-ranging fraud scheme, including falsification of student and financial aid files and failure to report to the government students who were non-compliant with the terms of their student visas. ICE HSI stated that a majority of the foreign students at the schools did not attend the required number of classes and instead of reporting this to authorities, the DSOs "remained silent" while the school continued to collect the annual tuition from the students. When the indictment was announced, ICE's Student Exchange Visitor Program (SEVP) announced that it was revoking the Principal Designated School Official (PDSO) and DSOs access in the SEVIS system for the following schools:

1. Micropower Career Institute in New York, New York;

2. Micropower Computer Institute in Linden, New Jersey;

3. The Institute for Health Education in Jersey City, New Jersey; and

4. International School of Health, Beauty & Technology in Lauderhill, Florida.

It is not known at this time if SEVP will also issue a Notice of Intent to Withdraw (NOIW) or Withdraw on Notice (WON) to these institutions in order to completely remove them from the SEVIS program. Students affected by the inability of the PDSO and DSOs of the schools to access the SEVIS system are being directed by SEVP to call the SEVP Response Center to discuss their options.

Department of Homeland Security Proposes Important Changes to H-1B1 and E-3 Nonimmigrant Categories

The Department of Homeland Security (DHS) proposed important changes to the nonimmigrant specialty occupations of H-1B1 for Chile and Singapore nationals and E-3 for Australians which grants continued employment authorization during the pendency of an extension of stay thus providing additional flexibility to these nonimmigrants and their employers . The Notice of Proposed Rulemaking was published in the May 12th Federal Register and opens a comment period for sixty days through July 11th. During this period, DHS will accept any comments and arguments for and against the proposed rule. The Notice of Proposed Rulemaking does not mean that this rule will eventually become law, but only that the DHS is proposing to do so.

In addition to incorporating the H-1B1 and E-3 nonimmigrant categories into the regulations that cover the majority of the nonimmigrant classifications, the proposed rule would allow H-1B1 and E-3 to remain employed for a period of 240 days after expiration of their authorized period of stay as indicated on their Form I-94 while a timely extension of stay has been filed by their employers with the U.S. Citizenship and Immigration Services (USCIS). This automatic extension of employment authorization is already granted to other nonimmigrant classifications, such as E-1, E-2, H-1B, L-1A/B and TN. Currently, employers who sponsor H-1B1 and E-3 nonimmigrants must file the extension of stay with sufficient time to ensure that the USCIS approves the petition prior to the nonimmigrant's expiration date, otherwise, the individual must stop working until a decision has been reached. Since the USCIS' processing times are always fluctuating this situation adds an extra layer of uncertainty and complexity to the hiring of H-1B1 and E-3 employees that employers would appreciate if they could avoid. We welcome the DHS' proactive approach of incorporating the H-1B1 and E-3 categories into the laws that govern the more common visas.

June 2014 Visa Bulletin Update

The U.S. Department of State ("DOS") released its June 2014 Visa Bulletin which shows the availability of employment-based immigrant visa categories for the month of June. In this month, we saw many important changes:

  • The EB-3 China category has retrogressed from October 1, 2012 to October 1, 2006 after several months of aggressive advancement. We had initially forecasted that this retrogression would happen in the February Visa Bulletin. This is a reminder of the extreme uncertainty with predicting the movement of the priority dates. The Other Workers category for China retrogressed significantly from October 1, 2012 to January 1, 2003.
  • The EB-3 categories for the World and Mexico also retrogressed from October 1, 2012 to April 1, 2011.
  • The EB-2 China and India categories continue to advance modestly from April 15, 2009 to May 22, 2009 for China and October 1, 2003 to October 15, 2003 for India.
  • The EB-2 India category remains at November 15, 2004 after the prior retrogression of four years in 2013. We do not anticipate any further advancement before the beginning of the next fiscal year.
  • The EB-3 Philippines category also advanced from November 1, 2007 to January 1, 2008.

Comparison to Prior Months

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

Dec 2007

Jun 2008

Aug 2009

Sept 2012

Mar 2014

Mar 2014

June 2014

EB-3 World

09/01/02

03/01/06

U

10/01/06

09/01/12

10/01/12

04/01/11

EB-2 China

01/01/03

04/01/04

10/01/03

U

02/15/09

03/08/09

05/22/09

EB-3 China

10/15/01

03/22/03

U

12/15/05

09/01/12

10/12/12

10/01/06

EB-2 India

01/01/02

04/01/04

10/01/03

U

11/15/04

11/15/04

11/15/04

EB-3 India

05/01/01

11/01/01

U

10/08/02

09/15/03

09/15/03

10/15/03

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

09/01/12

10/01/12

04/01/11

 
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.

2015 Diversity Visa Lottery Program Winners Chosen and All Applicants Are Reminded to Check Whether They Were Selected on the DOS Website

The Department of State (DOS) has posted the winners of the Diversity Visa Lottery Program for fiscal year 2015 on their website at: https://www.dvlottery.state.gov/ESC/(S(351x3hodbu55nwa1kod251qu))/default.aspx . Applicants are reminded that the DOS will not notify winners, but that the applicants must go to this link using the confirmation number that they received at the time they submitted their application to determine whether they were chosen. If an applicant has lost their confirmation number, they will not be able to check the case status website and will have to apply for the next year's program. The case status check website is available from May 1, 2014 through June 30, 2015. The DOS has indicated that on May 1, 2014, the first day that the case status website went live, they experienced technical difficulties resulting in the wrong information being disclosed to applicants. Therefore, applicants who checked on whether they were selected on May 1, 2014 are instructed to return to the case status website to re-check whether they were selected.

If an applicant was chosen, the case status website will provide further instructions on how to complete the immigrant visa application. Fiscal year 2015 selectees must complete the application process via the DS-260, Immigrant Visa Electronic Application through the Consular Electronic Application Center (CEAC) in contrast with applicants from prior years who had to complete two paper forms, the DS-230 and the DSP-122. Applicants processing under the Visa Lottery Program for fiscal year 2014 will continue to use the paper forms DS-230 and DSP-122. Furthermore, the DOS has indicated that selectees should not use the CEAC Status Check website during the time that their form DS-230 is being processed by the KCC since the status check functionality is not available yet. They will receive an error message that their case number is not found.

Current law allows for 50,000 immigrant visas "green cards" to be granted annually to foreign nationals that meet certain requirements from countries that have low rates of immigration to the United States. The DOS chose the winners from around 9.3 million eligible entries from applicants that registered during a one-month period that ran from October 1, 2013 through November 2, 2013. Individuals that were selected are reminded that they must act immediately to complete the process since applicants who do not complete the process by September 30, 2015 will not be able to obtain their green card through the program.


I-94 Retrieval Website Now Shows Travel History for Last Five Years

On April 30th, 2014, Customs and Border Protection (CBP) released a new version of its I-94 Retrieval website that allows nonimmigrants to view their arrival and departure history for the last five years. In April 2013, CBP eliminated the paper Form I-94 Arrival/Departure Record that was issued to nonimmigrants every time they entered the United States and turned in at the time of their departure. This paper card was then processed by CBP and entered into their systems to record when a nonimmigrant entered and departed the United States. In an effort to streamline the process and save on processing costs, the CBP introduced an electronic Form I-94 retrieval system, however, the website would only provide a traveler with information on the last entry into the United States. If the traveler was not physically present in the United States, the website would indicate no Form I-94 was available. Individuals who needed documentation of their arrivals and departures, and who did not print a new Form I-94 record upon each entry, were forced to submit a Freedom of Information Act (FOIA) request to obtain this documentation. FOIA requests are known to take up to a year. For this reason, having the last five years of entry and departure data available is a great improvement over the initial roll out of the I-94 Retrieval website.

Department of Labor Releases Latest Permanent Labor Certification Statistics

The Department of Labor (DOL) recently issued its statistics for the second quarter of fiscal year 2014 (January to March 2014) for the Permanent Labor Certification Program. The DOL received 15,474 applications, certified 17,129 (almost double from last quarter), denied 1,605 and had 936 applications withdrawn. In evaluating the DOL trends from fiscal year 2012 to the present the denial rate continues to hover at around 10% and the appeals rate has more than doubled from fiscal year 2012 from 3% to 9%. Audit rates have decreased from 45% at the end of fiscal year 2012 to 27% for this second quarter. Fiscal year 2012 was the last year in which the DOL issued any statistics on the amount of applications in supervised recruitment.

The majority of PERM applications continue to be filed in the Computer and Mathematical fields followed by the following fields: Architecture and Engineering, Management, Business and Financial Operations, and Education, Training and Library (this last field replaced Healthcare Practitioners). The states that list the most work sites in decreasing order are: California, Washington, Texas, New York and New Jersey. The Professional, Scientific and Technical Services remains the top industry, followed by Information, Manufacturing, Educational Services and Finance and Insurance.

Deferred Action for Childhood Arrivals Employment Authorization Renewal Process

The USCIS has recently released information on how individuals who received Deferred Action for Childhood Arrivals (DACA) benefits would be able to apply for an extension of the period of deferred action for an additional two years. Although it does not confer lawful status, DACA is a discretionary measure that grants eligible undocumented individuals who entered the United States as children protection from removal actions and the ability to apply for employment authorization. DACA was intended to protect children who through no fault of their own were brought to and raised in the United States, but remain on the fringes of society due to their lack of lawful status, in light of the failure of Congress to pass comprehensive immigration reform.

As part of the renewal process, the USCIS will issue a new Form, I-821D, Consideration of Deferred Action for Childhood, which applicants will submit with the Form I-765, Application for Employment Authorization, and the Form I-765W, Worksheet. Applicants are warned against filing the current version of the Form I-821D as this will result in a rejection of the application. The USCIS has also indicated that applicants' renewal of deferred action and employment authorization will be processed before the current deferred action and employment authorization documents will expire.

For Form I-9 purposes, employers are reminded that they should monitor the expiration of those employees whose employment authorization will expire and make a timely request to the employee to provide a new document evidencing a new period of employment authorization. This is most easily done by providing the employee with the most recent version of the Form I-9 Instructions which includes the List of Acceptable Documents. Employers must re-verify employment authorization before the employee's current authorization expires. Please contact us if you have any questions regarding the Form I-9, the employment eligibility verification process or the DACA renewal process.

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.