Business Immigration Monthly October 2014

Date: 9/30/2014
 Business Immigration Monthly October 2014

GREEN CARD LOTTERY FOR FY2016 OPENS OCTOBER 1ST THROUGH NOVEMBER 3RD

The U.S. Department of State (DOS) has released its instructions for the Diversity Immigrant Visa Lottery Program (DV-2016) for fiscal year 2016 (October 1, 2015 through September 30, 2016). The Lottery Program for DV-2016 registration will be open for only 33 days from October 1, 2014 at noon (EDT) through close on November 3, 2014 at noon (EST).

The DOS makes 50,000 "green cards" available annually to persons from countries with low rates of immigration to the United States. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The DOS will notify a participant's selection exclusively online. Beginning on May 5, 2015, applicants can check the status of their registration online via Entry Status Check at www.dvlottery.state.gov to determine whether they were selected. Entry Status Check will also notify selected 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 Diversity Visa "green cards" are available only to citizens of countries with lower rates of immigration and no visas are available 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-2016 Lottery Program

For the DV-2016 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, Pitcairn, 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-2016 Visa Lottery Program is contained in Exhibit A below.

NOTE: There are no changes in the countries of eligibility from FY2015.

NOTE: Even if you were born in one of the ineligible countries you may still qualify for a Diversity Visa if your 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.

Registration Procedures

The entries for the DV-2016 Lottery Program must be submitted electronically between noon (E.D.T.) Wednesday, October 1, 2014 through noon (E.S.T.) Monday, November 3, 2014. 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-2016 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;

3. Gender;

4. City/town and Country of birth;

5. Country of eligibility or chargeability;

6. Photograph according to the specifications described below;

7. Current mailing address;

8. Country where you live today;

9. Phone number (optional);

10. Email address;

11. Highest level of education completed;

12. Marriage status;

13. 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

14. 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);

Additional Specifications

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 5, 2015 through June 30, 2016. 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-2016 Lottery Program will be issued between October 1, 2015 and September 30, 2016. 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.

EXHIBIT A

REGIONAL CLASSIFICATION OF COUNTRIES

ELIGIBLE FOR THE DV-2016 LOTTERY PROGRAM

Except as noted, the list below shows the countries qualified within each geographic region for the DV-2016 Diversity Immigrant Visa Lottery Program.

Africa:

Algeria

Angola

Benin

Botswana

Burkina Faso

Burundi

Cameroon

Cape Verde

Central African Republic

Chad

Comoros

Congo

Congo, Democratic Republic of

Cote D'Ivoire (Ivory Coast)

Djibouti

Egypt*

Equatorial Guinea

Eritrea

Ethiopia

Gabon

Gambia, The

Ghana

Guinea

Guinea-Bissau

Kenya

Lesotho

Liberia

Libya

Madagascar

Malawi

Mali

Mauritania

Mauritius

Morocco

Mozambique

Namibia

Niger

Rwanda

Sao Tome and Principe

Senegal

Seychelles

Sierra Leone

Somalia

South Africa

South Sudan

Sudan

Swaziland

Tanzania

Togo

Tunisia

Uganda

Zambia

Zimbabwe

* 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-2016.

Asia:

Afghanistan

Bahrain

Bhutan

Brunei

Burma

Cambodia

Hong Kong Special Admin. Region*

Indonesia

Iran

Iraq

Israel*

Japan

Jordan*

Kuwait

Laos

Lebanon

Malaysia

Maldives

Mongolia

Nepal

North Korea

Oman

Qatar

Saudi Arabia

Singapore

Sri Lanka

Syria*

Taiwan**

Thailand

Timor-Leste

United Arab Emirates

Yemen

*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.

Europe

Albania

Andorra

Armenia

Austria

Azerbaijan

Belarus

Belgium

Bosnia and Herzegovina

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark*

Estonia

Finland

France*

Georgia

Germany

Greece

Hungary

Iceland

Ireland

Italy

Kazakhstan

Kosovo

Kyrgyzstan

Latvia

Liechtenstein

Lithuania

Luxembourg

Macau S.A.R.

Macedonia

Malta

Moldova

Monaco

Montenegro

Netherlands*

Northern Ireland**

Norway

Poland

Portugal*

Romania

Russia

San Marino

Serbia

Slovakia

Slovenia

Spain

Sweden

Switzerland

Tajikistan

Turkey

Turkmenistan

Ukraine

Uzbekistan

Vatican City

*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.

North America

The Bahamas.

In North America, Canadian and Mexican natives do not qualify for this year's Lottery Program.

Oceania

Australia*

Fiji

Kiribati

Marshall Islands

Micronesia, Federated States of

Nauru

New Zealand*

Palau

Papua New Guinea

Samoa

Solomon Islands

Tonga

Tuvalu

Vanuatu

*Including components and dependent areas overseas.

South America, Central America, and the Caribbean

Antigua and Barbuda

Argentina

Barbados

Belize

Bolivia

Chile

Costa Rica

Cuba

Dominica

Grenada

Guatemala

Guyana

Honduras

Nicaragua

Panama

Paraguay

Saint Kitts and Nevis

Saint Lucia

Saint Vincent and the Grenadines

Suriname

Trinidad and Tobago

Uruguay

Venezuela

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.

OCTOBER 2014 VISA BULLETIN UPDATE

The Department of State (DOS) released its October 2014 Visa Bulletin which shows the availability of employment-based immigrant visa categories for the month of October. Below is a summary of the bulletin highlights:

  • The EB-2 India category has stalled at May 1, 2009 after a significant advancement from January 22, 2009 in the August bulletin. In this month's bulletin, the DOS predicts that this category will have to be retrogressed, as early as November, to accommodate increased subscription.
  • The EB-2 China category advances slightly from October 8, 2009 to November 15, 2009.
  • The EB-3 India category advances only a few days from November 8, 2003 to November 15, 2003.
  • The EB-3 World, Mexico and Philippines categories advanced significantly from April 1, 2011 to October 1, 2011.
  • The EB-3 China category shows significant advancement from November 1, 2008 to April 1, 2009.

Please note that month-to-month availability of immigrant visas varies and depends on many factors. These forecasts do not guarantee future availability.

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

Sept 2012

May 2013

Sept 2014

Oct 2014

EB-3 World

09/01/02

03/01/06

U

10/01/06

12/01/07

04/01/11

10/01/11

EB-2 China

01/01/03

04/01/04

10/01/03

U

05/15/08

10/08/09

11/15/09

EB-3 China

10/15/01

03/22/03

U

12/15/05

12/01/07

11/01/08

04/01/09

EB-2 India

01/01/02

04/01/04

10/01/03

U

09/01/04

05/01/09

05/01/09

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/22/02

11/08/03

11/15/03

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

12/01/07

04/01/11

10/01/11

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.

UNITED AIRLINES/FORMERLY CONTINENTAL AIRLINES FINED $270,000 FOR RE-VERIFICATION OF LAWFUL PERMANENT RESIDENTS IN THE I-9 PROCESS

The Office of Special Counsel for Immigration-Related Unfair Employment Practices ("Office of Special Counsel") and United Continental Holdings, Inc./United Airlines, Inc. ("United Airlines"), now United Airlines and formerly Continental Airlines settled claims over violations that Continental Airlines allegedly violated provisions of the Immigration and Nationality Act ("INA") relating to Employment Eligibility Verification. Specifically, the airline is alleged to have requested more documents of US lawful permanent residents in that it unlawfully reverified their employment authorization documents. The claims resulted from an investigation dating from July 2013 and were only limited to Continental Airlines' practices and not United Airlines.

The airline disputed the charges and settled the claims for $270,000. Of this amount $55,000 was set aside as a fund for Continental Airlines employees that were negatively affected by the airlines' practices. The airline must notify these employees and send them a Back Pay Notice Letter providing them an opportunity to come forth and receive compensation for their damages. Additionally, as part of the settlement, the airline agreed to:

· Not engage in discriminatory practices on the basis of national origin or citizenship;

· Not request more documents than are necessary in the Employment Eligibility Verification process;

· Accept documents that appear to be facially valid;

· For a period of two years, ensure that employees that are responsible for administering the Employment Eligibility Verification process have the most current version of the Form I-9 Employer Handbook;

· Ensure that employees that are responsible for administering the Employment Eligibility Verification process receive adequate training;

· Review and revise its internal employment practices to ensure that they do not violate the INA;

· Notify the Office of Special Counsel of any changes to employment practices and allow the Office to comment;

· Ensure that the airlines' internal reporting software does not include the expiration of Permanent Resident Cards; and

· For a period of two years, provide the Office of Special Counsel with a list of all employees with expiring employment authorization that must be reverified with the Office reserving the right to inspect these Forms I-9.

All employers in the United States must verify the employment authorization of each employee hired after November 6, 1986. This employment verification process is completed via the Form I-9, Employment Eligibility Verification. This process is to ensure that US employers are hiring only individuals who have valid authorization to work in the United States. As part of the I-9 process, employees must indicate in Section 1 of the Form I-9 whether they are US citizens, US noncitizen nationals, Lawful Permanent Residents or Aliens with limited employment authorization. Lawful permanent residents have permanent authorization to work in the United States and therefore should not have their employment authorization reverified. Many employers are confused by this because many lawful permanent residents provide a Form I-551 Permanent Resident Card that contains an expiration date.

GRAND AMERICA HOTELS AND RESORTS FORFEITS ALMOST $2 MILLION TO DHS FOR HIRING UNDOCUMENTED WORKERS

The Grand America Hotels and Resorts ("Grand America") which owns hotels and resorts in Utah, Wyoming, Arizona, California and Idaho must forfeit almost $2 million to the Department of Homeland Security ("DHS") after it was found to have hired undocumented workers, terminated them and then rehired them through temporary staffing agencies. The US Attorney's office in Utah and the US Immigration and Customs Enforcement ("ICE") settled the claims with Grand America which resulted from an investigation dating back to 2010. After Grand America was warned in a Form I-9 audit that it was hiring unauthorized workers, the company terminated the workers and then rehired about a third of them, in many instances using fraudulent names or Social Security numbers, through a series of temporary staffing agencies that Grand America itself established.

This case is a clear warning and example of how not to proceed if your company is audited by ICE or any other government agency. It is surprising that Grand America's management and decision-makers were not criminally charged. Grand America was first audited by ICE in 2010. This audit resulted in a finding of approximately 130 undocumented employees. Grand America terminated these employees in 2011 after it received a warning notice from ICE. A year later, ICE found that Grand America rehired many of these employees through staffing agencies that the company created. At that point, search warrants were issued and Grand America agreed to cooperate with the investigation in exchange for the US Attorney not filing criminal charges against the company and its management. As a result of the settlement, and in addition to the $2 million forfeiture, Grand America must complete extensive remedial measures concerning its employment practices and training of staff in charge of the Employment Eligibility Verification process and E-Verify process.

Government audits and investigations relating to the Employment Eligibility Verification process are on the rise. Every year there is a record number of audits and unfortunately company self-audits are not sufficient to root out training deficiencies or practices and policies that appear to be lawful, as in the Continental Airlines case, but are in fact fines and unwanted press waiting to materialize. It is notable that the airline was not in fact fined for hiring undocumented workers, but was fined for not complying with the laws relating to Employment Eligibility Verification. Employers should be aware that the vast majority of fines in this area are assessed for "paper" violations, e.g., failure to prepare the I-9 or properly complete it. Although a relatively simple form on its face, the I-9 is a minefield of liability. Employers should note that it may only be a matter of time before the Office of Special Counsel or ICE knocks on your door. If your company has questions or concerns on the Employment Eligibility Verification process or employment practices in general, please contact us.

EMPLOYMENT AUTHORIZATION AND DEFERRED ENFORCED DEPARTURE EXTENDED FOR LIBERIANS

DHS announced this week that it has extended employment authorization and Deferred Enforced Departure ("DED") for qualifying Liberians. President Obama announced that the administration would extend DED for qualifying Liberians through September 30, 2016. The extension will enable individuals who are already covered by DED to retain this protection and will permit eligible Liberians to continue to work while they file their applications. The US Citizenship and Immigration Services ("USCIS") will issue a notice in the Federal Register which will provide information on the automatic extension of employment authorization and instructions on how eligible Liberians can apply for a new Employment Authorization Document valid through September 30, 3016.

Currently, the employment authorization of Liberians covered under DED will expire on September 30, 2014. Through the publication of a notice in the Federal Register, the DHS will automatically extend their employment authorization for six months through March 30, 2015. This automatic extension will allow covered Liberians to apply and receive new employment authorization documents valid through September 30, 2016. Once issued, a copy of the Federal Register Notice granting this automatic extension of employment authorization will be sufficient documentation for Form I-9, Employment Eligibility Verification, purposes and will demonstrate employment authorization from October 1, 2014 through March 30, 2015. Employers should re-verify the employment authorization of these individuals shortly before March 30, 2015. At that point, these individuals must provide a valid employment authorization document in order to continue to demonstrate their ability to continue working in the United States.

Similar to Temporary Protected Status, DED allows eligible individuals to remain in the United States for limited periods of time according to directives issued by the US President. DED provides certain protections to nationals of the designated country such as protection from removal from the United States, eligibility for an employment authorization document and travel authorization. DED is not a path to US lawful permanent residence. Currently only Liberia is designated for DED.

DEPARTMENT OF LABOR RELEASES LATEST PERMANENT LABOR CERTIFICATION STATISTICS

The Department of Labor (DOL) recently issued its statistics for the fourth quarter of fiscal year 2014 through August 31, 2014 for the Permanent Labor Certification Program. So far, the DOL received 14,314 applications, certified 10,253, denied 861 and had 666 applications withdrawn. In evaluating the DOL trends from fiscal year 2012 to the present the denial rate is currently at 8% from around 11% at the beginning of the fiscal year and the appeals rate has almost tripled doubled from fiscal year 2012 from 3% to its current 9%. Audit rates have decreased from 45% at the end of fiscal year 2012, but are on the rise at 29% currently from 25% for the first quarter of Fiscal Year 2014. 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. The states that list the most work sites in decreasing order are: California, Texas, New York, New Jersey and Washington. The Professional, Scientific and Technical Services remains the top industry, followed by Manufacturing, Information, Educational Services and Finance and Insurance. The top visa classifications are H-1B, L-1, F-1 and TN. The countries with the highest application rates are India, China, Canada, South Korea and Philippines.

CBP DESIGNATES 14 PORTS OF ENTRY FOR OPTIMIZED TN AND L-1 PROCESSING

The US Customs and Border Protection (CBP) has designated 14 ports of entry where it plans to optimize the processing of Canadian TN NAFTA Professionals and L-1 Intracompany Transferees. The goal is to process these admissions more efficiently. Canadian TN and L-1 nonimmigrants are visa-exempt and can apply in either of these classifications directly at a Class A port of entry or at a Preclearance/Preflight facility. TN and L-1 nonimmigrants can continue to apply for admission at other qualifying ports of entry and are not limited to these designated ports. The designated ports for optimized processing are: Lester B. Pearson International Airport, Trudeau International Airport, Vancouver International Airport, Calgary International Airport, Highgate Springs Ports of Entry, Derby Line Port of Entry, Alexandria Bay Port of Entry, Peace Bridge Port of Entry, Rainbow Bridge Port of entry, Champlain Port of Entry, Detroit Canada Tunnel Port of Entry, Detroit Ambassador Bridge Port of Entry, Blaine Peace Arch Port of Entry, and Sweetgrass Port of Entry. The exact locations of each of these designated ports of entry and days and hours of operation can be found at: http://www.cbp.gov/travel/international-visitors/canada-mexico-travel/traveling-tn-or-l-1-visa-canada

DOS SHEDS LIGHT ON FUTURE AVAILABILITY OF IMMIGRANT VISAS

The DOS' Chief of the Visa Control and Reporting Division, Charlie Oppenheim, recently shared extensive information on the future availability of immigrant visas (green cards). The DOS is the government agency that controls and tracks the annual quotas on the issuance of green cards. Each month the DOS issues the Visa Bulletin which outlines the availability of green cards for that month. A summary of Mr. Oppenheim's comments is listed below:

1) EB-2 India – Mr. Oppenheim predicts that this category will retrogress as early as November 2014. This is due to the increased demand for green cards in this category as Indian nationals upgrade their EB-3 petitions to EB-2. As of October 2014, the category is set at May 1, 2009. Currently, there are no more green cards available in the EB-2 India category for the remainder of Fiscal Year 2014. Although technically the category is "unavailable" the US Citizenship and Immigration Services (USCIS) can continue to accept Forms I-485, Applications to Register Permanent Residence or Adjust Status for individuals with priority dates prior to May 1, 2009. These Forms I-485 will be held until additional green cards become available on October 1, 2014 with the start of the new fiscal year.

2) EB-5 China - As noted in our August 28th Update, similarly to the EB-2 India category, the EB-5 China category is also currently "unavailable." What is notable is that this is the first time that the annual cap of 10,000 has been met in the 24 years that the category was created. The DOS has indicated that the USCIS will continue to accept and process Forms I-485 holding them until October 1, 2014 with the start of the new fiscal year. Mr. Oppenheim also stressed the potential need to cut-off the EB-5 China category during the FY2015 as early as May 2015 due to the continued increase in demand.

Philippines - The demand for the employment based categories for Philippines continues to decrease. Currently, the EB-3 and "Other Worker" categories have priority dates of October 1, 2011. The DOS is trying to spur demand in this category, but has been unsuccessful. Mr. Oppenheim predicts that this category will continue to advance until there is more demand, but it may have to be cut-off if demand increases.

TEMPORARY PROTECTED STATUS EXTENDED AND REDESIGNATED FOR SOUTH SUDAN

The Department of Homeland Security (DHS) announced this week that it has extended the designation of South Sudan and that it is redesignating South Sudan for Temporary Protected Status (TPS) from November 3, 2014 to May 2, 2016. The extension will enable individuals who are already covered by TPS to retain this protection and the redesignation will permit eligible South Sudanese nationals who have been continuously living in the in the United States since September 2, 2014 to apply for TPS. Furthermore, individuals who are covered by TPS will be able to apply for a new employment authorization document. Eligible individuals will have to re-register for TPS from September 2, 2014 to November 3, 2014 and will be issued employment authorization documents with an expiration of May 2, 2016. Individuals can find more information, including the applications for TPS at: http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status

DHS is automatically extending the employment authorization for eligible individuals for six months (May 2, 2015) in order to allow them to apply and receive their new employment authorization documents. A copy of the Federal Register Notice granting this automatic extension of employment authorization is sufficient documentation for Form I-9, Employment Eligibility Verification, purposes. The copy of the Notice can be found at: http://www.aila.org/content/fileviewer.aspx?docid=49953&linkid=279933 Employers should re-verify the employment authorization of these individuals prior to May 2, 2015. At that point, the individuals must provide a valid employment authorization document in order to continue to demonstrate their ability to continue working in the United States.

The DHS designates a country for TPS when conditions in the country are dangerous. This may be due to armed conflict, environmental disasters or other temporary events. TPS provides certain protections to nationals of the designated country such as protection from removal from the United States, eligibility for an employment authorization document and travel authorization. TPS is not a path to US lawful permanent residence. The following countries are currently designated by the DHS for TPS: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria.

MFEM NEWS

Mr. Bob White to Present at the NAFSA Region V Conference in Grand Rapids, Michigan

Mr. Bob White, a partner in Masuda Funai's Immigration Group, will be leading an immigration panel during the 2014 NAFSA: Association of International Educator's Region V conference being held in Grand Rapids, Michigan. Mr. White's panel is titled "Immigration Vortex – Surviving the Dysfunctional Immigration System." Mr. White will be presenting this panel with Ms. Amy Benck of the Illinois Institute of Technology and Ms. Lauren Nehlsen of the Elgin Community College. The panel will be discussing current and upcoming immigration issues with the F-1 program and H-1B program. The panel will be held on Thursday, October 30, from 9:30 a.m. to 10:45 a.m.

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.