Business Immigration Monthly for December 2014

Date: 12/3/2014
 Business Immigration Monthly December 2014

OBAMA ANNOUNCES EXECUTIVE ACTIONS ON IMMIGRATION

On November 20, 2014, President Barack Obama issued a much anticipated announcement regarding various immigration-related executive actions that have been the subject of media attention for the last several months. The President did not provide too many specifics during his announcement. However, within a few hours of his speech, the majority of the government agencies that are involved in the immigration process issued press releases and memoranda providing additional information. Below is a consolidated summary of the most important provisions and includes the most up to date information as of November 21, 2014. Many of these provisions remain unclear. Many agencies released memoranda on November 20, 2014 indicating that any changes that will be made will be done so via regulations or the issuance of agency policy memoranda which may take up to several months to implement.

  1. At the White House briefing that occurred before the President announced his executive actions, information was released that these reforms would include some relief to the approximately 400,000 nonimmigrants with approved immigrant petitions that are unable to complete the green card process due to oversubscription in the employment-based green card categories. This measure would potentially allow these nonimmigrants to apply for adjustment of status before an immigrant visa would be available to them. However, neither the White House nor any of the subsequently released memoranda or press releases provide information about this measure. Therefore, it is unclear when (or if) this measure will be implemented by the U.S. Citizenship and Immigration Services (USCIS).
  2. Issuance of new guidance by the USCIS with respect to the L-1B Intracompany Transferee Work Visa for individuals with specialized knowledge. This work visa is notorious for being heavily scrutinized and having request for evidence rates of up to 68% in the last several years. This will be provided via USCIS policy memoranda.
  3. Finalizing the regulations released in May 2014 that would make H-4, Dependent Spouses of H-1B Nonimmigrants, eligible to apply for an Employment Authorization Document as long as the principal H-1B nonimmigrant is far enough along in the green card process. This regulation is expected to be finalized in December or January.
  4. Clarification of the terms "same or similar" for purposes of the American Competitiveness in the Twenty-First Century Act (AC21) which provides for green card portability to allow foreign nationals to more easily port their previously approved immigrant petitions to new employers. This will be provided via USCIS policy memoranda.
  5. Extending the amount of time that foreign students in the STEM fields may be employed in the United States pursuant to Optional Practical Training (OPT), expanding the fields that are included in the STEM field designations and requiring academic institutions to have stronger relationships with the foreign national to ensure that the OPT is related to the students' course of study. The Department of Homeland Security (DHS) has also directed Immigration Customs Enforcement (ICE) and USCIS to implement steps to protect U.S. workers by making sure that OPT employment does not infringe on U.S. labor market protections. This will be implemented via regulation.
  6. Expanding the STEM extension benefit to foreign students pursuing a post-master's degree in a non-STEM field when their first degree was in a STEM field.
  7. Updating the labor certification process through the review and issuance of new regulations to the PERM program, specifically modernizing recruitment requirements, identification of shortages of certain occupations, clarifying an employer's obligations in the PERM process, possibly providing for premium processing for faster adjudication and review, and providing for a review process whereby nonmaterial errors could be addressed. These changes would be made by regulation.
  8. Greater collaboration between the USCIS and the U.S. Department of State (DOS) with the goal of making immigrant visas available to eligible foreign nationals and simplifying the Visa Bulletin system so that this information can be more easily relied upon. The DOS has been asked to improve their system for allocating immigrant visas and communicating this information to the USCIS.
  9. Creation of an interagency group consisting of the Department of Labor, DHS, Department of Justice, Equal Employment Opportunity Commission and National Labor Relations Board with the goal of ensuring the consistent enforcement of labor, employment and immigration laws throughout all agencies. To this effect, this group will work together to develop consistent policies and procedures, standards for sharing information among agencies, etc.
  10. Parole will be granted, on a case by case basis, to certain investors, researchers, and start-up founders to come to or remain in the United States. These individuals would be required to meet job creation criteria, have substantial investor financing and meet resource and income thresholds. This will be implemented via regulation.
  11. National Interest Waivers (NIW) will include foreign entrepreneurs, researchers, inventors and founders of start-up enterprises. The USCIS will be issuing policy guidance to clarify the NIW standards and requirements.
  12. Undocumented aliens who have been in the United States for five years and who have children who are U.S. Citizens or Lawful Permanent Residents and who were born before November 20, 2014 would be granted protection from deportation and authorization to work as long as they successfully complete background checks and pay taxes. This component is being referred to as Deferred Action for Parental Accountability (DAPA).
  13. Deferred Action for Childhood Arrivals (DACA) program would include individuals who were brought to the United States before the age of 16 and have been living in the United States since January 1, 2010.
  14. Extending the employment authorization period for DACA recipients from two to three years.
  15. Prioritizing deportations to include those that are suspected terrorists, convicted felons and gang members and individuals who are apprehended at the border, convicted of serious or multiple misdemeanors, and individuals who had a removal order, but did not depart the United States after January 1, 2014 or returned to the country after they were removed.
  16. Expansion of the Victims of Criminal Activity U nonimmigrant visa and Victims of Human Trafficking T nonimmigrant visa to include three additional qualifying offenses: extortion, forced labor and fraud in foreign labor contracting which can be certified by the Department of Labor.
  17. Discontinuation of the Secure Communities program which sought to create a partnership between state, federal and local law enforcement and replacing it with a Priority Enforcement Program (PEP). PEP will still rely on fingerprint biometric data, but will only obtain transfer of aliens who are convicted of certain crimes that are prioritized via ICE memoranda.
  18. Expansion of the eligibility for a provisional waiver to include spouses and children of Lawful Permanent Residents as well as the clarification of the definition of extreme hardship.
  19. Naturalization: allowing for naturalization applicants the option of paying for the application processing fees via credit card and consideration of the creation of a partial waiver so that more individuals with low enough income levels can apply for citizenship (after a study is conducted by the USCIS).
Additional information about the implementation of these measures (including whether the USCIS introduces a regulation to allow individuals with approved I-140 petitions to file for adjustment of status even if their priority dates are not yet available, as discussed above in Point 1) will be covered in our firm's further Immigration Updates when it becomes available.

DECEMBER 2014 VISA BULLETIN UPDATE

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

  • The EB-2 India category has stalled at February 15, 2005 as predicted in our previous bulletin updates.
  • The EB-2 China category continues to advance slowly from December 8, 2009 to January 1, 2010.
  • The EB-3 India category advances only a few days from November 22, 2003 to December 1, 2003.
  • The EB-3 World, Mexico and Philippines categories advance from June 1, 2012 to November 1, 2012.
  • The EB-3 China category shows significant advancement from January 1, 2010 to June 1, 2010.

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

Nov 2014

Dec 2014

EB-3 World

09/01/02

03/01/06

U

10/01/06

12/01/07

06/01/12

11/01/12

EB-2 China

01/01/03

04/01/04

10/01/03

U

05/15/08

12/08/09

01/01/10

EB-3 China

10/15/01

03/22/03

U

12/15/05

12/01/07

01/10/10

06/01/10

EB-2 India

01/01/02

04/01/04

10/01/03

U

09/01/04

02/15/05

02/15/05

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/22/02

11/22/03

12/01/03

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

12/01/07

06/01/12

11/01/12



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.

VISA WAIVER PROGRAM ESTA TO CAPTURE ADDITIONAL DATA

The Department of Homeland Security (DHS) recently issued a press release stating that the Electronic System for Travel Authorization (ESTA), which is used to screen travelers to the United States using the Visa Waiver Program, would be modified to include additional data fields. These fields include: aliases/other names, additional citizenships, parents' names, national identification numbers, contact information (email, phone, points of contact), employment information and city of birth. The DHS has indicated that this increase in data collection will assist the agency with the screening of travelers, specifically of individuals from terrorist organizations.

ESTA is an online application that was established in 2008 to enhance the security of the Visa Waiver Program. The Program allows certain nonimmigrants to enter the United States as a Visitor for Business or Tourism without having to previously secure a B-1/B-2 visa at a U.S. Embassy or Consulate abroad. A Visa Waiver Program traveler is granted a period of authorized stay of 90 days and prior to entry must register with ESTA online at: https://esta.cbp.dhs.gov/esta/ and pay a $14 fee. Citizens and nationals of the following countries are eligible to participate in the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, Republic of Malta, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and United Kingdom.

TRI-VALLEY UNIVERSITY FOUNDER GETS 16 YEARS IN FEDERAL PRISON

Susan Xiao-Ping Su, the founder and President of Tri-Valley University in California received a sentence of 16 years in federal prison and was ordered to forfeit $5.6 million and pay $900,000 in restitution. Su founded Tri-Valley University in 2008. In the following year, Tri-Valley University received authorization from the DHS, through the Immigration and Customs Enforcement's (ICE) Student and Exchange Visitor Program (SEVP) to issue Forms I-20, Certificate of Eligibility for Nonimmigrant Status, which allows the enrollment of foreign students. In 2010, SEVP withdrew the university's eligibility for issuance of the Form I-20 citing various failures, such as not requiring students to attend classes and improperly reporting changes in the SEVP's web-based database, the Student and Exchange Visitor Information System (SEVIS). A year later, DHS raided Su's home and she was charged with running the University as an immigration scam, where students received grades and immigration-documents in exchange for "tuition" fees. A DHS investigator claimed in the media that many of the students knew of the scam and willingly participated. During the trial, Tri-Valley University employees testified that Su asked the staff to falsify transcripts and that even though many students did not attend classes they were issued grades nonetheless. After the University closed its doors the majority of the students voluntarily left the United States, but many sought to change their enrollment to another academic institutions. Other academic institutions of higher education are also facing the same issues, such as Jerry Wang, the CEO of Herguan University and the University of East-West Medicine whose trial will commence next month.

VALIDITY OF VISITOR AND STUDENT VISAS FOR CHINESE NATIONALS EXTENDED

As of November 12th, Chinese nationals will be able to receive nonimmigrant visas for the maximum allowable period of time, 10 years for business and tourists and five years (or the length of the program) for students and exchange visitors. These new reciprocity rules came as a result of President Obama's recent visit to China where both countries mutually agreed to modify the validity of each country's visas relative to each other. The new rules will affect the B-1/B-2 Temporary Visitor for Business or Pleasure Visa and students and exchange visitors in the F-1, J-1 and M-1 classifications and their dependents. These visas alone represent 97% of the visas that are processed in China and will have a major impact in speeding up the processing of other visas categories handled by the U.S. Embassy and Consulates in China.

Previously, Chinese nationals in these classifications were only eligible for a one-year visa. This placed a heavy burden for individuals in these classifications as nonimmigrants had to apply for a new visa every year in order to maintain their eligibility to travel internationally. Visa applications can only be made at a U.S. Embassy or Consulate abroad and cannot be processed in the United States. Including travel expenses and visa fees, the visa application process can be expensive and time-consuming. Although the validity of these visas was extended, other nonimmigrant classifications, particularly the work visas such as the H-1B Specialty Occupation, L-1 Intracompany Transferee, and O-1 Extraordinary Ability were unaffected. The validity for these visas remains one year, two years and three months, respectively.

These rules do not mean that an individual will automatically receive these maximum visa validities, as the U.S. Embassy and Consulates that process visa applications have discretion to limit the validity of any visa. These new rules will affect new visa applications and not visas that have already been issued. Additionally, these rules do not extend the period of time that a nonimmigrant is allowed to remain in the United States, but extends the validity of the nonimmigrant visa that is issued to them. The visa is the document that permits the nonimmigrant to request entry into the United States.

U.S. EMBASSY IN JAMAICA NO LONGER ACCEPTING/PROCESSING CERTAIN THIRD COUNTRY NATIONAL VISA APPLICATIONS

Effective October 31, 2014, the U.S. Embassy in Kingston, Jamaica will no longer accept visa applications for certain foreign nationals who are not residents of Jamaica. This includes visa applicants who:

  1. Processed for a change of status in the United States and are applying for a nonimmigrant visa in that new category;
  2. Were previously present in the United States in a different nonimmigrant category and are now applying for a nonimmigrant visa in a new category;
  3. While in the United States were out of status, failed to maintain their status or overstayed the validity of their Form I-94;
  4. Secured their current visa in a country that is not their current country of residence;
  5. Received an approval of a petition in the United States but have not previously applied for a nonimmigrant visa in that category;
  6. Are not residents of Jamaica and are applying for a B-1/B-2 Temporary Visitor for Business or Pleasure Visa.

SEVP INCREASES NUMBER OF FIELD REPRESENTATIVES

SEVP increased the total number of field representatives in 21 states across the United States. These field representatives function as liaisons with the SEVP and the 9,000 educational institutions with international student enrollment. Field representatives provide support to schools in the form of education on SEVP's programs and regulations and actively work to develop the data integrity to the Student and Exchange Visitor Information System (SEVIS). The goal is to increase the number of field representatives to 60 with 20 representatives being located in three regions: eastern, central and western.

TEMPORARY PROTECTED STATUS EXTENDED FOR LIBERIA, GUINEA AND SIERRA LEONE

DHS recently announced that it has designated Liberia, Guinea and Sierra Leone for Temporary Protected Status (TPS) for 18 months due to the Ebola virus outbreak. The designation will enable individuals who are living in the United States to remain in the United States and apply for an employment authorization document (EAD). 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

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 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: Liberia, Guinea, Sierra Leone, El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria.

MASUDA FUNAI NEWS

SAVE THE DATE: MASUDA FUNAI'S ANNUAL COMPLIMENTARY IMMIGRATION SEMINAR TO BE HELD ON TUESDAY, FEBRUARY 24, 2015

Masuda Funai will hold its next annual Complimentary Immigration Seminar on Tuesday, February 24, 2015 at the Doubletree Hotel Arlington Heights in Arlington Heights, Illinois. Some of the topics that will be covered during this Immigration Seminar will include:

1. Hot Topics – How President Obama's Executive Actions will affect your company and its employees;

2. Race to the Finish Line – Managing the Fiscal Year 2016 H-1B Quota which opens on April 1, 2015;

3. Green Card Update – Avoiding the Pitfalls in the PERM Process and the I-140 Process;

4. Alternatives to the EB-5 Immigrant Investor Program; and

5. Challenges with the L-1 Individual Petition Process, L-1 Blanket Process and EB-1A Immigrant Visa Process.

Registration for the Complimentary Immigration Seminar is currently open in the News and Events section of the Masuda Funai website at www.masudafunai.com.

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.