Business Immigration Monthly for February 2015

Date: 2/5/2015
 Business Immigration Monthly for February 2015

H-1B Quota Opens on April 1 – Are Your Company's H-1B Quota Petitions Ready to be Filed?

The H-1B quota for fiscal year 2016 (October 1, 2015 through September 30, 2016) will open on April 1, 2015. Similar to the last H-1B quota, our firm is anticipating that the H-1B quota for fiscal year 2015 will be met during the initial filing period of April 1, 2015 through April 7, 2015. When the H-1B quota is met, employers will not be able to file additional H-1B quota subject petitions until the next H-1B quota becomes available on April 1, 2016 (for H-1B employment beginning on or after October 1, 2016).

The number of H-1B quota visas remains the same as in previous years, 65,000 for the regular H-1B quota with an extra 20,000 numbers available for individuals who have earned U.S. Master's or higher degrees. During the last H-1B quota period for fiscal year 2015, the U.S. Citizenship and Immigration Services (USCIS) received more than 172,500 petitions. This was an increase of more than 48,000 petitions received (or an approximately 30% increase) in the fiscal year 2015 H-1B quota in comparison to the fiscal year 2014 H-1B quota. It is assumed that the number of petitions received by the USCIS in this upcoming fiscal year 2016 H-1B quota will be significantly higher with some estimating that more than 225,000 H-1B quota subject petitions may be received by the USCIS.

If the USCIS receives more petitions than H-1B quota numbers available, the USCIS will conduct a random selection process of the petitions received. The first random selection process will be conducted for the petitions received claiming the exemption under the U.S. Master's or higher degree. The petitions not selected in this random selection process will then be added to the regular H-1B quota petitions and the USCIS will then conduct another random selection process. If the petition is selected in either of the random selection processes, the USCIS will then adjudicate those petitions. If the petition is not selected in either of the random selection processes, the petition will be returned to the employer (or its representative) without adjudication. No special preferences are given in the random selection process for types of positions, countries of birth, educational background, etc. If a petition is received after the H-1B quota is met, the petition will also be returned to the employer without being adjudicated. Therefore, employers should currently be preparing their H-1B quota petitions so that they can be filed during the upcoming H-1B quota initial filing period. Please note that as part of the H-1B process, the employer (or its representative) must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The DOL may take 7+ plus days to adjudicate the LCA, assuming that the DOL's iCERT system continues to function properly.

Additional information about the fiscal year 2016 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

DOL ISSUES ADDITIONAL GUIDANCE FOR H-2B PROGRAM PREVAILING WAGE REQUESTS

Last week, the DOL issued new guidance to employers in the H-2B program. This new guidance affects employers who have already received prevailing wage determinations based on an employer-provided wage survey and is part of a follow up on recent litigation surrounding prevailing wage determinations based on an employer provided wage survey. On December 8, 2014, the DOL ceased issuing prevailing wage determinations based on employer-provided wage surveys in the H-2B program. The DOL issued this announcement as a result of the federal court of appeals decision rendered by the Third Circuit on December 5, 2014, Comite de Apoyo a los Trabajadores Agricolas et a. v. Solis. The new guidance affects employers who already received a prevailing wage determination that was based on an employer-provided wage survey. In these cases, the DOL will not issue a new prevailing wage determination until the conclusion of additional proceedings initiated by the DOL in mid-December. These additional proceedings consisted of the DOL publishing a notice of intent to issue a declaratory order wherein the DOL asserts its exclusive authority over the prevailing wage process for the H-2B program. This notice of intent requests comments through mid-January and the DOL will issue its findings after it has considered all comments.

EXPANDED DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) BEGINS FEBRUARY 18TH

On February 18, 2015, the US Citizenship and Immigration Services (USCIS) will begin accepting applications for the expanded Deferred Action for Childhood Arrivals (DACA) program that President Obama announced as part of his executive actions before the Thanksgiving holiday. These changes modify the continuous residence requirement from June 15, 2007 to January 1, 2010 and removes the age restriction, allowing individuals of any age that are otherwise qualified to apply. The age requirement was previously June 15, 1981. The USCIS has not modified its website nor the Form I-821D yet. Applicants should wait until further guidance is released in order to begin preparing their materials.

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.

 

H-2B CAP FOR FIRST HALF OF FISCAL YEAR 2015 REACHED

The USCIS has announced that as of January 26, 2015 it reached the statutory cap of 33,000 H-2B visas for fiscal year 2015. The quota for the second half of fiscal year 2015 (April 1, 2015 to September 20, 2015) remains available for petitions with a start date of April 1, 2015 or later. The H-2B visa for Temporary Non-Agricultural Workers requires employers to established that the need for the foreign worker's services is temporary, that there are insufficient U.S. workers that are able, available, qualified and willing to accept the H-2B position and that the hiring of a foreign worker will not adversely affect the working conditions and wages of U.S. workers. Certain H-2B petitions are exempt from the statutory cap and these include H-2B workers that are extending their status; fish roe: processors, technicians or supervisors; and workers performing services in the Commonwealth of Northern Mariana Islands or Guam (between November 28, 2009 until December 31, 2019).

TEMPORARY PROTECTED STATUS EXTENDED AND REDESIGNATED FOR SYRIA

The Department of Homeland Security (DHS) announced this week that it has extended the designation of Syria and that it is redesignating Syria for Temporary Protected Status (TPS) for 18 months from April 1, 2015 to September 30, 2016. The extension will enable individuals who are already covered by TPS to retain this protection and the redesignation will permit eligible Syrian nationals who have been continuously living in the in the United States since January 5, 2015 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 January 5, 2015 through March 6, 2015 and will be issued employment authorization documents with an expiration of September 30, 2016. First-time applicants applying for TPS must submit an application during the registration period covering January 5, 2015 through 180 days after publication. Individuals can find more information, including the applications for TPS at: http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/tps-designated-country-syria/temporary-protected-status-designated-country-syria

DHS is automatically extending the employment authorization for eligible individuals for six months (through September 30, 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. Employers should re-verify the employment authorization of these individuals prior to September 30, 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, Guinea, Haiti, Honduras, Liberia, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan and Syria.

DHS EXTENDS EMPLOYMENT AUTHORIZATION FOR SYRIAN STUDENTS

DHS has extended the employment authorization of Syrian students in F-1 status that are experiencing severe economic hardship as a result of the continued unrest in Syria. DHS initially provided employment authorization for these students from April 3, 2012 to October 3, 2013 and then from October 3, 2013 to March 31, 2015. This extension of employment authorization will cover from March 31, 2015 to September 30, 2016. These students will continue to be considered to be in a "full course of study" for the term of the employment authorization as long as they continue to comply with the minimum course load requirement. The additional requirements are that the F-1 students have been lawfully present on April 3, 2012, be enrolled in an academic institution that is certified by the Student and Exchange Visitor Program for enrolling F-1 students, be maintaining F-1 status and have severe economic hardship because of the civil unrest in Syria.

FEBRUARY 2015 VISA BULLETIN UPDATE

The Department of State (DOS) released its February 2015 Visa Bulletin which shows the availability of employment-based immigrant visa categories for the month of February. Below is a summary of the bulletin highlights:

· The EB-2 India category has advanced from February 15, 2005 to September 1, 2005.

· The EB-2 China category has advanced one month from February 1, 2010 to March 15, 2010.

· The EB-3 India category advances two weeks from December 15, 2003 to December 22, 2003.

· The EB-3 World, Mexico and Philippines categories continue to exhibit strong advancement from June 1, 2013 to January 1, 2014.

· The EB-3 China category also continues to show significant advancement from March 1, 2011 to September 1, 2011.

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

Forecast for Future Months

The following is a summary of the DOS' forecast for availability of immigrant visas:

1. EB-1 will remain current.

2. EB-2 China will advance three to six weeks.

3. EB-2 India will advance four to six months

4. EB-2 World will remain current.

5. EB-3 World will advance another month or two.

6. EB-3 China will see rapid advancement which may require a cutoff in future months.

7. EB-3 India will advance two weeks.

8. EB-3 Mexico will remain consistent at the EB-3 World date.

9. EB-3 Philippines will remain consistent with the EB-3 World date, but may require a cutoff in future months.

10. EB-5 China may be cutoff as early as the summer months. All other countries will remain current.

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

Jan 2015

Feb 2015

EB-3 World

09/01/02

03/01/06

U

10/01/06

12/01/07

06/01/13

01/14/14

EB-2 China

01/01/03

04/01/04

10/01/03

U

05/15/08

02/01/10

03/15/10

EB-3 China

10/15/01

03/22/03

U

12/15/05

12/01/07

03/01/11

09/01/11

EB-2 India

01/01/02

04/01/04

10/01/03

U

09/01/04

02/15/05

09/01/05

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/22/02

12/15/03

12/22/03

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

12/01/07

06/01/13

01/14/14

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.

PANAMA TO JOIN GLOBAL ENTRY

The US Customs and Border Protection (CBP) has announced that as of January 12, 2015, Panama will join the select countries that are eligible to participate in the Global Entry Program. Global Entry facilitates entry into the United States after international travel for certain pre-screened travelers at automated kiosks at certain airports. Instead of being inspected by a CBP admissions officer at the port of entry, a Global Entry traveler proceeds to an automated kiosk where they scan their machine-readable passport or U.S. permanent resident card data, provide their fingerprint and can make their customs declaration. Currently, German and Mexican citizens are eligible for Global Entry. Additionally, citizens of the Netherlands are eligible for Global Entry if they are enrolled in Privium. Korean citizens are eligible if they are Smart Entry Service Members. Canadian citizens are not eligible for Global Entry, but they can enroll in a different trusted traveler program, NEXUS, which issues a card to approved travelers which can be used as an alternative to their U.S. or Canadian passport.

Global Entry requires completion of an on-line application, payment of a $100 fee, interview and background check. To review Global Entry eligibility and application procedures, please go to: http://www.cbp.gov/global-entry/how-to-apply

GLOBAL ENTRY EXPANDS TO CHICAGO'S MIDWAY AIRPORT

CBP has expanded the Global Entry Program to seven additional airports one of which is Chicago's Midway International Airport (MDW). Currently, approximately 45 international airports have Global Entry capability and this includes Chicago's O'Hare International Airport (ORD). Global Entry facilitates entry into the United States after international travel for certain pre-screened travelers at automated kiosks at certain airports. Instead of being inspected by a CBP admissions officer at the port of entry, a Global Entry traveler proceeds to an automated kiosk where they scan their machine-readable passport or U.S. permanent resident card data, provide their fingerprint and can make their customs declaration. The additional six airports to receive the Global Entry automated kiosks include: Ted Stevens Anchorage International Airport, Anchorage, Alaska (ANC); Cincinnati/Northern Kentucky International Airport, Hebron, Kentucky (CVG); Cleveland Hopkins International Airport, Cleveland, Ohio (CLE); Pittsburgh International Airport, Pittsburgh, Pennsylvania (PIT); Austin-Bergstrom International Airport, Austin, Texas (AUS) and General Mitchell International Airport, Milwaukee, Wisconsin (MKE).

MFEM NEWS

REGISTER TODAY: MFEM'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 from 8:00 a.m. to 11:30 a.m. 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. "Give Me Your Tired, Your Poor, Your Huddled Masses, Yearning To Breathe Free, …" But First Give Me $1 Million – Alternatives to the EB-5 Investor Visa; and

5. The "L" Hits a New Low: Will 2015 Be its Demise?

JUST ANNOUNCED – NEW GUEST SPEAKER: A Senior Supervisory Officer from U.S. Customs and Border Protection ("CBP") will be a guest speaker at this year's MFEM Complimentary Immigration Seminar. The Officer will be discussing admission issues encountered at CBP O'Hare International Airport and provide tips to employers about facilitating international travel for their employees.

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