Business Immigration Monthly for April 2015

Date: 4/13/2015
 Business Immigration Monthly for April 2015

The U.S. Citizenship and Immigration Services (USCIS) has announced that, as expected, the H-1B quota for fiscal year 2016 (October 1, 2015 to September 30, 2016) was reached during the initial filing period (April 1, 2015 to April 7, 2015). The H-1B quota for fiscal year 2016 is 65,000 for the regular quota with an additional 20,000 allotted for individuals who have earned a U.S. Master's or higher degree. The number of H-1B quota petitions that the USCIS may accept in any fiscal year has not changed in more than 10 years. Although the USCIS announced that the quota has been reached, the USCIS has not yet provided information about the number of petitions that it received during the initial filing period. It is assumed that the USCIS will provide this information after it has completed the intake of the filed petitions.

Last fiscal year's H-1B quota was also reached within the initial filing period. The USCIS received approximately 172,500 petitions filed against both the regular H-1B quota and the U.S. Master's Degree exemption. Unless legislation is enacted which increases the H-1B quota, it can be expected that the H-1B quota will continue to be met during the initial filing period. Due to the limited availability of H-1B quota numbers each year, employers are reminded of the importance of advance planning for current and future employees that may be subject to the H-1B quota and to contact our office in January or February of every year to discuss the H-1B quota process and any alternatives.

When the USCIS receives more H-1B quota petitions than allowed in a fiscal year, it conducts a computer-generated random selection process to choose which petitions it will accept and adjudicate. This is a random process with no preference being given for the type of position, the beneficiary's country of birth, etc. The USCIS will actually complete two random selection processes this fiscal year. The first random selection process will be for those petitions claiming the U.S. Master's Degree or higher exemption because this exemption is limited to 20,000 and the USCIS has received in excess of 20,000 requesting this exemption For those petitions claiming this exemption that are not selected in this first random selection process, they will then be added to the other regular quota petitions and then a second random selection process will be completed on all of these petitions. After the USCIS completes these two random selection processes, the USCIS will issue receipt notices for those petitions that were selected in either random selection process and will ultimately adjudicate the petitions. For the petitions that are not selected in either random selection process, the USCIS will return the petitions to the employer (or its attorney of record) without adjudicating them. Due to the estimated extremely large volume of H-1B quota petitions filed against the fiscal year 2016 quota, it may take the USCIS a few weeks to complete the random selection processes and begin to issue receipt notices. The USCIS has already announced that the 15-day premium processing clock will not commence for those petitions accepted for adjudication in the random selection process and that requested premium processing until May 11, 2015. For those petitions not selected in a random selection process, it is assumed that the USCIS will take a few months after the completion of the random selection processes to return the unadjudicated petitions.

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

USCIS TO BEGIN ACCEPTING EMPLOYMENT AUTHORIZATION (EAD) APPLICATIONS FROM CERTAIN H-4 DEPENDENT SPOUSES ON MAY 26TH – QUALIFIED H-4 NONIMMIGRANTS MAY WANT TO COMMENCE THE PROCESS AT THIS TIME

Background

The Department of Homeland Security (DHS) has finalized the rule allowing certain H-4 dependent spouses to obtain employment authorization. This rule was initially announced in May 2014. The goal of this new program is to lessen the burden on H-1B families that are subject to lengthy employment-based immigrant visa (a.k.a. green card) processes by allowing the H-4 dependent spouse to work. This rule does not apply to minor children of qualifying H-4 dependent spouses or to the dependent spouses of nonimmigrants in the following classes: H-1B1 (Chilean and Singaporean), H-2A/H-2B (Temporary Agricultural/Non-Agricultural Workers) and H-3 (Trainees).

Although DHS estimates that approximately 180,000 H-4 nonimmigrants will qualify for this provision in the first year and approximately 55,000 for each subsequent year, our firm anticipates that these number may understate the number of H-4 spouses who may be eligible for this new program. Although the earliest date on which H-4 EAD applications may be filed with the USCIS is May 26th, our firm is encouraging those H-4 nonimmigrants who may be eligible for an EAD card to commence the H-4 EAD process at this time so that the necessary documents are prepared and ready to be filed with the USCIS on or after May 26th.

Eligibility & Filing Requirements

The new program applies to H-4 dependent spouses when the principal H-1B nonimmigrant:

1) Has an approved Form I-140, Immigration Petition for Alien Worker; or

2) Has been granted H-1B status beyond the sixth year maximum period of stay in H-1B status on the basis of the Section 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).

A qualifying H-4 dependent spouse will not automatically receive employment authorization incident to their status, but will have to apply for an Employment Authorization Document (EAD) card by submitting the Form I‑765, Application for Employment Authorization, to the U.S. Citizenship and Immigration Services (USCIS). The Form I-765 must be submitted with fee (currently $380) and supporting documents. The H-4 dependent spouse will only be eligible to work upon receipt of the EAD. When the EAD expires, the H-4 dependent spouse will lose employment authorization unless he/she has received a new EAD card prior to the expiration. The USCIS will modify the existing Form I-765 to include a box specifically for this new program.

The supporting documents that must be filed with the Form I-765 include documentation demonstrating that:

1) The H-4 spouse is in valid H-4 status;

2) The H-1B spouse holds valid H-B status;

3) Proof of marriage; and

4) Proof that the H-1B spouse has an approved Form I-140 or has been granted H-1B status beyond the sixth year maximum period of stay under Section 106(a) or (b) of AC21.

If primary documentation is unavailable, the USCIS will accept secondary documentation in the form of two or more sworn affidavits by individuals not including the H-4 spouse or H-1B principal beneficiary.

The Form I-765 can be filed concurrently with the Form I-539, Application to Extend/Change Nonimmigrant Status requesting a change or extension of H-4 status. Additionally, the Form I-765 can be filed with the Form I-539 (and if applicable the principal H-1B spouse's Form I-129, Petition for a Nonimmigrant Worker) up to six months prior to the EAD/I-94 expiration date.

Validity

An EAD for a qualifying H-4 dependent spouse will be issued until the earlier of the H-4 dependent spouse's authorized period of stay as indicated by his/her Form I-94 or the H-1B principal's authorized period of stay as indicated by his/her Form I-94. The maximum period that the EAD will be issued for is 3 years. A qualifying H-4 dependent spouse must file an extension of the EAD on a timely basis as there will not be an automatic extension of employment authorization while a new Form I-765 application is pending. When the EAD expires, the H-4 dependent spouse will lose employment authorization unless he/she has received a new EAD card prior to the expiration.

Effect of New Program on Processing Timeline for F-1 OPT EADs and Other USCIS Benefits

The DHS has made it clear that the timing of when the USCIS will begin accepting Forms I-765 for qualifying H-4 dependent spouse in May 2015 is designed to prevent an overlap with the H-1B cap season and the EAD applications filed by F-1 students through the Optional Practical Training (OPT) program. However, because many F-1 students who are graduating from school this spring/summer will file their post-completion OPT EAD applications in May, it is highly recommended that the F-1 students file their OPT EAD applications prior to the effective date of this program because it is uncertain whether the USCIS will have the resources to timely process EAD applications filed through this program and the other EAD programs.

Premium processing is not available for this program. Although the Form I-765 may be submitted with the Form I-539 and Form I-129, the USCIS will not process the Form I-765 until the Form I-539 and/or the Form I-129 have been approved. Therefore, the 90-day period by which the USCIS must adjudicate a Form I-765 will begin on the last day that the Form I-539/Form I-129 is approved.

Earliest Date to File

The earliest date that a qualifying H-4 dependent spouse may submit the Form I-765 as part of this program is May 26, 2015. Any applications submitted prior to this date will be rejected. Although the earliest filing date is May 26, 2015, our office is recommending that H-4 dependent spouses contact our office at this time to prepare the necessary documents so that they are ready to be filed when the program commences on May 26, 2015.

 

USCIS ISSUES LONG AWAITED L-1B POLICY MEMO

 

The US Citizenship and Immigration Services (USCIS) issues long awaited L-1B Intracompany Transferee Visa adjudications memorandum. The USCIS posted the memo on March 24th and will allow for comments until May 5th. The memo will not become effective until August 31, 2015. The memo was part of the series of executive actions on immigration that President Obama announced in November 2014. The L-1B visa permits foreign workers with specialized knowledge to be transferred to the United States to work at a U.S. entity that is affiliated with the worker's foreign employer.

The L-1B program continues to be one of the most controversial and unpredictable work visas due to a lack of clear guidance on what constitutes "specialized knowledge" and a variety of memoranda that USCIS officers frequently ignore and disregard translating into inconsistent adjudications across the board. Nothing exemplifies this more than the Fogo de Chao case that was decided in October 2014 by the U.S. Court of Appeals for the DC Circuit. The case dealt with the definition of "specialized knowledge" as it applies to specialty chefs. The case stemmed from a 2010 denial by the USCIS Vermont Service Center of an L-1B petition filed by the Brazilian-themed Fogo de Chao chain of steakhouses for a gaucho chef. Prior to the denial of the company's L-1B petition for this worker, the USCIS had approved over 200 petitions for gaucho chefs from 1997 to 2006. In its denial, among other factors, the USCIS indicated that cultural skills, such as an individual's cultural background and experience in cooking traditional ethnic meals did not constitute specialized knowledge. The Court of Appeals rejected this severe definition of specialized knowledge and scolded the Administrative Appeals Office (the DHS appellate body) for ignoring documentation that the foreign worker had completed a company training program in Brazil.

Unfortunately the Fogo de Chao case is not an isolated case and instead demonstrates how the L-1B visa classification has suffered from the Great Recession. After 2008, as U.S. workers lost their jobs, it became increasingly difficult for U.S. companies to transfer foreign workers to the United States. A report released in March 2014 by the National Foundation for American Policy, a non-profit, non-partisan research organization cited the many misfortunes of the L-1 Program. For example, although no new rule-making or laws had been enacted, the USCIS denied 34 percent of L-1B petitions in Fiscal Year 2013, up from six percent in Fiscal Year 2006. The report also provided data on the USCIS rates for issuance of Requests for Evidence (RFE). The USCIS rate, which had been at 10 percent, rose abruptly in 2008 to almost 50 percent. This rise coincided with the collapse of the U.S. economy. Remarkably, the figure continued to climb to 63 percent in fiscal year 2011 and remained at a robust 43 percent and 46 percent for fiscal years 2012 and 2013, respectively. Certain countries and industries were more adversely affected than others, for example, petitions requesting L-1B status on behalf of Indian nationals had a denial rate of 0.9 percent in fiscal year 2007 rising to 22.5 percent in fiscal year 2009.

The purpose of the L-1B memo is to consolidate agency guidance, clarify the evidentiary standard and more clearly delineate what constitutes "specialized knowledge." First, the memo summarizes the legal framework and history of the L-1B program then clarifies that it is consistent with all previously issued agency memoranda and thereby rescinds the four major L-1B memos previously issued by the USCIS from 1994 to 2005 by James A. Puleo, Fujie Ohata and William R. Yates. Second, the memo reminds USCIS officers that the evidentiary standard is "by a preponderance of the evidence," i.e., "more likely than not" rather than "clear and convincing" or "beyond a reasonable doubt." Third, the memo provides a series of factors that presumably will assist USCIS adjudicators and employers in determining what is "specialized knowledge" and what a U.S. employer does not have to demonstrate in order to be successful in obtaining an L-1B visa These factors include knowledge that is not easily imparted on others, but does not necessarily have to be managerial or command a high salary. Fourth, the memo clarifies that the L-1B visa does not require that the knowledge be proprietary or unique to the U.S. organization, be narrowly held within the U.S. employer, require a test of the U.S. labor market or that the worker only qualify under the L-1B visa and no other nonimmigrant visa.  Fifth, the memo reiterates the two part test of the L-1 Visa Reform Act for workers that will be employed off-site. Specifically, an unaffiliated employer cannot primarily control and supervise the worker and the worker must be employed "in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary." This section is an important reminder to USCIS adjudicators that the L-1B visa does not prohibit the placement of workers off-site. Lastly, the memo clarifies that when a U.S. employer is requesting an extension of L-1B status where the facts of the case remain unchanged, the USCIS should defer to the prior approval. The USCIS should only re-examine eligibility when there is a finding of material error, a substantial change since the prior approval or new material information that is adverse to the petitioner or the worker's eligibility.

It remains to be seen how USCIS adjudicators will apply the memo and whether U.S. petitioning employers will be able to secure consistent adjudications.

UPDATE ON EXPANDED DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) AND DEFERRED ACTION FOR PARENTS OF AMERICANS AND LAWFUL PERMANENT RESIDENTS (DAPA)

The fate of two programs that were part of President Obama's executive action on immigration that he announced last year continues to be uncertain. In November 2014, President Obama announced a series of executive actions on immigration, one of which was the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the implementation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). In December 2014, 26 states filed a lawsuit in the Southern District of Texas arguing that by issuing these directives, the President had violated the Administrative Procedures Act and had overstepped his power. The court issued a preliminary injunction blocking the implementation of both programs until the case could be decided. The U.S. Department of Justice is appealing the injunction which will be decided by the U.S. Court of Appeals for the Fifth Circuit in New Orleans in April 2015.

The first program, expanded DACA, was set to be implemented in February 2015 when the US Citizenship and Immigration Services (USCIS) was to begin accepting applications. This expanded DACA would remove the age restriction from the original DACA program that was implemented in 2012 and allow undocumented individuals who have been continuously residing in the United States since January 1, 2010 to receive protection from removal and permission to apply for employment authorization. The original DACA program, among other requirements, contains an age restriction that the individual must have been under 31 years old as of June 15, 2012.  The DAPA program was set to be implemented six months after the President's announcement and would grant the same benefits as the original DACA program, namely, protection from removal and the ability to apply for employment authorization to undocumented parents of U.S. citizens and Lawful Permanent Residents. The receipt of an employment authorization document has numerous benefits, such as the ability to obtain a social security card and potentially a driver's license or state identification, depending on the state of residence. The original DACA program that was implemented in 2012 remains in effect and those that are eligible can continue to renew this benefit.

APRIL 2015 VISA BULLETIN UPDATE

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

  • The EB-2 India category continues to see advancement from January 1, 2007 to September 1, 2007.
  • The EB-2 China category has also advanced significantly from September 1, 2010 to April 1, 2011.
  • The EB-3 India category advances only a few days from January 1, 2004 to January 8, 2004.
  • The EB-3 World, Mexico and Philippines categories continue to be aggressively advanced from June 1, 2014 to October 1, 2014.
  • The EB-3 China category retrogressed from October 22, 2011 to January 1, 2011.
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

Jan  2015

Mar 2015

Apr 2015

EB-3 World

09/01/02

03/01/06

U

10/01/06

06/01/13

06/01/14

10/01/14

EB-2 China

01/01/03

04/01/04

10/01/03

U

02/01/10

09/01/10

04/01/11

EB-3 China

10/15/01

03/22/03

U

12/15/05

03/01/11

10/22/11

01/01/11

EB-2 India

01/01/02

04/01/04

10/01/03

U

02/15/05

01/07/07

09/01/07

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/15/03

01/01/04

01/08/04

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

06/01/13

06/01/14

10/01/14

 

H-2B CAP FOR FISCAL YEAR 2015 REACHED

The US Citizenship and Immigration Services (USCIS) has announced that the statutory cap of 33,000 H-2B visas allotted for the second half of fiscal year 2015 has been reached as of March 26, 2015. These H-2B visa petitions requested a start date of October 1, 2015. The H-2B visa is for Temporary Non-Agricultural Workers and requires employers to establish that their need for a 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).

MFEM NEWS

MR. BOB WHITE WILL TRAVEL TO WASHINGTON, D.C. TO LOBBY FOR IMMIGRATION REFORM.

Mr. Bob White of the firm's Immigration Group will travel to Washington, D.C. to meet with numerous legislators in order to discuss the need for immigration reform. Mr. White will be participating in the American Immigration Lawyers Association's (AILA) National Day Action (NDA). During his meetings with various legislators, Mr. White will be discussing the need to reform our country's legal immigration system, including increasing the H-1B Quota numbers, excluding STEM applicants from both the H-1B Quota and the employment-based immigrant visa backlog, eliminating the per-country limits in the employment-based immigrant visa system, among other immigrant and non-immigrant issues. Mr. White has previously met with many legislative staff in Washington, D.C. to discuss an advocate for immigration reform. This trip will build upon Mr. White's previous efforts to advocate for a more rational immigration system in the United States.