Business Immigration Monthly - September 2015

Date: 9/1/2015
 Business Immigration Monthly - September 2015

Visa Waiver Program Security Enhancements

The Department of Homeland Security (DHS) recently announced that it would begin implementing new security requirements to the Visa Waiver Program. The Visa Waiver Program allows certain nonimmigrants to enter the United States as a Visitor for Business or Pleasure without having to previously secure a B-1/B-2 visa at their local 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 the Electronic System for Travel Authorization (ESTA) online. 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.

The security requirements include requiring all Visa Waiver Program users to use an e-passport, screening travelers with INTERPOL (International Criminal Police Organization) Lost and Stolen Passport Database; and increasing the presence of U.S. federal air marshals on international flights from countries participating in the Visa Waiver Program bound for the United States. These changes are in line with the Department's increased in security measures initiated in November 2014 with the expansion of the data captured by ESTA.

SEPTEMBER 2015 VISA BULLETIN UPDATE AND PREDICTIONS OF FUTURE VISA AVAILABILITY

The Department of State (DOS) released the monthly Visa Bulletin and below is a summary of the availability of employment-based immigrant visa categories for the month of September. Below is a summary of the bulletin highlights.

· The EB-2 India category was retrogressed to January 1, 2006 after it had stalled at October 1, 2008 for several months.

· The EB-2 China category retrogressed significantly from December 15, 2013 to January 1, 2006.

· The EB-3 India category advances from June 1, 2004 to December 22, 2004.

· The EB-3 World and Mexico categories are almost current, advancing from July 15, 2015 to August 15, 2015.

· The EB-3 Philippines category sees modest advancement from June 1, 2004 to December 22, 2004.

· The EB-3 China category advances slightly from June 1, 2004 to December 22, 2004 after a drastic retrogression in August from 2011 to 2004. The DOS has indicated that this category will advance and may return to 2010 or 2011 at the beginning of the next fiscal year on October 1, 2015.

· The EB-5 China advances three weeks from September 1, 2013 to September 22, 2013.

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

Aug
2015

Sept
2015

EB-3 World

09/01/02

03/01/06

U

10/01/06

06/01/13

07/15/15

08/15/15

EB-2 China

01/01/03

04/01/04

10/01/03

U

02/01/10

12/15/13

01/01/06

EB-3 China

10/15/01

03/22/03

U

12/15/05

03/01/11

06/01/04

12/22/04

EB-2 India

01/01/02

04/01/04

10/01/03

U

02/15/05

10/01/08

01/01/06

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/15/03

06/01/04

12/22/04

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

06/01/13

07/15/15

08/15/15



Law Extending OPT Period for STEM Students Vacated

The U.S. District Court for the DC District vacated the rule that allows STEM students in F-1 status to extend their post-graduation Optional Practical Training (OPT) employment authorization for 17 months if they are working for an employer registered with E-Verify. To avoid hardship to thousands of foreign students currently present and working pursuant to rule, the District Court postponed the invalidation of the rule for six months, until February 12, 2016. According to the District Court, when issuing the rule in 2008 DHS did not comply with the normal rulemaking process requiring the agency to issue a notice and allow for a certain period for public comment. Further, after the issuance of the initial rule, the DHS has continued to add more qualifying fields of study without going through the normal rulemaking process.

The DHS issued the rule in 2008 pursuant to emergency rulemaking provisions that allow an agency to issue rules for good cause without public notice and comment. The DHS' good cause was that thousands of foreign students were unable to secure an H-1B work visa and would have to leave the United States. The H-1B visa is subject to an annual quota that is generally met the first week it opens. Due to this oversubscription, many foreign students were not able to secure an H-1B visa before their one-year period of work authorization expired. The DHS argued that the rule was necessary to allow these foreign students several opportunities to secure an H-1B work visa over several years.

What happens now? The hope is that the DHS will be able to issue the rule for public comment as soon as possible to ensure that another provision is in place by February 12, 2016. Employers who directly employ STEM students working on their 17-month extension or employers that employ these individuals through contractors should continue to monitor the situation. Additional information will be contained in our firm's future Immigration Updates when it becomes available.

L-1B POLICY MEMO EFFECTIVE 8/31/2015

The US Citizenship and Immigration Services (USCIS) finalized the L-1B Intracompany Transferee Visa adjudications memorandum that was released for comments in March 2015. The memo was part of the series of executive actions on immigration that President Obama announced in November 2014 with the goal of giving L-1B employers more clarification and guidance on L-1B approval standards. The L-1B classification 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 has been one of the more 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. This translates into inconsistent adjudications and general unpredictability for L-1B employers. 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.

Unfortunately the Fogo de Chao case is not an isolated case and instead demonstrates how the L-1B program suffered from the Great Recession. 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 noted that the USCIS had denied 34 percent of L-1B petitions in Fiscal Year 2013, up from six percent in Fiscal Year 2006 although no new rule-making or laws had been enacted. 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. 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.

DOS FINALIZES RULE TO MODIFY FEES

The DOS released a proposed rule in August 2014 that would modify the processing fees for certain processes and applications. The fee changes temporarily took effect on September 12, 2014 and are now permanent. Below is a summary of some of the fee changes that have been in effect since September 2014:

1. Renunciation of U.S. Citizenship from $450 to $2,350;

2. E Treaty Investor/Treaty Trader Visa Application Fee increases from $205 to $270;

3. K Spouse or Fiance of a U.S. Citizen Visa Application Fee increases $240 to $265;

4. Immigrant visa applications for the immediate relative family-based preference increase from $230 to $325; and

5. Immigrant visa applications for employment-based preference categories decrease from $405 to $345.

SEVP Releases Numerous Draft Guidance Regarding Employment in the F-1 Program

The U.S. Immigration and Custom Enforcement's ("ICE") Student Exchange Visitor Program (SEVP) recently released numerous draft guidance regarding on-campus and off-campus employment authorization in the F-1 program. The draft guidance does not directly address issues with Curricular Practical Training (CPT) or Optional Practical Training (OPT). Because this guidance is in Draft, it does not become effective immediately. Instead, it will only become effective at the end of the stakeholder comment period, review of the comments by SEVP and then the publishing of final guidance by SEVP.

The following are some highlights from the various guidances:

1.      An F-1 student must receive authorization from a Designated School Official (DSO) before commencing on-campus employment. The DSO must record the authorization in the student's Student Exchange Visitor Information System (SEVIS) record. A DSO must terminate the SEVIS record of a student employed without authorization.

2.      A student who loses or has his/her Employment Authorization Document (EAD) card continues to have employment authorization until the expiration date of the lost or stolen EAD card. The guidance states that the student's employment authorization is verifiable in SEVIS. However, the guidance does not emphasize that verification in SEVIS is not a substitute for a valid EAD card for Form I-9 purposes. The guidance does confirm that after a student applies for a replacement EAD card, he/she may use the receipt for the replacement Form I-765 as evidence of employment eligibility for up to 90 days. After 90 days, the guidance states that the USCIS may issue an interim EAD card if the adjudication of the replacement EAD application is delayed. However, although provided in the regulations, the USCIS is not currently issuing interim EAD cards.

3.      A student who has a pending application for reinstatement may not initiate new employment or continue existing employment until the application is approved. However, a student who has been authorized for CPT, may continue with the CPT because it is an integral part of the student's program of study. The guidance states that a student who wants to apply for a Social Security Number (SSN) will need to obtain a letter from the DSO on school letterhead stating the student's name, current nonimmigrant status, prospective employer and type of employment. It also states that the student has to obtain a letter of employment from the employer consistent with the DSO letter. However, the guidance does not state that this is not required when:

a.      The student has been authorized for CPT; and

b.      The student has received an EAD card based upon Optional Practical Training (OPT).

4.      A student may not have concurrent employment while school is in session, except CPT which does not impact a student's eligibility for concurrent employment.

5.      An F-1 student remains in Active SEVIS status while enrolled in study abroad. A DSO may count a student's time spent studying abroad towards fulfilling the one full academic year requirement if the F-1 student was enrolled in a full course of study at the school that issued the current Form I-20 and maintained an Active SEVIS record while studying abroad.

6.      An F-1 student may continue on-campus employment or CPT following a temporary absence (i.e. more than thirty days but less than five months) if the student has a valid F-1 visa, has not reentered the United States on a new SEVIS ID number, is still enrolled in the same program of study at the same SEVP certified school whose DSO authorized the employment and has not changed educational level, has a properly endorsed travel authorization on his/her SEVIS Form I-20, is otherwise admissible by U.S. Customs and Border Protection (CBP), and if for CPT, the student is able to complete the applicable coursework in that academic term. An F-1 student cannot continue off-campus employment or pre-completion OPT following a temporary absence.

7.      The guidance states that students should avoid travel after their program end date with a pending post-completion OPT application in order to avoid complications. Some of the complications stated as examples are an application for post-completion OPT may be considered abandoned by the USCIS if the student is not present in the United States. Another example is that students may forfeit their employment authorization if they are not present in the United States before the practical training start date. However, both of these examples are not supported by current USCIS regulations or guidance.

8.      Unlike a temporary absence, the guidance confirms that an F-1 student employed off-campus or through pre-completion OPT may continue such employment while taking an annual vacation from school.

9.      The guidance confirms that SEVP considers starting a business as self-employment and if the business is located in the United States, doing so is only allowable as OPT. The guidance also confirms that income from investments and gambling is not considered employment.

10.   The guidance provides definitions for on-campus employment, including what is direct student services and what is educationally affiliated with the school. The guidance also restricts on-campus employment at an educationally affiliated off-campus location to within a reasonable commuting distance (i.e. within 75 miles) of the school's premise.

11.   The guidance also allows for on-campus employment at a different campus of the same school as long as both campuses of the school are listed on the Form I-17 and the campus is within reasonable commuting distance (i.e. within 75 miles) of the campus at which the student normally attends classes. Additionally, there must be oversight of the student at the different campus.

12.   The guidance requires DSOs to terminate a student's SEVIS record if the student violates the regulatory limitations on the number of hours of weekly employment.

13.   A student may only commence on-campus employment after notifying the DSO and receiving a letter from the DSO to obtain an SSN as needed.

14.   The guidance confirms that on-campus employment does not extend into the 60 day grace period before the student departs the United States, unless the student is starting a new program of study at the same school or the student is transferring to a new school and has not reached the transfer release date as entered in SEVIS.

15.   The guidance confirms that on-campus employment may continue while a student is applying to change his/her status from F-1 status to another status as long as the USCIS has not adjudicated the Form I-539 and the student has not reached his/her program end date.

16.   The guidance states that a student who has been authorized for severe economic hardship may only engage in off-campus employment if on-campus employment or practical training opportunities are unavailable or if they are insufficient to overcome the student's unforeseen financial hardship. The off-campus employment is not required to be educationally affiliated with the school. However, the employment must be within reasonable commuting distance (i.e. within 75 miles) of the school. The guidance states that a DSO should document a student's severe economic hardship and oversee the impact of employment on the hardship. Although not required, the guidance states that a DSO may document this information in the student's SEVIS record.

Additional information about the implementation of the new employment guidance in the F-1 program will be available in our firm's future Immigration Updates when it becomes available.

MFEM News

MFEM to Host NAFSA Chicago Roundtable Meeting on Current and Future Immigration Issues Impacting International Students and Scholars

MFEM will be hosting the NAFSA Chicago Roundtable in its Chicago office (located at 203 North LaSalle Street, Suite 2500, Chicago, IL) on Thursday, September 10, 2015 from 2:00 pm – 4:00 pm. Mr. Bob White of the firm's Immigration Group will be providing an update on the current immigration issues affecting international students and faculty. Additionally, he will also be discussing future changes to the regulations, policies and procedures, including but not limited to the draft guidance recently released by SEVP regarding employment authorization for F-1 students. Mr. White will also be answering questions from the audience regarding current immigration issues and audience members will be able to compare notes regarding issues they are encountering with SEVP, USCIS and other governmental agencies involved in the various immigration programs affecting international students and faculty.

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.