Business Immigration Monthly - November 2015

Date: 11/2/2015
 Business Immigration Monthly - November 2015

USCIS To Determine Which Visa Bulletin Chart Immigrants Can Use

In an unexpected turn of events in what many have coined Visagate 2015 that sadly continues to unfold,  the US Citizenship and Immigration Services (USCIS) stated today that starting with the November 2015 Visa Bulletin, unless otherwise stated on its own website, immigrants should use the Final Action Date chart to determine when they can file their green card applications. Essentially, a week after the Department of State (DOS) issues its monthly Visa Bulletin indicating immigrant visa availability for the next month, the USCIS will make its own separate determination on green card availability. If green cards are available for a certain category, the USCIS will post its own notice on its website at: www.uscis.gov/visabulletininfo to alert immigrants applying in those categories with more availability, that they may use the Dates for Filing chart and not the Final Action Date chart. Thus immigrants may no longer rely on the DOS Visa Bulletin, but must wait one week after its publication and then look to the USCIS to see whether a green card is available to them. The USCIS' actions make a mockery of the whole purpose of revising the Visa Bulletin. Below is a summary of the events so far.

On September 9, 2015, the USCIS and the DOS issued statements about their efforts to revise the process of deciding when green cards are available to immigrants. The stated goal was to enhance the system by fostering communication between the agencies and allowing for better predictions about green card availability. These efforts were one of the many executive actions President Obama announced in November 2014 to improve the nation's immigration system. As a result, the Visa Bulletin would be revised and the traditional visa preference charts for employment and family categories would be split into two. The first chart, Final Action Dates, would indicate for whom a green card is immediately available and the second, Dates for Filing, would indicate which immigrants can submit their green card applications, although final action would not be taken on their cases. The Dates for Filing chart in the October 2015 Visa Bulletin generously advanced several categories allowing thousands of immigrants what they thought was the chance to file their green card applications in October. This meant thousands of immigrants worked furiously to begin processing applications for themselves and their dependents.

The excitement was short-lived. In an unexpected turn of events, the DOS quietly issued a revised Visa Bulletin at 3pm on Friday, September 25th, retrogressing the preference categories it had most generously advanced. This was in spite of the DOS comments weeks before indicating that the intention of initially changing the Visa Bulletin was to ensure no future drastic retrogressions. In effect, the DOS and the USCIS have only made matters worse. What was initially an ineffective and cumbersome process is now made even more so. Immigrants cannot rely on the DOS' Visa Bulletin, but must now wait an additional week to determine whether the USCIS will allow them to file their green cards. The way that this story has played out shows that these agencies cannot work together and highlights the inherent problems of our outdated and inefficient immigration system.

November 2015 Visa Bulletin Update

The DOS released the monthly Visa Bulletin and below is a summary of green card Final Action Dates and Dates For Filing dates for employment-based immigrant visa categories for the month of November.

Green Card "Dates for Filing" Availability Dates

Individuals with priority dates prior to the dates listed in the chart below are eligible to file their green card applications during the month of November.

Category

All Countries Except Those Listed

China (mainland)

India

Mexico

Philippines

EB-1

Current

Current

Current

Current

Current

EB-2

Current

01/01/13

01JUL09

Current

Current

EB-3

09/01/15

10/01/13

07/01/05

09/01/15

01/01/10

Other Workers

09/01/15

01/01/07

07/01/05

09/01/15

01/01/10

4th

Current

Current

Current

Current

Current

Certain Religious
Workers

Current

Current

Current

Current

Current

5th

Non-Regional

Center

(C5 and T5) and

Regional Center

(I5 and R5)

Current

05/01/15

Current

Current

Current

 

Green Card Approval "Final Action Dates"

Individuals with priority dates prior to the dates listed in the chart below have a green card available to them during the month of November, therefore, the US government may take final action on their case.

Category

All Countries Except Those Listed

China (mainland)

India

Mexico

Philippines

EB-1

Current

Current

Current

Current

Current

EB-2

Current

02/01/12

08/01/06

Current

Current

EB-3

08/15/15

01/01/12

04/01/04

08/15/15

06/15/07

Other Workers

08/15/15

04/01/06

04/01/04

08/15/15

06/15/07

4th

Current

Current

Current

Current

Current

Certain Religious Workers

Current

Current

Current

Current

Current

5th

Non-Regional

Center

(C5 and T5) and

Regional Center

(I5 and R5)

Current

11/22/13

Current

Current

Current

 

Below is a summary of changes from the visa bulletin for last month for final action dates:

  • The EB-2 China category has advanced from January 1, 2012 to February 1, 2012.
  • The EB-2 India category has advanced from May 1, 2005 to August 1, 2006.
  • The EB-3 World and Mexico categories remain at August 15, 2015.
  • The EB-3 China category advances from October 15, 2011 to January 1, 2012.
  • The EB-3 India category advances from March 8, 2004 to April 1, 2004.
  • The EB-3 Philippines category advances from January 1, 2007 to June 15, 2007.
  • The EB-5 China advances slightly from October 8, 2013 to November 22, 2013.

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

STEM OPT Regulation Update

The Department of Homeland Security (DHS) has released the text of its proposed law for a new STEM post-graduation Optional Practical Training (OPT) program. The DHS will allow the public to provide comments until November 18, 2015. Afterward, it is expected that the DHS will issue the final text of the law before the current rule is vacated on February 12, 2016. This article will provide the background and a summary of the new law.

History

In August 2015, the U.S. District Court for the DC District vacated the rule that allowed STEM students in F-1 status to extend their OPT employment authorization for 17 months. To avoid hardship to thousands of foreign students currently present and working pursuant to this 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 the DHS did not comply with the normal rulemaking process requiring the agency to issue a notice and allow for public comment.

The DHS issued the original 2008 rule pursuant to emergency rulemaking provisions that allow an agency to put into effect rules for good cause without public notice and comment. Unless the rule was issued, the DHS argued, thousands of foreign students who were unable to secure an H-1B work visa would have to leave the United States. The majority of foreign students will only qualify for the H-1B work visa, which 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 OPT work authorization expired. The DHS argued that the rule was necessary to allow these foreign students multiple opportunities to secure an H-1B work visa.

Summary of Proposed Regulation

The proposed regulation offers a combination of benefits and burdens to school Designated School Officials (DSO), students and employers. The most significant aspect of the new program is the increase of the total period of employment authorization from 17 months to 24 months. In addition to providing a new STEM OPT program, the DHS also included a formal rule on Cap Gap relief which had not been previously subjected to the normal rulemaking process. There are no changes in the Cap Gap provisions from the rule that is currently in effect. Below is a summary of the regulation's major provisions as they relate to the STEM OPT extension:

Requirements Carried Over from Prior Rule

  • Employers must enroll and utilize E-Verify
  • If employment authorization application is properly filed and remains unadjudicated, student's employment authorization is extended for 180 days
  • Employer and student reporting obligations continue to apply

Mentoring & Training Program

  • Student and Employer will have to prepare a formalized Mentoring & Training Plan (MTP)
  • MTP must be submitted to DSO before DSO can recommend the OPT extension
  • MTP will outline the goals of the training program and how the student and employer hope to achieve those goals
  • At some point in the future, DSOs will be able to submit MTPs to SEVIS, but for now the DHS may require the student to submit the MTP to Immigration Customs Enforcement (ICE) or USCIS
  • This MTP requirement may jeopardize the ability of temporary employment agencies to hire STEM OPT students
  • When the student changes employers after the initial grant of the 24-month STEM OPT extension, within 10 days of the start of the new employment, the student must submit a new MTP to the DSO and obtain the DSO recommendation for the new employment

Evaluation

  • The student must prepare an evaluation every six months as well as a final evaluation before the end of the OPT period
  • Employer must develop evaluation procedures to document the student's progress toward meeting the goals outlined in the MTP

Prior STEM Degrees

  • Previously earned STEM degrees may serve as a basis for 24-month STEM OPT extension
  • STEM degree must have been earned at an institution accredited by an agency recognized by the Department of Education
  • The STEM OPT employment must be directly related to the STEM degree
  • If current OPT period is not based on a STEM degree, the STEM degree that will serve as the basis for the 24-month STEM OPT must have been conferred within 10 years before the date indicated on the employment authorization application
  • A second 24-month STEM OPT extension must be based on a degree that is at a higher level than the degree that formed the basis for the first 24-month STEM OPT extension
  • Student cannot complete two consecutive STEM OPT extensions, i.e., students cannot apply for a 24-month STEM OPT extension based on a previously earned degree immediately after a 24-month STEM OPT extension

Employer Attestations & Obligations

  • Employer must attest in the MTP that the employment terms and conditions it offers the student, including duties, hours and compensation, are commensurate to those it offers similarly situated US workers (when employer has less than two similarly situated US workers, it will have to compare the terms and conditions to those of similarly situated US workers in the area of employment)
  • Employer has enough resources and trained personnel to provide the student with mentoring and training
  • Hiring of the student will not cause the employer to fire, lay off or furlough US workers (including full/part-time, temporary/permanent)
  • The work the student will be performing will assist him/her in achieving the MTP objectives and goals
  • DHS has the discretion to conduct site visits
  • Employers must have a Federal Employer Identification Number (FEIN)

Additional Changes

  • Degree which serves as the basis for the STEM OPT extension must be accredited by an agency recognized by the Department of Education
  • Students must file employment authorization application within 60 days of DSO entering STEP OPT recommendation in SEVIS (up from 30 days)
  • Students are permitted an aggregate period of unemployment of 150 days (90 days during initial OPT and additional 60 days for 24-month STEM OPT extension)
  • Students are limited to two lifetime 24-month STEM OPT extensions

ESTA Website Redesigned

The US Customs and Border Protection (CBP) redesigned the Electronic System for Travel Authorization (ESTA) website that travelers must use to pre-register before entering the United States pursuant to the Visa Waiver Program. The website was redesigned using feedback from travelers and stakeholders to make it more user-friendly. More than 19 million foreign travelers use the ESTA website every year. The revised website includes the following features:

  • Access to FAQs during the entire application process.
  • Smartphone capability for application status checks.
  • Translation of all website pages into 23 languages.
  • "Group" feature placed at the start of the application process so that families and groups can more easily submit their applications at the same time.

ESTA registrations submitted through the old website will still remain active and accessible. Travelers who have a valid ESTA registration will not be required to re-register with the new website until their current registration expires. The new website can be accessed here: https://esta.cbp.dhs.gov/esta/

ESTA is an web-based application process that was established in 2008 to enhance the security of 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. Prior to entry, the traveler must register with the Electronic System for Travel Authorization (ESTA) online and pay a nominal 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, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and United Kingdom.

Yemen Designated for Temporary Protected Status (TPS)

The DHS announced this week that it has designated Yemen for Temporary Protected Status (TPS) for 18 months from September 3, 2015 to March 3, 2017 due to the continued armed conflict affecting the country. The designation will enable Yemeni nationals (and non-Yemeni nationals who last resided in Yemen) who have been physically and continuously present in the in the United States after September 3, 2015 to apply for TPS. Approval of TPS protects individuals from removal from the United States and allows individuals to apply for an  employment authorization document (EAD). Eligible individuals will have to register for TPS by submitting an application during the registration period open now until March 1, 2016. Individuals can find more information, including the application and requirements for TPS at: http://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-yemen

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 EAD 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, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan and Syria.

 

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.