Business Immigration Monthly - September 2016

Date: 9/6/2016
 05- Business_Immigration_Monthly_September_2016.pdf

SEVP ANNOUNCES A NEW SEVIS PORTAL

The Immigration and Customs Enforcement's (ICE) Student Exchange Visitor Program (SEVP) recently announced that it will be rolling out a new SEVIS portal later this year (possibly in December) for F-1 students in Post-Completion Optional Practical Training (OPT) to report personal and employer information to SEVP. Currently, F-1 students in OPT have to report changes in their personal and employer information to their schools within 10 days of the change and then the schools have to update the SEVIS system. Once the portal is introduced, students will no longer have to report personal and employer information to the schools in order to update the SEVIS system. Instead, the students will update their information through the portal which will then update the SEVIS system. However, there is one exception. Students in the STEM OPT program will not be allowed to update their employer information through the portal. Instead, the students will still be required to submit a Form I-983 Training Plan to the school and then the school will have to update the employer information in SEVIS. Based upon previous statements from SEVP, it is assumed that this portal will be updated in the future so that STEM OPT students will also be able to upload their Form I-983 through the portal which would then be saved into the SEVIS system. However, this feature is not being introduced in this first version of the portal.

DOS RELEASES SEPTEMBER 2016 VISA BULLETIN – NO SIGNIFICANT MOVEMENT IN EMPLOYMENT-BASED CATEGORIES

The U.S. Department of State (DOS) recently released its September 2016 Visa Bulletin. Because the government's fiscal year ends on September 30, 2016, there normally is very little (if any) movement in the Visa Bulletin during the month of September. In the September 2016 Visa Bulletin, there was minimal movement in the employment-based categories. A few months ago, the DOS significantly retrogressed and made unavailable multiple employment-based visa categories in order to ensure that the DOS and the U.S. Citizenship and Immigration Services (USCIS) did not issue more immigrant visas than


 available in this fiscal year. Since this retrogression, most of the employment-based visa categories have barely moved, if any. However, it is assumed that there will be major movement in the first quarter of Fiscal Year 2017 which begins on October 1, 2016. It is assumed that within the first quarter of Fiscal Year 2017, the EB-1 categories for Indian and Chinese nationals will become Available again and there will be significant movement in the EB-2 Indian national category, EB-2 Chinese national category and EB-3 Chinese national category. However, it is not assumed that there will be significant movement in the EB-3 Indian national category.

Comparison to Prior Months

The following is a comparison of priority date movement since the inception of the retrogression in 2007. Please note that the Final Action priority dates are listed below. The USCIS has indicated that for the September 2016 Visa Bulletin, Applicants must use the Final Action priority dates (not Filing priority dates) to determine whether their priority dates are Available to file for I-485 Adjustment of Status.

Dec 2007

Jun 2008

Aug 2009

Sept 2012

May 2013

Jan 2015

Feb 2016

Sep 2016

EB-3 World

09/01/02

03/01/06

U

10/01/06

12/01/07

06/01/13

10/01/15

05/01/16

EB-2 China

01/01/03

04/01/04

10/01/03

U

05/15/08

02/01/10

03/01/12

01/01/10

EB-3 China

10/15/01

03/22/03

U

12/15/05

12/01/07

03/01/11

10/01/12

01/01/10

EB-2 India

01/01/02

04/01/04

10/01/03

U

09/01/04

02/15/05

08/01/08

02/22/05

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/22/02

12/15/03

06/15/04

02/15/05

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

12/01/07

06/01/13

10/01/15

05/01/16

 

Additional information about movement in the employment-based immigrant visa categories will be made available in our firm's future Immigration Updates when it becomes available.

USCIS PROPOSES REGULATION TO ISSUE ADVANCED PAROLE DOCUMENTS TO CERTAIN INTERNATIONAL ENTREPRENEURS

The USCIS recently issued a proposed regulation which would allow certain international entrepreneurs to be paroled into the U.S. so they may start or expand their businesses in the country. Comments on the proposed rule are due by October 17, 2016. After the comments to the proposed regulation are considered, the USCIS may then issue a final regulation implementing the new program.

The proposed regulation would allow the Department of Homeland Security (DHS) to parole entrepreneurs of start-up entities whose stay in the United States will provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. According to the proposed rule, DHS may parole within its discretion on a case-by-case basis, the following types of international entrepreneurs:

1.     Who have a significant ownership in the start-up (at least 15%) and have an active and central role to its operation;

2.     Whose start-up was formed in the United States within the past three years; and

3.     Whose start-up has substantial and demonstrated potential for rapid business growth and job creation as evidenced by:

a.     Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;

b.    Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or

c.    Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the start-up entity's substantial potential for rapid growth and job creation.

The proposed regulation would not extend a nonimmigrant status to the qualifying international entrepreneurs. Instead, the entrepreneurs would only be eligible to be paroled into the United States for up to two years with the potential for a subsequent re-parole for up to an additional three years if the entrepreneur and start-up entity continue to provide significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. The main beneficiaries of this program after it becomes effective will be international entrepreneurs who are not eligible for another nonimmigrant status because for example, the H-1B quota has been met or they are not eligible for an E-2 treaty investor visa because their countries do not have a qualifying treaty with the United States. It is assumed that international entrepreneurs who qualify for this program may have to immediately commence the "Green Card" process (if eligible) in order to remain in the United States on an indefinite basis in order to continue to manage, control and grow their businesses.

Additional information about the potential new advanced parole program for international entrepreneurs will be made available in our firm's future Immigration Updates when it becomes available.

SEVP REMINDS STUDENTS ABOUT THE NEW FORM I-515A NON-COMPLIANCE TERMINATION PROCEDURE

ICE's SEVP recently reminded students about the Form I-515A Non-compliance Termination Procedure which it implemented in April 2016. CBP officials issue Forms I-515 to nonimmigrant students, exchange visitors and/or dependents when the nonimmigrant lacks proper entry documentation. The most common reasons for issuance include:

1.     Lack of travel endorsement by the school official or sponsor official on the Form I-20 or DS-2019.

2.     Lack of evidence of payment of the SEVIS fee.

3.     Lack of valid SEVIS record associated with the Form I-20 or DS-2019 used upon entry.

When nonimmigrants are issued the Form I-515A, they are required to provide the missing information within 30 days after entering. If the nonimmigrant fails to comply within the 30 days, SEVP will issue an Intent to Terminate Notice to the nonimmigrant's email address or home address by regular mail, depending on the available contact information in SEVIS. If the nonimmigrant does not comply with the notice within 14 days, the SEVIS record will be terminated and the nonimmigrant's authorized period of stay in the United States will end. SEVP indicated that validation studies conducted on records for students, exchange visitors and dependents indicate that a significant number of nonimmigrants issued Form I-515A remain in the United States beyond the 30 day authorized period of stay without submitting the required documents to SEVP. SEVP indicated that they implemented this new procedure as a result of the validation study.

SEVP RELEASES UPDATE ABOUT THE NUMBER OF F-1, J-1 AND M-1 NONIMMIGRANTS IN THE UNITED STATES

ICE's SEVP recently released updated information about the number of active F-1, J-1 and M-1 Nonimmigrants in the United States. SEVP indicated that the number of F and M nonimmigrant students studying in the United States increased from 1.05 million in July 2015 to 1.11 million in July 2016 which represents an increase of 5.5%. Meanwhile, the number of SEVIS certified schools who are authorized to admit F-1 and M-1 students decreased by 2.41% during the same time period. The countries with the greatest increase in the numbers of F-1 and M-1 students being sent to the United States were India with a 28.5% increase, Vietnam with a 7.9% increase and China with a 7.2% increase. The countries with significant decreases in the number of F and M students being sent during this time period are Saudi Arabia with a 16.9% decrease and South Korea with a 7.9% decrease. In 2016, China and India continue to send the greatest number of F-1 and M-1 nonimmigrants to the United States. The schools with the most F-1 active students are New York University (13,327), University of Southern California (12,703), Northeastern University (10,807), Arizona State University (10,532) and Columbia University in the City of New York (10,530).

In the J-1 category, there are currently 258,012 exchange visitors in the United States. This represents a 5.4% increase from July 2015. Additional information about the J-1 category was not provided as part of the SEVP report but may be released separately by the DOS which administers the J-1 program.

DOL RELEASES STATISTICS REGARDING THE PERM PROGRAM

The U.S. Department of Labor (DOL) recently released statistics regarding the PERM program from the third quarter of Fiscal Year 2016 (April 1, 2016 – June 30, 2016). In the third quarter of Fiscal Year 2016, the DOL received 28,055 PERM applications for review which represents a 26% increase in the number of filings from the same quarter in Fiscal Year 2015. The DOL has received 74,590 PERM applications for processing in Fiscal Year 2016 through the third quarter of Fiscal Year 2016. In the third quarter of 2016, the DOL certified 31,667 PERM applications. However, it also denied 1,727 PERM applications which was a significant increase from the first and second quarters of Fiscal Year 2016.

Currently, more than 73% of the pending applications are awaiting review by a DOL analyst. Approximately 11% are currently awaiting review in the DOL's audit queue. More than 14% of the applications are awaiting appeals review by the Board of Alien Labor Certification Applications (BALCA), which represents a significant increase over the past few fiscal years. The top occupations for which PERM applications are being filed continue to be Information Technology and Engineering related occupations. The top five worksite states are California, Texas, New Jersey, New York and Washington. Most of the occupations for which PERM applications are being filed require either an advanced degree or a Bachelor's Degree.

USCIS PROPOSES TO INCREASE GOVERNMENT FILING FEES

The US Citizenship and Immigration Services (USCIS) has issued a proposed rule to increase many of the government filing fees by an average of approximately 20%. Below is a chart of some of the most important fee change increases. Future updates on the filing fee increase will be included in our firm's future Immigration Updates.

Form Number & Type

Current Fee

Proposed Fee

I-90, Application to Replace Permanent Resident Card

$365

$455

I-129, Petition for a Nonimmigrant Worker

$325

$460

I-130, Petition for Alien Relative

$420

$535

I-131, Application for Travel Document

$360

$575

I-140, Immigrant Petition for Alien Worker

$580

$700

I-485, Application to Register Permanent Residence or Adjust Status

$985

$1,140

I-539, Application to Extend/Change Nonimmigrant Status

$290

$370

I-751, Petition to Remove Conditions on Residence

$505

$595

I-765, Application for Employment Authorization

$380

$410

N-400, Application for Naturalization

$595

$640

I-924, Application for Regional Center Designation Under the Immigrant Investor Program

$6,230

$17,795

I-924A, Annual Certification of Regional Center

NONE

$3,035

USCIS Immigrant Fee

$165

$220

 

MFEM NEWS

Mr. Bob White Will Conduct Two Immigration Seminars for the NAFSA Chicago Roundtable on Thursday, September 8 and Thursday, September 15

Mr. Bob White of the firm's Immigration Group will present the annual immigration update to the members of the NAFSA Chicago Roundtable. This year, the NAFSA Chicago Roundtable will host two identical sessions, one in Chicago and one in the northwest suburbs of Chicago. The Chicago seminar will be held on Thursday, September 8 from 2:30 – 4:00 p.m. in the Chicago Conference Center of Masuda Funai located at 203 North LaSalle, Suite 2500, Chicago, Illinois. The seminar in the northwest suburbs of Chicago will be held on Thursday, September 15 from 2:30 – 4:00 p.m. in the Conference Center of Masuda Funai's Schaumburg office located at 200 N. Martingale Road, Schaumburg, Illinois. Both seminars will be discussing the changes in the immigration regulations and procedures that have occurred within the past year which affect international students and faculty. The seminar will also be discussing potential changes that may be occurring within the next six months after the completion of the presidential election. Questions about either of the identical seminars should be directed to Ms. Kathy Smid (smidka@cod.edu) who is one of the coordinators of the NAFSA Chicago Roundtable.

Mr. Bob White Will Participate in a NAFSA National Webinar on STEM OPT

Mr. Bob White of the firm's Immigration Group will be one of the panelists during the NAFSA National Webinar titled "STEM OPT II: Effective Institutional Policies and Practices". The webinar will be held on Wednesday, September 14 from 2:00 – 3:30 p.m. CST. This webinar is a follow-up to NAFSA National's STEM OPT update webinar which was held in March 2016. The STEM OPT II webinar will be discussing issues which have arisen with universities in implementing the new STEM OPT program. The webinar will also be discussing H-1B Cap Gap relief and issues that schools are confronting with the E-Verify program. Registration for this webinar is available on the NAFSA website at www.nafsa.org in the Learning and Training section which is available under the Professional Resources tab.