News from the Alliance of Business Immigration Lawyers Vol. 9, No. 10B • October 15, 2013
Headlines:
1. DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shows Movement in China ‘Other Workers’ Category – DOS has released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin.
2. EOIR Issues Guidance on Immigration Court Filings During Government Shutdown – During the lapse in government funding, the operating status of each immigration court is categorized in one of three ways.
3. Congress Extends Special Immigrant Visa Program for Iraqis – Visas may be issued to principal applicants until December 31, 2013.
4. FY 2014 Limit Set for CNMI-Only Transitional Workers – DHS has announced a limit of 14,000 nonimmigrants for FY 2014 for CNMI-Only Transitional Workers.
5. SEVP Seeks Feedback on Draft Guidance re Vacations, Temporary Absences, and Timely Filings – The program is accepting feedback on draft guidance regarding vacations, temporary absences, and timely filings.
6. New Publications and Items of Interest – New Publications and Items of Interest
7. Member News – Member News
8. Government Agency Links – Government Agency Links
Details:
1. DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shows Movement in China ‘Other Workers’ Category
The Department of State (DOS) recently released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin, which explains additional points and notes forward movement in the China employment-based third preference “Other Workers” category.
Visa availability calculations. DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.
The DOS noted that the FY 2013 employment annual limits were reached before the end of September, and no further allocation of numbers was possible after that time. Offices continued to process employment cases, submitted them in the normal manner, and such cases were then held in the Visa Office’s “Pending Demand” file. All eligible cases were then allocated employment-based numbers on October 1, 2013, under the FY 2014 annual limits.
DOS said that the number of I-485 adjustment of status applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services (USCIS) has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. These filings are the result of the cut-off dates for those countries having been advanced by over three years since April. DOS said that such demand must be considered in the determination of the monthly cut-off dates to prevent any unnecessary fluctuation in those dates.
The imposition of cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals, DOS noted. In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status.
Therefore, DOS said that the totals in the Visa Bulletin charts should not be interpreted to reflect the total universe of applicant demand. These totals only represent the amount of demand taken into consideration during the determination of new dates.
Visa Bulletin. The Visa Office noted in its November 2013 Visa Bulletin that:
It is important to remember that the establishment of a monthly cut-off or “Current” status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.
When applicants fail to appear or overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the establishment of a monthly cut-off or “Current” status for a numerically controlled category (preference or Diversity Visa) applies to those applicants who were reported before the allocation of visa numbers for that month.
Employment-Based Third Preference:
China: Rapid forward movement of the cut-off date, as a result of there being insufficient demand to use all available numbers, allowed the category to reach the Worldwide third preference cut-off date in May 2013. The continued lack of demand has allowed the “otherwise unused” numbers available under that limit to be provided for use in the China employment third preference Other Workers category. The continued addition of those numbers has allowed the cut-off date for that category to reach the China third preference date for November. This is the same action which has been possible for the Other Worker category in other “oversubscribed” countries such as India and Mexico. A sudden increase in demand for China employment third preference visas could require corrective action in the China Other Worker cut-off date at any time.
The DOS’s information includes charts showing the estimated total number of visas available for each employment preference category and country for fiscal year 2014. Demand data used in the determination of the November 2013 employment preference cut-off dates are also included in the charts.
VISA BULLETIN FOR NOVEMBER 2013
2. EOIR Issues Guidance on Immigration Court Filings During Government Shutdown
The Department of Justice’s Executive Office for Immigration Review (EOIR) issued guidance on October 9, 2013, about how to handle immigration court filings during the U.S. government shutdown.
There are several types of deadlines for filings before an immigration court, EOIR noted. Some exist in statutes and regulations, and others are contained in Section 3.1 of the Immigration Court Practice Manual (ICPM). An immigration judge may set specific deadlines in a given case, whether or not the respondent is detained.
EOIR explained that during the lapse in government funding, the operating status of each immigration court is categorized in one of three ways: “Open,” “Open to hear detained cases only,” and “Closed.” As a general matter, immigration courts that have a docket consisting primarily of detained cases are designated as “Open” and are accepting filings at the window and by mail. Deadlines relating to cases before courts designated as “Open” are effective even during the lapse in funding as the adjudication of these cases moves forward, EOIR explained.
A second group of courts, which hear both detained and non-detained cases, are referred to as “Open to hear detained cases only.” Deadlines relating to detained cases before these courts are effective during the lapse in funding, and filings related to such cases are being accepted at the window and by mail. Filings relating to non-detained cases at these courts also will be accepted at the filing window or by mail and date-stamped, but will not be processed further during the lapse in funding. In addition, motions for extension of filings deadlines pursuant to section 3.1(c)(iv) of the ICPM will be accepted for non-detained cases, but decisions on such motions might not occur until the government receives funding for fiscal year 2014.
For non-detained cases pending before court locations designated as “Closed,” filings currently are not being accepted at the window and no court staff is processing mail, EOIR said. Decisions on how non-detained cases will be rescheduled and how filings related to those cases will be considered will be made once the government reopens. If motions for extension of filings deadlines pursuant to section 3.1(c)(iv) of the ICPM are submitted by mail, decisions on such motions will not occur until the government receives funding for fiscal year 2014.
LISTING OF IMMIGRATION COURTS AND THE OPERATING STATUS OF EACH COURT
3. Congress Extends Special Immigrant Visa Program for Iraqis
Congress has extended, and President Barack Obama has signed, legislation (H.R. 3233) extending the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government. The President signed the legislation on October 4, 2013.
The law extends the authority of the Department of State (DOS) to issue SIVs to Iraqi nationals under the National Defense Authorization Act of 2008 until December 31, 2013. Visas may be issued to principal applicants under this program until that date. Approved visas are not affected by the end of the program.
The SIV program that has been extended covers Iraqi nationals who, between March 20, 2003, and September 30, 2013, were employed by or on behalf of the U.S. government in Iraq for a period of at least one year. The program had expired with respect to principal applicants on September 30, 2013, but has now been extended. The extension permits USCIS to approve petitions or applications for visas or adjustment of status to lawful permanent residence in any eligible Iraqi SIV case that were pending with USCIS or with DOS when the program expired on September 30, 2013. USCIS may also approve an additional 2,000 cases as long as the initial applications to the DOS Chief of Mission in Iraq are made by December 31, 2013.
Also, DOS’s authority to issue Special Immigrant Visas to Afghan nationals expires on September 30, 2014. DOS said it welcomes any actions by Congress to extend the Afghan SIV program and to further extend the Iraqi SIV program. “Across the U.S. government, every effort is being made to ensure qualified applicants are processed in a timely fashion before the Iraqi and Afghan programs’ scheduled end dates,” DOS said. It is unclear how the government shutdown may be affecting processing.
The authority to grant derivative SIV status to spouses and children of principal Iraqi SIVs did not sunset on September 30, 2013, and is not numerically capped.
DEPARTMENT OF STATE’S ANNOUNCEMENT
Information on a separate extension for translators/interpreters in Iraq or Afghanistan who worked with the U.S. Armed Forces or under Chief of Mission authority is available HERE.
4. FY 2014 Limit Set for CNMI-Only Transitional Workers
The Department of Homeland Security (DHS) has announced a limit of 14,000 nonimmigrants for fiscal year (FY) 2014 for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program.
Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category. The CW program is in effect until December 31, 2014. Before that date, the CNMI’s nonresident worker program is being transitioned to the U.S. federal immigration system. This transition period was established by the Consolidated Natural Resources Act of 2008 (CNRA), which extended, for the first time, most provisions of U.S. immigration law to the CNMI.
The annual CNRA-required reduction in CW-1 workers will eliminate the CW nonimmigrant classification by the end of the transition period. DHS set the CW-1 limit for FY 2014 at 14,000 to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a CNRA requirement to reduce the numerical limit each year. The CW program will end on December 31, 2014, unless it is extended by the DOL.
U.S. Citizenship and Immigration Services said this announcement does not affect the status of current CW-1 workers unless their employers file for extensions of their current authorized periods of stay or they seek to change CW-1 employers. Approved petitions that request a work-start date in FY 2014 (between October 1, 2013, and September 30, 2014) will count toward the 14,000 limit. The numerical limit applies only to CW-1 principals, USCIS noted. It does not directly affect persons currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.
A numerical limit of 15,000 CW-1s was set for FY 2013. As of August 13, 2013, employers in the CNMI filed petitions for at least 7,323 transitional workers.
5. SEVP Seeks Feedback on Draft Guidance re Vacations, Temporary Absences, and Timely Filings
The Student and Exchange Visitor Program (SEVP) periodically requests feedback from the public on draft guidance affecting F and M students. The program is accepting until October 23, 2013, feedback on guidance regarding vacations, temporary absences, and timely filings:
- Vacations: This document gives the SEVP interpretation of the F-1 student annual vacation regulation to guide adjudicators
- Temporary absences: This document gives SEVP’s interpretation of the temporary absence regulation to guide adjudicators and addresses the concept of authorized early withdrawal as it relates to temporary absence
- Timely filings: SEVP notes that it is committed to the use of electronic reporting technology. Communications between SEVP and the academic community that previously depended upon the U.S. Postal Service and private-sector delivery companies are now conducted solely through electronic means. This guidance adjusts the allowable time for school officials and those who represent the schools to respond to SEVP notices
Links to the draft guidance listed above are available in SEVP’s NOTICE. The e-mail address for submitting feedback is [email protected](include the title of the guidance in the subject line).
6. New Publications and Items of Interest
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
7. Member News
Laura Danielson will speak on Chinese nationality laws at the Union Internationale Des Avocats’ 57th Congress Conference to be held October 31 to November 4, 2013, in Macau, China.
Ms. Danielson will speak on the following topics:
- “Proving Lawful Source of Funds as an Immigrant Investor,” at the 2013 Investment Immigration Summit to be held November 11-12, 2013, in Hong Kong SAR.
- Hot topics in Chinese immigration laws, at the 6th Biennial International Bar Association’s Immigration and Nationality Law Conference to be held on November 21-22, 2013, in London, England.
- Chinese nationality laws, at the Union Internationale Des Avocats 57th Congress Conference to be held October 31 to November 4, 2013 in Macau.
Rami Fakhoury and Robert Loughran presented an update on September 13, 2013, on “Tackling the Latest L-1 Challenges” to the technology companies that form The Texas Immigration Coalition in Dallas, Texas.
H. Ronald Klasko recently spoke at the 46th Annual Immigration & Naturalization Institute in New York City. Mr. Klasko presented “Challenges to Entrepreneurs Coming to the United States.”
Mr. Loughran presented a legislative and administrative update for FosterQuan’s semi-annual Immigration Update seminar in Austin, Texas, on October 10, 2013. Topics included breaking news in immigration, global visa options, how to navigate PERM challenges, and Form I-9 and E-Verify compliance.
Mr. Loughran will be a panelist on “The Future Workforce” at the 2013 InnoTech Austin, Technology & Innovation Conference to be held October 16, 2013.
Mr. Loughran will present to potential foreign investors in Israel on October 21-22, 2013, as a part of the Texas One delegation, which highlights Texas as a destination for economic development. His presentation will focus on what to expect when facing immigration challenges while investing in the United States.
Mr. Loughran will be a panelist at the Worldwide ERC Conference in Dallas, Texas, on October 24-25, 2013. Mr. Loughran will share his expertise on global immigration as it pertains to China.
Cyrus Mehta has published a new blog entry. “Delays for Overseas Spouses of U.S. Citizens Seeking Green Cards“.
Pearl Law Group won the Bronze Stevie® Award in the 2013 International Business Awards for “Most Innovative Company of the Year” in North America. The firm was considered among more than 3,300 nominees in more than 50 nations.
Julie Pearl will be a panelist for a session, “Managing Global Business Traveler Compliance,” at the Worldwide ERC Global Workforce Symposium in Dallas, Texas, on October 24, 2013.
Ms. Pearl will also speak on Extended Business Travel at the November 8, 2013, meeting of the Southern California Relocation Council (SCRC) in Long Beach, California.
Bernard Wolfsdorf spoke on “Hot Topics in Immigration Law” at the American Bar Association’s YLD conference on October 11, 2013, at the Arizona Biltmore.
Mr. Wolfsdorf will speak on “Hot Topics in Immigration Law” at the 26th Annual American Immigration Lawyers Association’s California Chapters Conference on November 8, 2013, at the Anaheim Marriott.
Stephen Yale-Loehr was quoted in an article on MainJustice.com on October 8, 2013. In “Foreign Investor Visa Program May Pose FCPA Risks in China, Advisers Say,” Mr. Yale-Loehr noted that the EB-5 program has been around since 1991, but has recently expanded exponentially, particularly with the start of the recession in late 2007 and 2008. “Interest in the program has increased overseas, particularly in China, as backlogs for other kinds of visas have also increased,” he said.
8. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin