News from the Alliance of Business Immigration Lawyers Vol. 9, No. 12B • December 15, 2013
Headlines:
1. Supreme Court Hears Oral Argument in CSPA Case; USCIS Issues Policy Guidance – The memo addresses automatic conversion and priority date retention for certain children of immigrant visa petitioners.
2. Court Approves Final Settlement on Employment Authorization for Asylum Seekers – The settlement agreement provides that certain individuals who intend to file, or have already filed, an asylum application may have their eligibility for employment authorization determined using new procedures.
3. USCIS Releases New E-Verify MOUs Tied to Access Method – Current E-Verify users are not required to execute a new MOU but are bound by the new or revised MOU that applies to their access method.
4. USCIS Revises Mandatory Posters for E-Verify and Right-to-Work in Response to Crowdsourced Feedback – The posters now require less ink to print, in response to requests posted on USCIS’s public feedback site. The previous versions are still acceptable.
5. U.S. Embassy London Hosts Visa Webchat – Presenters noted, among other things, that applicants having a “criminal caution” may experience lengthy delays during the application process.
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. Supreme Court Hears Oral Argument in CSPA Case; USCIS Issues Policy Guidance
The Supreme Court heard oral argument in Mayorkas v. Cuellar de Osorio on December 10, 2013. The case challenges a Board of Immigration Appeals (BIA) interpretation of the Child Status Protection Act (CSPA) with respect to children aging out before a visa becomes available. The CSPA provides continuing eligibility for immigration benefits to the beneficiaries of certain petitions when the beneficiary has “aged out” by turning 21. U.S. Citizenship and Immigration Services (USCIS) issued related policy guidance just before the Supreme Court argument.
Highlights of the argument and the guidance follow.
Supreme Court case. Mayorkas v. de Osorio questions whether all children of immigrant visa applicants, or only some, who turn 21 while awaiting a visa may retain their original priority date or must wait at the back of a new visa line. The case arose in the context of a family-based green card petition, but the Court’s decision will also affect beneficiaries of employment-based green card petitions.
In Matter of Wang, the relevant BIA case, the Board held that the automatic conversion and priority date retention provisions of the CSPA did not apply to a person who aged out of eligibility for an immigrant visa as the derivative beneficiary of a family-based fourth preference visa petition, and on whose behalf a second preference green card petition was later filed by a different petitioner.
The petitioner urged a broad interpretation of the CSPA. The brief by amici curiae in Wang similarly maintained that the provision amended by the CSPA, § 203(h)(3) of the Immigration and Nationality Act (INA), is ameliorative and inclusive and does not limit its automatic conversion and priority date retention provisions to family-based preference petitions. In contrast, the USCIS urged a narrower interpretation, arguing that established regulatory practice requires that the original priority date will be retained only if the second visa petition is filed by the same petitioner. Thus, USCIS maintained that to effect an “automatic conversion” under the CSPA, the petitioner also must have been the petitioner on the earlier green card petition. According to the USCIS, such an interpretation of the statute avoids open-ended petitions with no timeliness considerations.
The Supreme Court’s decision is expected by late June.
USCIS policy guidance. Shortly before the Supreme Court argument in Mayorkas v. Cuellar de Osorio, USCIS issued a policy guidance memorandum on the CSPA.
The memo notes that the CSPA addresses certain “age out” consequences in those instances where “aging out” of eligibility for classification as a child is caused by a delay in the adjudication of the petition or application. The CSPA applies widely to petitions for family-based immigrants and also applies to employment-based immigrants, diversity visa immigrants, refugees, and asylees when delays in processing petitions would cause a beneficiary to lose the ability to immigrate as a child due to reaching 21 years of age.
The memo specifically addresses automatic conversion and priority date retention as set forth in INA § 203(h)(3). The memo notes that this provision authorizes certain immigrant visa petitions to “automatically be converted to the appropriate category and…retain the original priority date.” The memo provides guidance for assigning priority dates in those instances where a petitioner requests that the priority date from a separate, previously filed petition be applied to a later filed family-based second-preference “B” petition (F-2B) or seeks adjustment of status in the F-2B category, based upon an originally filed family-based second-preference “A” petition (F-2A) under the CSPA.
The guidance quotes the following related update to the USCIS Adjudicator’s Field Manual for officers considering eligibility for priority date retention:
“(A) If the beneficiary was previously found eligible as a derivative on an approvable F2A category petition (“petition #1”) that has not been revoked or otherwise terminated, and the subsequent petition (“petition #2”) was filed by the same petitioner as in petition #1, USCIS will apply the earlier priority date to petition #2 (regardless of whether the second petition is initially filed in the F-2B or F1 classification).
(B) If the beneficiary was previously the subject of an approved F-2A petition and that petition has not been revoked or otherwise terminated, any subsequent petition filed by the same petitioner, which is approved by USCIS shall be entitled to the older priority date and approval of the new petition shall be considered a reaffirmation of the previous approval, as provided in 8 CFR § 204.2(h)(2).
(C) If the principal beneficiary of an F-2B petition (petition #2) was previously the derivative beneficiary of a petition filed pursuant to sections 203(a)(1), (3), (4), or 203(b), and the petitioner of petition #2 was not the petitioner on the previous petition (petition #1), then petition #2 is NOT entitled to the older priority date. See 8 CFR § 204.1(b); 22 CFR § 42.53(a). Instead, petition #2 should be assigned a priority date based on the date of filing. Send the standard notice of denial of priority date retention provided through the appropriate chain of command. Continue to otherwise adjudicate the petition on its merits in accordance with applicable law, regulations, and policies.
(D) If an individual files an application for adjustment of status in the F-2B or F-1 classification based on previous F-2A derivative classification, but the petitioner did not file a new (subsequent) petition on behalf of the individual, the individual may be eligible for adjustment of status if:
(i) he or she was previously the derivative beneficiary of an approvable F-2A petition;
(ii) he or she qualifies as the son or daughter of the original petitioner (take particular care that step-relationships were created before the applicant turned 18); and
(iii) all other eligibility requirements are met.
(E) If an application for adjustment of status is pending and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the application pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If, however, the applicant has another basis of eligibility for adjustment, adjudication based on the alternate basis of eligibility should not be delayed.
(F) If a denied applicant for adjustment of status files a motion to reopen or reconsider, or if such a motion is pending, and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the motion pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If the applicant demonstrates another basis of eligibility for adjustment that was not properly considered before denial, the application should be reopened and adjudication based on the alternate basis of eligibility should not be delayed.”
Links to various related filings in Mayorkas v. de Osorio are available HERE and HERE
USCIS POLICY GUIDANCE MEMO, which includes example scenarios
2. Court Approves Final Settlement on Employment Authorization for Asylum Seekers
U.S. Citizenship and Immigration Services announced that on November 4, 2013, the U.S. District Court for the Western District of Washington granted final approval of the revised ABT settlement agreement, closing class action litigation that began in December 2011, in a case called B.H. v. United States Citizenship and Immigration Services, No. CV11-2108-RAJ (W.D. Wash.). The settlement agreement provides that certain individuals who intend to file, or have already filed, an asylum application may have their eligibility for employment authorization determined using new procedures.
These changes generally relate to eligibility for an Employment Authorization Document (EAD) for asylum applicants, and to calculation of the 180-day “Asylum EAD Clock” for ABT class members.
USCIS explained that the 180-day Asylum EAD Clock measures the time period during which an asylum application has been pending with the USCIS asylum office and/or the Executive Office for Immigration Review. USCIS service centers adjudicate the Form I-765, Application for Employment Authorization, and calculate the 180-day Asylum EAD Clock to determine eligibility for employment authorization. Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file an I-765 if the application remains pending. An asylum applicant cannot receive an EAD until his or her asylum application has been pending for at least 180 days. This 180-day period does not include any delays that applicants request or cause while their applications are pending with an asylum office or immigration court, USCIS explained.
The agreement was revised in September 2013 to clarify two points:
1. Following the remand of an asylum case to an immigration judge, for employment eligibility purposes the asylum applicant will be credited with time going forward, excluding delays requested or caused by the applicant.
2. Remand Claim relief would be implemented under the six-month time frame provided in most other provisions of the agreement. Due to the government shutdown, the six-month time frame was extended by several weeks and implementation began by December 3, 2013.
EXPLANATION of how to determine who is an ABT class member
U.S. CITIZENSHIP AND IMMIGRATION SERVICES’ ANNOUNCEMENT
DETAILS on how the agreement affects adjudication of asylum and EAD applications
3. USCIS Releases New E-Verify MOUs Tied to Access Method
On December 8, 2013, U.S. Citizenship and Immigration Services (USCIS) released revised Memoranda of Understanding (MOUs) for E-Verify browser users and new MOUs for users accessing E-Verify through Web services.
USCIS said that current E-Verify users are not required to execute a new MOU but are bound by any enhancements to the E-Verify program, including the new or revised MOU that applies to their access method. Current users should become familiar with the new or revised MOU that applies to their access method. The effective date of the MOU for existing users is January 8, 2014.
Employers who join the E-Verify program on or after December 8, 2013, will execute a new or revised MOU (Revision Date 06/01/2013) during enrollment. E-Verify revised and added new MOUs in response to feedback and to update the MOUs with policy and process changes. The new and revised MOUs include several updated provisions, such as enhanced privacy protections and instructions for reporting privacy and security breaches. The new versions are also intended to apply the Federal Government’s “plain language” principles to make them easier to understand.
The E-Verify MOUs released on December 8, 2013, have a revision date of June 1, 2013. The revision date may be found at the bottom of each MOU page.
4. USCIS Revises Mandatory Posters for E-Verify and Right-to-Work in Response to Crowdsourced Feedback
U.S. Citizenship and Immigration Services (USCIS) has revised the posters that employers must display in their places of business. USCIS said the posters now require less ink to print, in response to requests on “E-Verify Listens,” USCIS’s crowdsourced feedback site. The previous versions are still acceptable.
NEW POSTERS, available in English and Spanish
5. U.S. Embassy London Hosts Visa Webchat
The U.S. Embassy in London conducted a webchat on November 26, 2013. Highlights of the webchat include:
- U.S. government policy is under review regarding “criminal cautions” in the United Kingdom. Applicants having a caution may experience lengthy delays during the application process. These delays will affect applicants with a caution even if they may have received a visa in the past. The U.S. Embassy London recommends applying as soon as possible and not making final travel plans until receiving a visa.
- Visa applicants are advised to notify the embassy via a contact form if they leave the United Kingdom while additional processing is pending. CONTACT FORM
- The embassy noted that the presumption of innocence has little place in the visa application process. According to the embassy, if one applies for a visa during a pending prosecution, “you should be aware that it may not be possible to adjudicate your visa application until the disposition of your criminal case is known.” See 9 FAM 40.21(a) N3.3.
- Waiver applications take six months to process even if the applicant has received a previous waiver. Frequent travelers to the United States may choose to apply more than six months before the expiration date of their current visa so that the next visa may be ready to be issued without a gap. A current visa with a valid waiver will not be canceled during the interview before the expiration date.
- Immigrant visas are issued with a validity period that expires six months from the date of the medical exam, rather than six months from the date of the immigrant visa interview.
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
Mark Ivener has co-authored “Taxing Decisions: EB-5 Investor Visa and U.S. Tax Issues,” published in the Fall 2013 edition of The Practical Tax Lawyer. The article includes a Regional Center EB-5 Immigrant Investor Flowchart.
Charles Kuck received the Personajes Destacados del Año (Distinguished People of the Year) “Amigo de Los Hispanos” (“Friend of Hispanics”) Award from Mundo Hispanico.
Cyrus Mehta has authored or co-authored several new blog entries. “I Pledge Allegiance: The Naturalization Oath and Dual Citizenship” “Free the Children: Parent’s Abandonment of Green Card Should Not Be Imputed on Child”
Angelo Paparelli has authored a new blog entry. “Immigration Dreaming in California—Assembly Bill 263 Will Bring Nightmares to the State’s Employers”
Stephen Yale-Loehr co-authored “A Cumulative Analysis of What USCIS Looks For in EB-5 I-829 RFEs and Denials.” The article originally appeared in 3 IIUSA Regional Center Bus. J. 9 (Oct. 2013).
Mr. Yale-Loehr will be a panelist on a webinar sponsored by Invest In the USA (IIUSA), the trade association of EB-5 regional centers, on December 17, 2013, from 3 to 4 :30 pm eastern time. Mr. Yale-Loehr and other panelists will discuss the growth of the EB-5 industry in 2013 and the opportunities and challenges that lie ahead in 2014 for the industry. For more information or to sign up for the webinar, go HERE.
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