News from the Alliance of Business Immigration Lawyers Vol. 10, No. 5B • May 15, 2014
1. DHS Proposes Rule To Extend Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants – DHS has proposed extending the availability of employment authorization to certain H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are seeking lawful permanent resident status through employment.
2. DHS Proposes Rule To Enhance Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants – DHS has proposed various changes to its regulations as part of the Obama administration’s effort to attract highly skilled workers to the United States.
3. China EB-3 Visa Numbers Retrogress Six Years Unexpectedly; State Dept. Warns That EB-5 Category May Retrogress – In June, the China E-3 cutoff date is retrogressing by six years, to October 1, 2006.
4. USCIS Accepting Only Current Naturalization Applications – USCIS is now only accepting current versions of the Form N-400, dated 9/13/2013. USCIS will reject and return all naturalization applications using previous versions.
5. Dept. of State Releases DV-2015 Results – Applicants registered for the DV-2015 program have been selected at random, and notified, from among 9,388,986 qualified entries received during the 30-day application period that ran in late 2013.
6. USCIS Issuing RFEs for Updated Medical Exams – Many medical examination endorsements may expire on May 31, 2014, and not be valid anymore as of June 1, 2014.
7. CBP Provides Webpage Access to Arrival/Departure Date Records – A U.S. Customs and Border Patrol webpage now provides access to arrival/departure date records for nonimmigrants.
8. Pro Bono Success Story: Garfinkel Immigration Law Firm – Garfinkel Immigration Law Firm recently obtained special immigrant juvenile status for an Afghan child with a life-threatening medical disorder.
9. New Publications and Items of Interest – New Publications and Items of Interest
10. Member News – Member News
11. Government Agency Links – Government Agency Links
1. DHS Proposes Rule To Extend Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants
As part of the Obama administration’s efforts to attract highly skilled workers, the Department of Homeland Security (DHS) has proposed extending the availability of employment authorization to certain H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are seeking lawful permanent resident status through employment.
The proposed rule includes such spouses of H-1B nonimmigrants who are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act.
DHS said this regulatory change is intended to lessen any potential economic burden on the H-1B principal and H-4 dependent spouse during the transition from nonimmigrant to lawful permanent resident status, furthering the U.S. goals of attracting and retaining highly skilled foreign workers. The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardship for the families of H-1B nonimmigrants the longer they remain in the United States, DHS noted. In many cases, for those H-1B nonimmigrants and their families who wish to remain permanently in the United States, the time frame required for an H-1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years. As a result, DHS pointed out, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers. “Retaining highly skilled persons who intend to acquire lawful permanent residence is important to the United States given the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which correlate highly with overall economic growth and job creation,” the agency said.
DHS believes that this proposal would further encourage H-1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents (to the detriment of their U.S. employers) because their H-4 nonimmigrant spouses are unable to obtain work authorization. DHS said this proposal also would remove the disincentive for many H-1B families to start the immigrant process due to the lengthy waiting periods associated with acquiring lawful permanent resident status.
DHS seeks public comments on the proposed rule. The agency noted that the most useful comments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support the change.
2. DHS Proposes Rule To Enhance Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants
In another Obama administration effort to attract highly skilled workers, the Department of Homeland Security (DHS) has proposed updating its regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of those authorized for employment incident to status with a specific employer, to clarify that H-1B1 and principal E-3 nonimmigrants can work in the United States without having to apply separately to DHS for employment authorization.
DHS also is proposing to provide authorization for continued employment with the same employer if the employer has timely filed for an extension of a nonimmigrant’s stay. DHS proposes this same continued work authorization for Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrants if a Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, is timely filed to apply for an extension of stay.
In addition, DHS is proposing to update the regulations describing the filing procedures for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications. These changes would harmonize the regulations for E-3, H-1B1, and CW-1 nonimmigrant classifications with the existing regulations for other similarly situated nonimmigrant classifications.
Finally, DHS is proposing to expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.
DHS said it is proposing these changes to the regulations to benefit these highly skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.
3. China EB-3 Visa Numbers Retrogress Six Years Unexpectedly; State Dept. Warns That EB-5 Category May Retrogress
Retrogressions are looming for several employment-based categories:
EB-3. Due to an “unexpected and dramatic increase” in demand, the Department of State announced in the Visa Bulletin for June 2014 that visa number use in the employment third category has neared the annual limit. As a result, the E-3 cutoff dates will retrogress in June for the China, Worldwide, and Mexico categories. The China E-3 cutoff date is retrogressing by six years, to October 1, 2006.
EB-5. A Department official speaking at an immigration law conference in Washington, DC, on April 11, 2014, warned that higher-than-anticipated visa number usage in the EB-5 immigrant investor category may require the agency to impose a cut-off date this summer. If so, this would be the first time the EB-5 category would have a backlog in its 24-year history.
Every employment-based immigrant visa category has an annual limit. For EB-5, it is approximately 10,000 visas per year. That number includes principal EB-5 investors, their spouses, and their children under 21. For EB-5 cases, a person’s priority date is the date the USCIS receives their I-526 petition.
Investors from mainland China constitute about 80% of all EB-5 petitions. The Department would create a waiting list for Chinese investors first to make certain that some EB-5 green cards remain available for investors from other countries. Investors should file their I-526 petitions as soon as possible so that their EB-5 priority dates will be as early as possible. This will help them when EB-5 retrogression occurs. It is unclear when that will happen, possibly in late summer or early fall 2014.
Contact your Alliance of Business Immigration Lawyers attorney for assistance with specific cases.
JUNE 2014 VISA BULLETIN, which includes charts showing the employment-based and family-based priority dates.
4. USCIS Accepting Only Current Naturalization Applications
As of May 5, 2014, U.S. Citizenship and Immigration Services is now only accepting current versions of the Form N-400, Application for Naturalization, dated 9/13/2013. USCIS will reject and return all naturalization applications using previous versions.
Among other things, the revised form has a barcode, which USCIS said will result in fewer rejected forms. USCIS said that it also clarified the instructions and made the form more “user-friendly.”
USCIS issued the revised version of the N-400 on February 4, 2014. The agency allowed applicants to continue using previous versions of the N-400 for a 90-day transition period, which has expired.
REVISED FORM, but it can also be printed and completed by hand in black ink. The form must be signed and sent with the filing fee.
A USCIS video about the changes to the form is available on USCIS’s YouTube channel.
5. Dept. of State Releases DV-2015 Results
The Department of State’s Kentucky Consular Center has registered and notified those selected in the DV-2015 diversity visa lottery. Approximately 125,514 applicants have been registered and notified, and may now apply for an immigrant visa. The Department said it is likely that not all of those registered will pursue their cases to visa issuance. Therefore, this larger figure should ensure that all DV-2015 numbers will be used during fiscal year 2015 (October 1, 2014, to September 30, 2015).
Applicants registered for the DV-2015 program were selected at random from 9,388,986 qualified entries (14,397,781 with derivatives) received during the 30-day application period that ran in late 2013. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. Cameroon received the most selections, at 5,000; followed by Ethiopia and Egypt, tied at 4,988; and Iran, at 4992.
During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly, the Department said.
Registrants living legally in the United States who wish to apply for adjustment of status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the total 50,000 visa numbers have been used, the program for fiscal year 2015 will end. Selected applicants who do not receive visas by September 30, 2015, will derive no further benefit from their DV-2015 registrations. Similarly, spouses and children accompanying or following to join DV-2015 principal applicants are only entitled to derivative diversity visa status until September 30, 2015.
Dates for the DV-2016 program registration period will be widely publicized in the coming months, the Department said.
The Department noted that the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulated that up to 5,000 of the 55,000 annually allocated diversity visas be made available for use under the NACARA program. The reduction of the limit of available visas to 50,000 began with DV-2000.
The DV-2015 results, including a country-by-country chart, are available in the Visa Bulletin for June 2014.
6. USCIS Issuing RFEs for Updated Medical Exams
Many medical examination endorsements may expire on May 31, 2014, and not be valid anymore as of June 1, 2014, unless U.S. Citizenship and Immigration Services (USCIS) issues a blanket extension as in the past. Reportedly, USCIS has begun issuing requests for evidence (RFEs) for some updated medical exams for adjustment of status applicants with I-485 applications that have been pending for a long time.
The endorsement from the civil surgeon performing the exam appears on the Form I-693 (submitted with the I-485 as supporting documentation). Ordinarily it is valid for one year, which has been extended, but it appears that USCIS may not be granting blanket extensions this year.
Contact your Alliance of Business Immigration Lawyers attorney for advice in specific cases.
7. CBP Provides Webpage Access to Arrival/Departure Date Records
A U.S. Customs and Border Patrol webpage now provides access to arrival/departure date records for nonimmigrants without necessitating a Freedom of Information Act request. The user can input the person’s first and last name, date of birth, passport number and country of issuance, and is supposed to receive information about the person’s recent I-94 arrival/departure record or a full travel history dating back several years.
Reportedly, the system records the date of departure when the person books a departing flight, not the actual departure. Users have tried the system to obtain records for lawful permanent residents but have reported that the travel dates listed are sometimes incomplete.
It is available to individuals and their legal representatives HERE.
8. Pro Bono Success Story: Garfinkel Immigration Law Firm
Garfinkel Immigration Law Firm recently obtained special immigrant juvenile status for an Afghan child with a life-threatening medical disorder, permitting him to remain in the United States with his adoptive family and to receive medical treatment not available in Afghanistan.
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9. New Publications and Items of Interest
The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The 2014 edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
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.
This publication provides:
- 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.
The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOGS
10. Member News
Rami Fakhoury was quoted in the Economic Times of India on May 11, 2014, in an article about the Obama administration’s proposed rule to allow some spouses of H-1B nonimmigrants to work in the United States. He noted, “While for individuals this could open up career opportunities and possibilities, IT consulting companies will gain access to a larger pool of skilled workers without the extensive cost and formalities of immigration processing. This will add a pool of workers that will be ready and able to work without costly delays, limited quota numbers and the need for an employer petitioner.”
Klasko, Rulon, Stock & Seltzer, LLP, has moved its Philadelphia operations to larger space at 1601 Market Street, Suite 2600, Philadelphia, PA 19103. The move coincides with the firm’s 10-year anniversary. The move and need for larger offices was, according to firm chairman H. Ronald Klasko, “spurred by the recovering job market, which increased demand for employment-based immigration as well as the firm’s surging EB-5 visa practice. Since January of 2012, we have gone from 38 to 53 lawyers and dedicated staff in Philadelphia—about 40% growth—and we are looking to add at least 3-5 more top-notch people this year.”
Charles Kuck was quoted in the Atlanta Business Chronicle in an article published on May 2, 2014, on Georgia employers’ growing demand for foreign workers.
Mr. Kuck also was quoted in WABE on May 6, 2014, on tuition rates for undocumented students. He is arguing that those in the Deferred Action for Childhood Arrivals program should be able to pay in-state tuition rates for college. “What we’re asking the court to find on this is [that] while they have Deferred Action, they’re lawfully present. If this ends tomorrow or ends in 2016, they won’t be lawfully present anymore, and their right to the situation goes away.”
Cyrus Mehta recently co-authored a new blog entry. “Work Authorization for Some H-4 Spouses Liberates Them From the Tyranny of Priority Dates”
Angelo Paparelli was quoted in the New York Times on May 6, 2014, about the Obama administration’s plan to attract workers with technology skills. Referring to proposed rule changes that would grant work authorization to certain spouses of H-1B nonimmigrants, Mr. Paparelli asked, “It is a rather miserly grant. Other countries are clamoring to get the best and the brightest. Why are we not doing more?”
Mr. Paparelli recently co-wrote a new blog entry. “L-1 Petitioners Beware: USCIS Confirms Plans to Expand FDNS Site Visit Program”
Stephen Yale-Loehr was quoted in the Wall Street Journal on May 6, 2014, in an article about the Obama administration’s proposed rule to allow some spouses of H-1B nonimmigrants to work in the United States. Mr. Yale-Loehr noted, “Allowing H-1B spouses to work would be an important change. Sometimes people aren’t willing to come to the U.S. if their spouse can’t work.”
11. 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
Visa application wait times for any post