News from the Alliance of Business Immigration Lawyers Vol. 11, No. 8A • August 01, 2015
Headlines:
1. USCIS Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions -In general, H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition.
2. Obama Administration Moves Forward With Executive Actions -On July 15, 2015, the White House announced progress and next steps in an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.
3. USCIS Demands Return of Erroneously Issued DACA EADs -USCIS sent letters demanding the return of new, erroneously issued EADs with more than two years of validity sent after February 16, 2015, to certain DACA recipients.
4. USCIS Seeks Comments on Proposed Expansion of Eligibility for Provisional Unlawful Presence Waivers -The proposed rule would expand eligibility to all foreign nationals who are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence.
5. ABIL Global: Canada -Canada implements Express Entry.
6. New Publications and Items of Interest -New Publications and Items of Interest
7. ABIL Member/Firm News -ABIL Member/Firm News
8. Government Agency Links -Government Agency Links
Details:
1. USCIS Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions
U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, on when to file an amended or new H-1B petition after the precedent decision in Matter of Simeio Solutions, LLC (Simeio).
USCIS said that Simeio, issued on April 9, 2015, represents the USCIS position that H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition. Specifically, an H-1B employer must file a new H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s place of employment.
On May 21, 2015, USCIS issued draft guidance and solicited public comment on the implementation of Simeio. After considering the feedback submitted, USCIS issued the new guidance, which is effective as of July 21. USCIS noted that although the final guidance responds to many of the comments received, some suggestions and inquiries were outside the scope of Simeio. USCIS said it will consider addressing those remaining questions, as necessary, in the near future.
In general, USCIS said, a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.
The memo also notes when a petitioner does not need to file an amended or new H-1B petition. If a petitioner’s H-1B employee is moving to a new job location within the same area of intended employment, for example, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. The petitioner must still post the original LCA in the new work location within the same area of intended employment.
Similarly, with respect to short-term placements under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite) without obtaining a new LCA or having to file an amended or new H-1B petition.
Also, if an H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered “non-worksite” if: (1) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference or staff seminar; (2) the H-1B employee spends little time at any one location; or (3) the job is “peripatetic in nature,” such as in a situation where the employee’s job is primarily at one location but he or she occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations.”
USCIS said that it will exercise discretion in several ways, specified in the memorandum, to accommodate petitioners who need to come into compliance with Simeio. For example, the memo noted that if an employer transferred an H-1B employee to a new location on or before April 9, the date of the Simeiodecision, the agency generally will not pursue new adverse actions, even if the employer does not file an amended petition. The memo also specifies certain circumstances in which USCIS will pursue new adverse actions against employers or preserve adverse actions already begun.
2. Obama Administration Moves Forward With Executive Actions
On July 15, 2015, the White House announced progress and next steps in an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions. The next steps in this effort are summarized in a new report, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century.” The report includes a wide range of new actions that federal agencies are undertaking to improve the visa experience for families, workers, employers, and people in need of humanitarian relief.
Among other things, President Obama directed key federal agencies responsible for administering the legal immigration system to explore ways to modernize and streamline the system while helping the U.S. economy and improving services for applicants. Some of the recommendations summarized in the new report include:
- Improving the issuance of employment-based immigrant visa numbers;
- Increasing efficiency for international arrivals through enhanced technology and increasing the focus on high-risk travelers;
- Implementing the “Known Employer Program,” which will allow employers meeting strict criteria to pre-establish certain requirements as petitioners, by creating a prototype, publishing a report upon completion of the pilot, and creating an implementation plan for a permanent program;
- Improving integrity and increasing the minimum investment for immigrant investor visas; and
- Enhancing opportunities and providing greater clarity for certain nonimmigrants, including the circumstances under which U.S. employers may directly sponsor students on F-1 visas for lawful permanent residence.
The report notes progress since the November announcement on several of the Obama administration’s executive actions. For example, regarding a directive to clarify options for intracompany transfers to the United States, USCIS recently published a “consolidated and authoritative policy memorandum” on the L-1B intracompany transferee classification for workers with specialized knowledge. The report says that USCIS plans to issue a final memorandum effective August 31, 2015.
Also, USCIS published a final regulation, effective May 26, 2015, extending eligibility for work authorization to certain H-4 spouses of H-1B workers who are on the path to lawful permanent resident status. USCIS also published a notice of proposed rulemaking on July 15, 2015, that would expand an existing process to provide provisional waivers to certain family members of U.S. citizens and lawful permanent residents seeking to obtain lawful permanent residence, thereby reducing family separation. The final rule will be published in spring 2016. The report notes that the Department of Homeland Security (DHS) is working to clarify the definition of extreme hardship, which must be proven by applicants seeking provisional waivers, and plans to release guidance on this issue in the near future.
Also, the report says that the Obama administration “continues to move forward” with expanding opportunities for foreign investors, researchers, and entrepreneurs. Toward that end, DHS plans to propose, consistent with its existing parole authority, a parole program for entrepreneurs who would provide a “significant public benefit”; for example, because they have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies. DHS also will clarify guidance on the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.
The report also notes that DHS is evaluating the Optional Practical Training program for foreign students and graduates of U.S. universities, to determine how to enhance the program “in a manner that strengthens the program and improves training for students who will enhance American innovation and competitiveness, while protecting U.S. workers.”
The report includes a number of goals on the technology front. For example, the Obama administration wants to provide applicants with a single “dashboard” that allows them to view their case status in the overall process. Currently, the report explains, applicants must check with DHS and the Department of State individually to view their current status. Ideally, the report says, this information would be aggregated, requiring that only one dashboard be checked for an overview of one’s application, and all related components.
On the consular front, the report notes that officers do not have a consistent way of receiving feedback about the visa process, both overseas and in the United States, from key participants, such as applicants, petitioners, lawyers, and community groups. The report says this limits an exchange of information that might help clarify rules, reduce misinformation, and produce valuable insights about consular post processes. The Obama administration is directing the Department of State to share visa process information with key sectors of the public via messages and media with the goal of providing information and engaging in a two-way dialogue so their feedback and input are incorporated into the process.
A related goal is to increase public outreach and engagement efforts by consular posts. The report says that staff will engage applicants through a wide variety of avenues, including existing post websites and digital media, local organizations and websites, and other channels tailored to local conditions, to engage visa applicants and ensure diverse feedback.
3. USCIS Demands Return of Erroneously Issued DACA EADs
U.S. Citizenship and Immigration Services (USCIS) sent letters on July 14, 2015, demanding the return of erroneously issued employment authorization documents (EADs) with more than two years of validity issued after February 16, 2015, to certain Deferred Action for Childhood Arrivals (DACA) recipients. This was after a court order was in place prohibiting the agency from conferring DACA for more than two years. After the court order in Texas v. United States, USCIS can approve deferred action requests and related employment authorization applications based on DACA only for two-year periods.
USCIS said this action does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.
The agency also subsequently issued an urgent notice on July 27, 2015, stating that “the three-year work permit recall only applies to SOME individuals who received a card after the February 16, 2015, court order.” USCIS said that “[if] you have not been contacted by USCIS and you received a three-year card after February 16, 2015, you should use the new online tool or call the USCIS Customer Service line at 800-375-5283 and select option 1 for English, then option 8 to verify whether you are affected BEFORE returning your card.”
USCIS said that it issued the erroneous EADs (including both EADs with three years and EADs with more than two years but less than three) to approximately 2,100 DACA recipients. Separately, the U.S. Postal Service returned to USCIS as undeliverable about 500 three-year EADs that the agency approved and issued before the February 16, 2015, injunction. USCIS subsequently re-mailed these cards to updated addresses after the injunction. USCIS said it has taken action to correct this issue for these individuals and has updated its records to reflect a two-year period of deferred action and employment authorization for them.
The letter sent to affected DACA recipients explains that the erroneous EADs they received are not valid and must be returned to USCIS. USCIS issued new two-year approval notices and new EADs reflecting a two-year validity period for those people. The letter states that if the recipient of such a letter does not return the invalid EAD, even if he or she has not yet received the new two-year EAD, USCIS will “terminate your deferred action and all associated employment authorizations.” Failure to return the invalid EAD, and subsequent termination of the recipient’s DACA and employment authorization, “may be considered a negative factor in weighing whether to grant any future requests for deferred action or any other discretionary requests.”
The letter states that affected recipients must return their invalid EADs by either appearing at a USCIS field office location by July 27, 2015, or by mailing USCIS the invalid three-year EAD by July 27, 2015. On a stakeholder call on July 14, 2015, USCIS said it is making home visits to collect the invalid EADs. Among other things, USCIS said that if a DACA recipient returns his or her invalid EAD but receives a letter from USCIS requiring a field office visit, he or she must go to the field office to confirm the return of the invalid EAD.
USCIS WEB PAGE with details on this issue
USCIS LETTER SENT JULY 14 to affected DACA recipients
4. USCIS Seeks Comments on Proposed Expansion of Eligibility for Provisional Unlawful Presence Waivers
U.S. Citizenship and Immigration Services (USCIS) is seeking public comments on a proposed rule that would expand eligibility for provisional waivers of inadmissibility based on the accrual of unlawful presence. The proposed rule would expand eligibility to all foreign nationals who are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence.
Currently, the Department of Homeland Security (DHS) allows certain immediate relatives—specifically certain parents, spouses, and children of U.S. citizens—who are in the United States to request a provisional unlawful presence waiver before departing for consular processing of their immigrant visas. The waiver currently is only available to those immediate relatives whose sole ground of inadmissibility would be unlawful presence under INA § 212(a)(9)(B)(i) and who can demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen spouses or parents.
Under the proposed rule, USCIS may grant a provisional waiver to foreign nationals if they are statutorily eligible for immigrant visas and for waivers of inadmissibility based on unlawful presence. The proposed rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.
The changes, which USCIS said it is proposing “in the interests of family unity and to enhance customer service,” would take effect on the date indicated in the final rule when the final rule is published in the Federal Register. USCIS said that foreign nationals should not submit applications now requesting provisional unlawful presence waivers based on the proposed changes. USCIS may deny any such application filed before the effective date indicated in the final rule.
Comments are due by September 21, 2015. To submit comments, follow the instructions in the notice.
USCIS’s PROVISIONAL UNLAWFUL PRESENCE WAIVERS PAGE with additional information
5. ABIL Global: Canada
Since January 2015, when Citizenship and Immigration Canada (CIC) introduced Express Entry, a new permanent residence immigration process, the process has solidified and immigration practitioners are learning to navigate the online Express Entry system.
Express Entry is a points-based system that ranks candidates according to various human capital and personal criteria and allows CIC to issue a limited number of Invitations to Apply (ITAs) for permanent residence. Since January, CIC has issued approximately 13,000 ITAs to candidates to permit them to subsequently submit permanent residence applications. Following are highlights of the new system:
Express Entry draws. CIC “draws” of the highest-ranked candidates have been occurring every few weeks. For each draw, CIC establishes the minimum Comprehensive Ranking System (CRS) point score required to receive an ITA, which allows the agency to manage the intake of permanent residence applications. The minimum CRS score was initially very high—over 800 CRS points for the first three draws (886, 818, and 808 CRS points) early in the year, which required those who were drawn to have had a Labour Market Impact Assessment (LMIA) or Provincial Nomination Certificate in their favor, which grants a bonus 600 CRS points. Subsequent draws have dropped since March 2015 to the mid- to high-400’s CRS point range, with the lowest dips occurring at two draws at 453 CRS points on March 27, 2015, and on April 17, 2015. The minimum CRS score required to receive an ITA may continue to drop slightly for the remainder of the year, although it is unlikely to drop drastically.
Provincial Nominee Programs. Over the past months, the Canadian provinces have been implementing their own unique Express Entry Provincial Nominee Programs (PNPs), which are province-based selection programs that can accord a candidate 600 bonus points in Express Entry. Provinces have taken awhile to implement PNPs because of the need to move to electronic PNP systems that are compatible with Express Entry. British Columbia was the first province to implement a PNP for Express Entry and issue Provincial Nominee Certificates to applicants. Recently, Ontario has released its own PNP program, which encompasses both a Human Capital Stream and a French-Speaking Skilled Worker Stream. Other Canadian provinces with Express Entry PNPs include Saskatchewan, Nova Scotia, New Brunswick, and Prince Edward Island.
Documentary requirements. CIC has issued the majority of ITAs for permanent residence based on governmental discretion pursuant to the Federal Skilled Worker Program, as opposed to the Canadian Experience Class Program, even for those candidates working in Canada. Because the Federal Skilled Worker Program has additional documentary requirements, it is important to start gathering documents that may be needed even before an ITA is received and often before the Express Entry profile itself is created. Documents that often need to be uploaded in the online permanent residence application after receiving an ITA can include employment letters and pay slips for present and past employment, official language exam results (English and French), copies of police certificates, immigration medical examination receipts, copies of civil identity documents, and proof of settlement funds except for those working in Canada with certain work permits.
6. New Publications and Items of Interest
PSA on erroneously issued DACA work permits. The American Immigration Lawyers Association (AILA) has developed a shareable digital infographic and print Public Service Announcement (PSA), in English and Spanish. The materials are intended to be shared widely on social media and in communities to inform DACA grantees who received 3-year work permits erroneously issued or mailed after February 16, 2015.
The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) 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 latest edition adds chapters on Ghana and Peru. 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, Singapore, 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.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
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.
The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS
7. ABIL Member/Firm News
Several ABIL members will speak at an EB-5 immigrant investor conference sponsored by the American Immigration Lawyers Association (AILA) in Las Vegas, Nevada, on August 27-28, 2015:
- Charles Kuck, I-829 Removal of Conditions Process and EB-5 Compliance
- Robert Loughran, EB-5 Overview
- Cyrus Mehta, Protecting Your EB-5 Practice: Ethical Issues & Minimizing Risk
- Angelo Paparelli, Protecting Your EB-5 Practice: Ethical Issues & Minimizing Risk
- Bernard Wolfsdorf, China Issues; Update from U.S. Dept. of State & CIS Ombudsman Office; Hot Topics, Legislative Update, & Open Q&A
- Stephen Yale-Loehr, Due Diligence in EB-5 Cases; The EB-5 Program: A Time of Change, Reauthorization & The Future; Hot Topics, Legislative Update, & Open Q&A
Vincent Lau will speak at two upcoming AILA conferences. On August 6, 2015, at the AILA Fundamentals Immigration Law Conference in Miami, Florida, Mr. Lau will speak on “Employment-Based Immigrant Visas—Part 1.” On August 8, 2015, at the AILA PERM CLE Conference in Miami, Florida, Mr. Lau will speak on “PERM and the Prevailing Wage.”
Mr. Loughran moderated parts 2 and 3 of a three-part panel on Consular Processing for Experts in June and July, sponsored by ILW.com. Jose R. Perez, Jr., also of Foster, participated in part 2 and provided expert insight on immigrant and nonimmigrant waivers. In part 3, Foster Partner Delisa J.F. Bresslerspoke on advanced consular issues in employment-based cases. More information on the seminar. More on Foster. Mr. Loughran and James Larsenpresented “You’re Legal NOW? Navigating I-9 and E-Verify After Executive Action” on July 31, 2015, at the Austin Human Resources Management Association Conference in Austin, Texas.
Sharon Mehlman will speak on “The Effect of Special Terms of Employment on a PERM Case” at the AILA PERM CLE Conference in Miami, Florida, on August 8, 2015.
Mr. Mehta has published several new blog entries. “To Amend or Not To Amend: USCIS Issues Final Guidance on Matter of Simeio” “Update on Indian Three-Year Degrees and Postgraduate Diplomas”
Mr. Paparelli was quoted in the Daily Journal on July 22, 2015, in “Judge Says State Corrections Department Runs Afoul of Civil Rights Law.” The article discussed a case where a Mexican immigrant, Victor Guerrero, was denied a corrections job in California because he answered truthfully that he had used a false Social Security number (SSN) in the past, a practice he began when he was 15 years old and used a false SSN at his parents’ request so he could work in a restaurant. A U.S. district judge concluded that the state corrections department discriminated against the man because the disqualifying question disproportionately affects Latinos. Since the department began asking the question in 2009, all nine applicants disqualified for answering “yes” were Latino. Mr. Paparelli noted that the use of a false Social Security number is often accompanied by another crime: misrepresentation of status in U.S. Citizenship and Immigration Services forms. He said that the dilemma for immigrant job applicants and employers is “more of a reflection of a broken immigration system than individual moral culpability.”
Mr. Yale-Loehr was mentioned in the New York Times on July 22, 2015, in “From an ‘Undocumented’ Boyhood to a Doctorate.” Mr. Yale-Loehr served as the article subject’s lawyer, trying to find a way for the man, Dr. Dan-el Padilla Peralta, to be able to return to the United States from studying at Oxford and petitioning for his client’s status at every academic stage. Dr. Peralta began life in poverty in the Dominican Republic and eventually earned a doctorate in classics from Stanford University. At age 30, the article explains, Dr. Padilla is at Columbia University as a postdoctoral fellow in humanities. Next summer, he will return to Princeton University, where he had also studied, as an assistant professor of classics. He has a work visa but is not yet a U.S. citizen. In March, Dr. Padilla married a woman from Sparta, New Jersey, whom he had dated for six years. He is waiting for his green card application to be considered.
Mr. Yale-Loehr recently authored several articles. “Two Key Senators Introduce Bill to Extend and Improve EB-5 Program” “Nine Key Concepts College Counsel Must Know About Immigration Law”
Mr. Yale-Loehr was quoted in the Cleveland Plain Dealer on July 28, 2015. Commenting on the case of Juan Emmanuel Razo, an undocumented immigrant from Mexico who is accused of murder and attempted rape, Mr. Yale-Loehr explained, “The Obama administration’s policy on which immigrants to detain has evolved. The administration knows that it doesn’t have the money or jail space to detain and deport all 11 million undocumented immigrants. Therefore, since last November it has focused on detaining immigrants who have been convicted of felonies or significant misdemeanors.”
Mr. Yale-Loehr was quoted on Vice.com on July 27, 2015. Commenting on the macroeconomic impact of immigration, he noted that legal immigration has benefited the U.S. economy overall.
Mr. Yale-Loehr was quoted by ABC News on July 27, 2015. Commenting on a recent ruling that undocumented families including children who cross the border should not be detained in secure facilities, Mr. Yale-Loehr noted, “They’re getting shot at. They just want to get out of the country and go to some place that will be safer. I don’t think there will be a significant rise or decrease [in immigration] from Judge Gee’s order.”
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