News from the Alliance of Business Immigration Lawyers Vol. 11, No. 10B • October 15, 2015
1. Update on ‘Visagate’ Filing Date Fiasco: Temporary Restraining Order Denied -On October 7, 2015, a judge rejected a petition for a temporary restraining order (TRO) in a class action challenging a new change to the October Visa Bulletin.
2. Congress Extends Four Immigration Programs Until December 11 -Congress has extended the EB-5, E-Verify, Conrad state 30 (physician J-1 waiver), and religious workers programs until December 11, 2015, as part of congressional passage of a continuing resolution to fund the government.
3. DHS Submits New Proposed Rule on Expanding F-1 STEM OPT -The proposed rule awaits OMB approval before it can be published for public comment.
4. Registration Opens for Diversity Visa 2017 Program -Registration is open until noon, eastern time, on November 3, 2015.
5. USCIS Announces New Direct Filing Address for Certain I-140 Petitions, Workload Rebalancing -The direct filing address has changed for I-140 (Immigrant Petition for Alien Worker) petitions submitted together with I-907 (Request for Premium Processing) petitions with a worksite location in Maryland, New Jersey, New York, or Pennsylvania.
6. H-1B, L-1 Additional Fees Expire -The expired fee was $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions.
7. New Publications and Items of Interest -New Publications and Items of Interest
8. ABIL Member/Firm News -ABIL Member/Firm News
9. Government Agency Links -Government Agency Links
1. Update on ‘Visagate’ Filing Date Fiasco: Temporary Restraining Order Denied
On October 7, 2015, a judge rejected a petition for a temporary restraining order (TRO) in a class action challenging a new change to the October Visa Bulletin. By moving many filing dates back, the update to the bulletin radically restricted a previously announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The class action was filed in the U.S. District Court for the Western District of Washington at Seattle on September 28, 2015.
The complaint noted that in the absence of relief, plaintiffs and class members, “who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published, will be irreparably harmed and left without any remedy for Defendants’ unlawful actions.” The complaint asks the court to declare, among other things, that the September 24 revision of the October 2015 Visa Bulletin constitutes unlawful agency action in violation of the Administrative Procedure Act. The Alliance of Business Immigration Lawyers (ABIL) filed a declaration supporting the complaint, and individual ABIL lawyers also filed declarations as experts. ABIL also plans to file an amicus brief in the litigation.
Varied explanations for the latest change, which some are calling “Visagate,” were floated. For example, in a statement announcing the change, U.S. Citizenship and Immigration Services (USCIS) explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.” USCIS also reportedly said that the agency was correcting a mistake and there was no way it could comply with the law without fixing the bulletin. USCIS also said that a retrogression in cut-off dates was not accounted for when the first October bulletin was issued.
Attorneys for the plaintiffs have set up a Facebook page to track the litigation.
LATEST CHART, along with information on when to file
2. Congress Extends Four Immigration Programs Until December 11
Congress has extended the EB-5, E-Verify, Conrad state 30 (physician J-1 waiver), and religious workers programs until December 11, 2015, as part of congressional passage of a continuing resolution to fund the government.
Members of Congress hope to reauthorize and reform the EB-5 program in the interim, although the outcome is uncertain due to political disputes and legislative scheduling pressures. In January, Reps. Mark Amodei (R-Nev.) and Jared Polis (D-Colo.) introduced an EB-5 reauthorization bill in the House of Representatives. In June, Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.) introduced a reauthorization and reform bill in the Senate. At least two other bills to reform the EB-5 program have also been introduced. Conrad 30 supporters also hope to make changes, such as reducing backlogs in the wait for green cards.
3. DHS Submits New Proposed Rule on Expanding F-1 STEM OPT
On October 2, 2015, the Department of Homeland Security submitted to the Office of Management and Budget (OMB) a new proposed rule on expanding F-1 science, technology, engineering, and mathematics (STEM) optional practical training (OPT). The rule awaits OMB approval before it can be published for public comment.
Among other developments, in November 2014, DHS Secretary Jeh Johnson noted that his agency would like to:
expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates, consistent with law. I am also directing ICE and USCIS to improve the OPT program by requiring stronger ties to degree-granting institutions, which would better ensure that a student’s practical training furthers the student’s full course of study in the United States. Finally, ICE and USCIS should take steps to ensure that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.
A court order in August 2015 vacated for procedural reasons a 17-month STEM extension under the 2008 STEM OPT extension rule because DHS did not allow for public comment. The court, however, stayed the vacatur and allowed the rule to remain in place until February 12, 2016, “during which time DHS can submit the 2008 Rule for proper notice and comment.”
INFORMATION ON THE CURRENT RULE AND THE PROPOSED RULE
ADDITIONAL BACKGROUND ON THE ISSUES
NOVEMBER 2014 MEMO FROM SECRETARY JOHNSON
4. Registration Opens for Diversity Visa 2017 Program
The 2017 diversity visa (DV) program opened for electronic registrations opened on October 1, 2015, and closes at noon, eastern time, Tuesday, November 3, 2015.
For DV-2017, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
The Department of State said that based on the allocations of available visas in each region and country, individuals will be randomly selected by computer from among qualified entries. DV-2017 entrants must go to Entrant Status Check using the confirmation numbers from their DV-2017 online entry registrations to find out whether they have been selected. Those who are selected will be directed to a confirmation page that will provide further instructions, including information about fees connected with immigration to the United States. The Department noted that Entrant Status Check will be the only means by which selectees are notified of their selection for DV-2017. The Department of State will not mail notification letters or email selectees.
Applicants can access the electronic DV entry form (E-DV) at the official E-DV website: http://www.dvlottery.state.gov during the registration period. DV instructions, including a video, are on the Department of State’s public website at: http://www.travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html. Entrant Status Check will be available on the E-DV website starting May 3, 2016, through at least September 30, 2017.
5. USCIS Announces New Direct Filing Address for Certain I-140 Petitions, Workload Rebalancing
U.S. Citizenship and Immigration Services (USCIS) announced that starting on October 19, 2015, the direct filing address has changed for Form I-140 (Immigrant Petition for Alien Worker) petitions submitted together with Form I-907 (Request for Premium Processing) petitions with a worksite location in Maryland, New Jersey, New York, or Pennsylvania. Those who are filing an I-907 to upgrade a pending I-140 to premium processing should mail the I-907 to the service center that has the pending I-140.
USCIS also noted that it recently rebalanced its workload for certain I-140 petitions and employment-based I-485 (Application to Register Permanent Residence or Adjust Status) applications between the Texas and Nebraska service centers.
ANNOUNCEMENT, including address information
6. H-1B, L-1 Additional Fees Expire
U.S. Citizenship and Immigration Services (USCIS) announced that H-1B and L-1 petitions should no longer include the additional fee required by § 402 of Public Law 111-230, as amended, for certain H-1B and L-1 petitions. The additional fee expired on September 30, 2015. The fee was $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.
All other H-1B and L-1 fees are still required. USCIS reminded petitioners that the agency prefers separate checks for each filing fee.
7. New Publications and Items of Interest
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
8. ABIL Member/Firm News
Cyrus Mehta has authored a new blog entry. “When Is A Visa ‘Immediately Available’ for Filing an Adjustment of Status Application” Michelle Velasco, an associate at Cyrus D. Mehta & Associates, PLLC, has authored “Work Authorization for H-4 Spouses: The Experience Thus Far”
Stephen Yale-Loehr was quoted in The Atlantic on October 2, 2015, in “The Flawed Immigration Program Congress Hasn’t Changed,” about the EB-5 program’s extension. Mr. Yale-Loehr noted, among other things, that representatives of urban districts have been holding up congressional reform efforts because they don’t want to see the program change. By contrast, those from rural and high-unemployment districts tend to support reform, he said.
9. 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