Headlines:

1. DHS Proposes Rule on Expanding F-1 STEM OPT -Among other things, the proposal would allow F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months.

2. Labor Dept. Publishes Final Rule on Temporary Employment of H-2A Workers in Herding or Production of Livestock on the Range -Among the issues addressed are the qualifying criteria, preparing job orders, program obligations of employers, filing H-2A applications requesting temporary labor certification for range occupations, recruiting U.S. workers, determining the minimum offered wage rate, and meeting minimum standards for housing used on the range.

3. USCIS Reports Satisfaction With Filing for Replacement Green Cards Online -More than 93 percent of applicants who filed for a replacement green card online had a positive experience, and more than 95 percent would recommend online filing to others.

4. USCIS Reminds Those Affected by South Carolina Floods of Immigration Relief Options -USCIS said that requestors should explain how the flooding created a need for the requested relief.

5. USCIS Will Close Vienna Field Office in December -The last day the office will be open to the public and accept applications is November 30, 2015.

6. DHS Sets FY 2016 Limit for CNMI-Only Transitional Workers -DHS will allow up to 12,999 nonimmigrants in fiscal year (FY) 2016 for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program.

7. ABIL Global: Peru -On September 26, 2015, a new Aliens Law in Peru was published in the official gazette, El Peruano. Selected highlights are discussed.

8. New Publications and Items of Interest -New Publications and Items of Interest

9. ABIL Member/Firm News -ABIL Member/Firm News

10. Government Agency Links -Government Agency Links

Details:

1. DHS Proposes Rule on Expanding F-1 STEM OPT

On October 19, 2015, the Department of Homeland Security (DHS) published a new proposed rule on expanding F-1 science, technology, engineering, and mathematics (STEM) optional practical training (OPT). Specifically, the proposal would allow F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension would effectively replace the 17-month STEM OPT extension currently available to certain STEM students. The rule also increases oversight of STEM OPT extensions by, among other things, requiring the implementation of formal mentoring and training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools.

As with the current 17-month STEM OPT extension, the proposed rule would authorize STEM OPT extensions only for students employed by employers enrolled in U.S. Citizenship and Immigration Services’ (USCIS) E-Verify employment eligibility verification program. The proposal also includes the “cap-gap” relief first introduced in 2008 for any F-1 student with a timely filed H-1B petition and request for change of status. DHS said that the cap-gap relief allows such students to automatically extend the duration of F-1 status and any current employment authorization until October 1 of the fiscal year for which such an H-1B visa is being requested.

The proposed rule also responds to a court decision that vacated a 2008 DHS regulation on procedural grounds. The proposed rule includes changes to the policies announced in the 2008 rule to further enhance the academic benefit provided by STEM OPT extensions and increase oversight. DHS noted that “[t]hese on-the-job educational experiences would be obtained only with those employers that commit to developing students’ knowledge and skills through practical application. The proposed changes would also help ensure that the nation’s colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.”

PROPOSED RULE

ADDITOINAL BACKGROUND ON THE ISSUES

RELATED NOVEMBER 2014 MEMO from Secretary Jeh Johnson

AUGUST 2015 OPINION

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2. Labor Dept. Publishes Final Rule on Temporary Employment of H-2A Workers in Herding or Production of Livestock on the Range

The Department of Labor (DOL) has published a final rule establishing standards and procedures for employers seeking to hire foreign temporary agricultural workers for jobs in herding and production of livestock on the range. Among the issues addressed are the qualifying criteria, preparing job orders, program obligations of employers, filing H-2A applications requesting temporary labor certification for range occupations, recruiting U.S. workers, determining the minimum offered wage rate, and meeting minimum standards for housing used on the range. The regulations establish a single set of standards and procedures applicable to employers seeking to hire foreign temporary agricultural workers for sheep and goat herding and range production of livestock.

Among other things, DOL noted the need to address “inadequate wage methodology” that has contributed to herder wage stagnation. Instead of using inaccurate, outdated surveys, DOL decided to use the federal minimum wage rate, currently $7.25 per hour, multiplied by 48 hours per week to set the monthly wage rate.

FINAL RULE

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3. USCIS Reports Satisfaction With Filing for Replacement Green Cards Online

U.S. Citizenship and Immigration Services (USCIS) recently announced that more than 93 percent of applicants who filed for a replacement green card (Form I-90, Application to Replace Permanent Resident Card) online had a positive experience, and more than 95 percent would recommend online filing to others.

USCIS noted that since the agency introduced the electronic I-90 in March 2015, more than 168,000 applications were filed that way. Online I-90 filings now account for 47 percent of all I-90 applications filed. USCIS said it still accepts paper I-90 applications, but converts them into electronic records. Those filing an I-90 on paper can still create an online account to track the case electronically.

INFORMATION ABOUT ELECTRONIC FILING

I-90 APPLICATION

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4. USCIS Reminds Those Affected by South Carolina Floods of Immigration Relief Options

U.S. Citizenship and Immigration Services (USCIS) recently issued an alert noting that the agency “offers immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe flooding in South Carolina.”

USCIS said that requestors should “explain how the flooding created a need for the requested relief.” The agency noted that the following measures may be available upon request:

• Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired
• Re-parole of individuals previously granted parole by USCIS
• Expedited processing of advance parole requests
• Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship
• Expedited adjudication of employment authorization applications, where appropriate
• Consideration of fee waivers due to an inability to pay
• Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to appear for an interview, submit evidence, or respond in a timely manner
• Replacing lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (green card)
• Rescheduling of scheduled biometrics appointment

ANNOUNCEMENT

MORE INFORMATION on humanitarian relief in special situations

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5. USCIS Will Close Vienna Field Office in December

U.S. Citizenship and Immigration Services (USCIS) will permanently close its field office in Vienna, Austria, on December 31, 2015. The last day the office will be open to the public and accept applications is November 30, 2015. The USCIS field offices in Frankfurt, Rome, and Athens will assume Vienna’s former jurisdiction, which includes Austria, Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Hungary, Kosovo, Former Yugoslav Republic of Macedonia, Montenegro, Poland, Romania, Serbia, Slovakia, and Slovenia. The U.S. Embassy in Vienna will assume responsibility for certain limited services previously provided by USCIS to individuals residing in Austria.

ADDITIONAL DETAILS, including the new jurisdictional breakdown for countries in USCIS Vienna’s former jurisdiction and detailed filing instructions for various services and forms

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6. DHS Sets FY 2016 Limit for CNMI-Only Transitional Workers

The Department of Homeland Security (DHS) announced on October 22, 2015, that it will allow up to 12,999 nonimmigrants in fiscal year (FY) 2016 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 under the Immigration and Nationality Act. The CW program is in effect until December 31, 2019. DHS said it reduced the FY 2016 CW-1 limit by 1,000 “to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a regulatory requirement to reduce the numerical limit each year.”

The announcement does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay. Approved petitions with an employment start date between October 1, 2015, and September 30, 2016, will generally count toward the 12,999 limit, DHS said. The numerical limit applies only to CW-1 principals. It does not directly affect anyone 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, USCIS noted.

FEDERAL REGISTER NOTICE

RELATED ANNOUNCEMENT

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7. ABIL Global: Peru

On September 26, 2015, a new Aliens Law in Peru was published in the official gazette, El Peruano. Selected highlights are discussed below.

Legislative decree No. 1236, most of which will be effective 90 days after related regulations are published, will change the scheme of work visas, and immigration categories and statuses, in Peru. Among other things, the immigration categories under the new law will include:

• Visitor: Allows foreign nationals short-term visits to Peru.
• Temporary: Allows foreign nationals to carry out paid activities, study, or undertake training activities, as appropriate to the immigration status assigned.
• Resident: Allows foreign nationals to set up residence in Peru. Foreign nationals with resident status may carry out any kind of paid or for-profit activity as a subordinate, independent, or self-employed person. The resident immigration category is divided into:
• Permanent Resident: Allows foreign nationals to establish permanent residence in Peru. Foreign nationals may apply to obtain this status after 21 months as provisional residents. The specific requirements will be set in regulations.
• Provisional Resident: Allows foreign nationals to perform tasks or activities only during the period of their authorized stay. Maximum term of 2 years.

A foreigner may apply for provisional residence in certain cases: (1) after two years under certain immigration statuses, including humanitarian, investor, religious, worker, and other immigration statuses as determined by Supreme Decree countersigned by the Minister of Interior and Minister of Foreign Affairs; or (2) as an intra-company transfer, applicable to a foreign national who enters Peru as an employee of a multinational company or international corporation and relocates to Peru to work in a company that is part of the same economic group or holding, to serve in a managerial (high-ranking) position, as employee in a position of trust, or as a highly qualified specialist.

Under the “Temporary” category, a new immigration status has been created: Worker—Short-Term Stay (T19), applicable to a foreign national who enters Peruvian national territory to perform work for the public or private sectors, during a brief determined term expected to be up to 30 days, nonrenewable. Short-term stay workers cannot perform paid or for-profit activities on their own account or independently.

Some immigration statuses enable the exercise of certain activities that are also allowed under a different immigration status that is not incompatible, as established in the regulations.

The Ministers of Interior and Foreign Affairs may jointly create new immigration statuses by Supreme Decree for the purpose of developing certain temporary activities. They also can develop subcategories for each immigration status. To exercise duties under the new law, MIGRACIONES and the Ministry of Foreign Relations have sanctioning power under the scope of their authority.

Actions that breach the provisions of the new law constitute punishable offenses. When evaluating the breach, the competent authority must take into account the seriousness of the offense based on proportionality and reasonableness criteria. Unlawful actions are classified as minor, serious, or very serious. National citizens; foreign nationals; transportation companies, operators, or concessionaires; domiciled individuals; and corporations that breach the obligations of the decree are subject to disciplinary proceedings.

For family unity purposes, not only the spouse but the common-law partner (according to the provisions of Article 2049 of the Peruvian Civil Code) is recognized as member of the family unit of a foreign national who can request family reunification.

As noted above, most of the law will be effective 90 working days after the publication of corresponding regulations in the official gazette, El Peruano, unless otherwise provided by law.

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8. New Publications and Items of Interest

The 2015 edition of the Global Business Immigration Practice Guide has 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.

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 $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

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9. ABIL Member/Firm News

Cyrus Mehta has authored a new blog entry. “Don’t You Dare Yank My Precious I-140 Petition Without Telling Me”

Several members of Mr. Mehta’s office have authored new blog entries. Cora-Ann V. Pestaina has authored a new blog entry, “What One Hand Giveth The Other Taketh Away: Are We Truly Welcoming Foreign Entrepreneurs To America?“. David A. Isaacson has authored “Non-Retroactivity of BIA Precedent Decisions: De Niz Robles v. Lynch and Other Recent Court of Appeals Rulings” Michelle Velasco has authored “Work Authorization for H-4 Spouses: The Experience Thus Far”

Bernard Wolfsdorf spoke on a panel, “EB-5 Visa Demand: An Update from the Department of State,” with Charles Oppenheim, Chief, Immigrant Visa Control and Reporting, U.S. Department of State, at the IIUSA in Dallas, Texas, on October 22, 2015. A summary of key points is available to IIUSA members.

Stephen Yale-Loehr will speak at the East Meets West—Manhattan Luxury Real Estate Connect conference at the Waldorf Astoria New York on November 2, 2015, sponsored by the Manhattan chapter of the Asian Real Estate Association of America. He will be a panelist on “Myths and Realities of EB-5.” FOR MORE INFORMATION OR TO REGISTER

Mr. Yale-Loehr was quoted in Law360 on October 14, 2015, in “7 Immigration-Related Cases That May See High Court Action.” The article discusses Torres v. Lynch, Hernandez v. Mesa, Thompson v. Lynch, Ortiz-Franco v. Lynch, Molina-Martinez v. U.S., Evenwel v. Abbott, and Texas v. U.S. Commenting on Ortiz-Franco v. Lynch, Mr. Yale-Loehr noted that appeals courts have held that individuals can raise legal challenges to federal courts only from the Board of Immigration Appeals. “But the Seventh Circuit and the Ninth Circuit have held that noncitizens with criminal convictions can raise both legal and factual claims challenging the denial of relief under [the] Convention Against Torture,” he said.

Mr. Yale-Loehr was quoted in the New York Times on October 27, 2015, in “Should Foreign Graduates Get a Visa Edge?” The article discusses the phenomenon of foreign graduates leaving the United States and innovating elsewhere due to uncertainty, low caps, and long waits in the U.S. immigration system. “Imagine if the next Google or Facebook were to be developed in India or China. All those jobs that could have been in the United States instead are being developed overseas and competing against our best companies,” he said.

Mr. Yale-Loehr was quoted in the Desert Sun on October 30, 2015, in “EB-5 Visa Program Brings Foreign Investment to Valley.” He noted that “[i]t’s hard to emigrate to the U.S. from China in other categories. It’s relatively quicker to go the EB-5 route. The network [of migration agents] in China allow[s] developers a relatively efficient way of finding large numbers of investors quickly.”

Mr. Yale-Loehr was quoted in the Allentown Pennsylvania Morning Call on October 31, 2015, in “Immigration Financing Fuels Part of Allentown’s Revitalization.” He noted, “If [the EB-5 program] is done correctly it is a four-way win. We get new jobs for U.S. workers; No. 2, those jobs are at no expense to U.S. taxpayers; three, the U.S. developer gets capital maybe they wouldn’t otherwise be able to get, and fourth, the foreign investor gets a green card.”

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10. 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

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