News from the Alliance of Business Immigration Lawyers Vol. 11, No. 11B • November 15, 2015

Headlines:

1. Fifth Circuit Upholds Injunction Against Obama Administration’s DACA/DAPA Programs -The court found, among other things, that the states have shown that the threatened injury if the injunction were denied outweighed any harm that would result if the injunction were granted.

2. State Dept. Projects Employment-Based Visa Number Availability in Coming Months -The Department of State’s Visa Bulletin for December 2015 includes information on visa number availability in the coming months.

3. State Dept. Replaces Manual of Visa Guidance -The 9 FAM-e, which replaces the legacy 9 FAM, will become the authoritative source for visa guidance.

4. USCIS Issues Policy Memo on Initial Field Review of AAO Appeals -USCIS issued a policy memorandum on initial field review of appeals to the Administrative Appeals Office. The memo provides guidance to USCIS employees on the proper processing of such appeals.

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

6. ABIL Member/Firm News -ABIL Member/Firm News

7. Government Agency Links –Government Agency Links

Details:

1. Fifth Circuit Upholds Injunction Against Obama Administration’s DACA/DAPA Programs

On November 9, 2015, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld 2-1 a preliminary injunction against the Obama administration’s executive actions on Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). The court found, among other things, that the states have shown that the threatened injury if the injunction were denied outweighed any harm that would result if the injunction were granted. “The states have alleged a concrete threatened injury in the form of millions of dollars of losses,” the panel majority noted.

The majority also rejected the argument that congressional silence on immigration has conferred on the Department of Homeland Security (DHS) the power to act. The court found, among other things, that DAPA was “foreclosed by Congress’s careful plan,” and that immigration law “prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

Judge Carolyn King dissented, citing, among other things, a “litany of errors committed by the district court.” She noted, “There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable.” Judge King concluded, “I have a firm and definite conviction that a mistake has been made.”

The Obama administration plans to appeal the ruling to the Supreme Court.

DECISION, including Judge King’s dissent

2. State Dept. Projects Employment-Based Visa Number Availability in Coming Months

The Department of State’s Visa Bulletin for December 2015 includes information on visa number availability in the coming months.

For the employment fourth preference (certain religious workers) category, the bulletin notes that the non-minister special immigrant (SR) program expires on December 11, 2015. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on December 10, 2015. Visas issued before that date will only be issued with a validity date of December 10, 2015, and all individuals seeking admission as non-minister special immigrants must be admitted into the U.S. by midnight on December 10, 2015.

For the employment fifth preference (I5 and R5) categories, visas may be issued until the close of business on December 11, 2015, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 11, 2015.

The bulletin notes that Congress is considering an extension of the SR, I5, and R5 visa categories, “but there is no certainty when such legislative action may occur.” If there is no legislative action extending one or both of these categories, those cut-off dates would become “Unavailable” on December 12, 2015.

The bulletin also notes the following potential monthly movement for employment-based categories in the coming months:

Employment First: Current

Employment Second:

Worldwide: Current
China: Forward movement during FY 2015 has resulted in a dramatic increase in demand. Little, if any, movement is likely during the coming months.
India: Up to eight months.

Employment Third:

Worldwide: The rapid forward movement during FY 2015 was expected to generate a significant amount of demand for numbers. If such demand fails to materialize in the near future, it will be necessary to begin advancing this cut-off date.
China: Rapid forward movement is expected. Such movement will result in increased demand, which will require “corrective” action as early as April.
India: Will advance up to three weeks.
Mexico: Will remain at the worldwide date.
Philippines: Will advance four to six weeks.

Employment Fourth: Current

Employment Fifth: The category will remain “Current” for most countries.

China-mainland born: Slow forward movement.

The bulletin notes that the above projections for the employment categories indicate what is likely to happen on a monthly basis through March based on current applicant demand patterns. “Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that ‘corrective’ action will not be required at some point in an effort to maintain number use within the applicable annual limits,” the bulletin states. “The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables.”

Also, U.S. Citizenship and Immigration Services (USCIS) announced recently that for family-sponsored filings, applicants may use the “Dates for Filing Visa Applications” chart in the December bulletin. For employment-based filings, however, USCIS said the “Application Final Action Dates” for December must be used.

VISA BULLETIN FOR DECEMBER 2015

3. State Dept. Replaces Manual of Visa Guidance

On November 18, 2015, the Department of State (DOS) will replace the legacy Volume 9 of the Foreign Affairs Manual (9 FAM) with the 9 FAM-e. The 9 FAM-e will become the authoritative source for visa guidance.

DOS said the new 9 FAM-e represents the revision and reorganization of more than 4,000 pages of the legacy 9 FAM content that paralleled Volume 22 of the Code of Federal Regulations. The new 9 FAM-e overhauls language and organization, but not substance, DOS said. The former interpretive and procedural notes were merged, along with appendices. The new 9 FAM-e “adopts a hierarchical structure that is both more logical and better suited to modern search technologies,” DOS said, noting that the revised 9 FAM-e also uses a new citation system that is similar to the citation system used in other volumes of the FAM and the Foreign Affairs Handbook. DOS also has developed crosswalk tables correlating old citations with new, so that users can match new sections with former locations in the legacy FAM.

ANNOUNCEMENT IN SECTION F of the December 2015 Visa Bulletin

4. USCIS Issues Policy Memo on Initial Field Review of AAO Appeals

U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on November 4, 2015, on initial field review of appeals to the Administrative Appeals Office (AAO). The memo provides guidance to USCIS employees on the proper processing of such appeals.

Field offices include USCIS field and overseas offices, service centers, and the National Benefits Center. The memo notes that appeals to the AAO are filed on Form I-290B, Notice of Appeal or Motion. USCIS first conducts an intake procedure to ensure the appeal is complete and the agency has collected any required filing fees. After intake, the USCIS field office that made the unfavorable decision conducts an “initial field review” of the appeal. If the field office does not take favorable action, it forwards the appeal to the AAO for appellate review without issuing a new decision.

The memo notes that the purpose of initial field review is “to promote the efficient review of administrative appeals of field office decisions.” The affected party may submit a brief and/or additional evidence with the appeal. The appeal process is “undermined” if initial field review is not timely or if the appeal is inappropriately terminated, the memo states. Therefore, the memo provides additional guidance on the timeliness and scope of initial field review.

Among other things, the memo states that the regulations do not require the field office to complete initial field review within 45 days of receipt, but USCIS is adopting 45 days as the agency’s processing goal.

MEMO

5. New Publications and Items of Interest

OSC workers’ rights webinars. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is offering webinars on workers’ rights. The webinars include answers to questions about hiring, firing, and recruitment discrimination based on citizenship, immigration status, or national origin; what to do if you believe an employer is discriminating during the E-Verify or Form I-9 employment authorization verification processes; and government resources. The webinars include:

November 17, 2015, 1 pm ET: USCIS/OSC Workers’ Rights (English)
November 18, 2015, 3 pm ET: USCIS/OSC Derechos de los Trabajadores (Spanish)
December 1, 2015, 3 pm ET: OSC Worker/Advocate
December 3, 2015, 11 am ET: OSC Employer/HR Representative
December 15, 2015, 11 am ET: OSC Worker/Advocate (Spanish)

MORE INFORMATION OR TO REGISTER

USCIS E-Verify webinars. U.S. Citizenship and Immigration Services is offering several “Employer Sessions for HR Professionals and Executives” via webinar:

November 17, 2 pm ET
November 19, 5 pm ET

Other webinars include:

November 16, 10 am ET (E-Verify for Executives)
November 18, 11 am ET (E-Verify for Federal Contractors)

MORE INFORMATION OR TO REGISTER

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

6. ABIL Member/Firm News

H. Ronald Klasko recently participated as a speaker at IIUSA’s 5^th Annual EB-5 Market Exchange in Dallas, Texas. Mr. Klasko presented as a panelist for the program, “Regional Center Models: Different Approaches to Regional Economic Development with EB-5,” at which issues related to the operation of an EB-5 regional center were discussed.

Mr. Klasko recently spoke at the Central Florida Chapter Annual Conference of the American Immigration Lawyers Association. He presented on current EB-5 issues, including an update on proposed amendments, renewal and changes to the program, the impact of Chinese retrogression, and the impact of the new EB-5 policy memorandum. He also spoke on nonimmigrant business visas.

Charles Kuck has authored a new blog entry. “DAPA, Obama, the Supreme Court, and Politics”

Robert Loughran presented “EB-5 and Other Investment-Based Immigration Options” at the Henley & Partners Global Residency & Citizenship Conference in Dubai on November 2, 2015.

Mr. Loughran spoke to Brazilian investors at a Texas International Business Accelerator event on October 30, 2015, in San Antonio, Texas. The presentation guided foreign entrepreneurs on the immigration considerations of starting or investing in a business in Texas.

Mr. Loughran presented on “USCIS Policy Trends: An In-Depth Look at What’s Driving EB-5 Adjudication and Administration” at the IIUSA 5^th Annual EB-5 Market Exchange in Dallas, Texas. The conference is the largest gathering of EB professionals annually, with over 500 professionals in attendance.

Foster Global Partner John Meyer presented at the International Business Forum event at the Omni San Antonio Hotel at the Colonnade in San Antonio, Texas, on October 28, 2015. The presentation focused on immigration opportunities for investors. MORE INFORMATION.

Foster Global Partner Jose R. Perez, Jr., was quoted in a Latin Times article, “Immigration Reform News: Following 9-Day Fast In Front Of 5th Circuit, Hunger Striker Focused On 2016 Presidential Election,” on October 23, 2015.

Michelle Velasco, of Cyrus Mehta‘s office, has authored a new blog entry. “Studying for the H-1B: USCIS Questions the Business Administration Degree”

Stephen Yale-Loehr was quoted by the Financial Times regarding the Fifth Circuit’s decision in the immigration executive action case, in “Obama Suffers Immigration Reform Blow.” He said the decision went further than the district court’s preliminary injunction. “The majority held that the immigration statute doesn’t confer the power the administration is claiming. That flies in the face of several Supreme Court precedents granting the executive branch broad, almost unlimited, power on immigration policy issues. That may make it more likely that the Supreme Court will want to hear the government’s almost certain appeal,” he noted.

Mr. Yale-Loehr was also quoted in the following newspapers about the Fifth Circuit’s decision:

7. 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