1. USCIS Reaches FY 2017 H-1B Cap -As expected, USCIS has quickly reached the H-1B cap for FY 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.
2. Current I-9 Form Remains Effective, USCIS Says -USCIS said the current version of the I-9 continues to be even though the form’s expiration date of March 31, 2016, has passed.
3. Labor Dept. Extends Emergency Procedures for Backlogged H-2B Applications Through April 29 -The U.S. Department of Labor continues to experience significant delays in processing employers’ H-2B applications for certification and is therefore extending the availability of emergency procedures through April 29, 2016.
4. E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary Announces -VWP travelers who do not have an e-Passport from a participating VWP country must obtain a visa to come to the United States.
5. May Visa Bulletin Sets Final Action Date for EB-4 Visas for El Salvador, Guatemala, Honduras Special Immigrants -The Visa Bulletin for May 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from El Salvador, Guatemala, and Honduras. This means that starting in May, an applicant from any of these countries who filed a Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visas become available.
6. ICE Nabs 21 With Fake ‘Pay-to-Stay’ New Jersey Sham College Sting -Twenty-one brokers, recruiters, and employers were arrested on April 5, 2016, who allegedly conspired with more than a thousand foreign nationals to fraudulently maintain student and foreign worker visas through a “pay-to-stay” New Jersey sham college set up as a sting operation.
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
As expected, U.S. Citizenship and Immigration Services (USCIS) has quickly reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.
On April 9, 2016, USCIS completed the computer-generated process (“lottery”) to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption. USCIS said it first randomly selected petitions for the advanced degree exemption. All unselected advanced degree petitions became part of the random selection process for the 65,000 general cap. The agency is rejecting and returning filing fees for all unselected cap-subject petitions that are not duplicate filings. USCIS said it will begin premium processing for H-1B cap cases by May 16, 2016.
Before running the lottery, USCIS completed initial intake for all filings received during the filing period, which ended April 7, 2016. USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. The number of petitions received this year reportedly topped last year’s record by at least 3,000 and 2014’s total by 63,500.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year 2017 Cap season Web page.
U.S. Citizenship and Immigration Services (USCIS) announced on April 5, 2016, that until further notice, employers should continue using the current Form I-9, Employment Eligibility Verification. The agency said this current version of the form continues to be effective even though the Office of Management and Budget control number expiration date of March 31, 2016, has passed. USCIS said it will provide updated information about the new version of the I-9 when it becomes available.
The Department of Labor’s Office of Foreign Labor Certification (OFLC) continues to experience significant delays in processing employers’ H-2B applications for certification and is therefore extending the availability of emergency procedures through April 29, 2016. OFLC explained that the delays have been generated by several factors, the most significant of which was a 17-day certification processing pause at the Chicago National Processing Center (CNPC) needed for OFLC to implement changes to comply with revisions to the H-2B prevailing wage and certification standards under an appropriations law Congress passed in late 2015.
OFLC said the delays in the certification process that applicants are continuing to experience “impair the ability of employers to hire foreign workers when needed, and create instability for small businesses that depend on temporary and seasonal workers.” OFLC has concluded that the delays still preventing the timely processing of H-2B applications “constitute good and substantial cause under 20 CFR § 655.17 for employers to request emergency procedures of their currently pending applications.”
Therefore, OFLC said, employers with pending H-2B applications will be able to continue to request the emergency procedures under 20 CFR § 655.17 through April 29, 2016, so that CNPC can address the current application processing backlog.
ANNOUNCEMENT (scroll to March 28).
The full announcement of the emergency procedures initiative and details on how employers can continue to participate
4. E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary Announces
Department of Homeland Security (DHS) Secretary Jeh Johnson recently announced that effective April 1, 2016, Visa Waiver Program (VWP) participants must have an e-Passport to travel to the United States. Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, VWP travelers who do not have an e-Passport from a participating VWP country must obtain a visa to come to the United States.
5. May Visa Bulletin Sets Final Action Date for EB-4 Visas for El Salvador, Guatemala, Honduras Special Immigrants
The Department of State’s Visa Bulletin for May 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from El Salvador, Guatemala, and Honduras. This means that starting in May, an applicant from any of these countries who filed a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visas become available. The final action date became effective upon publication of the May Visa Bulletin on April 12.
The Visa Bulletin explains that these three countries have already reached their EB-4 visa limits as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 for El Salvador, Guatemala, and Honduras will appear in the October Visa Bulletin (to be published in mid-September).
Petitioners from any country, including El Salvador, Guatemala, and Honduras, may continue to file Forms I-360. There is no annual limit on the number of I?360 petitions that USCIS may approve.
The Department said it will accept all properly filed submissions of Form I-485, Application to Register Permanent Residence or Adjust Status, under the EB-4 classification until April 30, 2016. USCIS noted:
- We will process and make a decision on your Form I-485 application only if you have a Form I-360 filed before January 1, 2010, that is ultimately approved.
- If you have a pending Form I-360 filed on or after January 1, 2010, we will process and make a decision on your Form I-360 but withhold a decision to approve your Form I-485 application pending availability of an EB-4 visa.
The Department also stated:
If you file Form I-485 under the EB-4 classification after April 30, 2016:
- We will process and make a decision on your Form I-485 only if you filed your Form I-360 petition before January 1, 2010, and your Form I-360 is ultimately approved.
- We will reject and return other Form I-485 applications but will continue to process Form I-360 petitions (even if submitted together with a Form I-485 that gets rejected).
Twenty-one brokers, recruiters, and employers were arrested on April 5, 2016, who allegedly conspired with more than a thousand foreign nationals to fraudulently maintain student and foreign worker visas through a “pay-to-stay” New Jersey sham college set up as a sting operation. The arrests resulted from an extensive probe led by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI).
According to ICE, the defendants, many of whom operated recruiting companies for purported international students, were arrested for their involvement in an alleged scheme to enroll foreign nationals as students in the University of Northern New Jersey (UNNJ), a purported for-profit college located in Cranford, New Jersey. HSI special agents created UNNJ in September 2013.
Through UNNJ, undercover HSI agents investigated criminal activities associated with ICE’s Student and Exchange Visitor Program (SEVP), including but not limited to student visa fraud and the harboring of aliens for profit. The UNNJ was not staffed with instructors or educators, had no curriculum, and conducted no actual classes or education activities. The UNNJ operated solely as a storefront location with small offices staffed by special agents posing as school administrators.
UNNJ represented itself as a school that, among other things, was authorized to issue a Form
I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students. During the investigation, HSI special agents identified hundreds of foreign nationals, primarily from China and India, who previously entered the U.S. on F-1 nonimmigrant student visas to attend other SEVP-authorized schools. Through various recruiting companies and business entities located in New Jersey, California, Illinois, New York, and Virginia, the defendants then enabled approximately 1,076 of these foreign individuals—all of whom were willing participants in the scheme—to fraudulently maintain their nonimmigrant status in the U.S. on the false pretense that they continued to participate in full courses of study at UNNJ.
Acting as recruiters, the defendants solicited the involvement of UNNJ administrators to participate in the scheme, ICE said. During the course of their dealings with undercover agents, the defendants fully acknowledged that none of their foreign national clients would attend any courses, earn credits, or make academic progress toward an actual degree in a particular field of study. Rather, the defendants facilitated the enrollment of their foreign national clients in UNNJ to fraudulently maintain student visa status in exchange for kickbacks, or “commissions.” The defendants also facilitated the creation of hundreds of false student records, including transcripts, attendance records, and diplomas, which ICE said were purchased by their foreign national conspirators for the purpose of deceiving immigration authorities.
In other instances, ICE noted, the defendants used UNNJ to fraudulently obtain work authorization and work visas for hundreds of their clients. By obtaining this authorization, a number of defendants were able to outsource their foreign national clients as full-time employees with numerous U.S.-based corporations, also in exchange for commission fees. Other defendants devised phony IT projects that were purportedly to occur at the school. These defendants then created and caused to be created false contracts, employment verification letters, transcripts, and other documents. The defendants then paid the undercover agents thousands of dollars to put the school’s letterhead on the sham documents, to sign the documents as school administrators, and to otherwise go along with the scheme, ICE said.
“All of these bogus documents created the illusion that prospective foreign workers would be working at the school in some IT capacity or project,” ICE said. The defendants then used these fictitious documents fraudulently to obtain labor certifications issued by the Department of Labor and then ultimately to petition the U.S. government to obtain H1-B visas for nonimmigrants. These fictitious documents were then submitted to U.S. Citizenship and Immigration Services (USCIS). In the vast majority of circumstances, the foreign worker visas were not issued because USCIS was advised of the ongoing undercover operation, ICE said.
In addition, ICE said that HSI Newark is coordinating with the ICE Counterterrorism and Criminal Exploitation Unit (CTCEU) and the SEVP to terminate the nonimmigrant student status of the 1,076 foreign nationals associated with UNNJ and, if applicable, administratively arrest and place them into removal proceedings.
A chart at the link below outlines the charges for each defendant. The charges of conspiracy to commit visa fraud and making a false statement each carry a maximum potential penalty of five years in prison and a $250,000 fine. The charges of conspiracy to harbor aliens for profit and
H-1B visa fraud each carry a maximum penalty of 10 years in prison and a $250,000 fine.
Meanwhile, SEVP announced on April 5, 2016, that it terminated initial and active student records of any nonimmigrant student enrolled at UNNJ, as well as many active nonimmigrant students who have since transferred from UNNJ.
AAO decisions are now searchable online. The Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) has launched an online search tool for most non-precedent decisions since 2005. Non-precedent decisions apply existing law and policy to the facts of an individual case. The decisions are binding on the parties to the case, but do not apply new or alternative interpretations of law or policy. USCIS occasionally “adopts” an AAO non-precedent decision as binding policy guidance for agency personnel. These decisions are available on Adopted AAO Decisions. For AAO precedent decisions, which may announce new legal interpretations or agency policy, see the website of the Department of Justice’s Executive Office for Immigration Review.
Updated fact sheets from the Office of Foreign Labor Certification. The Department of Labor’s Office of Foreign Labor Certification has posted updated program fact sheets containing selected second-quarter FY 2016 statistics. The reports include data as of March 31, 2016. The updated fact sheets include:
- Permanent Labor Certification Program
- Prevailing Wage Determination Program
- H-1B Specialty Occupations Labor Condition Program
- H-2A Temporary Agricultural Labor Certification Program
- H-2B Temporary Nonagricultural Labor Certification Program
The updated program fact sheets are also on OFLC’s Performance Data page, which also includes FY 2015 fact sheets.
New E-Verify Usage Data Statistics webpage and interactive map. On April 6, 2016, USCIS launched the new E-Verify Usage Statistics webpage. Statistics are offered via a color-coded legend, an interactive map, and a pie chart of industries. A list of E-Verify totals of memoranda of understanding and the top 20 participating industries nationwide is also available.
The latest E-Verify webinar schedule from USCIS is available HERE.
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 for:
- 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.
An excerpt of the book is on the ABIL website.
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
From among a pool of 637 of the world’s leading practitioners, across 43 jurisdictions and 384 law firms, the following members and partners of the Alliance of Business Immigration Lawyers (ABIL) are listed in Who’s Who Corporate Immigration 2016. Over 80% of the top immigration lawyers in the world named by Who’s Who are ABIL members/partners:
Most Highly Regarded Individuals (North America):
- Ronald Klasko
- Charles Kuck
- Cyrus Mehta
- Angelo Paparelli
- Gregory Siskind (Lynn Susser‘s partner)
- William Stock (Mr. Klasko’s partner)
- Bernard Wolfsdorf
- Stephen Yale-Loehr
Most Highly Regarded Individuals (Rest of the World):
- Enrique Arellano
- Maria Celebi
- Eugene Chow
- Laura Devine
- Kehrela Hodkinson
- Gunther Mävers
- Marco Mazzeschi
- Karl Waheed
Other members included in Who’s Who:
- Sophie Barrett-Brown (Ms. Devine’s partner)
- Rami Fakhoury
- Avi Friedman (Mr. Wolfsdorf’s partner)
- Jelle Kroes
- Cora-Ann Pestaina (Mr. Mehta’s partner)
- Cliff Rosenthal (Mr. Wolfsdorf’s partner)
- Ana Garicano Sole
- Anastasia Tonello (Ms. Devine’s partner)
Mr. Mehta won “Lawyer of the Year” in the Who’s Who Corporate Immigration category. The report calls Mr. Mehta “truly sensational” and “one of the best in the world” when it comes to dealing with complex international corporate immigration issues.
Mr. Wolfsdorf was selected as the “Most Highly Regarded” immigration lawyer in North America in Who’s Who. The report states, “Bernard Wolfsdorf is a ‘famed practitioner’ in the field of immigration law, and is known for his ‘outstanding work’ relating to complex immigration matters.”
The following ABIL members will speak at the American Immigration Lawyers Association’s Annual Conference in Las Vegas, Nevada, on June 22-25, 2016:
“Caveat Emptor: The Ethics of Choosing and Working with Service Vendors Roundtable”
“Creative Strategies for Dependents Roundtable”
Elise A. Fialkowski (Mr. Klasko’s partner)
“Researchers Don’t Always Wear Lab Coats: Taking Advantage of Special Provisions for Researchers Roundtable”
Robert Aronson (Laura Danielson’s partner) (discussion leader)
“Hot Topics with the AILA National Officers”
William Stock (Mr. Klasko’s partner)
” ‘Challenging’ Prevailing Wage Issues”
Vincent Lau (discussion leader) (bio: https://www.abil.com/lawyers/lawyers-lau.cfm)
Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm)
“Mission Impossible: Managing Your Staff and Non-Staff”
“AILA Ethics Compendium Live Roundtable”
Mr. Mehta (discussion leader)
“Employment-Based Immigration: The Preference Categories”
Mr. Yale-Loehr (discussion leader)
“What Every U.S. Immigration Lawyer Should Know About Outbound Business and Employment Visas Roundtable”
“Establishing the Employer-Employee Relationship in NIV Third-Party Placements Roundtable”
Ms. Pestaina (Mr. Mehta’s partner)
“Winning at the Consular Game”
“EB-5 Nuts and Bolts”
Mr. Wolfsdorf (discussion leader)
“Complexities and Issues in Dealing with EB-5 Regional Centers”
Carolyn Lee (Mr. Yale-Loehr’s partner)
“Advanced Issues in EB-5 Investment Practice”
Mr. Klasko (discussion leader)
“Ethical Issues in an Evolving World”
Mr. Siskind (Ms. Susser’s partner)
“When Can You Use the H-2B and H-2A Visas: Don’t Leave Them Out on the Range”
Loan Huynh (Ms. Danielson’s partner) (discussion leader)
Klasko Immigration Law Partners, LLP, will present “Immigration 2016: New Rules, New Opportunities” on April 19, 2016, in Philadelphia, Pennsylvania. For more information or to register.
Mark Ivener recently spoke at the following events:
- “EB-5 Offerings: Minimizing Litigation Risks Through Due Diligence,” Webcast, The Knowledge Group, March 28, 2016.
- “What If an EB-5 Project Fails?” panel, Los Angeles County Bar Association, Biennial EB-5 Conference, Universal City, February 13, 2016.
- “EB-5 Green Card Program,” International Trade: Global Flows and the Digital Age, 4th Annual California Asian Business Summit, CalAsian Chamber of Commerce, Hilton OC Costa Mesa, California, September 18, 2015.
- “Three EB-5 Investor Green Cards/E-2 Visas Seminars,” University of Illinois Champaign, April 8-11, 2015.
Mr. Loughran spoke on business and investment visa opportunities in a podcast published by the U.S. Commercial Service on March 15, 2016.
Mr. Mehta has published several new blog entries. “Preemption of Arizona Driver’s License Policy Provides Another Basis for Supreme Court to Uphold President’s Deferred Action Programs” “Can the H-1B Visa Be Saved Through Executive Action?”
Mr. Paparelli and Mr. Wolfsdorf were quoted in a Law360 article, “BigLaw Or Boutique? How Immigration Attys Can Find A Match,” published on April 4, 2016.
Mr. Yale-Loehr will speak on a panel, “EB-5 Regulations and Policy Guidance: Historical Review and What Comes Next,” at the IIUSA’s EB-5 Advocacy Conference on Friday, April 21, 2016, in Washington, DC. For more information or to register.
Mr. Yale-Loehr was quoted in China Daily USA on March 29, 2016, in “EB-5 Applications Surge in 2015.” He noted that USCIS announced last week “that the number of EB-5 petitions currently pending is 21,988, a jump of 63 percent compared to the same time a year ago. At the current adjudication rate of around 1,700 petitions per quarter, it would take USCIS 38 months to adjudicate the current backlog of EB-5 petitions. The pending EB-5 petitions with USCIS equate to roughly $11 billion of capital investment waiting to be injected into the US economy.”
Mr. Yale-Loehr spoke on “Beyond Deportation—A Discussion About Prosecutorial Discretion in Immigration Cases” at Cornell University on April 6, 2016. Mr. Yale-Loehr focused on the prosecutorial discretion issues at stake in United States v. Texas, an important immigration case now pending at the U.S. Supreme Court. The event was cosponsored by the Institute for the Social Sciences’ Deportation Relief project and Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic.
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: