News from the Alliance of Business Immigration Lawyers Vol. 12, No. 5A • May 01, 2016
Headlines:
1. USCIS To Resume Premium Processing for Cap-Subject H-1B Petitions; Temporarily Suspends Use of Pre-Paid Mailers for Certain H-1B Cap-Subject Petitions -For cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day premium processing period will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice.
2. USCIS Designates Two ‘Adopted Decisions,’ Establishing Policy Guidance -USCIS recently designated several decisions as “adopted decisions,” meaning that they establish policy guidance that applies to and binds all USCIS employees. USCIS directs its personnel to follow the reasoning in these decisions in similar cases.
3. USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers -The Ombudsman noted that although federal regulations provide for a 240-day extension of work authorization after a temporary worker’s status expires if the worker has a pending petition to extend that status, whether those workers can obtain and maintain a driver’s license during that time remains an issue.
4. Pro Bono Success Story: Cyrus Mehta -“The moral of the story is never give up on your clients, and keep on steadfastly fighting the good fight until you win,” Mr. Mehta said.
5. ABIL Global: Mexico -Mexicans in the United States are returning to Mexico in increasing numbers.
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 To Resume Premium Processing for Cap-Subject H-1B Petitions; Temporarily Suspends Use of Pre-Paid Mailers for Certain H-1B Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) announced on April 22, 2016, that the agency will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. Premium processing guarantees a 15-calendar-day processing time. USCIS had previously announced that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap would be met in the first 5 business days of the filing season.
For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day premium processing period will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date on which the premium processing fee is received.
USCIS also announced on April 20, 2016, that for two weeks after premium processing resumes for H-1B cap-subject petitions, USCIS will not use pre-paid mailers to send out final notices for premium processing of H-1B cap-subject petitions. Instead, the agency will use regular mail. USCIS said this is “due to resource limitations as we work to process all premium processing petitions in a timely manner. After the two week period, we will resume sending out final notices in the pre-paid mailers provided by petitioners.”
USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2017 Cap Season webpage.
NOTICE announcing the May 12 start date for premium processing
NOTICE announcing the temporary suspension of prepaid mailers
2. USCIS Designates Two ‘Adopted Decisions,’ Establishing Policy Guidance
U.S. Citizenship and Immigration Services (USCIS) recently designated two decisions of the Administrative Appeals Office (AAO) as “adopted decisions,” meaning that they “establish policy guidance that applies to and binds all USCIS employees.” USCIS directs its personnel to follow the reasoning in these decisions in similar cases.
Matter of Z-A-. USCIS designated Matter of Z-A-, Inc., as an adopted decision on April 14, 2016. This AAO decision clarifies that when determining whether the beneficiary of an L-1A nonimmigrant classification will primarily manage an essential function, USCIS officers must weigh all relevant factors including, as pertinent in the instant case, evidence of the beneficiary’s role within the wider qualifying international organization.
Specifically, the decision notes:
(1) While an L-1A function manager may use his or her business expertise to perform some operational or administrative tasks, he or she primarily must manage an essential function.
(2) To determine whether a beneficiary’s job duties will be primarily managerial in nature, an adjudicating officer must consider the totality of the record and weigh all relevant factors, including the nature and scope of the petitioner’s business; the petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization; the scope of the beneficiary’s authority; the work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and any other factors that will contribute to understanding a beneficiary’s actual duties and role in the business.
(3) When staffing levels are considered in determining whether an individual will act as a manager, an officer must also take into account relevant evidence in the record concerning the reasonable needs of the organization as a whole, including any related entities within the “qualifying organization,” giving consideration to the organization’s overall purpose and stage of development.
Matter of H-V-P-. USCIS designated Matter of H-V-P- as an adopted decision on March 9, 2016. This AAO decision clarifies that in addition to primary care physicians, medical specialists who agree to practice in any area designated by the Secretary of Health and Human Services as having a shortage of health care professionals may be eligible for the physician national interest waiver under INA § 203(b)(2)(B)(ii).
USCIS policy memorandum on Matter of Z-A–, which includes the text of the decision
USCIS policy memorandum on Matter of H-V-P–, which includes the text of the decision
3. USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers
On February 25, 2016, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman hosted a public teleconference on issues related to Department of Motor Vehicles (DMV) benefits for certain nonimmigrant workers, including H and L nonimmigrants. Individuals whose employers timely file for extension of nonimmigrant status receive an automatic 240-day extension of work authorization while the petition remains unadjudicated. Representatives from the Department of Homeland Security (DHS), USCIS, the California DMV, and a private immigration attorney responded to questions posed by the Ombudsman and the public. The discussion focused on the impact of the REAL ID Act on how state DMVs treat individuals subject to the 240-day rule.
During the call, the Ombudsman noted that although federal regulations provide for a 240-day extension of work authorization after a temporary worker’s status expires if the worker has a pending petition to extend that status, whether those workers can obtain and maintain a driver’s license during that time remains an issue. The REAL ID Act requires state driver’s licenses to conform to certain federal standards. The Act also requires that states verify an individual’s immigration status before issuing a REAL ID-compliant identification card, including a driver’s license. The lack of guidance on how state DMVs should handle driver’s licenses for temporary foreign workers with pending extension of stay petitions “has led to a patchwork of state responses,” USCIS noted.
The DHS Office of Policy said the REAL ID Act complicates state interpretation of the 240-day rule because it links driver’s licenses to whether an individual has lawful immigration status, a distinct legal term that is different from lawful presence. The 240-day work authorization extension provides for lawful presence, but not lawful status. There have been attempts in the past to amend the REAL ID Act to address this and other related issues, but these efforts were unsuccessful. As a result, several categories of immigrants—not just temporary workers—”are disadvantaged by the statute’s requirement that licenses be tied to lawful status rather than to lawful presence,” USCIS said.
One commenter discussed the impact on employers and nonimmigrant workers. Workers on a 240-day work authorization extension are provided only with a Form I-797C, the receipt for the filed extension-of-stay petition. There has been little guidance on how state DMVs should treat that document. The language on the I-797C makes it even more difficult to obtain DMV benefits because it explicitly states that the form does not grant any immigration status or benefit. Many states rely on this language to deny a license to immigrant workers on the 240-day extension. The struggle for employers is that the 240-day rule becomes less useful where the worker cannot drive to get to work, she said. Payment of the premium processing fee for the extension-of-stay petition guarantees adjudication of the petition within an expedited time frame and could alleviate the problems associated with the gap in status. However, not all employers can afford the additional fee, she noted, and it is not always an option, particularly where its only purpose would be to allow the worker to obtain a driver’s license.
Relying on surveys, the commenter explained that some states that comply with REAL ID or are moving toward compliance have taken a hybrid approach. In those states, immigrants whose status has not expired can obtain a REAL ID-compliant license, while those without lawful status—but perhaps who are lawfully present—get a license that is not compliant with the law. A few states offer limited driver’s licenses or “driver privilege cards” for undocumented immigrants. Foreign workers in the 240-day extension window could request one of those licenses, but they would have to reapply for a regular driver’s license once their extension-of-stay petitions are approved. Some states that are not compliant with the REAL ID Act accept the I-797C as a document establishing lawful presence, as long as the document can be verified in SAVE.
A representative of USCIS’s Systematic Alien Verification for Entitlements (SAVE) system explained that the agency issued guidance on this issue to state DMVs in 2014. That guidance “essentially punted to the states on their treatment of the 240-day extension,” USCIS said. SAVE only provides information on an individual’s immigration status—it does not indicate whether a state-level benefit should be granted. In that regard, USCIS said, “the states have to look at their own rules and regulations for how to treat the provision of state benefits that are based on immigration status.”
The Ombudsman concluded the call by saying that the Ombudsman’s Office is aware of and is closely monitoring longer USCIS processing times for nonimmigrant worker adjudications and the resulting backlogs.
4. Pro Bono Success Story: Cyrus Mehta
In December 2010, Cyrus Mehta, a member of the Alliance of Business Immigration Lawyers (ABIL), began representing a client from the Ivory Coast pro bono who was already in removal proceedings after she had filed a late asylum application on her own based on female genital mutilation (FGM). While in removal proceedings, she married her spouse, who was then a U.S. permanent resident. He sponsored her for permanent residence through an I-130 petition. Mr. Mehta represented both at a Stokes interview in New York City, where they were vigorously questioned on the bona fides of the marriage. They passed with flying colors and the I-130 petition was approved. As soon as the permanent resident spouse became eligible, Cyrus filed an application for naturalization on his behalf, and he successfully became a U.S. citizen within a few months. Mr. Mehta then moved to terminate the removal proceeding so his client could file administratively for adjustment of status through her U.S. citizen spouse.
Since the client had initially entered the United States under a false identity as a result of fleeing FGM, the officer found her inadmissible based on immigration fraud and denied the adjustment application. The fact that she had admitted her fraudulent entry in her asylum application, and thus made a timely retraction at the first available opportunity, did not seem to sway the officer. Mr. Mehta filed a waiver application to overcome the fraud ground of inadmissibility demonstrating extreme hardship to his client’s U.S. citizen spouse, who is a New York City taxi driver and cannot go back to the Ivory Coast because he, too, was persecuted there and received asylum in the United States before becoming a permanent resident and ultimately a U.S. citizen. The fact that he would have to stop working 80 hours a week to look after his U.S. citizen child if his wife was removed also did not seem to move the officer, and the waiver was denied on the ground that the applicant failed to demonstrate extreme hardship.
In the fall of 2014, Mr. Mehta appealed the denial of the waiver to the Administrative Appeals Office. The AAO reversed the denial of the waiver in early 2015, but the AAO’s decision did not connect with the client’s adjustment of status file in the New York City district office for a long time. Cyrus went to the highest authorities in the district office, coincidentally at a meeting organized by ABIL, and pointed out that based on the reversal of the denial of the waiver by the AAO, U.S. Citizenship and Immigration Services (USCIS) should swiftly reopen his client’s adjustment application and grant her permanent residence. After nearly a year of effort, her file was finally found and she was adjusted to permanent residence on March 31, 2016, and received an approval notice entitled “Welcome To America.”
“The moral of the story is never give up on your clients, and keep on steadfastly fighting the good fight until you win,” Mr. Mehta said.
5. ABIL Global: Mexico
Mexicans in the United States are returning to Mexico in increasing numbers.
Between 2009 and 2014, nearly one million Mexican nationals (including their U.S.-born children) left the United States for Mexico of their own accord. That number is higher than the number of legal Mexican migrants who came to the United States. This increased tendency for repatriation from Mexico to the United States began to take shape during the financial troubles of 2008 in the United States. Although the Mexican National Survey of Demographic Dynamics (ENADID) reported that nearly 61% of repatriated Mexicans returned for the purpose of familial reunification, arguably this mass repatriation, the reversal of a diaspora created by economic conditions, is tied inseparably to the dynamics of the global economy and its inherent social dimensions in addition to the decision to return to be reunited with loved ones.
With the continual polarization of U.S.-Mexico border politics, stricter enforcement of immigration laws within the United States has contributed to a noticeable drop in the number of Mexican nationals entering the United States. In 2004, U.S. border apprehensions of Mexicans numbered 1,142,807. That figure plummeted to 230,000 by 2014 (Office of Immigration Statistics, 2014). The U.S. Department of Homeland Security reported that between 2009 and 2014, nearly 870,000 Mexican nationals legally entered and achieved legal permanent residence in the United States. Between 1990 and 1999, nearly 2,700,000 legal Mexican migrants entered the United States; from 2000 to 2009, nearly 1,700,000 entered (Office of Immigration Statistics, 2014). The trend is downward.
Since the economic liberalization of the 1980s and 1990s, Mexico’s role in the international economy, and especially in the North American trade bloc, has grown exponentially. Since the signing of the North American Free Trade Agreement (NAFTA), Mexico’s export value has risen nearly 475%, from US $60.8 billion to US $349.6 billion from 1994 to 2011. While the Mexican economy was certainly hit hard in 2009 by its dependence on the United States as a market for exports, it was not hit nearly as hard as the United States’ economy, and had been steadily improving since the signing of NAFTA. In other words, the economic conditions and opportunities in Mexico had been steadily improving in the years leading up to the 2008 crash, especially as foreign companies began to flood into Mexico.
Keeping the above in mind, the abysmal economic situation of the United States for migrant workers is illustrated by the estimated 15% drop in remittances sent to Mexico from the United States in the years 2008 to 2009. The U.S. Bureau of Labor Statistics estimated that when the unemployment of marginally attached and part-time laborers is included, U.S. unemployment rates reached 16% in 2009 (Bureau of Labor Statistics, 2015).
The evaporating employment opportunities for migrants in the United States has been supplemented by expanding opportunities in Mexico provided by the influx of foreign capital made possible by free trade agreements like NAFTA. Mexico holds the world record for most currently effective free trade agreements. While economic hardship hit all sectors of the United States, the damage was relatively lower in Mexico; historically sought-after remittances to Mexico were not only harder to come by but were becoming somewhat less necessary. Just as the influx of capital brought by NAFTA made possible the conditions under which more Mexicans could return to their own country, more Mexican nationals are likely to return home as new trade agreements, such as the Trans-Pacific Partnership, continue to advance Mexico’s economy and bring the diaspora home to greater economic opportunity.
6. New Publications and Items of Interest
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
7. ABIL Member/Firm News
The following ABIL Member firms were among the top 20 named by Who’s Who Legal 100 for 2016. Who’s Who said these firms “boast an exceptional contingent of leaders, who are recognised for their abilities to advise on complex transactional and contentious employment matters, or for their abilities to counsel on the myriad of legal, regulatory and policy matters related to corporate immigration”:
- Seyfarth Shaw
- Foster, LLP
- Klasko Immigration Law Partners
- Wolfsdorf Rosenthal
- Sagardoy Abogados
- Siskind Susser
- Laura Devine Solicitors
Charles C. Foster, Foster Global founder, was elected on April 26, 2016, to the Board of Directors of Invest in the USA (IIUSA), an organization promoting education and compliance in the EB-5 Immigrant Investor Program.
Bryan Funai will speak on “Visas for Entrepreneurs: Difficult Extensions (L-1s, E-2s, O-1s),” an AILA webinar to be held May 10, 2016. FOR MORE INFORMATION
Robert F. Loughran discussed “The Immigration Effects of Criminal Convictions on Non-Citizens” with volunteers from the Seedling Foundation, an organization of mentors for children whose parents are incarcerated, on April 20, 2016.
Mr. Loughran‘s article, “Relinquishment of U.S. Citizenship with Existing Alternate Nationalities,” was published by the Geneva Group International GGI Forum and the Investment Migration Council’s News Section (http://investmentmigration.org/news-section/relinquishment-of-u-s-citizenship-with-existing-alternate-nationalityies/). The article delves into the reasons for relinquishing U.S. citizenship, best practices for doing so, options available for direct citizenship by investment, and the consequences one might encounter after completing the process. A condensed version was also published in the Geneva Group International—International Taxation Newsletter.
Sharon Mehlman was a panelist on “The New STEM OPT Regulations: The Details & What It Means for Your Practice,” held April 27, 2016, in Irvine, California, by the American Immigration Lawyers Association’s Southern California Chapter.
Cyrus Mehta was a panelist on “Ethics 101 CLE,” held April 18, 2016, by the American Immigration Lawyers Association’s New York Chapter, at New York Law School in New York City.
David Isaacson, of Cyrus D. Mehta & Partners PLLC, has published a new blog entry. “Some Preliminary Reactions to the Oral Argument in United States v. Texas”
Cora-Ann V. Pestaina, of Mr. Mehta’s office, has published a new blog entry. “A Closer Look at the Form I-983—Training Plan STEM OPT Students”
Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) moderated a panel, “Solutions to the China EB-5 Visa Waiting Line & Update from Department of State,” at the Invest in the USA EB-5 Advocacy Conference held in Washington, DC, April 20-22, 2016. Charles Oppenheim, Chief, Visa Control and Reporting Division, U.S. Department of State, was on the panel. FOR MORE INFORMATION
Stephen Yale-Loehr was quoted in various publications about the oral arguments before the U.S. Supreme Court in U.S. v. Texas:
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