1. EB-4 Visa Limits Reached for Special Immigrants From India -Starting on August 1, 2016, applicants from India who filed 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 visa numbers become available.
2. Mayors Send Open Letter to Presidential Candidates Urging Immigration Reform -The letter was signed by almost 60 mayors and others, including mayors from Baltimore; Boston; Buffalo; Chicago; Denver; Houston; Los Angeles; Minneapolis; New York City; Philadelphia; Phoenix; Salt Lake City; San Francisco; Seattle; and Washington, DC.
3. Justice Dept. Petitions Supreme Court for Rehearing of U.S. v. Texas -The Court’s deadlock in U.S. v. Texas blocked the Obama administration’s Deferred Action for Parents of Americans (DAPA) program.
4. USCIS Ombudsman’s 2016 Report to Congress Recommends Changes -The report summarizes the most pervasive and serious problems, reviews past recommendations to improve USCIS programs and services, and makes new recommendations.
5. DOJ, El Salvador Announce Antidiscrimination Partnership -The agreement’s objective is to protect Salvadoran workers in the United States from employment discrimination in hiring, firing, and recruiting or referring for a fee based on their citizenship, immigration status, or national origin; unfair documentary practices; and retaliation.
6. ABIL Global: Turkey -Turkey’s new immigration agency, The Migration Directorate, has experienced growing pains. Also, Turkey has declared a state of emergency following recent violent events.
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 predicted, the Department of State’s Visa Bulletin for the month of August 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from India. This means that starting on August 1, 2016, applicants from India who filed 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 visa numbers become available.
The July bulletin previously noted that the establishment of the EB-4 preference Final Action Date of January 1, 2010, “does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries.”
India has reached its EB-4 visa limit as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 will appear in the Department of State’s October Visa Bulletin, which will be published this September.
U.S. Citizenship and Immigration Services (USCIS) released the following related information:
What this action means to EB-4 applicants from India:
Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant
Petitioners from any country, including India, may continue to file Form I-360. There is no annual limit on the number of Form I-360 petitions that USCIS may approve.
The final action date is January 1, 2010. This final action date will become effective August 1, 2016.
USCIS will accept all properly filed submissions of Form I-485, Application to Register Permanent Residence or Adjust Status, under the EB-4 classification until July 31, 2016, and will continue to adjudicate applications while visas remain available.
If you file Form I-485 under the EB-4 classification on or after August 1, 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).
EB-4 applicants from other countries
The final action date for special immigrant applicants for adjustment of status from India, Mexico, El Salvador, Guatemala and Honduras remains January 1, 2010.
Applicants from Mexico should refer to Employment-Based Fourth Preference (EB-4) Visa Limits Reached for Special Immigrants from Mexico.
Applicants from El Salvador, Guatemala, and Honduras should refer to Employment-Based Fourth Preference (EB-4) Visa Limits Reached for Special Immigrants from El Salvador, Guatemala, and Honduras.
We will update the Employment Based Immigration: Fourth Preference EB-4 page if any other countries reach their EB-4 visa limits.
A national coalition of mayors, Cities for Action, sent an open letter on July 26, 2016, to “the next President of the United States” calling for immigration reform. The letter urges leaders from both the Democratic and Republican parties to commit to supporting immigration reform in the first 100 days of the next presidency, including providing a path to citizenship for undocumented immigrants.
The letter calls for reform that creates a “broad, humane and timely” path to citizenship; supports local economic growth “while protecting the rights and labor standards of all workers”; upholds “immigrants’ due process rights and the rights of those seeking refuge”; and offers “robust local implementation and immigrant integration support.”
The letter also calls on the presidential candidates “to pledge to defend and expand President Obama’s executive actions on immigration” to offer temporary relief to undocumented immigrants “with deep community ties who are not priorities for enforcement.” The letter also asks for a commitment to investments in English classes and legal assistance, municipal ID programs, immigrant entrepreneurial support and language access. “[W]e are ever-deepening our commitment to fostering immigrant-friendly municipalities,” the letter states. “We recognize that the well-being of immigrants impacts the well-being of all.”
The letter was signed by almost 60 mayors and others, including mayors from Baltimore; Boston; Buffalo; Chicago; Denver; Houston; Los Angeles; Minneapolis; New York City; Philadelphia; Phoenix; Salt Lake City; San Francisco; Seattle; and Washington, DC.
The Department of Justice (DOJ) petitioned the Supreme Court on July 18, 2016, to rehear U.S. v. Texas when a ninth Supreme Court justice is confirmed. The Court’s deadlock in that case blocked the Obama administration’s Deferred Action for Parents of Americans (DAPA) program, which would have allowed undocumented persons who are the parents of U.S. citizens and lawful permanent residents to apply to remain in the United States and work.
In the petition, Acting Solicitor General Ian Gershengorn argued, among other things, that “there is a strong need for definitive resolution by this Court at this state.” DOJ said that the Court “should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.” Although rehearings are uncommon, the petition noted that they have been granted in some cases where a Court vacancy resulted in a tie.
If the rehearing is granted, it is unlikely to occur for some time.
MORE INFORMATION about the Obama administration’s executive actions on immigration.
By statute, the Ombudsman of U.S. Citizenship and Immigration Services (USCIS) submits an Annual Report to Congress by June 30 of each year. The report summarizes the most pervasive and serious problems encountered by individuals and employers applying for immigration benefits with USCIS. The Annual Report also reviews past recommendations to improve USCIS programs and services, and makes new recommendations.
USCIS Ombudsman Maria M. Odom told Congress on June 29, 2016, that USCIS “still has much work to do to resolve longstanding systemic issues that compromise efficiency, quality of adjudications, and customer service.” Noting the agency’s myriad competing priorities, she said USCIS “has made insufficient progress to address processing time delays (critically on the rise in the past 2 years); inconsistencies in adjudications across service centers; substantial failure to meet the 90-day regulatory adjudication deadline for employment authorization documents; and the continued issuance of overly burdensome and unnecessary requests for evidence.” She said she believed the agency would achieve its full potential “as a 21st century immigration agency when its customer service and adjudicatory functions are consistently prioritized, resourced, and afforded equal oversight.”
This year’s Annual Report, among other things, reviews issues involving the mobility of beneficiaries of employment-based petitions, the integrity of immigrant investor petitions, challenges faced by employees and employers in the H-2 programs, and delays in obtaining employment authorization documents.
Highlights of the report include:
Employment-based immigrant petitions. The report notes that USCIS has taken a number of steps to implement President Obama’s Immigration Accountability Executive Action for businesses and immigrant workers. On November 20, 2015, the agency published the draft policy memorandum, Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability; and a Notice of Proposed Rulemaking (NPRM) on December 31, 2015, to implement certain provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). The report notes that USCIS has still not changed its position that foreign worker beneficiaries lack legal standing in the petition process despite mounting case law to the contrary. The Ombudsman said that USCIS must reconsider its position on employee standing with respect to Form I-140, Immigrant Petition for Alien Worker, “and make a corresponding regulatory change, fully aligning its policy to the letter and spirit of AC21 to provide certain qualified employees greater employment mobility while awaiting the completion of the permanent residence process.”
EB-5 immigrant investor program. The report states that processing times for EB-5 petitions continue to degrade. Stakeholders expressed concerns about USCIS’s Investor Program Office’s (IPO) regulatory authority to administer the program; outdated regulatory requirements; program integrity in light of allegations and findings of fraud or noncompliance with other federal laws; the manipulation of Targeted Employment Areas through gerrymandering; and the inconsistent implementation of policy. The Ombudsman said her office will monitor regulatory and statutory changes to the program initiated by IPO and Congress, and will continue to address stakeholders’ concerns about the quality, consistency, and timeliness of IPO’s adjudications of EB-5 applications and petitions.
H-2 temporary workers and labor trafficking. During the reporting period, the Ombudsman heard from workers’ rights organizations regarding the vulnerabilities and exploitation of H-2 workers sponsored by U.S. employers. The report notes that exploitation takes the form of involuntary servitude or forced labor, and can result in other workplace-based crimes. The Ombudsman participated in interagency activities to address stakeholder concerns, and worked to resolve requests for case assistance by workers encountering challenges in their pursuit of protective immigration benefits. The Ombudsman said her office will continue to explore ways USCIS can collaborate with federal agency partners to address employee exploitation and human trafficking, and will convene Department of Homeland Security (DHS) representatives to discuss how to enhance protections within DHS’s authorities.
H-2B temporary nonagricultural workers. The report notes that stakeholders continue to assert that the H-2 program “is overly regulated and bureaucratic, causing significant challenges in hiring foreign workers” to fill temporary agricultural (H-2A) and nonagricultural (H-2B) jobs. Recent regulatory and legislative developments “have exacerbated conditions affecting both employers and employees, contributing to an overall increase, at least temporarily, in H-2B processing delays,” the report states. The Ombudsman said her office will continue to monitor stakeholder concerns about the treatment of both employers and employees in the H-2B program “to promote improved program functionality and address abuse concerns.”
Requests for evidence. The Ombudsman monitors the rates at which requests for evidence (RFEs) are issued by the Vermont Service Center (VSC) and the California Service Center (CSC) in three high-skilled nonimmigrant visa categories: H-1B (Specialty Occupation Workers), L-1A (Intracompany Transferee Managers and Executives), and L-1B (Specialized Knowledge Workers). The FY 2015 RFE rates for these categories “continues to show disparities between the two service centers, including fluctuations in RFE issuance rates and unexplained divergences,” the report notes. The FY 2015 RFE data in other employment-based nonimmigrant visa categories “also revealed high rates of issuance in two product lines at the VSC: O-1 (Individuals with Extraordinary Ability or Achievement), reported at 49 percent, and P-1 (Internationally Recognized Athletes), which increased to 65 percent,” the report states. The Ombudsman said her office will continue to monitor and engage USCIS on issues pertaining to the quality and frequency of RFEs.
Employment authorization documents. In 2006, 2008, and 2011, the Ombudsman issued formal recommendations suggesting ways to reduce USCIS’s processing delays for employment authorization documents (EADs). USCIS adopted some of the Ombudsman’s recommendations, the report notes, but did not agree that EAD processing was a significant issue, given the small percentage of delayed EADs. However, FY 2015 data showed that EAD adjudications after 90 days reached a “troublesome” 22 percent, or 449,307 filings. With a proposal to eliminate the 90-day processing requirement currently under consideration by the agency, timeliness “remains a real concern for EAD processing,” the report says. The Ombudsman believes the proposed regulatory changes “are not likely to result in decreased processing times, absent significant commitment from the agency to devote resources to improving processing times across the product line.” The Ombudsman said her office “continues to highlight EAD processing delays as a systemic issue, and will continue to monitor and engage the agency as long as EAD delays persist.”
The U.S. Department of Justice (DOJ) and the Republic of El Salvador recently announced a formal partnership to protect workers from discrimination based on citizenship, immigration status, and national origin. On June 30, 2016, Principal Deputy Assistant Attorney General Vanita Gupta, head of DOJ’s Civil Rights Division, and Salvadoran Ambassador Claudia Canjura De Centeno signed a memorandum of understanding (MOU) between the embassy and its consulates and the division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
The MOU’s objective is to protect Salvadoran workers in the United States from employment discrimination in hiring, firing, and recruiting or referring for a fee based on their citizenship, immigration status, or national origin; unfair documentary practices; and retaliation. To achieve the objective of the MOU, the participants have agreed to collaborate to provide Salvadoran nationals with information, guidance, and access to education and training resources to help them understand their rights, and to facilitate the referral of appropriate allegations of discrimination, unfair documentary practices, and retaliation to OSC for investigation.
Turkey’s new immigration agency, The Migration Directorate, has experienced growing pains. Also, Turkey has declared a state of emergency following recent violent events.
New Migration Directorate
On April 12, 2014, Law No. 6458, the Law on Foreigners and International Protection, went into effect for the Republic of Turkey. This new law made vast changes to work and residence permit eligibility and procedure, as well as changes in visa and immigration processing. The statute created a new government entity, the Migration Directorate, under the Interior Ministry. This article briefly reviews the creation and growing pains associated with the new immigration agency.
Database system problems. When the Migration Directorate was created, it was designated as of April 2015 to transfer processing of all residence permits from the Foreigner’s Police Department to the new agency. With that move came a new online system to schedule residence permit appointments, complete and submit applications, and upload supporting documents. As with any new database system, the Migration Directorate experienced many problems with the smooth operation of the online system and with migrating the accumulated data of foreigners already in the Police database to the Migration Directorate database.
Database problems included complete shutdowns of the online system or lock-up of certain applications only (e.g., renewals vs. initial applications), presumably for upgrades. These occasional shutdowns have persisted through summer 2016.
Limitation on entry to applicants and attorneys. The Migration Directorate also has endeavored to limit the number of users it must serve. As of fall 2015, it began to bar any individual who was not the applicant or a certified Turkish attorney. This makes the Migration Directorate the only Turkish government administrative agency that requires attorneys to make filings and inquiries.
General slowdown and growing backlog. Clearly the intent of the Turkish government was to fund a new and more efficient immigration agency to speed up processing of residence permits and shorten appointment backlogs. Unfortunately, thus far that has not been accomplished.
For example, under the Migration Directorate, residence permit renewal applications can now be filed by post and do not require an in-person appointment. However, the Directorate soon became so overwhelmed with deliveries of renewal applications that thousands of applications piled up in the office depot un-reviewed. The problem is that dependents in renewals almost always need a travel document to use upon status expiration. Travel (exit) documents are only being issued for renewals upon personal appearance as long as the renewal application has been recorded. Given the piling up of the renewal applications, they are not being recorded timely, so applicants not only end up not avoiding in-person appearances but experience great difficulties in obtaining travel documents.
To avoid this problem, many who could normally file renewal applications are choosing to file as initial applicants instead, and consequently the backlog for appointments to file initial residence permit applications in Istanbul (the city with the most foreigners in Turkey) has grown to 6 months.
New procedural requirements. Since spring 2015, the Migration Directorate has endeavored to further change procedures regarding foreign documents. One example is that it has drafted a communique requiring foreign biographical documents for residence permit cases to be apostilled. Ironically, such documents submitted to the Labor Ministry for work permits do not require an apostille. These new procedures have added further to the burden on applicants.
In all, the overall goal of more efficient processing of residence permits by creating a new government agency has not been achieved. This is unfortunate; however, the additional burden on the agency over the same time period created by an influx of three million Syrian nationals clearly has made this goal particularly difficult to achieve.
Violent Events and State of Emergency
It remains to be seen what effects the recent violent events in Turkey will have on the numbers of applications being filed and on other immigration issues. The Council of Ministers declared a state of emergency for a period of 90 days beginning July 21, 2016. Although no measure has been adopted yet by the Council under the state of emergency, several measures may be taken, including but not limited to prohibiting residence in specific areas, restricting entrance to and exit from specific residential areas, suspension of education at private or public educational institutions, seizing communication tools and materials, demolishing buildings deemed as posing a danger, ordering curfews, prohibiting walking around and gathering of people and transportation, searching people and confiscating property, prohibition of publications, supervision of broadcasting and videotaping, and prohibiting certain persons and communities from entering into Turkish territory and certain areas or removing them.
The Department of Justice’s Executive Office for Immigration Review (EOIR) invites interested parties to attend a regional stakeholder meeting and webinar/teleconference to discuss the work of the Atlanta Immigration Court on Monday, August 29, 2016, from 10 to 11:30 a.m. (Eastern) in Atlanta, Georgia. In-person attendance is limited to the first 40 individuals to RSVP to Lauren Alder Reid, EOIR Chief and Counsel for the Office of Communications and Legislative Affairs, at EngageWithEOIR@usdoj.gov. When RSVP’ing, indicate whether you intend to participate in person or listen in via webinar/teleconference, and provide the names of the attendees, your organization, and an email address. EOIR will send a confirmation email by August 22 to those who RSVP, including webinar and teleconference information for those who indicate remote participation.
The Nebraska Service Center (NSC) will hold the next monthly stakeholder teleconference on Thursday, August 11, 2016, at 10 a.m. The teleconference will be reserved for non-case-specific issues relating to business immigration. Topics may include premium processing; I-129; I-140; I-360; I-485 EB; I-765 riding with EB I-485; I-131 riding with EB I-485; I-824 as appropriate; and waivers. To be added to the list for call-in information, email Janelle Herres, Community Engagement Officer, NSC, USCIS, email@example.com.
The latest E-Verify webinar schedule from USCIS is available HERE.
The latest 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 30 immigration hotspots around the world.
The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, 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 $431, 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
H. Ronald Klasko and William Stock, of Klasko Immigration Law Partners, have been selected for inclusion in The Most Powerful Employment Attorneys Guide for 2016. The 9th annual list, selected by Lawdragon and produced in partnership with Human Resource Executive, was recently published on Lawdragon and in HRE’s print magazine. Mr. Klasko and Mr. Stock were named as two of the top 20 practitioners in the area of Immigration Law. Selections were based on Lawdragon’s research and submissions from firms and other visitors to Lawdragon.com and HREonline.com.
Cyrus Mehta has authored several new blog posts. “Don’t Forget Skilled Workers Who May Have to Wait for a Few Centuries Before Getting the Green Card” “Deconstructing the Myth of the Criminal Immigrant” He also co-authored a blog entry with Anand Sinha. “No Longer So Fast! An Examination of EB-1 Retrogression for Indian and Chinese Born Foreign Nationals”
Bernard Wolfsdorf was quoted in CNN Money in “Chinese Flock to America to Work for Companies They for Bought.” The article discusses the recent spike in Chinese expats working in the United States. Mr. Wolfsdorf said, “Chinese companies are investing very heavily in America, and [they are] bringing in key executives and employees.” H. Ronald Klasko was referenced in the same article as noting that in many instances, Chinese firms are choosing to staff up in America with their own people. Commenting on the increase in the percentage of visas granted to Chinese under the investor program, he said, “We expect it will continue to increase.” He noted that investors are piling in now in advance of expected changes to the program.
Mr. Wolfsdorf recently co-authored an article, “An Explanation of the EB-5 Immigrant Visa Backlog for Chinese EB-5 Investors—How Did We Get Here?” The article, which was included in NES Financial’s Navigating a Changing EB-5 Sector, explores the current retrogression for EB-5 investors from China. The co-authors were associates Joseph Barnett and Robert Blanco. Mr. Wolfsdorf also co-authored “Suggested Procedures and Possible Options for Accepting Minors as Investors in EB-5 Investment Funds.” The articles are available by registering HERE.
Stephen Yale-Loehr was quoted by Bloomberg BNA’s Workplace Immigration Report, in “Mayors Urge Party Leaders to Commit to Taking Early Action on Immigration,” on August 1, 2016. Mr. Yale-Loehr said that having both Republican and Democratic mayors sign the letter “sends a powerful message.” However, he noted that “no single letter can overcome the obstacles in enacting comprehensive immigration reform.” He said the mayors “are on the front lines, dealing with immigrants every day.” More such efforts will be needed “to break the political deadlock in Congress on immigration reform,” he noted. The publication is available by subscription HERE. Some articles may be obtained by registering for a free trial (see link under “Recent Headlines”).
Mr. Yale-Loehr was quoted in “EB-5 Visas Surge in Popularity,” published in LasVegasNow.com on July 25, 2016. Commenting on foreign investors’ need to prove the source of their investment funds under the EB-5 program, he said, “When we file these cases, frequently, the source of funds documents may be more than a foot high to try and show they earned their money legally.” He noted that EB-5 investors are vetted very thoroughly, and added, “This is a way immigration can enhance the national economy by creating jobs for U.S. workers at no expense to the taxpayer.” He also observed that the program is “starting to develop backlogs like in all the other categories. It’s incumbent on Congress to enact comprehensive immigration reform, so that we have a working system going forward for everyone.”
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: