Headlines:

1. USCIS Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions -In general, H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition.

2. Obama Administration Moves Forward With Executive Actions -On July 15, 2015, the White House announced progress and next steps in an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.

3. USCIS Demands Return of Erroneously Issued DACA EADs -USCIS sent letters demanding the return of new, erroneously issued EADs with more than two years of validity sent after February 16, 2015, to certain DACA recipients.

4. USCIS Seeks Comments on Proposed Expansion of Eligibility for Provisional Unlawful Presence Waivers -The proposed rule would expand eligibility to all foreign nationals who are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence.

5. ABIL Global: Canada -Canada implements Express Entry.

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 Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions

U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, on when to file an amended or new H-1B petition after the precedent decision in Matter of Simeio Solutions, LLC (Simeio).

USCIS said that Simeio, issued on April 9, 2015, represents the USCIS position that H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition. Specifically, an H-1B employer must file a new H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s place of employment.

On May 21, 2015, USCIS issued draft guidance and solicited public comment on the implementation of Simeio. After considering the feedback submitted, USCIS issued the new guidance, which is effective as of July 21. USCIS noted that although the final guidance responds to many of the comments received, some suggestions and inquiries were outside the scope of Simeio. USCIS said it will consider addressing those remaining questions, as necessary, in the near future.

In general, USCIS said, a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.

The memo also notes when a petitioner does not need to file an amended or new H-1B petition. If a petitioner’s H-1B employee is moving to a new job location within the same area of intended employment, for example, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. The petitioner must still post the original LCA in the new work location within the same area of intended employment.

Similarly, with respect to short-term placements under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite) without obtaining a new LCA or having to file an amended or new H-1B petition.

Also, if an H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered “non-worksite” if: (1) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference or staff seminar; (2) the H-1B employee spends little time at any one location; or (3) the job is “peripatetic in nature,” such as in a situation where the employee’s job is primarily at one location but he or she occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations.”

USCIS said that it will exercise discretion in several ways, specified in the memorandum, to accommodate petitioners who need to come into compliance with Simeio. For example, the memo noted that if an employer transferred an H-1B employee to a new location on or before April 9, the date of the Simeiodecision, the agency generally will not pursue new adverse actions, even if the employer does not file an amended petition. The memo also specifies certain circumstances in which USCIS will pursue new adverse actions against employers or preserve adverse actions already begun.

FINAL GUIDANCE

SIMEIO

USCIS’s ANNOUNCEMENT

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2. Obama Administration Moves Forward With Executive Actions

On July 15, 2015, the White House announced progress and next steps in an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions. The next steps in this effort are summarized in a new report, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century.” The report includes a wide range of new actions that federal agencies are undertaking to improve the visa experience for families, workers, employers, and people in need of humanitarian relief.

Among other things, President Obama directed key federal agencies responsible for administering the legal immigration system to explore ways to modernize and streamline the system while helping the U.S. economy and improving services for applicants. Some of the recommendations summarized in the new report include:

• Improving the issuance of employment-based immigrant visa numbers;
• Increasing efficiency for international arrivals through enhanced technology and increasing the focus on high-risk travelers;
• Implementing the “Known Employer Program,” which will allow employers meeting strict criteria to pre-establish certain requirements as petitioners, by creating a prototype, publishing a report upon completion of the pilot, and creating an implementation plan for a permanent program;
• Improving integrity and increasing the minimum investment for immigrant investor visas; and
• Enhancing opportunities and providing greater clarity for certain nonimmigrants, including the circumstances under which U.S. employers may directly sponsor students on F-1 visas for lawful permanent residence.

The report notes progress since the November announcement on several of the Obama administration’s executive actions. For example, regarding a directive to clarify options for intracompany transfers to the United States, USCIS recently published a “consolidated and authoritative policy memorandum” on the L-1B intracompany transferee classification for workers with specialized knowledge. The report says that USCIS plans to issue a final memorandum effective August 31, 2015.

Also, USCIS published a final regulation, effective May 26, 2015, extending eligibility for work authorization to certain H-4 spouses of H-1B workers who are on the path to lawful permanent resident status. USCIS also published a notice of proposed rulemaking on July 15, 2015, that would expand an existing process to provide provisional waivers to certain family members of U.S. citizens and lawful permanent residents seeking to obtain lawful permanent residence, thereby reducing family separation. The final rule will be published in spring 2016. The report notes that the Department of Homeland Security (DHS) is working to clarify the definition of extreme hardship, which must be proven by applicants seeking provisional waivers, and plans to release guidance on this issue in the near future.

Also, the report says that the Obama administration “continues to move forward” with expanding opportunities for foreign investors, researchers, and entrepreneurs. Toward that end, DHS plans to propose, consistent with its existing parole authority, a parole program for entrepreneurs who would provide a “significant public benefit”; for example, because they have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies. DHS also will clarify guidance on the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.

The report also notes that DHS is evaluating the Optional Practical Training program for foreign students and graduates of U.S. universities, to determine how to enhance the program “in a manner that strengthens the program and improves training for students who will enhance American innovation and competitiveness, while protecting U.S. workers.”

The report includes a number of goals on the technology front. For example, the Obama administration wants to provide applicants with a single “dashboard” that allows them to view their case status in the overall process. Currently, the report explains, applicants must check with DHS and the Department of State individually to view their current status. Ideally, the report says, this information would be aggregated, requiring that only one dashboard be checked for an overview of one’s application, and all related components.

On the consular front, the report notes that officers do not have a consistent way of receiving feedback about the visa process, both overseas and in the United States, from key participants, such as applicants, petitioners, lawyers, and community groups. The report says this limits an exchange of information that might help clarify rules, reduce misinformation, and produce valuable insights about consular post processes. The Obama administration is directing the Department of State to share visa process information with key sectors of the public via messages and media with the goal of providing information and engaging in a two-way dialogue so their feedback and input are incorporated into the process.

A related goal is to increase public outreach and engagement efforts by consular posts. The report says that staff will engage applicants through a wide variety of avenues, including existing post websites and digital media, local organizations and websites, and other channels tailored to local conditions, to engage visa applicants and ensure diverse feedback.

REPORT

WHITE HOUSE FACT SHEET

WHITE HOUSE BLOG

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3. USCIS Demands Return of Erroneously Issued DACA EADs

U.S. Citizenship and Immigration Services (USCIS) sent letters on July 14, 2015, demanding the return of erroneously issued employment authorization documents (EADs) with more than two years of validity issued after February 16, 2015, to certain Deferred Action for Childhood Arrivals (DACA) recipients. This was after a court order was in place prohibiting the agency from conferring DACA for more than two years. After the court order in Texas v. United States, USCIS can approve deferred action requests and related employment authorization applications based on DACA only for two-year periods.

USCIS said this action does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

The agency also subsequently issued an urgent notice on July 27, 2015, stating that “the three-year work permit recall only applies to SOME individuals who received a card after the February 16, 2015, court order.” USCIS said that “[if] you have not been contacted by USCIS and you received a three-year card after February 16, 2015, you should use the new online tool or call the USCIS Customer Service line at 800-375-5283 and select option 1 for English, then option 8 to verify whether you are affected BEFORE returning your card.”

USCIS said that it issued the erroneous EADs (including both EADs with three years and EADs with more than two years but less than three) to approximately 2,100 DACA recipients. Separately, the U.S. Postal Service returned to USCIS as undeliverable about 500 three-year EADs that the agency approved and issued before the February 16, 2015, injunction. USCIS subsequently re-mailed these cards to updated addresses after the injunction. USCIS said it has taken action to correct this issue for these individuals and has updated its records to reflect a two-year period of deferred action and employment authorization for them.

The letter sent to affected DACA recipients explains that the erroneous EADs they received are not valid and must be returned to USCIS. USCIS issued new two-year approval notices and new EADs reflecting a two-year validity period for those people. The letter states that if the recipient of such a letter does not return the invalid EAD, even if he or she has not yet received the new two-year EAD, USCIS will “terminate your deferred action and all associated employment authorizations.” Failure to return the invalid EAD, and subsequent termination of the recipient’s DACA and employment authorization, “may be considered a negative factor in weighing whether to grant any future requests for deferred action or any other discretionary requests.”

The letter states that affected recipients must return their invalid EADs by either appearing at a USCIS field office location by July 27, 2015, or by mailing USCIS the invalid three-year EAD by July 27, 2015. On a stakeholder call on July 14, 2015, USCIS said it is making home visits to collect the invalid EADs. Among other things, USCIS said that if a DACA recipient returns his or her invalid EAD but receives a letter from USCIS requiring a field office visit, he or she must go to the field office to confirm the return of the invalid EAD.

RELATED USCIS FACT SHEET

USCIS WEB PAGE with details on this issue

USCIS LETTER SENT JULY 14 to affected DACA recipients

USCIS’ JULY 27 ANNOUNCEMENT

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4. USCIS Seeks Comments on Proposed Expansion of Eligibility for Provisional Unlawful Presence Waivers

U.S. Citizenship and Immigration Services (USCIS) is seeking public comments on a proposed rule that would expand eligibility for provisional waivers of inadmissibility based on the accrual of unlawful presence. The proposed rule would expand eligibility to all foreign nationals who are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence.

Currently, the Department of Homeland Security (DHS) allows certain immediate relatives—specifically certain parents, spouses, and children of U.S. citizens—who are in the United States to request a provisional unlawful presence waiver before departing for consular processing of their immigrant visas. The waiver currently is only available to those immediate relatives whose sole ground of inadmissibility would be unlawful presence under INA § 212(a)(9)(B)(i) and who can demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen spouses or parents.

Under the proposed rule, USCIS may grant a provisional waiver to foreign nationals if they are statutorily eligible for immigrant visas and for waivers of inadmissibility based on unlawful presence. The proposed rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.

The changes, which USCIS said it is proposing “in the interests of family unity and to enhance customer service,” would take effect on the date indicated in the final rule when the final rule is published in the Federal Register. USCIS said that foreign nationals should not submit applications now requesting provisional unlawful presence waivers based on the proposed changes. USCIS may deny any such application filed before the effective date indicated in the final rule.

Comments are due by September 21, 2015. To submit comments, follow the instructions in the notice.

USCIS ANNOUNCEMENT

RELATED PROPOSED RULE

USCIS’s PROVISIONAL UNLAWFUL PRESENCE WAIVERS PAGE with additional information

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5. ABIL Global: Canada

Since January 2015, when Citizenship and Immigration Canada (CIC) introduced Express Entry, a new permanent residence immigration process, the process has solidified and immigration practitioners are learning to navigate the online Express Entry system.

Express Entry is a points-based system that ranks candidates according to various human capital and personal criteria and allows CIC to issue a limited number of Invitations to Apply (ITAs) for permanent residence. Since January, CIC has issued approximately 13,000 ITAs to candidates to permit them to subsequently submit permanent residence applications. Following are highlights of the new system:

Express Entry draws. CIC “draws” of the highest-ranked candidates have been occurring every few weeks. For each draw, CIC establishes the minimum Comprehensive Ranking System (CRS) point score required to receive an ITA, which allows the agency to manage the intake of permanent residence applications. The minimum CRS score was initially very high—over 800 CRS points for the first three draws (886, 818, and 808 CRS points) early in the year, which required those who were drawn to have had a Labour Market Impact Assessment (LMIA) or Provincial Nomination Certificate in their favor, which grants a bonus 600 CRS points. Subsequent draws have dropped since March 2015 to the mid- to high-400’s CRS point range, with the lowest dips occurring at two draws at 453 CRS points on March 27, 2015, and on April 17, 2015. The minimum CRS score required to receive an ITA may continue to drop slightly for the remainder of the year, although it is unlikely to drop drastically.

Provincial Nominee Programs. Over the past months, the Canadian provinces have been implementing their own unique Express Entry Provincial Nominee Programs (PNPs), which are province-based selection programs that can accord a candidate 600 bonus points in Express Entry. Provinces have taken awhile to implement PNPs because of the need to move to electronic PNP systems that are compatible with Express Entry. British Columbia was the first province to implement a PNP for Express Entry and issue Provincial Nominee Certificates to applicants. Recently, Ontario has released its own PNP program, which encompasses both a Human Capital Stream and a French-Speaking Skilled Worker Stream. Other Canadian provinces with Express Entry PNPs include Saskatchewan, Nova Scotia, New Brunswick, and Prince Edward Island.

Documentary requirements. CIC has issued the majority of ITAs for permanent residence based on governmental discretion pursuant to the Federal Skilled Worker Program, as opposed to the Canadian Experience Class Program, even for those candidates working in Canada. Because the Federal Skilled Worker Program has additional documentary requirements, it is important to start gathering documents that may be needed even before an ITA is received and often before the Express Entry profile itself is created. Documents that often need to be uploaded in the online permanent residence application after receiving an ITA can include employment letters and pay slips for present and past employment, official language exam results (English and French), copies of police certificates, immigration medical examination receipts, copies of civil identity documents, and proof of settlement funds except for those working in Canada with certain work permits.

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6. New Publications and Items of Interest

PSA on erroneously issued DACA work permits. The American Immigration Lawyers Association (AILA) has developed a shareable digital infographic and print Public Service Announcement (PSA), in English and Spanish. The materials are intended to be shared widely on social media and in communities to inform DACA grantees who received 3-year work permits erroneously issued or mailed after February 16, 2015.

MATERIALS

RELATED AILA PRACTICE ALERT

The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds chapters on Ghana and Peru. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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7. ABIL Member/Firm News

Several ABIL members will speak at an EB-5 immigrant investor conference sponsored by the American Immigration Lawyers Association (AILA) in Las Vegas, Nevada, on August 27-28, 2015:

• Charles Kuck, I-829 Removal of Conditions Process and EB-5 Compliance
• Robert Loughran, EB-5 Overview
• Cyrus Mehta, Protecting Your EB-5 Practice: Ethical Issues & Minimizing Risk
• Angelo Paparelli, Protecting Your EB-5 Practice: Ethical Issues & Minimizing Risk
• Bernard Wolfsdorf, China Issues; Update from U.S. Dept. of State & CIS Ombudsman Office; Hot Topics, Legislative Update, & Open Q&A
• Stephen Yale-Loehr, Due Diligence in EB-5 Cases; The EB-5 Program: A Time of Change, Reauthorization & The Future; Hot Topics, Legislative Update, & Open Q&A

Vincent Lau will speak at two upcoming AILA conferences. On August 6, 2015, at the AILA Fundamentals Immigration Law Conference in Miami, Florida, Mr. Lau will speak on “Employment-Based Immigrant Visas—Part 1.” On August 8, 2015, at the AILA PERM CLE Conference in Miami, Florida, Mr. Lau will speak on “PERM and the Prevailing Wage.”

Mr. Loughran moderated parts 2 and 3 of a three-part panel on Consular Processing for Experts in June and July, sponsored by ILW.com. Jose R. Perez, Jr., also of Foster, participated in part 2 and provided expert insight on immigrant and nonimmigrant waivers. In part 3, Foster Partner Delisa J.F. Bresslerspoke on advanced consular issues in employment-based cases. More information on the seminar. More on Foster. Mr. Loughran and James Larsenpresented “You’re Legal NOW? Navigating I-9 and E-Verify After Executive Action” on July 31, 2015, at the Austin Human Resources Management Association Conference in Austin, Texas.

Sharon Mehlman will speak on “The Effect of Special Terms of Employment on a PERM Case” at the AILA PERM CLE Conference in Miami, Florida, on August 8, 2015.

Mr. Mehta has published several new blog entries. “To Amend or Not To Amend: USCIS Issues Final Guidance on Matter of Simeio” “Update on Indian Three-Year Degrees and Postgraduate Diplomas”

Mr. Paparelli was quoted in the Daily Journal on July 22, 2015, in “Judge Says State Corrections Department Runs Afoul of Civil Rights Law.” The article discussed a case where a Mexican immigrant, Victor Guerrero, was denied a corrections job in California because he answered truthfully that he had used a false Social Security number (SSN) in the past, a practice he began when he was 15 years old and used a false SSN at his parents’ request so he could work in a restaurant. A U.S. district judge concluded that the state corrections department discriminated against the man because the disqualifying question disproportionately affects Latinos. Since the department began asking the question in 2009, all nine applicants disqualified for answering “yes” were Latino. Mr. Paparelli noted that the use of a false Social Security number is often accompanied by another crime: misrepresentation of status in U.S. Citizenship and Immigration Services forms. He said that the dilemma for immigrant job applicants and employers is “more of a reflection of a broken immigration system than individual moral culpability.”

Mr. Yale-Loehr was mentioned in the New York Times on July 22, 2015, in “From an ‘Undocumented’ Boyhood to a Doctorate.” Mr. Yale-Loehr served as the article subject’s lawyer, trying to find a way for the man, Dr. Dan-el Padilla Peralta, to be able to return to the United States from studying at Oxford and petitioning for his client’s status at every academic stage. Dr. Peralta began life in poverty in the Dominican Republic and eventually earned a doctorate in classics from Stanford University. At age 30, the article explains, Dr. Padilla is at Columbia University as a postdoctoral fellow in humanities. Next summer, he will return to Princeton University, where he had also studied, as an assistant professor of classics. He has a work visa but is not yet a U.S. citizen. In March, Dr. Padilla married a woman from Sparta, New Jersey, whom he had dated for six years. He is waiting for his green card application to be considered.

Mr. Yale-Loehr recently authored several articles. “Two Key Senators Introduce Bill to Extend and Improve EB-5 Program” “Nine Key Concepts College Counsel Must Know About Immigration Law”

Mr. Yale-Loehr was quoted in the Cleveland Plain Dealer on July 28, 2015. Commenting on the case of Juan Emmanuel Razo, an undocumented immigrant from Mexico who is accused of murder and attempted rape, Mr. Yale-Loehr explained, “The Obama administration’s policy on which immigrants to detain has evolved. The administration knows that it doesn’t have the money or jail space to detain and deport all 11 million undocumented immigrants. Therefore, since last November it has focused on detaining immigrants who have been convicted of felonies or significant misdemeanors.”

Mr. Yale-Loehr was quoted on Vice.com on July 27, 2015. Commenting on the macroeconomic impact of immigration, he noted that legal immigration has benefited the U.S. economy overall.

Mr. Yale-Loehr was quoted by ABC News on July 27, 2015. Commenting on a recent ruling that undocumented families including children who cross the border should not be detained in secure facilities, Mr. Yale-Loehr noted, “They’re getting shot at. They just want to get out of the country and go to some place that will be safer. I don’t think there will be a significant rise or decrease [in immigration] from Judge Gee’s order.”

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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

Visa application wait times for any post

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Headlines:

1. U.S. Supreme Court Decides Two Immigration Cases -The U.S. Supreme Court has decided two immigration cases with potentially far-reaching implications, Kerry v. Din and Mata v. Lynch.

2. Visa, Passport Computer Problems Mostly Resolved -Among other things, the problems caused delays at the U.S.-Mexico border with seasonal workers being unable to enter the United States.

3. USCIS Temporarily Stops Accepting Electronic Versions of Several Forms -To ensure that the paper and electronic versions of certain forms are consistent with each other, the agency has temporarily remove the current electronic versions until it develops updated forms in the new USCIS online filing system.

4. USCIS Proposes Changes to E-Verify -USCIS seeks public comments on proposed changes to E-Verify.

5. North Dakota Joins E-Verify RIDE Program -North Dakota joins Mississippi, Florida, Idaho, Iowa, and Nebraska in the Records and Information from DMVs for E-Verify (RIDE) Program.

6. DHS Announces Temporary Protected Status Designation for Nepal -The 180-day TPS registration period runs through December 21, 2015.

7. DHS Extends Temporary Protected Status Registration Deadline for Liberia, Guinea, Sierra Leone -DHS is extending the initial registration deadline for TPS to August 18, 2015, for eligible nationals of Liberia, Guinea, and Sierra Leone.

8. USCIS Warns DACA Renewal Applicants About Work Permit Expirations -USCIS noted that some people wait too long to request DACA renewal or do not correctly submit all the required forms and fees. As a result, their employment authorization documents may expire before USCIS can finish processing their requests. USCIS outlined steps to prevent this from happening.

9. ABIL Global: United Kingdom -Far-reaching immigration reforms have been announced following the general election.

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

11. ABIL Member/Firm News -ABIL Member/Firm News

12. Government Agency Links –Government Agency Links

Details:

1. U.S. Supreme Court Decides Two Immigration Cases

The U.S. Supreme Court has decided two immigration cases with potentially far-reaching implications:

Kerry v. Din. Kanishka Berashk is an Afghan who formerly worked in the Taliban-controlled government as a payroll clerk. Due to a terrorism-related statute, he was denied a visa to enter the United States to live with his U.S. citizen spouse, Fauzia Din. The Supreme Court held that because Mr. Berashk is not a U.S. citizen, he had no right to a court review, and his U.S. citizen wife had no due process right to challenge the visa denial in federal court. This left the longstanding doctrine of consular absolutism untouched. DECISION

Mata v. Lynch. Noel Reyes Mata, an undocumented person from Mexico, was convicted of assault and put in removal proceedings. His original attorneys failed to submit an appeals brief and missed a deadline in filing a motion to reopen. The Supreme Court held that the federal court has jurisdiction to hear his case and decide whether those in removal proceedings can extend their deadlines. DECISION

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2. Visa, Passport Computer Problems Mostly Resolved

The Department of State’s Bureau of Consular Affairs initially reported on June 12, 2015, technical problems with overseas passport and visa systems. The issue was not specific to any particular country, citizenship document, or visa category. Those problems reportedly were generallly resolved by the end of June.

Among other things, the problems caused delays at the U.S.-Mexico border with seasonal workers being unable to enter the United States. Daren Gee, a California strawberry grower, said the delay was costing him $25,000 to $30,000 per day in lost revenue because 200 seasonal workers he intended to employ were unable to enter the country. “The vans are there, the buses are waiting. But we can’t seem to get workers across,” he said.

Some businesspeople were also unable to obtain passports. David Lummas, who was waiting for his passport in Bangkok, Thailand, so he could continue working for a British multinational company, said, “They are holding my passport so I have been grounded this week from traveling.”

The Department of State told the Wall Street Journal that 100 technicians were working on the problem, and that it was prioritizing visas for urgent humanitarian cases and agricultural workers.

A State Department announcement about its progress on these problems. The State Department announced that as of June 26, 2015, all visa-issuing embassies and consulates were back online. The State Department is scheduling visa interviews and issuing nonimmigrant and immigrant visas.

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3. USCIS Temporarily Stops Accepting Electronic Versions of Several Forms

On June 15, 2015, U.S. Citizenship and Immigration Services (USCIS) stopped accepting electronically filed Forms I-539, Application to Extend/Change Nonimmigrant Status, and Forms I-526, Immigrant Petition by Alien Entrepreneur. Recently, USCIS also updated the Form I-539 and Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. USCIS also discontinued the EB-5 Regional Center Document Library.

USCIS said that to ensure that the paper and electronic versions of these forms are consistent with each other, “we must temporarily remove the current electronic versions until we develop these updated forms in our new USCIS online filing system.”

USCIS said this change will not adversely affect those who have pending or draft cases that were created before June 15. “We will adjudicate those cases to completion and allow the standard 30 days” for completion or submission of draft cases, USCIS said.

USCIS issued the following instructions:

Filing a Form I-539 or Form I-526

Customers who need to file a Form I-539 or Form I-526 must now file the paper version of the form. If you already started an electronic Form I-539 or Form I-526, you will have 30 days from the day you began your application/petition to complete and submit it online. If you are unable to complete your electronic form within this 30-day time period, you will need to file a new paper application or petition. …

If You Filed Electronically Before June 15, 2015

If you filed a Form I-539 or Form I-526 electronically, you will still be able to access your account to check your case status, change your address, and respond to requests for evidence while USCIS processes your case. If you filed a Form I-526 electronically, you will still be able to review and attest existing deal packages created by the Document Library Manager. However, Document Library Managers will not be able to create new document libraries or deal packages.

NOTICE. Instructions on how to file a paper Form I-539 are available at http://www.uscis.gov/i-539. Instructions on how to file a paper I-526.

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4. USCIS Proposes Changes to E-Verify

On June 8, 2015, USCIS published a Federal Register notice seeking public comments on proposed changes to E-Verify, including:

• Three proposed enhancements:
• Final Nonconfirmation (FNC)—Allows employees to contest FNCs that they feel have been issued in error. This will be a new process allowing employees to request a review of their FNCs that will replace the current manual review process.
• Reverification—Requires employers to use E-Verify to reverify employees whose work authorization has expired. These include employees who were hired before the employer signed the E-Verify Memorandum of Understanding (MOU).
• Updated MOUs—Revises the E-Verify MOU to support proposed business processes.
• Streamlined Tentative Nonconfirmation (TNC) Processes

—Provides employees with greater access to E-Verify information. USCIS has simplified the TNC process to streamline the notice that an employer provides to the employee. USCIS has also drafted new email messages to communicate directly with the employee regarding Social Security Administration and Department of Homeland Security TNC notices.

The public will have 60 days to submit comments, until August 7, 2015. To comment, follow the instructions in the Federal Register notice. Contact E-Verifywith questions.

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5. North Dakota Joins E-Verify RIDE Program

U.S. Citizenship and Immigration Services (USCIS) announced that North Dakota is the latest state to join the Records and Information from DMVs for E-Verify (RIDE) Program, beginning June 15, 2015. RIDE is an ongoing E-Verify initiative that links E-Verify with participating state driver licensing agencies in conjunction with the American Association of Motor Vehicle Administrators.

RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as Form I-9 identity documents. USCIS said that RIDE “helps to reduce document fraud and boosts the accuracy of E-Verify employment eligibility verification.”

North Dakota joins Mississippi, Florida, Idaho, Iowa, and Nebraska in this initiative.

A fact sheet on North Dakota’s driver’s license and ID card information with respect to E-Verify. Information on driver’s license verification.

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6. DHS Announces Temporary Protected Status Designation for Nepal

On June 24, 2015, the Department of Homeland Security designated Nepal for temporary protected status (TPS) for 18 months based on conditions resulting from the magnitude 7.8 earthquake that struck Nepal on April 25, 2015, and subsequent aftershocks. As a result, eligible nationals of Nepal residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS).

The TPS designation for Nepal will be in effect through December 24, 2016. During the designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive an employment authorization document (EAD). The 180-day TPS registration period began June 24, 2015, and runs through December 21, 2015.

To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since June 24, 2015. Applicants will also undergo security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.

Applicants may ask USCIS to waive any or all TPS-related fees based on inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee waiver requests must be accompanied by supporting documentation. USCIS will reject any TPS application that does not include the required filing fee or a properly documented fee waiver request.

ANNOUNCEMENT

RELATED FEDERAL REGISTER NOTICE

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7. DHS Extends Temporary Protected Status Registration Deadline for Liberia, Guinea, Sierra Leone

The Department of Homeland Security (DHS) is extending the initial registration deadline for temporary protected status (TPS) to August 18, 2015, for eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries).

DHS began accepting TPS applications on November 21, 2014, from applicants of these three countries. The previous deadline was May 21, 2016. Those who submitted an application for one of these three countries whose applications were previously returned based on the May 20, 2015, deadline may now resubmit a complete application by August 18, 2015.

ANNOUNCEMENT

Additional details on eligibility and how to register

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8. USCIS Warns DACA Renewal Applicants About Work Permit Expirations

U.S. Citizenship and Immigration Services (USCIS) issued a warning on June 15, 2015, to those wishing to renew work permits under the Deferred Action for Childhood Arrivals (DACA) program. USCIS noted that some people wait too long to request renewal or do not correctly submit all the required forms and fees. As a result, their employment authorization documents may expire before USCIS can finish processing their requests for DACA renewal.

USCIS said that renewal applicants can lessen the chance that this may happen by taking the following steps:

• File on time. Submit your renewal request between 150 days and 120 days before the expiration date listed on your current Form I-797 DACA approval notice and Employment Authorization Document.
• Correctly submit all required forms and fees. USCIS will reject your renewal request unless you properly submit:

• Form I-821D, Consideration of Deferred Action for Childhood Arrivals;
• Form I-765, Application for Employment Authorization;
• Form I-765 Worksheet; and
• Required fees of $465

• Avoid processing delays. Be sure to submit:

• Any new documents and information related to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request;
• Proof of advance parole if you have traveled outside the United States since you filed your last DACA request that was approved; and
• Proof of any legal name change.

• Respond to Requests for Evidence. USCIS may deny your renewal request if you do not respond to a Request for Evidence in a timely manner.

USCIS noted that since March 27, 2015, the agency has been mailing renewal reminder notices to DACA recipients 180 days before the expiration date of their current period of deferred action. Previously, these reminder notices were mailed 100 days in advance. The earlier notices are intended to ensure that DACA recipients are reminded before the start of the recommended renewal period and have sufficient time to prepare their renewal requests.

USCIS said its current goal is to process DACA renewal requests within 120 days. A DACA recipient may submit an inquiry about the status of his or her renewal request after it has been pending more than 105 days.

More information about DACA

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9. ABIL Global: United Kingdom

Far-reaching reforms have been announced following the general election.

When the results of the recent general election were tallied, even the victors were surprised when the Conservative Party won sufficient seats in the House of Commons to shed its coalition partner and form a new majority government. Following this success, Prime Minister David Cameron moved swiftly to announce the Tories’ new policies and begin implementing a raft of far-reaching reforms.

With regard to immigration, the government intends to:

• introduce a criminal offense for illegal working (the government plans to seize wages as the proceeds of a crime);
• create a government enforcement agency to address the exploitation and coercion of migrant workers;
• make it illegal for employment agencies to recruit solely from abroad without first advertising in English in Britain;
• expand tenant immigration status checks to the national level, while simultaneously making the eviction of undocumented migrant tenants easier for landlords;
• ensure that banks take action against accounts of undocumented migrants;
• broaden the scope of “deport first, appeal later” to include nearly all immigration cases;
• implement mandatory electronic “tagging” of migrant offenders who are released on bail; and
• ask the Migration Advisory Committee (MAC) to consult on plans to further reduce migrant labor from outside the European Union, including:
  • financing United Kingdom (UK) apprenticeships via levies on businesses hiring individuals under Tier 2;
  • increasing minimum salary thresholds for migrant workers;
  • restricting how long occupational sectors may claim that they have a skills shortage;
  • limiting work visas to specialist experts and areas with skills shortages; and
  • restricting Tier 2 dependents’ right to work.

In anticipation of the promised “in-out” referendum by 2017 on whether the UK should remain a member of the EU, Prime Minister Cameron also took the first steps toward renegotiating the terms of the UK’s relationship with the EU. Alongside other, broader changes he is proposing, and in an effort to curb migration from the European continent, Cameron hopes to restrict EU migrants’ access to social welfare benefits in the UK. While some of these terms may be possible, EU leaders have made it clear that free movement is not up for negotiation.

At present, however, an overwhelming majority of Britons do not believe that Mr. Cameron’s negotiations will be effective. Notwithstanding this pessimism, polls suggest that 44% of British citizens favor remaining in the EU (with 36% hoping to leave, and 17% still undecided). That said, as the pollsters and pundits were nearly universally incorrect in their general election forecasts, no result should at this point be seen as a foregone conclusion.

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10. New Publications and Items of Interest

The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds chapters on Ghana and Peru. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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11. ABIL Member/Firm News

H. Ronald Klasko, one of the United States’ top EB-5 immigration lawyers and founding partner of Klasko Immigration Law Partners, recently served as the program co-organizer at the 2015 Invest in America Summit in China. As the largest annual EB-5 conference and trade show held in China, the Invest in America Summit brings together regional centers, developers, attorneys, economists, migration agents, large numbers of individual Chinese investors and Chinese government officials involved with the EB-5 migration program. The summit was held in Shanghai, Shenzhen, and Beijing.

Robert F. Loughran spoke on June 20, 2015, on a panel, Advising Small Businesses on Immigration Options, at the American Immigration Lawyers Association conference in Washington, DC.

Mr. Loughran moderated a day-long ILW seminar on June 17, 2015, for the EB-5 Summit for Attorneys and Developers in National Harbor, Maryland.

Mr. Loughran moderated Part 1 of a 3-part panel on Consular Processing for Experts on May 28, 2015. Foster Partner Jose R. Perez, Jr., and Angelo Paparelli provided expert commentary on analyzing consular issues and preparing clients for consular interviews.

Cyrus Mehta has published several new blog entries. “Keeping Tabs On A Non-Citizen’s Eligibility for Health Coverage Under the Affordable Care Act” “Extension of STEM Practical Training Under President Obama’s Executive Actions”

Julie Pearl was recently profiled in “Being Julie Pearl, Legal Tech Entrepreneur,” in Bloomberg BNA on June 19, 2015. Ms. Pearl has been CEO and managing partner of the Pearl Law Group for the past two decades, and founded two legal tech companies.

Bernard Wolfsdorf and Robert Blanco co-authored “EB-5 and Real Estate Development,” which discusses the role of EB-5 financing in major real estate development projects. The article was published in The Pinkwater Report, a leading publication on trends in super-prime property markets.

Stephen Yale-Loehr was quoted on June 20, 2015, in VOA News in “Supreme Court Hands Down 2 Decisions on Immigration.” In a case where a former Taliban-controlled payroll worker from Afghanistan married a U.S. citizen but was denied a visa to move to the United States, Mr. Yale-Loehr noted that this case has a broader impact: “If a U.S. citizen marries a Chinese citizen in China and tries to petition through the green-card process to have the foreign spouse come over to the United States, and if the U.S. [consulate] in Guangzhou were to deny the visa because the foreign spouse is a former member of the Communist Party, or they allege maybe the Chinese citizen committed some crimes in the past even though it is unproven, that would not be reviewable in the U.S. court.” He noted that this means the couple would be either separated or the U.S. citizen spouse would have to move to China to live with his or her spouse.

In another case, where an undocumented person was put in removal proceedings after he was convicted of assault, and his attorney missed a key filing deadline, Mr. Yale-Loehr noted, “The Supreme Court said, ‘Look, we are not going to decide whether the Mexican citizen case should be overturned, but at least the federal court has jurisdiction to hear the case.’ ” He said that immigrants “can at least get in the door to the courthouse in some cases, but it doesn’t necessarily mean that they will win once they get in the courthouse door.”

Mr. Yale-Loehr was quoted in several related articles with respect to recent Supreme Court decisions:

• U.S. News and World Report on June 15, 2015, in “Supreme Court Hands Defeat to Binational Marriage Rights.” He said the decision to deny a visa to an Afghan who married a U.S. citizen but had formerly been a payroll worker in the Taliban-controlled government “continues a long line of Supreme Court cases that hold when it comes to immigration that consular officials have carte blanche to deny a visa and it’s very hard to get those denials overturned in federal court.”
• Law360 on June 29, 2015, in “High Court Bolstered Immigrant Removal Rights This Term.” On Mata v. Lynch, He noted that the justices ruled that federal appeals courts can decide whether people facing removal should be able to extend deadlines in immigration proceedings. “That’s important because it establishes the primacy of federal court jurisdiction,” he said. On Kerry v. Din, he noted that the decision was extremely close at 5 to 4, which he said is the closest ruling the Supreme Court has ever issued in consular nonreviewability. “So, I have a faint hope that someday in the not-too-distant future, the court will ultimately recognize that there should be judicial review for at least certain kinds of visa denials,” he said.
• Law360 on June 15, 2015, in “Visa Review Stymied For Now, But More Challenges May Come.” With respect to the doctrine of consular absolutism, Mr. Yale-Loehr observed that the Supreme Court declined to disturb this “long-criticized doctrine.” He said “[i]t was a little closer this time, in that you only had a plurality, and then you had a concurrence on separate grounds.” But the bottom line was that the court reaffirmed consular nonreviewability. He said striking down that doctrine was unlikely given the current makeup of the Supreme Court, but that “hope springs eternal” and that “it’s possible that with a new president and new justices, the doctrine of consular absolutism may finally die.”
• Law360 on June 15, 2015, in “Immigrants Get More Court Access Under High Court Ruling.” Mr. Yale-Loehr said the decision about the Mexican deportation case “reaffirms that immigrants have some procedural protections” even if they have little constitutional protection.
• National Law Journal on June 15, 2015. Mr. Yale-Loehr noted that “[t]ogether, the decisions underscore the court’s dichotomy on immigration issues: Unlike citizens, immigrants have few substantive constitutional rights, but they can receive some procedural rights.” He noted that the decision “continues the much criticized doctrine of consular absolutism. It is ironic that while the Supreme Court actively reviews congressional or executive branch decisions in other areas such as health care, the court continues its hands-off approach in reviewing substantive immigration decisions. It is time to bring immigration law into the mainstream of constitutional law.”

Mr. Yale-Loehr was quoted by McClatchy Washington Bureau in “Mothers’ Proposal on Family Detention Divides Advocacy Groups,” published on June 26, 2015. He noted that although the proposal would not end family detention, it would cut dramatically the amount of time most mothers and children could spend in a facility, from over a year to less than 12 days. Many could be released within 24 hours. “If this stipulation were to be agreed to by the federal government, it would be a huge win for the plaintiffs.”

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12. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. USCIS Suspends Premium Processing Until July 27 for Extension of Stay H-1B Petitions; New Form In Effect -USCIS said this temporary suspension will allow the agency to implement its final rule on employment authorization for certain H-4 spouses in a timely manner.

2. USCIS Releases Revised I-765 Application for Employment Authorization -The revised I-765 contains the eligibility category (c)(26) for certain H-4 dependent spouses to apply for employment authorization.

3. When Should Employers File Amended H-1B Petitions After Simeio? USCIS Issues Draft Guidance -USCIS noted that the precedent decision in Matter of Simeio Solutions represents the agency’s position that employers must file an amended petition before placing an H-1B employee at a new worksite. USCIS said it will accept comments on the draft guidance for a limited period of time.

4. USCIS To Hold EB-5 Conference Call on June 4 -The topic of discussion will be expenses that are includable (or excludable) for purposes of estimating job creation.

5. Fifth Circuit Denies Emergency Stay of Preliminary Injunction Against DAPA and Expanded DACA -On May 26, 2015, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration’s request for an emergency stay of a preliminary injunction against its Deferred Action for Parents of Americans and Lawful Permanent Residents program.

6. USCIS Completes Data Entry of All FY 2016 H-1B Cap-Subject Petitions -USCIS will issue an announcement once all the unselected petitions have been returned.

7. DOL, DHS Publish Rules on H-2B Temporary Nonagricultural Worker Program, Related Prevailing Wage Methodology -The agencies published an interim final rule to reinstate and make improvements to the program, and a final rule to establish the prevailing wage methodology.

8. DHS Issues Final Rule Adjusting Limitations on Designated School Official Assignments and Study by F-2 and M-2 Nonimmigrants -The final rule grants school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses. The rule also allows accompanying spouses and children of F-1 or M-1 academic and vocational nonimmigrant students to enroll in less than “full course” study at a SEVP-certified school.

9. USCIS Announces Immigration Relief Measures for Nepali Nationals -USCIS announced immigration relief measures that may be available to Nepali nationals who are affected by the massive earthquake that struck Nepal on April 25, 2015. A group of organizations called for temporary protected status.

10. USCIS Alerts Yemenis to Available Immigration Relief Measures -Due to the unstable security situation in Yemen, USCIS highlighted immigration relief measures that may assist eligible Yemeni nationals.

11. It’s Not Your Imagination: U.S. Mail Delivery Is Slower Than Before -The slowdown is affecting delivery of immigration-related documents, such as approval notices, among others.

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

13. ABIL Member/Firm News -ABIL Member/Firm News

14. Government Agency Links -Government Agency Links

Details:

1. USCIS Suspends Premium Processing Until July 27 for Extension of Stay H-1B Petitions; New Form In Effect

U.S. Citizenship and Immigration Services (USCIS) has suspended premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of stay for an H-1B nonimmigrant.

Also, USCIS has implemented a new version of the I-907 (edition date: 01/29/2015) and will no longer accept previous versions as of June 1, 2015. USCIS issued the new version on May 1 and continued to accept old versions during the transition period, which ended May 31.

USCIS said the temporary suspension will allow the agency to implement its final rule on employment authorization for certain H-4 spouses in a timely manner and to adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. USCIS said it anticipates receiving an “extremely high volume” of Form I-765 applications and needs to temporarily suspend premium processing “to ensure that we can provide good customer service to both H-1B petitioners and H-4 applicants.”

The agency said it will monitor its workloads closely and “may resume accepting premium processing requests before July 27, 2015, if we determine that we can once again provide customers with the level of service offered with premium processing.”

During the temporary suspension, USCIS will refund the premium processing fee if:

• A petitioner filed an H-1B petition before May 26, 2015, using the premium processing service, and
• USCIS did not act on the case within the 15-calendar-day period.

Premium processing remains available for all other I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.

USCIS noted that petitioners may request expedited processing for their H-1B extension of stay petitions during the temporary suspension period. The agency said it will “review all expedite requests on a case-by-case basis and grant the requests at the discretion of the Director. The burden is on the petitioner to demonstrate that one or more of the expedite criteria have been met.”

INFORMATION ON HOW TO REQUEST EXPEDITED PROCESSING

ANNOUNCEMENT

FINAL RULE NOTED ABOVE

NEW I-907

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2. USCIS Releases Revised I-765 Application for Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) recently published a revised Form I-765, Application for Employment Authorization, with an 02/13/15 edition date.

The revised I-765 contains the eligibility category (c)(26) for certain H-4 dependent spouses to apply for employment authorization. Those filing under the new H-4 rule should provide the receipt number of the H-1B principal spouse’s most recent Form I-797 Notice of Approval for Form I-129.

While USCIS will continue to accept versions of the form with edition date 05/27/08 or later, H-4 applicants should use the 02/13/15 version of the form to prevent delays or the need for USCIS to issue a request for evidence.

ANNOUNCEMENT

FOR MORE INFORMATION about the H-4 rule and eligibility for employment authorization under the rule

RELATED LIST OF FREQUENTLY ASKED QUESTIONS

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3. When Should Employers File Amended H-1B Petitions After Simeio? USCIS Issues Draft Guidance

U.S. Citizenship and Immigration Services (USCIS) recently issued draft guidance following its Administrative Appeals Office (AAO) precedent decision, Matter of Simeio Solutions, LLC, which held that an employer must file an amended H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:

1. When H-1B employees change their place of employment to a worksite location that requires an employer to certify a new LCA to the Department of Homeland Security, this change may affect the employees’ eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
2. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.

USCIS noted that this precedent decision represents the agency’s position that employers must file an amended petition before placing an H-1B employee at a new worksite. USCIS said it will accept comments on the draft guidance for a limited period of time.

When To File or Not File

Employers must file an amended H-1B petition if an H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or “area of intended employment” (as defined at 20 CFR § 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. The employer does not have to wait for a final decision on the amended petition for the H-1B employee to start work at the new location.

USCIS said employers do not need to file an amended petition in the following situations:

• A move within an MSA: If the H-1B employee is moving to a new job location within the same MSA or area of intended employment, a new LCA is not required. Therefore, the employer does not need to file an amended H-1B petition. However, the employer must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but the employer would still need to post the previously obtained LCA at the new work location. USCIS said this is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
• Short-term placements: Under certain circumstances, the employer may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. (See 20 CFR § 655.735.) In these situations, the employer does not need to file an amended H-1B petition.
• Non-worksite locations: If the H-1B employee is only going to a non-worksite location, the employer does not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
  • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  • The H-1B employees spend little time at any one location; or
  • The job is “peripatetic in nature,” such as situations where the primary job is at one location but the H-1B employees occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR § 655.715.

Filing Amended H-1B Petitions

• If the H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, the employer has 90 days from May 21, 2015, to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA from that submitted with the original H-1B petition. Therefore, if the employer has not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, it has until August 19, 2015, to file an amended petition.
• If the H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS said it will not take adverse action against the employer or employees if the employer, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, the employer must now file an amended petition for these H-1B employees by August 19, 2015. If the employer does not file an amended petition for these employees by August 19, 2015, it will be out of compliance with USCIS regulation and policy and thus subject to adverse action, USCIS said. Similarly, the H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
• If the amended H-1B petition is denied but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
• If the previously filed amended H-1B petition is still pending, the employer may still file another amended petition to allow the H-1B employee to change worksite locations immediately upon the latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. If the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005), for similar instructions about portability petitions (link below).

USCIS noted that to the extent possible, the employer should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.

2005 AYTES MEMORANDUM

DRAFT GUIDANCE

MATTER OF SIMEIO SOLUTIONS, LLC

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4. USCIS To Hold EB-5 Conference Call on June 4

U.S. Citizenship and Immigration Services (USCIS) will hold a second engagement (conference call) in the informational series “EB-5 Interactive” on Thursday, June 4, 2015, from 1 to 2:15 p.m. (ET). The topic of discussion will be expenses that are includable (or excludable) for purposes of estimating job creation. Economists from the Immigrant Investor Program will make a short presentation and answer non-case-specific stakeholder questions concerning this topic.

MORE INFORMATION

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5. Fifth Circuit Denies Emergency Stay of Preliminary Injunction Against DAPA and Expanded DACA

On May 26, 2015, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration’s request for an emergency stay of a preliminary injunction against its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA) program. In denying the request, the Fifth Circuit said that the government “is unlikely to succeed on the merits of its appeal of the injunction.”

The district court previously determined that 26 states who challenged the DAPA and expanded DACA programs were likely to succeed on their procedural Administrative Procedure Act (APA) claim, so it temporarily enjoined implementation of the programs. Among other things, those states argued that the DAPA and expanded DACA programs are procedurally unlawful under the APA because they are substantive rules that are required to undergo notice and comment but the Department of Homeland Security (DHS) had failed to do so. The states also asserted that DAPA and expanded DACA were substantively unlawful under the APA because DHS lacked the authority to implement the programs even if it did follow the correct process.

Among other things, the district court had held that Texas had standing because it would be required to issue driver’s licenses to DAPA and expanded DACA beneficiaries, and the costs of doing so would constitute a cognizable injury. Alternatively, the court held that Texas had standing based on a theory it called “abdication standing,” under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. The court entered the preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that implementation of the DAPA and expanded DACA programs would violate the APA’s notice-and-comment requirements. The Fifth Circuit said it reached only the district court’s first basis for standing—the driver’s license rationale—”because it is dispositive.”

The Fifth Circuit noted that the government’s motion for a stay pending appeal was based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that the DAPA and the expanded DACA programs are exempt from the notice-and-comment requirements. The government also argued that the injunction’s nationwide scope was an abuse of discretion. The Fifth Circuit did not agree.

The Fifth Circuit will consider the government’s appeal of the preliminary injunction, with arguments scheduled for early July.

FIFTH CIRCUIT’S OPINION

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6. USCIS Completes Data Entry of All FY 2016 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in a computer-generated random process. USCIS will begin returning all H-1B cap-subject petitions that were not selected. The agency noted that due to the high volume of filings, the time frame for returning these petitions is uncertain, so USCIS would prefer not to receive queries in the meantime. USCIS will issue an announcement once all the unselected petitions have been returned.

FOR MORE INFORMATION

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7. DOL, DHS Publish Rules on H-2B Temporary Nonagricultural Worker Program, Related Prevailing Wage Methodology

In response to recent court decisions that the U.S. Departments of Labor and Homeland Security say have created significant uncertainty about the H-2B temporary foreign nonagricultural worker program, the agencies published an interim final rule on April 29, 2015, to reinstate and make improvements to the program, and a final rule the same day to establish the prevailing wage methodology.

The agencies said that these rules “strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available.” The rules include several provisions to expand recruitment of U.S. workers, including more recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They include worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations.

The agencies said they intend these rules to support U.S. businesses and the U.S. economy “by expeditiously reinstating the H-2B program and bringing certainty, stability, and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers’ ability to use H-2B workers.” The new rules also provide interim transition procedures.

ANNOUNCEMENT

INTERIM FINAL RULE

FINAL RULE

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8. DHS Issues Final Rule Adjusting Limitations on Designated School Official Assignments and Study by F-2 and M-2 Nonimmigrants

The Department of Homeland Security (DHS) is amending its regulations under the Student and Exchange Visitor Program (SEVP) “to improve management of international student programs and increase opportunities for study by spouses and children of nonimmigrant students.” The final rule “grants school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses.” The rule also “provides greater incentive for international students to study in the United States” by allowing accompanying spouses and children of F-1 or M-1 academic and vocational nonimmigrant students to enroll in study at a SEVP-certified school so long as any study remains less than a full course. F-2 and M-2 spouses and children remain prohibited from engaging in a full course of study unless they apply for, and DHS approves, a change of status to a nonimmigrant status authorizing such study.

DHS charges designated school officials (DSOs) with the responsibility of acting as liaisons between nonimmigrant students, the schools that employ the DSOs, and the U.S. government. Among other things, DSOs are responsible for making information and documents relating to F-1 and M-1 nonimmigrant students, including academic transcripts, available to DHS.

Since the Student and Exchange Visitor Information System (SEVIS) is now fully operational and appropriate access controls are in place, DHS has reconsidered the DSO limitation, and, with this rule, eliminates the maximum limit of DSOs. The rule instead allows school officials to nominate an appropriate number of DSOs for SEVP approval based upon the specific needs of each school.

DHS explained that although the average SEVP-certified school has fewer than three DSOs, F and M students often cluster at schools within states that attract a large percentage of nonimmigrant students. As such, schools in the three states with the greatest F and M student enrollment represent 35 percent of the overall F and M nonimmigrant enrollment in the United States. In schools where F and M students are heavily concentrated or where campuses are in dispersed geographic locations, the limit of 10 DSOs has been problematic.

The rule does not alter SEVP’s authority to approve or reject a DSO or principal designated school official (PDSO) nomination.

The rule also amends the benefits allowable for the accompanying spouse and children (hereafter referred to as F-2 or M-2 nonimmigrants) of an F-1 or M-1 student. DHS said it recognizes that the United States is engaged in global competition to attract the best and brightest international students to study in U.S. schools. Allowing F-2 or M-2 nonimmigrants to study while in the United States would help enhance the quality of life for many of these visiting families. Accordingly, DHS is allowing F-2 and M-2 nonimmigrant spouses and children to study in the United States at SEVP-certified schools that does not amount to a full course of study. Over time such enrollment in less than a full course of study could lead to attainment of a degree, certificate, or other credential. To maintain valid F-2 or M-2 status, however, the F-2 or M-2 nonimmigrant would not be permitted at any time to enroll in a total number of credit hours that would amount to a “full course of study,” as defined by regulation.

The newly permissible area of part-time study for these categories at SEVP-certified schools is academic study—whereas before only part-time recreational/vocational study was permitted for these categories (other than the exception for K-12 full-time study by F-2 and M-2 children). The change limits F-2 and M-2 study, other than avocational or recreational study, to SEVP-certified schools, to make it more likely that the educational program pursued by the F-2 or M-2 nonimmigrant is a bona fide program and that studies at the school are unlikely to raise national security concerns. The F-2 or M-2 nonimmigrants can still participate full-time in avocational or recreational study. If an F-2 or M-2 nonimmigrant wants to enroll in a full course of academic study, however, he or she must apply for and obtain approval to change his or her nonimmigrant classification to F-1, J-1, or M-1. Similarly, as noted, the rule does not change existing regulations allowing full-time study by children in elementary or secondary school (kindergarten through twelfth grade).

FINAL RULE

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9. USCIS Announces Immigration Relief Measures for Nepali Nationals

U.S. Citizenship and Immigration Services (USCIS) announced the following immigration relief measures that may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015:

• Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
• A grant of re-parole;
• Expedited processing of advance parole requests;
• Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization applications, where appropriate;
• Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
• Assistance in replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

Meanwhile, the National Council of Asian Pacific Americans, along with 127 organizations, sent Jeh Johnson, Department of Homeland Security Secretary, a letter on May 5, 2015, calling for temporary protected status designation for Nepal due to the earthquake.

USCIS ANNOUNCEMENT

TEXT OF THE SIGN-ON LETTER

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10. USCIS Alerts Yemenis to Available Immigration Relief Measures

Due to the unstable security situation in Yemen, U.S. Citizenship and Immigration Services (USCIS) recently highlighted available immigration relief measures that may assist eligible Yemeni nationals:

• Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
• A grant of re-parole;
• Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization applications, where appropriate; and
• Consideration for waiver of fees associated with USCIS benefit applications, based on an inability to pay.

ANNOUNCEMENT

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11. It’s Not Your Imagination: U.S. Mail Delivery Is Slower Than Before

According to reports, approximately 20 to 50 percent of U.S. mail now takes an extra day to deliver, thanks in part to the U.S. Postal Service’s eliminating first-class local overnight delivery starting in January and closing many mail processing plants in response to decreased demand. This slowdown is affecting delivery of immigration-related documents, such as approval notices, among others.
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12. New Publications and Items of Interest

E-Verify webinar on demand. U.S. Citizenship and Immigration Services (USCIS) released an “E-Verify Webinar On-Demand” for employers on April 27, 2015. The free 20-minute video can be viewed all at once or by topic. OTHER USCIS VIDEOS

The 2015 edition of the Global Business Immigration Practice Guide has just 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 discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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13. ABIL Member/Firm News

Several members of the Alliance of Business Immigration Lawyers (ABIL) will speak at the American Immigration Lawyers Association’s annual conference June 17-20, 2015, in Washington, DC. Among them are:

• Maria Celebi, “Filing a Family IV Petition Abroad—Navigating the Direct Consular Filing”
• Laura Danielson, “If I Had a Million Dollars—Fundamentals of EB-5 Investor Visas”; Robert Aronson from Ms. Danielson’s office, “OMG, I Have an IMG! Working With International Medical Graduates,” and Debra Schneider, also from Ms. Danielson’s office, ” Non-PERM Employment-Based Options”
• Bryan Funai, “The Consular Posts Strike Back—Advanced Consular Processing Issues for Business Visas”
• Kehrela Hodkinson, “Non-Immigrant and Immigrant Waivers of Inadmissibility Fundamentals”
• Mark Ivener, ” Contingency Planning for Attorneys—The Ethics of Extended Leave, Disability, and Death”
• H. Ronald Klasko, “Advanced EB-5 Panel,” Dan Lundy from Mr. Klasko’s office, “Intermediate EB-5 Panel,” and William Stock from Mr. Klasko’s office, “Hot Topics with the AILA National Officers” and “Put the Smart Phone Down: Networking and the Art of the Schmooze”
• Vincent Lau, “PERM Fundamentals—Part I”
• Robert Loughran, “Renunciation, Relinquishment and Loss of Citizenship,” and from Foster LLP: Charles C. Foster, “The 50^th Anniversary of the Immigration Reform Act of 1965″; Sandra I. Dorsthorst, “Getting’ Cozy With Blanket L-1 Visas”; Helene N. Dang, “Building the Narrative—Drafting a Successful Petition and Getting It Right the First Time.”
• Sharon Mehlman, “Immigration and Healthcare – Everything You Need To Know About How The ACA Impacts Your Clients” and “Hot Topics Panel With the AILA National Officers”
• Cyrus Mehta, “Immigration and Healthcare—Everything You Need To Know About How The ACA Impacts Your Clients,” ” AILA Ethics Compendium Session,” and ” Beyond Deferred Action: Is Permanent Residence An Option”
• Angelo A. Paparelli, “When Size Matters—Entrepreneurs/Start-Ups/Small Business Panel”
• William Reich, “From STDs to TB to Ebola—Medical Grounds of Inadmissibility”
• Lynn Susser, “The ‘Business’ of Dealing with CBP” and Greg Siskind from Ms. Susser’s office, “Ethics and Practice Management in the Digital Age” and “Beware of Marrying a J-1!!! J-1 Family Members and Waiver of § 212(e) Based on Hardship”
• Bernard Wolfsdorf, “The Consular Posts Strike Back—Advanced Consular Processing Issues for Business Visas”
• Stephen Yale-Loehr, moderator, “Behind Closed Doors—An Insider’s Perspective on the Immigration Legislative Process,” and Carolyn Leefrom Mr. Yale-Loehr’s office, “If I Had a Million Dollars—Fundamentals of EB-5 Investor Visas”

CONFERENCE PROGRAM

Several members of the Alliance of Business Immigration Lawyers (ABIL) will serve on American Immigration Lawyers Association committeesnext year. Among them are:

• Ms. Hodkinson, by-laws and fall conference committees
• Mr. Lau, DOL liaison committee and PERM conference planning committee
• Ms. Mehlman, verification and worksite committee and annual conference committee
• Mr. Mehta, chair of the ethics committee and member of the Access to Justice Task Force
• Mr. Paparelli, vice-chair of the Access to Justice Task Force
• Ms. Susser, CBP liaison committee and Memphis USCIS Field Office committee
• Mr. Wolfsdorf, chair of EB-5 conference committee, and serving on EB-5 committee and on the global migration steering committee
• Mr. Yale-Loehr, EB-5 conference committee, business immigration committee, and asylum/refugee committee

Several members of ABIL are included in the latest annual Who’s Who Legal rankings of corporate immigration attorneys. ABIL members constitute 5 of the top 10 U.S. immigration attorneys. ABIL members make up two-thirds of the world’s top immigration lawyers worldwide, since 20 ABIL attorneys are among the top 30 in the world.

Mr. Mehta is ranked as the number 1 immigration lawyer this year. Mr. Wolfsdorf is ranked as the Global Immigration Lawyer of the Year for 2015. The listings also include:

• Enrique Arellano
• Maria Celebi, first in Africa and the Middle East
• Eugene Chow
• Arnold Conyer
• Laura Devine and partners
• Avi Gomberg and Seth Dalfen from Mr. Gomberg’s office
• Ms. Hodkinson
• Mr. Klasko
• Charles Kuck
• Mr. Loughran and seven other members of Foster LLP
• Gunther Mävers
• Marco Mazzeschi
• Ms. Mehlman
• Ariel Orrego-Villacorta
• Mr. Paparelli
• Nicolas Rollason
• Maria Isa Soter
• Ms. Susser
• Karl Waheed
• Chris Watters, Africa and the Middle East
• Mr. Yale-Loehr

Mark Ivener spoke on “Three EB-5 Investor Green Cards / E-2 Visas Seminars” at the University of Illinois at Urbana-Champaign on April 8-11, 2015.

Mr. Kuck has published a new blog entry. “DAPA and the 5^th Circuit—Three Reasons Why Obama Failed To Win Approval of the Policy Change”

Mr. Loughran, as a member of the Committee on Laws Relating to Immigration & Nationality of the State Bar of Texas, met on May 21, 2015, with the consular officers of the U.S. Consulate in Ciudad Juarez, the largest immigrant visa processing post in the world. He was updated on the latest adjudication priorities and inspected the nonimmigrant, immigrant, and fraud detection units as well as the facilities of the adjacent panel physicians.

Mr. Mehta recently authored several blog entries. “Fifth Circuit Precedent on Preemption Can Provide Obama With Path to Victory in Texas v. United States“. “Equating Immigrants to Greenhouse Gases: Is This a Valid Basis for Standing To Sue the Federal Government?”

David Isaacson of Mr. Mehta‘s office has authored a new blog entry. “Zombie Precedents, The Sequel: How Recent Decisions of the Second Circuit and the BIA Point to a Better Way of Dealing With Precedent Decisions That Have Been Vacated by a Court”

Mr. Paparelli recently published a new blog entry. “Immigration Howling, Hope, Hype and Hodgepodge: USCIS’s New L-1B Memo”

Mr. Paparelli and Mr. Yale-Loehr were quoted in Law360 on May 11, 2015, in “EB-5 Program May Prove Fertile Ground for Lawsuits”

Mr. Wolfsdorf has published a new blog entry. “Bernie’s Top EB-5 Hot Topics”

Joseph Shepherd, of Wolfsdorf Rosenthal LLP, was recently appointed to serve as a member of the 2015-2016 American Immigration Lawyers Association’s National ACES Committee (Athletics, Culture, Entertainment, and Science). He will present an F-1 student webinar on June 2, 2015, on “Life after OPT (and the H-1B Lottery).” Mr. Shepherd authored an article on the new F-2/M-2 rule.

Mr. Yale-Loehr was quoted in USA Today on May 26, 2015, in “Federal Court Blocks Obama’s Immigration Plan.” Mr. Yale-Loehr noted, “The court of appeals merely held that the district court did not err when it held that Texas had standing to sue. The true test will be on the merits of the case. That could be a few years down the road, after a trial.”

Mr. Yale-Loehr was quoted in The Guardian on May 7, 2015, in an article on U.S. presidential candidate Hillary Clinton’s remarks on immigration. He noted that if she is elected President, what she does on immigration “really depends on how ambitious she wants to be and how many people she wants to benefit from her actions.”

Mr. Yale-Loehr was interviewed about the EB-5 immigrant investor program on Shortwave, a podcast affiliated with PBS NewsHour.

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14. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. USCIS Reaches H-1B Cap for FY 2016; Premium Processing Starts Soon -USCIS received almost 233,000 H-1B petitions in the first week of April.

2. Senators Seek Multi-Agency H-1B Program Investigation -The senators expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers.

3. Senate Committee Holds Hearing on H-1B Program and Skilled U.S. Worker Displacement -The Senate Judiciary Committee held a hearing on March 17, 2015, “Immigration Reforms Needed to Protect Skilled American Workers.”

4. USCIS Reaches H-2B Temporary Nonagricultural Worker Cap for FY 2015 -March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.

5. AAO Decides Two Cases—Definition of ‘Doing Business’ and Material Change in Place of Employment -The AAO recently decided two cases of interest.

6. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals -AAO is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO.

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

Details:

1. USCIS Reaches H-1B Cap for FY 2016; Premium Processing Starts Soon

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2015, that it had reached the congressionally mandated H-1B nonimmigrant visa cap of 65,000 for fiscal year (FY) 2016. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced-degree exemption. USCIS announced on April 13, 2015, that nearly 233,000 employers filed H-1B petitions in the first week of April. This means that employers have about a 30% chance of winning the H-1B lottery this year.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require at least a bachelor’s degree or equivalent.

Process for FY 2016. USCIS said that it will use a computer-generated “lottery” to randomly select the petitions needed to meet the caps. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period. 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. USCIS said it will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general limit. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

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 2016 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.

Premium processing. USCIS also announced that it will begin premium processing for cap-subject H-1B petitions by May 11, 2015. USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

For H-1B petitions 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 processing period will begin on May 11, 2015, regardless of the date on the I-797 receipt notice, which indicates the date on which the premium processing fee was received.

USCIS ANNOUNCEMENT about the H-1B cap being reached is available

MORE INFORMATION

USCIS ANNOUNCEMENT about premium processing

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2. Senators Seek Multi-Agency H-1B Program Investigation

A group of senators sent a letter on April 9, 2015, to Attorney General Eric Holder, Homeland Security Secretary Jeh Johnson, and Labor Secretary Thomas Perez seeking an investigation of the H-1B program. The group, led by Sens. Richard Durbin (D-Ill.) and Jeff Sessions (R-Ala.), expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers.

The letter asks:

In many cases it appears that the H-1B workers are not employees of the U.S. company laying off American workers, but instead are contractors employed by foreign-owned IT consulting companies. This increasingly popular business practice by U.S. companies and foreign-owned IT outsourcing firms raises several questions. For example, have the U.S. companies that have laid off American workers and replaced them with H-1B workers and/or the IT consulting contractors the companies retained engaged in prohibited citizenship status discrimination against U.S. citizens? Did the Labor Condition Applications certified by the Department of Labor’s Employment and Training Administration and the petitions approved by U.S. Citizenship and Immigration Services for each H-1B visa holder who replaced a U.S. worker at these companies accurately reflect the scope and location of their work? Did such labor condition applications or visa petitions show any evidence of misrepresentation or fraud by the employer-petitioners? Did the employer-petitioners maintain a true employer-employee relationship with the H-1B workers after they were placed at the U.S. client company? While media reports indicate that the H-1B visa program is the principal visa program at issue in the layoffs, were other visa programs, such as the L-1B or the B-1, also used to displace American workers at U.S. companies?

LETTER

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3. Senate Committee Holds Hearing on H-1B Program and Skilled U.S. Worker Displacement

The Senate Judiciary Committee held a hearing on March 17, 2015, entitled “Immigration Reforms Needed to Protect Skilled American Workers.” The hearing focused on the effects of the H-1B visa program and other temporary worker programs on skilled U.S. workers. Sen. Charles Grassley (R-Iowa), chairman of the committee, charged that the H-1B program is “highly susceptible to fraud and abuse.” He noted that he and Sen. Dick Durbin (D-Ill.) have introduced legislation to require, among other things, employers seeking to hire an H-1B worker to first make a good faith effort to recruit a U.S. worker.

Sen. Patrick Leahy (D-Vt.) also released a statement. He noted the “meaningful contribution that immigrant workers make to the U.S. economy, and the ways in which a healthy immigration system can grow the country’s economic base and create jobs that benefit all Americans.” He said that hearing witness Bjorn Billhardt came to the United States as a high school exchange student, later earned degrees from the University of Texas and Harvard Business School, and subsequently stayed in the United States to start a successful education business that now employs over 40 people. “Mr. Billhardt’s experience illustrates the value of an immigration system that welcomes diverse backgrounds and keeps promising graduates of our universities here in the United States, where they can contribute to our culture and our economy,” Sen. Leahy said.

Witnesses at the hearing included Richard Trumka, President, AFL-CIO; Prof. Ron Hira, Howard University; Bjorn Billhardt, Founder and President, Enspire; Jay Palmer, an American worker from Alabama; Benjamin E. Johnson, Executive Director, American Immigration Council; John Miano, Washington Alliance of Technology Workers; and Prof. Hal Salzman, E.J. Bloustein School of Planning and Public Policy, J.J. Heldrich Center for Workforce Development, Rutgers University.

SENATOR GRASSLEY’S STATEMENT

HEARING TESTIMONY

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4. USCIS Reaches H-2B Temporary Nonagricultural Worker Cap for FY 2015

U.S. Citizenship and Immigration Services (USCIS) announced on April 2, 2015, that it had reached the congressionally mandated H-2B temporary nonagricultural worker cap of 66,000 visas for fiscal year (FY) 2015. March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.

USCIS noted that employers may file petitions up to 120 days before the employment start date. USCIS therefore will reject new H-2B petitions filed more than 120 days before the employment start date.

USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions filed on behalf of the following beneficiaries:

• H-2B workers in the United States or abroad who have been previously counted toward the cap in the same fiscal year;
• Current H-2B workers seeking an extension of stay;
• Current H-2B workers seeking a change of employer or terms of employment;
• Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
• H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands and/or Guam.

ANNOUNCEMENT

ADDITIONAL INFORMATION ON THE H-2B PROGRAM

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5. AAO Decides Two Cases—Definition of ‘Doing Business’ and Material Change in Place of Employment

U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) recently decided two cases of interest.

• In Matter of Leaching International, Inc., 26 I&N Dec. 532 (AAO 2015), in which the petitioner’s appeal was sustained, the AAO noted that the petitioner is a U.S. subsidiary of a Chinese clothing manufacturing company that filed an Immigrant Petition for Alien Worker (Form I-140) to classify the beneficiary as a multinational manager or executive. The petitioner sought to employ the beneficiary in the position of deputy general manager. The Texas USCIS Service Center Director denied the petition, finding that the petitioner failed to establish that it had been doing business for at least one year as of the date the petition was filed.

Established in New York in 2008, the petitioner imports and sells the Chinese parent company’s products to United States customers, primarily major clothing retailers. The petitioner directly performed these sales activities through 2011. However, beginning on or about January 2012, it provided marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate, which previously employed the beneficiary and was owned by the Chinese parent company.

The Service Center Director concluded that the petitioner was not doing business as required by the regulations, reasoning that the petitioner’s evidence “do[es] not indicate ‘doing business’ with independent corporations or entities” for a full year preceding the filing of the petition, but rather “only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” Specifically, the Director found that the petitioner, as a clothing importer, should have provided invoices or evidence of payment of invoices from the customers who purchased the clothing for the year preceding the filing of the petition.

On appeal, the petitioner asserted that the Director erred and that existing case law and regulatory history supported a conclusion that the petitioner is doing business in a regular, systematic, and continuous fashion despite the fact that it is not a named party to contracts with buyers in the United States. The petitioner states that the evidence establishes it acts as an intermediary between its Hong Kong affiliate and the U.S. buyers and suppliers by locating customers and finalizing the details of sales contracts for the benefit of the affiliate.

The AAO noted that the Director’s finding that the petitioner did not submit evidence of doing business with “independent corporations or entities” implies a requirement that a petitioner must transact directly with an unaffiliated third party. In sustaining the petitioner’s appeal, the AAO noted, however, that:

(1) The definition of “doing business” at 8 CFR § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party; and

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.

Matter of Leaching

• In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO affirmed the Service Center Director’s decision to revoke an petition’s approval. Among other things, the Director had concluded that changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. The changes included different metropolitan statistical areas from the original place of employment, which USCIS agents were unable to find. The Director held that the petitioner therefore should have filed an amended Form I-129 H-1B petition corresponding to a new labor condition application (LCA) that reflected these changes, but the petitioner failed to do so.

In affirming the Director’s decision, the AAO held:

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to USCIS with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

The AAO noted that petitioners must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility for H-1B status. Matter of Simeio Solutions, LLC

Commentary. In the past, employers relied on informal guidance indicating that as long as a new LCA was obtained before placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO now has explicitly stated in Simeio Solutions that the Hernandez guidance has been superseded. Even before the guidance was formally superseded, employers were filing amended H-1B petitions, as consular officers were recommending to USCIS that the H-1B petition be revoked if a new LCA was obtained without an amendment of the H-1B petition. According to the AAO, “[i]f an employer does not submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security.” The AAO cited INA § 101(a)(15)(H)(i)(b), 8 CFR § 214.2(h)(4)(i)B)(1), and 20 CFR § 655.700(b) to support its position, but none of these provisions seems to suggest that an LCA obtained after an H-1B petition has already been submitted is not valid if it is “not certified to the Secretary of Homeland Security.” The Department of Labor (DOL) certifies the LCA. There is no separate process where the DOL also has to certify the LCA to the Secretary of Homeland Security.

It is not so much the cost that troubles employers with respect to filing an amended H-1B petition. The USCIS has made it extremely onerous for employers to obtain H-1B petitions especially when an H-1B worker will be assigned to third party client sites. This is a legitimate business model that American companies across the board rely on to meet their IT needs, but USCIS is now requiring an onerous demonstration that the petitioning company will still have a right to control the H-1B worker’s employment. Each time the employer files an amendment, USCIS will again make the employer demonstrate the employer-employee relationship through the issuance of a request for evidence (RFE). The employer will thus risk a denial upon seeking an amendment, even though it received an H-1B approval initially on virtually the same facts.

H-1B workers in other industries such as healthcare also get reassigned to different locations, such as physicians, nurses, and physical therapists. They too will be burdened by the need to file amended H-1B petitions each time they move to a new work location.

Arguably, if an H-1B worker is being moved to a new job location within the same area of intended employment, a new LCA is not required, nor will an H-1B amendment be required. The original LCA should still be posted in the new work location within the same area of intended employment.

20 CFR § 655.17 defines “area of intended employment”:

Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA).

So a move to a new job location within New York City (NYC) would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.

The DOL Wage and Hour Division Fact Sheet # 62J also confirms this:

If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?

No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.

The AAO decision in Simeio Solutions further overregulates the H-1B visa. This in turn will deprive U.S. companies of an efficient business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top talent quickly with flexibility and at affordable prices and scale that benefit consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the United States promotes to other countries but seems to restrict when applied to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

The Hernandez guidance provided flexibility to employers whose H-1B workers frequently moved among client locations, while ensuring the integrity of the H-1B visa program. Employers were still required to obtain new LCAs based on the prevailing wage in the new area of employment, and also notify U.S. workers. However, they were not required to file onerous
H-1B amendments each time there was a move, and risk further arbitrary and capricious scrutiny. The AAO has removed this flexibility, and has further regulated the H-1B to such an extent that the LCA must now always firmly and securely tether an H-1B worker through an amended petition just like a dog to his leash.

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6. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals

U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO (and if so, when, and under what circumstances). Specifically, the AAO seeks briefs on how this issue applies to beneficiaries of Form I-140, Immigrant Petition for Alien Worker, and the effect, if any, of the American Competitiveness in the Twenty-First Century Act on denied or revoked I-140 petitions.

The deadline for the AAO to receive briefs is May 22, 2015.

AAO’S REQUEST, which includes additional details.

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7. New Publications and Items of Interest

Webinar on E-Verify. USCIS will present a webinar, “E-Verify for Executives,” on April 29, 2015, at 2 p.m. ET. The webinar will clarify common misconceptions, discuss the facts and the benefits of using E-Verify, explain employer responsibilities and the enrollment process, and demonstrate the latest enhancements.

MORE INFORMATION

USCIS’s WEBINAR PAGE

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 immigration hotspots around the world.

The latest edition adds a chapter on Singapore. 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, 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 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.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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8. ABIL Member/Firm News

Fredrikson & Byron will hold a seminar, “Navigating the Immigration Landscape: A Guide for Employers,” on Tuesday, May 5, 2015, from 7:30 am to 2 pm in Minneapolis, Minnesota. MORE INFORMATION OR TO REGISTER

Klasko Immigration Law Partners will hold its 11^th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm in Philadelphia, Pennsylvania. MORE INFORMATION OR TO REGISTER

Robert F. Loughran testified before the Texas Senate Subcommittee on Border Security against a proposed repeal of the DREAM Tuition Act in Texas. The legislation, originally passed in 2001 and subsequently copied by 16 other progressive states, allows students who are residents for three years in the state of Texas to pay in-state tuition at public universities in Texas without regard to their immigration status. Video of his testimony is available at https://www.youtube.com/watch?v=AeTF3vcZC1w.

Cyrus Mehta has authored or co-authored several new blog entries. “AAO Firmly Tethers H-1B Workers to an LCA Like a Dog Is To A Leash” “New L-1B Visa Guidance: Will There Be Fewer Denials Or More Of The Same?”

Mr. Mehta and Sharon Mehlman were extensively quoted in “ACA Far From Fully Meshed With Immigration Law,” published on April 14, 2015, by Law360.com and avilable by registering..

Angelo Paparelli will speak on “What’s New in EB-5 Practice” at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. MORE INFORMATION OR TO REGISTER

Mr. Paparelli has published a new blog post. “Immigration Howling, Hope, Hype and Hodgepodge: USCIS’s New L-1B Memo” is available at http://www.nationofimmigrators.com/uscis/immigration-howling-hope-hype-and-hodgepodge-usciss-new-l-1b-memo/.

Mr. Paparelli was quoted by the Wall Street Journal on April 1, 2015, in “Visa Demand for High-Skilled Foreigners Is Likely To Prompt Lottery.” He noted that “[t]he chances of being selected [in the H-1B lottery] are reduced further because demand has so increased.”

Stephen Yale-Loehr was quoted by McClatchy Washington Bureau in “Asylum for Homeschooling Enters Immigration Debate,” published on April 8, 2015. Mr. Yale-Loehr questioned whether homeschooling bans rise to the level of persecution required by asylum law. “Most courts have defined persecution as being something pretty significant. Generally, it’s hard to win asylum and they don’t want any decisions to make it seem easier to get asylum,” he noted.

Mr. Yale-Loehr spoke at a symposium, “Pluralism in Progress: Immigration Reform in the 21^st Century,” presented on April 10, 2015, by the Spectemur Agendo Foundation, the Beta Charge of Theta Delta Chi, and the Cornell University International Student Union. MORE INFORMATION

Mr. Yale-Loehr was interviewed by Law360 on April 3, 2015, in “Q&A With Cornell Law School’s Stephen Yale-Loehr.” The article is available via registration.

Mr. Yale-Loehr was quoted in Politico.com on April 2, 2015, in “Touting Connections, Hillary Clinton’s Brother Takes on Philly Project.” The article discusses the EB-5 program. “From a marketing perspective, people think because a politician is involved, at least in China they think somehow it’s a better project or it’s got more name recognition,” he noted.

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9. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. USCIS Will Accept H-1B Petitions for FY 2016 Beginning April 1, 2015 -USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program.

2. USCIS Temporarily Suspends Adjudication of H-2B Petitions Following Court Order -USCIS has temporarily suspended adjudication of Form I-129 H-2B petitions for temporary nonagricultural workers while the government considers the appropriate response to a court order. Also due to the order, the Department of Labor is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. DOL is considering its options.

3. China EB-3 Visa Category Retrogresses Nearly 10 Months -Continued heavy demand by applicants with very early priority dates has required a retrogression of the cut-off date for the for the China EB-3 visa category for the month of April, to January 1, 2011.

4. China EB-5 Visa Category to Retrogress by June; Two-Year Backlog Expected -The State Department predicts that it will establish a retrogression of the cut-off date for the China EB-5 category by June. The retrogression could create about a two-year backlog.

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. USCIS Will Accept H-1B Petitions for FY 2016 Beginning April 1, 2015

On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. 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.

The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS used the lottery for the FY 2015 program last April.

Premium processing for cap-subject petitions. H-1B petitioners may still continue to request premium processing together with their H-1B petition. However, USCIS has temporarily adjusted its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season. To prioritize data entry for cap-subject H-1B petitions, USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing by May 11, 2015.

Filing. USCIS reminds H-1B petitioners that when the temporary employment or training will be in different locations, the state where the company or organization’s primary office is located will determine the appropriate Service Center to which petitioners should send the Form I-129 package, regardless of where in the United States the various worksites are located. When temporary employment or training will be in different locations, the address on page 1, Part 1 of Form I-129 is for the organization’s primary office. When listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.

Cases will be considered accepted on the date USCIS “takes possession of a properly filed petition with the correct fee.”

The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April. Contact your ABIL member for help with H-1B applications.

USCIS ANNOUNCEMENT

USCIS has released an optional checklist for I-129 H-1B filings.

USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates at http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season.

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2. USCIS Temporarily Suspends Adjudication of H-2B Petitions Following Court Order

As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended adjudication of Form I-129 H-2B petitions for temporary nonagricultural workers while the government considers the appropriate response to a court order entered March 4, 2015, in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015).

USCIS noted that due to this decision, as of March 4, the Department of Labor (DOL) is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. DOL is considering its options in light of the court’s decision.

Because H-2B petitions require temporary labor certifications issued by DOL, USCIS has temporarily suspended adjudication of H-2B petitions. USCIS will continue adjudicating H-2B petitions for nonagricultural temporary workers on Guam if the petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

As of March 6, 2015, USCIS has also suspended premium processing for all H-2B petitions until further notice. If a petitioner has already filed H-2B petitions using the premium processing service and the agency did not act on the case within the 15-calendar-day period, USCIS will issue a refund.

DOL has released frequently asked questions (FAQs) regarding its implementation of the decision in Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Perez, 774 F.3d 173, 191 (3d Cir. 2014). Following the court’s decision, DOL ceased issuing prevailing wage determinations in the H-2B program based on employer-provided wage surveys and can no longer issue H-2B temporary employment certifications based on employer-provided wage surveys.

USCIS’s NOTICE ON PEREZ v. PEREZ

DOL’s NOTICES ON PEREZ v. PEREZ and COMITE DE APOYO a los TRABAJADORES AGRIGOLAS (CATA) v. PEREZ

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3. China EB-3 Visa Category Retrogresses Nearly 10 Months

The Department of State’s Visa Bulletin for April 2015 notes that continued heavy demand by applicants with very early priority dates has required a retrogression of the cut-off date for the China EB-3 visa category for the month of April, to January 1, 2011, to hold number use within the annual numerical limit. The Visa Office advanced the China EB-3 visa category very rapidly during the past seven months, in an attempt to generate demand to ensure that all numbers under the annual limit could be made available.

Potential forward movement of this cut-off date during the remainder of the fiscal year will depend on the demand received for applicants with very early priority dates.

VISA BULLETIN

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4. China EB-5 Visa Category to Retrogress by June; Two-Year Backlog Expected

The Department of State’s Visa Bulletin for April 2015 notes that continued heavy demand by EB-5 immigrant investor applicants will require a retrogression of the cut-off date for the China EB-5 visa category by June 2015 to hold number use within the annual numerical limit. Informed sources predict that the initial retrogression is expected to be about two years.

VISA BULLETIN

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5. New Publications and Items of Interest

New supplemental guide for E-Verify employer agents. On March 8, 2015, USCIS published the new Supplemental Guide for E-Verify Employer Agents. The new guide replaces the previous E-Verify User Manual for E-Verify Employer Agents and the E-Verify Quick Reference Guide for E-Verify Employer Agents. E-Verify employer agents should now use the E-Verify User Manual and the new supplemental guide. These changes do not affect the information that E-Verify employer agents should provide to their clients. E-Verify employer agents should continue to provide their clients with the user manual and the E-Verify Quick Reference Guide for Clients of E-Verify Employer Agents.

• NEW SUPPLEMENTAL GUIDE
• LATEST USER MANUAL
• QUICK REFERENCE GUIDE

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 immigration hotspots around the world.

The latest edition adds a chapter on Singapore. 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, 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 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.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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6. ABIL Member/Firm News

The Alliance of Business Immigration Lawyers (ABIL) was ranked as Band 1 in the category of “immigration (legal networks)” in the 2015 Chambers Global directory. ABIL’s listing is HERE. FOR MORE INFORMATION ON THE DIRECTORY

Several ABIL members will speak at IIUSA’s 8th annual EB-5 Regional Economic Development Advocacy Conference in Washington, DC, on April 12-14, 2015:

• Angelo Paparelli and Stephen Yale-Loehr will speak on USCIS Policies: Latest Adjudication & Processing Trends for EB-5 Petitions/Applications.
• Bernard Wolfsdorf will speak on Visa Retrogression in 2015: Latest Demand Data, Practical Insights & What Comes Next.

FOR MORE INFORMATION OR TO REGISTER

Several ABIL members spoke at an Invest in America summit in Shanghai, China, on March 14 and 15, 2015. H. Ronald Klasko and Mr. Wolfsdorf spoke on visa retrogression in the EB-5 category. Mr. Yale-Loehr moderated a panel on due diligence issues in the EB-5 program.

Several ABIL members will speak at an Invest in America Summit in Shenzhen, China, on March 18 and in Beijing on March 21, 2015. Mr. Klasko will speak on EB-5 “hot topics” in Shenzhen and due diligence issues in the EB-5 program in Beijing. Mr. Wolfsdorf will speak on due diligence issues in the EB-5 program in Shenzhen and on EB-5 “hot topics” in Beijing. Mr. Yale-Loehr will speak on targeted employment area issues in the EB-5 program in Shenzhen and on EB-5 visa retrogression issues in Beijing.

Klasko Immigration Law Partners will hold its 11th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm. FOR MORE INFORMATION OR TO REGISTER

Sharon Mehlman and Cyrus Mehta presented at the American Immigration Lawyers Association’s Midwest Regional Conference in Chicago on March 9, 2015. Ms. Mehlman spoke on “Update on DOL and ICE Compliance and Audit Issues.” Mr. Mehta spoke on “Alternatives to the H-1B.”

Robert F. Loughran spoke on February 23, 2015, at the “Welcoming City Forum” on “Implications of President Barack Obama’s Executive Action.” The presentation, held in Austin, Texas, was for both employers and employees. This forum was intended to formalize the city of Austin’s commitment to being a welcoming, immigrant-friendly community and identify resources to address this goal. FOR MORE ON AUSTIN’S WELCOMING CITY INITIATIVE

Mr. Mehta has authored a new blog entry. “Every Country Except The Philippines: New Developments In Opt Out Provision In The Child Status Protection Act”

Mr. Yale-Loehr wrote a blog entry summarizing a recent USCIS conference call on EB-5 source of funds issues.

Mr. Yale-Loehr was quoted in Law360.com on March 3, 2015, in “3 Tips To Avoid Screwing Up Your H-1B Application.” Among other things, he noted that with the heavy demand for H-1B visas, it is best to submit an LCA for DOL certification in mid-March at the latest.

Mr. Yale-Loehr was quoted in Politifact.com on March 5, 2015, in “Federal Judge Called Obama Immigration Action ‘Unconstitutional’.” He noted that “[a]ny party can raise an alleged constitutional violation. Only when the Supreme Court rules on the executive action’s constitutionality will that issue be resolved once and for all.”

Mr. Yale-Loehr was quoted in the Atlanta Journal-Constitution on March 5, 2015, in “Congressman Collins Accuses Obama of Course Change on Immigration.” Noting that deferred action doesn’t change the law, he said, “Most legal scholars believe that these executive actions fall within the limits; they do not exceed them.”

Mr. Yale-Loehr was quoted by the Associated Press in an article about venue shopping in immigration cases. The article was picked up by many newspapers, including SFGate on March 8, 2015. In “Immigration Ruling Shows Lawyers Playing Venue Shopping Odds,” he said, “Everybody does this to the extent they can.”

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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

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