The 2016 Consolidated Appropriations Act was signed into law on December 18, 2015. In addition to funding the U.S. federal government through the 2016 fiscal year, it includes far-reaching, immediately effective changes to the Visa Waiver Program. As background, citizens of the 38 countries participating in the Visa Waiver Program (“VWP”) may come to the United States as visitors for business or pleasure without first obtaining visitors’ (B-1 or B-2) visas in their passports. They may visit the U.S. for periods of up to 90 days, provided that they are eligible for admission as visitors under applicable law.
USCIS issues draft policy memo regarding job portability provisions of Immigration and Nationality Act
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) addressed the problem of delays and backlogs in the employment-based immigrant visa process by permitting certain applicants for adjustment of status to change jobs or employers. (See our post on the subject here.) Employers of these individuals do not need to retest the labor market for the new position, or obtain new, approved petitions on their behalf, if the following criteria are satisfied:
- An immigrant visa petition (Form I-140) on behalf of the applicant has been approved, or was approvable when filed.
- A filed application to adjust status to permanent resident, filed on the basis of the I-140, remains unadjudicated after 180 days or more.
- The applicant’s new job is in the same or a similar occupational classification as the job for which the petition was filed.
Invalidation of STEM extensions for F-1 OPT work authorization: Further information
We recently posted about the U.S. District Court for the District of Columbia's invalidation of STEM extensions for F-1 OPT work authorization. The Department of Homeland Security has not yet indicated that it will reintroduce the STEM extension rule in compliance with proper regulatory procedure. In the meantime, the American Immigration Lawyers Association (AILA)'s Leadership Blog has a new post from AILA President-Elect William Stock, which provides useful information and insight into likely developments. The blog post can be accessed here.
We will report further details as they become available.
Instructions for the 2017 Diversity Visa Lottery Program now available
News Release from Jewell & Associates, PC
The U.S. Department of State’s instructions for the 2017 Diversity Immigrant Visa Program (DV-2017) are now available. Entries for the DV-2017 program must be submitted electronically between October 1 and November 3, 2015.
There are no changes in eligibility this year. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.
The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2017, 50,000 diversity visas will be available.
© Jewell & Associates, PC 2015
UPDATE: Government reissues October Visa Bulletin, rolls back 'Dates for Filing' for some visa application categories
We posted here about recent changes to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas. The Department's Visa Bulletin now provides two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed ('Dates for Filing Applications') and one governing when a pending I-485 may be approved.
UPDATE: State Department changes the way it determines immigrant visa availability
News Release from Jewell & Associates, PC We previously posted here about unconfirmed reports of a possible change to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas. These changes have now been confirmed in a post on the U.S. Citizenship & Immigration Services website.
Instead of a single cut-off date for each country of chargeability in each preference category, the monthly State Department Visa Bulletin now provides two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed (“Dates for Filing Applications”) and one governing when a pending I-485 may be approved (“Application Final Action Dates”). This new system has been implemented in time for the October 2015 visa bulletin.
The net effect of this change is to make the benefits of a pending I-485 application – including portability of the permanent residence process under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) – available to prospective immigrants sooner than under the prior system.
© Jewell & Associates, PC 2015
State Department may change the way it determines immigrant visa availability
News Release from Jewell & Associates, PC According to a news item posted online on September 3, 2015 by the National Law Review, there may soon be a change to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas. Instead of a single cut-off date for each country of chargeability in each preference category, the monthly State Department Visa Bulletin may begin providing two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed, and one governing when a pending I-485 may be approved.
The net effect would be to make the benefits of a pending I-485 application available sooner to prospective immigrants than under the current system. We note that no official confirmation of this potential change has yet been provided. We will report on further details as they become available.
© Jewell & Associates, PC 2015
STEM” extensions of F-1 OPT work authorization invalidated by D.C. federal court
News Release from Jewell & Associates, PC On August 12, 2015 the U.S. District Court for the District of Columbia invalidated the 2008 interim final rule of the U.S. Department of Homeland Security that created eligibility for a 17-month extension of F-1 OPT work authorization for graduates whose F-1 OPT work authorization was based on a degree in a “STEM” field. The court found that DHS failed to provide the legally required notice and comment period that must accompany any significant new rule, and failed to show sufficient justification to bypass the normal notice and comment requirement and issue the rule via emergency rulemaking.
Although the court invalidated the 2008 rule and its amendments, it placed an immediate six-month stay on the vacatur, until February 12, 2016. Practically, this means that existing F-1 OPT STEM extensions remain valid through February 12, 2016. It is not yet clear what the court ruling means for USCIS’s action on pending or new applications for STEM extensions. If DHS reintroduces the 2008 rule with a proper notice and comment period, and it takes effect before February 12, 2016, there should be no disruption to STEM OPT processes or employment.
© Jewell & Associates, PC 2015
Jewell & Associates attorneys selected for inclusion in Super Lawyers ®
News Release from Jewell & Associates, PC Jewell & Associates is pleased to announce that three of its lawyers have been selected for selected for inclusion in Northern California Super Lawyers ® in 2015. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. Phyllis Jewell, the firm’s Principal and Managing Attorney, has been selected from 2004 to 2013, and now again for 2015. Only 5 percent of lawyers in a state are selected for inclusion in Super Lawyers. Lawyers Christopher Beckerson and Claire Pratt have been selected for the first time as Rising Stars in 2015. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in a state are named to Rising Stars. Congratulations to Phyllis, Chris, and Claire!
© Jewell & Associates, PC 2015
USCIS suspends premium processing for H-1B petitions where extension of stay is requested
News Release from Jewell & Associates, PC As of May 26, 2015 USCIS has temporarily suspended premium processing for all H-1B petitions where a request for extension of stay is requested. This is to allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule, and to adjudicate the first applications under that rule, in a timely manner. Premium processing for H-1B extension of stay petitions is scheduled to resume on July 27, 2015.
Premium processing remains available for certain H-1B petitions, including:
- Petitions subject to the H-1B cap, and cap-exempt petitions, as long as the petition requests a change of nonimmigrant status, or consular notification.
- Petitions filed on behalf of individuals who already have H-1B status, as long as the petition requests consular notification, or an amendment of a previously approved petition that does not include a request for an extension of stay.
- All H-1B1 petitions.
USCIS will continue to premium process H-1B extension of stay petitions filed prior to May 26, 2015.
The full text of USCIS’s announcement is available here.
© Jewell & Associates, PC 2015
UPDATE: USCIS publishes information regarding H-4 EAD procedure
News Release from Jewell & Associates, PC
We previously posted here about USCIS's announcement that, starting May 26, 2015, it would begin accepting applications for employment authorization from certain H-4 spouses of H-1B nonimmigrants who are in the employment-based lawful permanent residence (green card) process. USCIS has now published the following information to help prospective applicants:
An Employment Authorization for Certain H-4 Dependent Spouses web page; and
A list of Frequently Asked Questions, and answers to those questions.
Under the rule, eligible applicants will be required to file Form I-765, Application for Employment Authorization, with the required $380 fee and the documents establishing their eligibility. USCIS usually adjudicates Form I-765 within 90 days; if employment authorization is approved, the applicant will receive an EAD. Once the H-4 spouse receives an EAD, he or she may begin working in the United States.
Applications will not be accepted by USCIS before Tuesday, May 26, 2015.
© Jewell & Associates, PC 2015
H-1B Cap update – USCIS reports 233,000 H-1B petitions received
News Release from Jewell & Associates, PC
On April 7 USCIS announced that it received approximately 233,000 H-1B petitions in the filing period that began on April 1. Today USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for the 20,000 set-aside for beneficiaries with U.S. advanced degrees first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.
© Jewell & Associates, PC 2015
Certain H-4 spouses to be eligible to apply for employment authorization starting May 26, 2015
USCIS announced that, starting Tuesday, May 26, 2015, it will accept applications for employment authorization from certain H-4 spouses of H-1B nonimmigrants in the employment-based lawful permanent residence (green card) process. An H-4 spouse of an H-1B nonimmigrant will be eligible to apply for an Employment Authorization Document (EAD) if the H-1B nonimmigrant:
- Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted an H-1B extension beyond the six-year limit under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21), as amended. Sections 106(a) and (b) of AC21 refer to H-1B extensions based on the filing of a PERM or I-140 at least one year before the end of the H-1B nonimmigrant’s six-year limit, where no final decision to deny the PERM, I-140, or permanent residence has been made.
USCIS posts summary of upcoming executive actions on immigration
News Release from Jewell & Associates, PC On December 5, 2014, USCIS posted on its website a summary of the executive actions on immigration announced by President Obama on November 20, 2014. With respect to each of the major planned initiatives, the USCIS summary sets forth, to the extent currently known:
- Who is eligible
- What the initiative will do
- When an applicant can begin to make a request
- How to make a request
Importantly, the summary cautions: “These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. Subscribe to this page to get updates when new information is posted.” USCIS’s full posting, along with the link to subscribe to updates, is here.
By Phyllis Jewell. © Jewell & Associates, PC 2014
President Obama intends to reform the immigration system through executive action
News Release from Jewell & Associates, PC
Yesterday the President announced his intent to reform the immigration system through executive action in ten key areas. Planned action that will be of particular interest to the business community include:
Support to High-Skilled Workers and Business
The Department of Homeland Security (DHS) will take action to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and expand opportunities for students to gain on-the-job training. The full memo can be found here. Planned actions include:
- Modernizing the employment-based immigrant visa system, including working with the State Department to ensure that available immigrant visas are issued, and to improve the system for determining when visas are available; and considering the amendment of regulations to ensure that long-standing visa petitions remain valid in certain cases where a beneficiary changes jobs or employers.
- Reforming Optional Practical Training for foreign students and graduates from U.S. universities.
- Promoting research and development, including increased use of the National Interest Waiver, and a potential program permitting DHS to grant parole status to inventors, researchers, and start-up founders who do not yet qualify for NIW.
- Bringing greater consistency to the L-1B visa program.
- Increasing worker portability.
Modernization of the PERM Program
The Department of Labor (DOL) has not examined or modified the permanent labor certification program since its inception in 2005. In response to ongoing feedback, including that the regulatory requirements governing PERM recruitment do not align with worker or industry practices, DOL will undertake a review of the program and regulations. The full memo can be found here. DOL will seek input on:
- How to identify labor force occupational shortages and surpluses, and how to align domestic worker recruitment requirements with those.
- Modernizing U.S. worker recruitment requirements.
- Clarifying employer obligations to ensure PERM positions are open to U.S. workers.
- Ranges of case processing timeframes and possibilities for premium processing.
- Application submission and review process and feasibility for efficiently addressing nonmaterial errors.
Other planned executive actions include strengthening border security; replacing Secure Communities; expanding Deferred Action for Childhood Arrivals; and extending deferred action to parents of U.S. citizens and Lawful Permanent Residents.
Note that the immigration agencies are NOT accepting applications under these newly announced programs and initiatives at this time. For resources on how to protect yourself from immigration scams and fraud visit stopnotariofraud.org.
Jewell & Associates, PC will provide further coverage of the details, as they become available, in future posts.
By Christopher Beckerson and Claire Pratt. © Jewell & Associates, PC 2014
Instructions for the 2016 Diversity Visa Lottery Program now available
News Release from Jewell & Associates, PC
The U.S. Department of State’s instructions for the 2016 Diversity Immigrant Visa Program (DV-2016) are now available. Entries for the DV-2016 program must be submitted electronically between October 1 and November 3, 2014.
There are no changes in eligibility this year. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.
The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2016, 50,000 diversity visas will be available.
© Jewell & Associates, PC 2014
J&A welcomes its most recent Certified Specialist
News Release from Jewell & Associates, PC Jewell & Associates is pleased to announce that Senior Attorney Wendy Stewart has been accorded the status of a “Certified Specialist, Immigration & Nationality Law” by the California State Bar Board of Legal Specialization. This is a rare distinction that only 35 immigration lawyers in San Francisco have achieved (including J&A Managing Attorney and Founder, Phyllis Jewell, and Senior Attorney Claire Pratt). The legal specialization process is wholly voluntary. It is also arduous, requiring a written exam, professional references, and case experience that includes the full range of immigration matters, from contested deportation/removal to naturalization. Very hearty congratulations to Wendy!
© Jewell & Associates, PC 2014
DHS to propose allowing work authorization for spouses of certain H-1B workers, and more
News Release from Jewell & Associates, PC
The Department of Homeland Security has announced that it will publish a proposed rule that would:
Allow work authorization for H-4 spouses of certain H-1B workers in the permanent residence (green card) process based on employment. For the H-4 spouse to qualify for work authorization, the H-1B worker would have to (a) be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or (b) have been granted an extension of H-1B status beyond the usual six-year limit, under the provisions of AC21 (the American Competitiveness in the Twenty-first Century Act of 2000, as amended).
Clarify that Australian E-3 workers and Singaporean and Chilean H-1B1 workers do not need EAD cards to work for the sponsoring employer; also, allow Australian E-3s, Singaporean and Chilean H-1B1s, and Northern Marianas CW-1s to continue working for up to 240 days during the pendency of an E-3, H-1B 1, or CW-1 extension application filed with USCIS. The rule would add E-3 and H-1B1 nonimmigrant workers to the list of classes of aliens authorized for employment “incident to status” with a specific employer, meaning that the E-3 or H-1B status itself carries work authorization, without the necessity of a separate Employment Authorization Document (EAD card). The rule would also bring E-3, H-1B1, and CW-1 nonimmigrant workers into line with H-1Bs and other work classifications in allowing up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.
Expand the list of evidentiary criteria for EB-1 outstanding professors and researchers to include “other comparable evidence.” This would add “other comparable evidence” to the list of types of evidence supporting an EB-1 immigrant petition for an “outstanding professor or researcher,” i.e., an EB-1B petition. EB-1A petitions, for persons of “extraordinary ability,” already permit the use of “other comparable evidence.”
Further information can be found in the White House press release.
By Phyllis Jewell and Christopher Beckerson. © Jewell & Associates, PC 2014
H-1B Cap update – USCIS reports 172,500 H-1B petitions received
News Release from Jewell & Associates, PC
Today USCIS announced that it received approximately 172,500 H-1B petitions in the filing period that began on April 1. On April 10 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.
© Jewell & Associates, PC 2014
H-1B Cap reached, lottery triggered
News Release from Jewell & Associates, PC
U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2015 cap or the advanced degree exemption after today.
USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2015 cap-subject petitions received through April 7, 2014. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.
USCIS is expected to provide more detailed information about the H-1B cap soon.
© Jewell & Associates, PC 2014