Two Lawsuits Challenge the Government’s H-1B Lottery System

June 29th, 2016

Recently, two lawsuits have been filed in federal district court challenging various aspects of the H-1B lottery system. The first case is a class action filed in the U.S. District Court for the District of Oregon against USCIS and alleges that the randomized lottery system used to select a limited number of H-1B petitions for processing is “arbitrary and capricious.” The suit asks the court to hold unlawful and set aside USCIS’s regulations that require H-1B petitions to be filed during a five-day filing window and subjecting them to a random lottery in which losing lottery filings are rejected and not assigned a priority date. The case asserts that USCIS should be issuing receipts and priority dates for all cases because there is no statutory basis for the agency to require a filing window, a random lottery, and a rejection system. Indeed, the plain language of the statute requires that H-1B petitions be processed in the order in which petitions are filed. Plaintiffs argue that an orderly priority date assignment system and waiting list should be established similar to the system in place for immigrant visa petitions. The current regulatory system results, says plaintiffs, in a potentially never-ending game of chance for petitions filed during the window each year, with some unlucky individuals trying and failing each year to obtain an H-1B number, while some lucky lottery winners obtain a visa number in the very first year a petition is filed on their behalf. The plaintiffs ask the court to order defendants (USCIS) to assign priority dates to improperly rejected H-1B petitions that are resubmitted for acceptance by members of the class; order USCIS to accept H-1B petitions throughout the year and assign priority dates; and make H-1B numbers available based on the order in which they are received.  In the past four years, almost 500,000 cases have been rejected.

The second lawsuit filed against DHS and USCIS seeks declaratory, injunctive, and other appropriate relief under the Freedom of Information Act to obtain information so that the public has a clear understanding of USCIS operating procedures and policies when administering the H-1B lottery. The suit was filed by a private law firm, the American Immigration Council (Council), and the American Immigration Lawyers Association (AILA). It alleges that USCIS has never been forthcoming in describing the selection process. The suit is intended to let the American public and those most directly affected see how the lottery system works from start to finish, in order to learn whether the system is operating fairly. Despite the government’s stated commitment to transparency and accountability, prior attempts to learn more about how the H-1B lottery process is conducted have been resisted.

Affirmative Asylum Applicants’ Wait for Interview Ranges from 1½ to 5 Years

June 28th, 2016

USCIS has released a new bulletin that shows the expected waiting times between filing an asylum application and appearing for an interview for each office. The typical waiting time is two years, though some offices are taking longer. The long waiting periods are the result of previous backlogs, greater priorities for children and rescheduled applicants, and the conducting of reasonable and credible fear interviews. The following are current processing times by office:

Current interview wait time

Arlington, VA                                                   29 months

Chicago, IL                                                        19 months

Houston, TX                                                      23 months

Los Angeles, CA                                               55 months

Miami, FL                                                           34 months

Newark, NJ                                                        32 months

New York, NY                                                   20 months

San Francisco, CA                                           24 months

Adjustment of Status and Registry Applicants Should Double Check Combo Card for Travel Authorization Before Travelling Abroad

June 27th, 2016

Combination employment authorization (EAD) and advance parole (AP) cards are normally concurrently filed with adjustment of status applications and for those adjusting based on registry. These concurrently filed cases (Forms I-765 and I-131) are normally approved at the same time. Consequently, the work authorization card that is issued contains an AP travel authorization notation on the bottom, “SERVES AS I-512 Advance Parole,” making it also a travel permit, and thus a “combo card.”  Normally, no separate AP document is issued. Recently, however, there have been reports of such cards missing the travel authorization annotation. In response to inquiries, USCIS has advised that it only issues the combo card when it approves a Form I-131 advance parole application at the same time as it approves a Form I-765 employment authorization filed under the “C9 adjustment” or “C16 registry” category. No other category is eligible for a combo card. If the case is in either category, it is possible that the I-131 application will not be adjudicated at the same time as the I-765 application, and thus no combo card will be issued. If that happens, applicants can contact USCIS’s National Customer Service Center, obtain a Service Request Management Tool (SRMT) number and ask the service center to issue a combo card.

Employers with a Pending I-129 Extension/Change May Submit a Service Request after Seven Months

June 24th, 2016

Form I-129 is frequently used by employers because it covers several very popular employment-based visa categories, such as H, L, O, P, E, TN, and R. These submissions are handled primarily by USCIS’s California and Vermont service centers. Increasing backlogs and extended processing times have delayed adjudication and can frustrate employers, but the risk can be even greater to a beneficiary who has been working for months if the I-129 is ultimately denied.

For H-1B extensions and amendments sent to the California Service Center, the current processing time is eight months, according to the USCIS website, but other visa categories are being processed between two and five months. The Vermont Service Center (VSC) is taking even longer for H-1B extensions and amendments, and is experiencing processing delays for L visa petitions as well.  Even O and P petitions sent to the VSC are taking six months, which is longer than usual. This is particularly problematic because the beneficiary’s work authorization is automatically extended for 240 additional days when an extension or amendment filed. When adjudication exceeds eight months, it leaves the beneficiary unable to work legally.

Unfortunately, employers cannot pick and choose which service center to submit their I-129 petitions, as they are bound by geographic location. But, for those with a pending H-1B extension or amendment request, they no longer have to wait until their petition has exceeded the posted processing times to submit a service request.  Now, employers (or their attorneys) are now able to reach out to USCIS after 210 days (seven months) have passed since filing, which flags the delayed H-1B petition between one and three months earlier than current processing times. Hopefully, this new policy will help the USCIS service centers to identify pending cases that are nearing the expected deadline and to prioritize these cases so they can be adjudicated within the posted processing times — and, more importantly, before the extended grant of work authorization expires.

Three-Month Wait Times for NIV Appointments at U.S. Consular Posts in India

June 22nd, 2016

U.S. consular posts in India are currently experiencing extraordinary wait times for nonimmigrant visa (NIV) interview appointments as a result of increased demand.  As of early June, the current wait times for all NIV categories other than B, F, and J are: Chennai, 75 days; Hyderabad, 93 days; Kolkata, 96 days; Mumbai, 88 days; and New Delhi, 100 days.  Unfortunately, backlogs are likely to continue, if not worsen, during the busy summer months.

DOS reports that demand for visas to travel to the United States has increased by 80 percent in the past five years; more than one million visa applications were adjudicated during the last fiscal year alone. While additional consular positions are being requested to alleviate the increase in visa wait times, foreign nationals should consider deferring unnecessary travel to India until after the backlogs have subsided. When travel is essential, be prepared for lengthy delays in the scheduling of visa interviews.

Foreign nationals who must travel to obtain a visa now should be mindful that:

  • The Indian visa appointment system provides a mechanism for requesting an expedited appointment. First priority goes to cases involving humanitarian issues (e.g., travel to receive an organ donation, to care for a seriously ill relative in the U.S., etc.). Business emergencies take second priority. In making a business-expedite request, it is important to articulate why the need to travel is urgent, why advance planning was not possible, and the impact if travel does not occur.
  • India requires applicants for a petition-based visa to have already obtained USCIS approval of the underlying petition before requesting an interview, not just a petition number for a still-pending case.
  • If an Indian national has reason to travel to another jurisdiction, applying outside of India as a Third Country National may be an option. Such applications are mostly likely to be successful in H-1B, L-1, and O petition-based cases.

Immigration Benefits for Old Veterans and New Allies

June 21st, 2016

The U.S. Senate and the USCIS have both recently made efforts to provide more immigration opportunities for military veterans and allies of the United States. These policy changes span two wars and three generations, from the mountains of Afghanistan to the islands of the Philippines, and show that some individuals within our government are still concerned about the well-being, safety, and comfort of those individuals who put their lives on the line in defense of freedom.

On June 8, USCIS implemented the Filipino World War II Veterans Parole (FWVP), a policy that will allow certain Filipinos with approved family-based immigrant petitions to request a grant of parole and come to the United States to live while they await their immigrant visa numbers to become available. This new opportunity is intended for the family members of those Filipino veterans who fought for the United States in World War II and have since become U.S. citizens or permanent residents. Now in the sunset of their lives, these elderly heroes will be able to spend their remaining years with their family.

The importance of the Philippines and the contributions of its citizens to the Allied cause during World War II have largely been forgotten as time has separated us from the conflict.  The Japanese attacked the American-controlled Philippines just hours after they attacked Pearl Harbor because of the strategic importance the island nation held. Control of the islands, particularly Luzon, would allow the Japanese to control the shipping and communication lanes to the southwest reaches of their empire. The combined American-Filipino army fought hard but without relief or reinforcements, and the nation finally fell to the hands of the Japanese in April-May 1942 after the Battles of the Philippines, Bataan, and Corregidor. However, thousands of Filipinos escaped into the jungles and smaller islands and continued to engage the Japanese with guerilla warfare until the Americans returned in force in 1945.

https://www.pinterest.com/carriecuinn/research-philippines-at-war/

 All told, more than 260,000 Filipino soldiers enlisted to fight for the U.S. during World War II. After the war, estimates indicate that up to 26,000 of these veterans became U.S. citizens, and between 2,000 and 6,000 are still alive today. With the exception of immediate relatives (parents, spouses, and unmarried children under age 21), the visa categories for the Philippines have some of the longest waiting times in the world. Some of these veterans have been waiting over two decades to bring their siblings and married children to the U.S.   However, with the implementation of the FWVP, that wait is now over.

Under the new policy, USCIS will be considering individual requests for parole submitted by certain relatives who are beneficiaries of an approved family-based immigrant visa petition filed by Filipino veterans or their surviving spouses. USCIS will exercise its discretion to determine whether a grant of parole is appropriate, taking into consideration the advanced age of these World War II veterans and surviving spouses and their need for care, support, and companionship.  Recipients of parole will be able to travel to the United States and remain here until they become eligible for adjustment of status to permanent residence.

This immigration benefit comes seven years after another victory for Filipino veterans, when President Obama approved a congressional appropriation of a one-time payment of $15,000 for World War II Filipino veterans who are now U.S. citizens and $9,000 for those who are not. These benefits (pension, health care, etc.) were previously denied to Filipino veterans when President Truman signed the Rescission Act of 1946, which denied all military benefits to Filipino veterans under the reasoning that Congress had already given millions in foreign aid to the Commonwealth of the Philippines. However, the current Administration has not allowed the gallant efforts of our Filipino allies to go unrewarded.

Not to be outdone by the executive branch, several U.S. senators have introduced an amendment to the 2017 defense policy bill that would authorize 4,000 additional visas for Afghans who served as interpreters to U.S. troops and officials during the war in Afghanistan to come to the United States.

This amendment will ensure the continuation of the Special Immigrant Visa (SIV) program, which our military commanders have regarded as a great asset during the wars in Iraq and Afghanistan. The SIV program, enacted in 2006, allows Iraqi and Afghan nationals to become permanent residents if they worked as translators or interpreters, or who were employed by, or on behalf of, the U.S. government in Iraq or Afghanistan. Over the past decade, more than 37,000 individuals from Iraq and Afghanistan have been granted special immigrant status.  However, the SIV programs have been plagued by complications in application processing, delays in security screening, unhelpful statutory time frames and frustrating numerical limitations.  These problems have caused major backlogs: in Afghanistan, more than 10,000 qualified individuals have been waiting in limbo for years.

http://www.dailymail.co.uk/news/article-2853088/Taliban-targets-Afghan-interpreters-fought-alongside-forces-blacklisted-refused-visa-allowing-live-America.html

Although these Afghan interpreters and employees have served alongside Americans in dangerous situations, their decision to support U.S. efforts often leave them ostracized and vulnerable, particularly after concluding their employment and waiting for their visa.  The Taliban and other militant groups have been kidnapping and murdering these allies whenever the chance arises. And, with American security concerns at an all-time high, these men and their families are being left unprotected while their visa processing creeps along.

Although the SIV program is for Afghans and Iraqis, the proposed increase in available visas applies only to Afghan allies. Senator Jeanne Shaheen (D-NH), who introduced the amendment, has found bipartisan support in the Senate Armed Services Committee with John McCain (R-AZ), Jack Reed (D-RI) and Thom Tillis (R-NC). In his support for the amendment, Senator McCain stated: “Our nation has a moral obligation to protect those Afghans whose lives are in imminent danger today because they supported American troops and diplomats.” While there have been no solutions to the long processing and security clearance delays, an increased number of available visas will start to alleviate the SIV backlog for Afghans.

Filing Fee Increases for Most Popular Applications and Petitions

June 21st, 2016

In May, U.S. Citizenship and Immigration Service (USCIS) published a proposed rule to increase the fees on nearly all immigration forms. The increased filing fees will be felt across the spectrum of immigration law, as family, employment, and individual cases will all see an increase in fees. Below are the most widely used forms:

 

Family:

Form I-130, petition for family members

Current             Proposed

$420                            $535

Employment:

Form I-129, petitions for H, L, E, O, P, R

(employment-based nonimmigrants)

Current             Proposed

$325                            $460

Form I-140, petition for permanent employment

Current             Proposed

$580                            $700

 

Individual:

Form I-90, application to replace

permanent resident card (green card)

Current             Proposed

$450*                          $540*

Form I-485, adjustment of status (green card)

application

Current             Proposed

$1,070*                       $1,225*

Form I-765, work card application

Current             Proposed

$380                            $410

Form I-131, travel document application

Current             Proposed

$360                            $575

Form I-539, change/extend status application

Current             Proposed

$290                            $370

Form I-751, removal of conditions application

Current             Proposed

$590*                          $680*

Form N-400, naturalization application

Current             Proposed

$680*                          $725*

*Includes biometrics

While these fee increases are only in the proposal stage right now, it is likely that most of these increases will become final and that they will go into effect by the end of the year (premium processing is not projected to change). USCIS operations are financed primarily through filing fees, and the agency is predicting a $560 million shortfall this year.

DOS Phasing Out Employment Authorization for Some A-2 Visa Holders; DOS Retreats from More Restrictive Interpretation for EADs for Certain G-4 Dependents

May 20th, 2016

The Department of State (DOS) is phasing out its endorsement of employment authorization requests for dependents of foreign government employees holding A-2 visas who are considered to be permanently resident in the United States for the purposes of the Vienna Conventions on Diplomatic and Consular Relations. The Office of Foreign Missions will only consider new dependent applications for work authorization if the employment began between July 1 and December 31, 2015. Renewal applications will only be considered if the dependent’s work authorization expires on or before June 30, 2016.

On a related note, in late 2015, DOS began implementing a new interpretation of the reciprocity rules between the United States and other countries with respect to work authorization for certain G-4 dependents, restricting such authorization in the United States unless a bilateral work agreement exists between the United States and the principal G-4’s country of nationality. Fortunately, in late February 2016, this new policy was reversed, and G-4 dependents can again apply for and obtain work authorization regardless of the status of a bilateral work agreement.

Chinese Nationals Visiting the U.S. Expected to Enroll in Online EVUS System by November

May 17th, 2016

Beginning in November 2016, nationals of China using a 10-year business or tourist visitor visa (B-1/B-2) to enter the United States will be required, before being admitted, to also enroll in the Electronic Visa Update System (EVUS). The requirement is the result of a reciprocal agreement between China and the U.S. to issue visitor visas with a 10-year validity period. Currently, visitor visas are only issued for one year at a time for travelers between the two countries.

The EVUS is the online system that is used to periodically update biographic information in order to facilitate travel to the United States.  All visitors from China, including current visa holders, will be required to enroll in EVUS before November.  Enrollment consists of completing a form and paying a nominal fee.  Enrollment in the system will only stay valid for two years at most, when Chinese nationals will have to re-enroll to continue traveling to the U.S. on a B-1/B-2 visa.

 

E Visa Holders Can Obtain New Two-Year Admission Period At Land Border But Need to Request It

May 16th, 2016

The immigration rules permit an individual with an expired visa who travels solely to a contiguous territory for up to 30 days to be readmitted to the United States, effectively revalidating that visa. The foreign national is neither issued a new I-94 nor receives an extended admission period, but instead uses the unexpired I-94 period of admission. E visa holders who have unexpired visas and who travel to Canada or Mexico for 30 or fewer days should be issued a new two-year period of admission. However, they are routinely being readmitted to the U.S. on their unexpired I-94s for the sake of expedience. While at an airport, where I-94s are automated, a fresh two-year admission period will be given. But this is not necessarily the case at land borders. To resolve this issue, CBP has advised that such applicants seeking a two-year I-94 at a land border crossing should request one and be able to articulate why it is necessary.