Local field offices can ask for EAD (Employment Authorization Document) cards from applicants at the conclusion of successful adjustment of status interviews. This is because once the application has been approved, the foreign national is no longer an applicant for adjustment of status, but a permanent or conditional resident. As a result, the authority under which the EAD was granted no longer applies, and the card is no longer valid. Unfortunately, the EAD is often the only document a foreign national has to demonstrate lawful status in the U.S. Many field offices do not issue an I-485 approval notice at the conclusion of the interview, nor routinely place “I-551” lawful permanent resident stamps in passports immediately after a successful interview. By confiscating the EAD at the interview, the foreign national is left without any documentation regarding his or her status in the United States. Should an officer request an applicants EAD card at the conclusion of a successful adjustment interview, request an approval letter or an I-551 stamp. While most green cards are being produced and mailed within two to three weeks of the approval, an approval letter or stamp can serve as proof in the interim and in the event that the green card is not delivered as planned.
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Last spring, travelers passing through customs at Dulles International Airport noticed new equipment being tested there. That equipment was the one-to-one facial image comparisons assisting U.S. Customs and Border Protection (CBP) in identifying possible fraudulent usage of valid passports. After a successful testing period at Dulles, DHS has installed the new technology in three terminals at John F. Kennedy International Airport in New York City.
The system was developed by Unisys as part of its Land Border Integration contract with CBP. The facial-comparison technology relies on the personal image on a passport’s biometric page (which is electronically stored on the small chip in the ePassport and compares it to a live facial image taken at the CBP booth. The system then generates a match confidence score indicating the likelihood of a match between the two photographs. If there is a successful match, the live facial image is not retained.
Facial image comparisons will be used for returning U.S. citizens with ePassports and first-time Visa Waiver Program travelers. The latter have been included because Homeland Security has identified an appreciable risk of passport and identity fraud among this population of travelers, exacerbated by recent terrorist attacks. Since travel on the Visa Waiver Program accounts for about two-thirds of all business and leisure travel to the U.S., the new technology will be heavily used.
Given its success as a test program, Dulles Airport is expected to adopt the new facial-comparison program in February 2016. CBP has not stated whether additional airports will use the one-to-one program, but the agency will be conducting additional tests to evaluate new biometric technologies in different environments in 2016.
Professionals from India and China face multiple-year visa waits because their employment-based (EB) visa categories are oversubscribed. Recently, however, there has been some significant forward movement, reducing wait times in some categories by as much as six months. Below is a summary of waiting times and the reasons for the movement:
EB-2 India: In the March Visa Bulletin, the EB-2 India final-action date advanced to October 15, 2008, shaving off 8½ months from where the category was just three months ago. The Department of State (DOS) explains that demand was less than anticipated — thus the forward movement — and also reflects a strategy of advancing dates more aggressively earlier in the year in an effort to ensure that cases can be completed and all visa numbers used within the fiscal year. The lower demand may be attributable to fewer EB-3 to EB-2 upgrades than expected, or that the last advancement sufficiently captured the bulk of the demand. Low demand also may be the result of USCIS working through a backlog of EB-2 India cases, which would give the appearance that demand has tapered off. The category, advises DOS, is not expected to move at this pace in the coming months.
EB-2 and EB-3 China: The EB-2 Final Action date for China continues to lag behind the EB-3 China Final Action date in March — August 1, 2012 for EB-2 and June 1, 2013 for EB-3. DOS explains that while demand decreased in November and was relatively low in December, demand for this category was high in October. At the same time, demand for EB-3 China is on the low side. Thus, EB-3 China continues to advance. Because the EB-3 category cut-off date for China continues to be more than 10 months ahead of EB-2 China, foreign nationals and their employers degrade from EB-2 to EB-3, which in turn causes greater than normal fluctuations in both categories.
On a related note, USCIS has determined that for family-sponsored filings, the “Dates for Filing Visa Applications” chart for March 2016 may be used. For employment-based filings, the Application “Final Action Dates” must be used.
On January 2, 2016, the Obama Administration authorized Immigration and Customs Enforcement (ICE) to raid the homes of immigrant families who had illegally entered the United States through the southern border since 2014. After only two days, 121 people were detained. Advocacy organizations and members of Congress have been lashing out at President Obama over this controversial policy. They argue that the nationwide raids are a violation of due process and are inhumane, spreading terror and anxiety among many Central American immigrant families who suffer from fear of deportation to dangerous and violent conditions in their home countries.
Some Canadian O and P travelers recently have been told by CBP officers that their admission may be denied for not having the original I-797 approval notices when they seek to enter the United States. In a recent meeting, CBP confirmed that presentation of a photocopy of an approval notice is sufficient for CBP to verify the petition validity and grant admission. The issue arises because Canadian nationals are exempt from the visa requirement for O and P visas and often are approved with multiple beneficiaries but only receive one original approval notice. Because the beneficiaries frequently do not travel together, only one person will have the original and all others only copies.
Once again it is H-1B filing season, and, once again USCIS is likely to receive a record number of petitions and the full allocation of visa petitions in the first week of filing commencing April 1. Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2017, for work that commences on October 1, 2017.
Visas for professional specialty workers (H-1Bs) are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (Master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside for nationals of Chile and Singapore under special rules of H-1B1 visas.
While some H-1B petitions can be filed at any time because they are cap exempt, the vast majority of H-1B petitions for new work must be filed in April. Thus, employers should immediately identify first-time H-1B employees and begin preparing necessary petitions for the early April filing period.
New Rules Tweak Certain Nonimmigrant (E-3, H1-B1, CW-1) and Immigrant (Professor/Researcher) Visa ClassificationsWednesday, March 2nd, 2016
The Department of Homeland Security (DHS) has published new rules, effective February 16, 2016, that tweak the eligibility requirements or the work authorization process for four visa classifications. Below is a summary of what has changed:
Outstanding professors and researchers are eligible for priority worker immigrant visa classification if they can demonstrate international recognition in their academic field, three years of experience in teaching or research, and an offer of employment at an institution of higher learning or research facility. USCIS regulations provide six categories of acceptable evidence to demonstrate international recognition; however, those categories are limiting and do not specifically allow for other kinds of evidence that could equally establish eligibility. The new rule provides for greater flexibility by adding a catch-all category of acceptable evidence — “comparable evidence to establish . . . eligibility” — that would permit other significant accomplishments and achievements, such as important patents and peer-reviewed funding grants, for consideration. This additional language aligns with comparable evidence that can be presented in the extraordinary ability category.
E-3, H-1B1, and CW-1 are nonimmigrant work visa categories that have been treated as the other nonimmigrant work-visas classifications with respect to work authorization “incident to status,” even though the regulations did not specifically provide for such. Visa holders in other nonimmigrant work-visa classifications are permitted to work for 240 days during the pendency of a timely filed extension application, but these nonimmigrants were not expressly permitted to do so even though in practice they were. The new rule remedies these anomalies and makes the categories consistent.
What are these visas? Available only to nationals from Australia, the E-3 visa is similar to the H-1B professional specialty worker visa. The H-1B1 visa is a result of free trade agreements with Chile and Singapore and is also similar to the H-1B. The CW-1 visa allows certain workers in the Commonwealth of the Northern Mariana Islands (CNMI), a small group of islands within the Mariana archipelago that has been under U.S. control since the end of World War II, to work there. The CNMI has its own immigration laws but is slowly transitioning to U.S. federal immigration compliance.
DHS and USCIS published long-awaited proposed rules on December 31 that address issues faced by high-skilled immigrants, but the majority of the changes are very modest and disappointing overall. Many of the proposals codify existing policy and interpretations, and while a few alleviate some of the worst problems, others are far from what was expected and what the Administration could have proposed. Over a year ago, the Administration promised to “modernize” the employment-based immigration system to the extent possible within the boundaries of the current law.
One of the most pressing issues in the high-skilled immigration system is the long delays in the green card process, particularly for immigrants from certain countries. These employees are already the beneficiaries of immigrant petitions based on the unavailability of their skills in the U.S. labor market, but their immigrant petitions are currently only valid for the employer who sponsored them. During the long wait for their green cards to become available, skilled immigrants in these backlogs are stuck on employer-sponsored temporary visas, a situation that some employers exploit and that limits an employee’s career advancement as often a new employer is unwilling to repeat the expensive employment-based sponsorship process for a new hire. In addition, employment authorization for spouses is limited, and children born outside the United States but raised here are at risk of “aging out” and losing the opportunity to obtain their green cards as derivative dependents of their parents. The proposed rule contains helpful provisions meant to protect these skilled immigrants from the worst problems associated with their temporary visa status.
For example, the proposed rule will allow certain skilled workers with compelling circumstances who have an approved I-140 immigrant visa petition to apply for a one-year employment authorization card if specific criteria are met. Additional criteria include that the individual is currently in the U.S., maintaining E-3, H-1B, H-1B1, O-1 or L-1 status, and cannot immediately move forward with the permanent residence process due to visa backlogs. Although compelling circumstances is left undefined in the proposed rule to provide flexibility for the skilled worker, several examples are outlined by DHS, which might include the need to relocate because of a disability or illness, employer retaliation for a working conditions complaint, or a compelling need of the employer to have the employee continue employment. Extensions of the one-year period of employment authorization are extremely limited and an individual will be ineligible for such employment authorization if convicted of any felony or two or more misdemeanors. Spouses and children will be eligible for an EAD if the principal spouse or parent is granted an EAD. The EAD of the dependent will only be granted for the same time period of the principal spouse or parent. This is an area where the proposal should have provided more flexibility to immigrants who have followed the rules but may find themselves stuck because of quota backlogs they did not create. The high standard required to justify a grant of employment authorization under compelling circumstances means that many skilled immigrants will not qualify as outlined in the proposed rule.
The proposed rule also allows certain classes of individuals eligible for employment authorization to have the validity of their EADs automatically extended for a period of 180 days as long as the renewal application for an extension was timely filed. H-4 and other spouses with EADs are not eligible for the 180-day benefit. Under the proposed rule, a filing receipt will be required to demonstrate work authorization for Form I-9. Although DHS indicates that it will remain committed to a 90-day processing time period, the 90-day time limit to process EADs is being eliminated under the proposed rule.
In addition, the rule will grant E, L, H-1B and TN workers a sixty-day “grace period” after their employment ends, which will allow them to either look for other employment, change to a different type of temporary visa, or wrap up their affairs in the United States. This is an improvement given that under current interpretation the employee’s status ends immediately upon termination of employment. Another proposal will allow for 10-day grace periods at the beginning and end of the validity period for work visa categories other than the H-1B category.
The proposed rule also provides “whistleblower” protections for some employees who report wage and working condition violations, allowing them to change to a new employer or another status even if their employer terminated their employment. It also codifies current administrative practice in a number of areas, including the definition of employers exempt from the annual cap on H-1B visas (universities, nonprofit research organizations, government research organizations, and related or affiliated nonprofit organizations), the eligibility of H-1B employees to work for a new sponsoring employer upon filing of a new H-1B petition, and the ability of H-1B nonimmigrants to have that status extended beyond the general six year limitation during the long green card sponsorship process.
With the change in Administration coming in 2017, it is likely that this proposed rule will become final in the coming months once comments are reviewed and incorporated. Comments are due February 29, 2016.
The following additional items may be of interest to our readers:
TPS Designation for Liberia, Guinea, and Sierra Leone: As a result of the recent outbreak of Ebola in West Africa, the DHS has designated Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS). The designation is effective for an 18-month period from November 21, 2014, through May 20, 2015. Eligible nationals from these three countries may apply for TPS if they are already in the U.S.; if TPS is granted, they will not be removed from the U.S. and will obtain work authorization.
TPS Extended for Nationals from Nicaragua and Honduras: DHS extended the designation of Nicaragua and Honduras for Temporary Protected Status (TPS) for 18 months from 1/6/2015 through 7/5/2016.
New NIV I-129 Petition Form Must be Used after Feb. 24: USCIS recently released a new Form I-129, Petitioner for a Nonimmigrant Worker, containing an edition date of 10/23/14. USCIS currently accepts I-129 forms with the new 10/23/14 edition date — as well as editions dated 10/07/11, 01/19/11, and 11/23/10 — until May 1, 2015. However, after May 1st, USCIS will only accept the 10/23/14 edition.
California Driver’s Licenses for Undocumented Immigrants: Beginning January 1, undocumented immigrants will be able to apply for California driver’s licenses, thanks to AB60, which Governor Brown signed into law in 2013. This AB60 driver’s license will have a visible distinguishing feature and will subject cardholders to certain federal limits, such as entering restricted federal facilities. Further information is available on California’s DMV site.
DNA Evidence Not to Be Afforded Evidentiary Weight to Sibling to Sibling Relationships: A policy memo stating that because probability standards for sibling-to-sibling DNA test results have not been established, USCIS may not afford evidentiary weight to sibling-to-sibling DNA test results. USCIS will, however, continue to rely on DNA testing results between parents and children.
USCIS Approves 10,000 U Visas for Sixth Straight Fiscal Year: USCIS has approved the statutory maximum of 10,000 petitions for U-1 nonimmigrant status for FY2015. The agency announced that it will continue to review pending petitions for eligibility and notify eligible individuals that they are on a waiting list. USCIS will resume issuing U visas on Oct. 1, 2015. U visas are available for victims of certain qualifying crimes who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute those crimes.
As of November 12, the National Visa Center (NVC) stopped collecting original civil documents (birth certificates, marriage certificates, police clearances, etc.) as part of the immigrant visa (IV) application process. Rather, IV applicants will now be instructed to bring their original documents with them to their interview. This will be a huge relief for foreign nationals who worry about parting with often hard-to-obtain original documents. The NVC hopes that this will make the application process more efficient and reduce waiting times. We hope so too!