Under current regulations, if an initial applicant for work authorization does not receive a decision within 90 days of filing, USCIS must issue an interim work card. However, USCIS recently proposed a rule that will eliminate that obligation. If accepted, the result of this new rule would affect employment-based visas dependent on the EAD card, family-based green card applicants, foreign students, U visa recipients, asylum applicants, and individuals in removal proceedings. In the context of adjustment of status, work authorization and advance parole travel authorization are adjudicated together, thus the new rule could have a negative effect on the issuance of combo cards. The proposal does provide for automatic extensions for applicants who apply to renew their previously granted EADs. Comments to the proposed regulation were due in late February. It is unclear when final rules will be promulgated.
For many employers who wish to sponsor a foreign national on an employment basis, they must take steps to establish that there are no willing, qualified, and able U.S. workers available for the position, and that the foreign national will be paid the prevailing wage for the job. This portion of employment-based permanent immigration is handled by the Department of Labor (DOL) and is called PERM labor certification. In the last fiscal year, DOL adjudicated 89,151 PERM cases, an increase of 17% in the number of cases filed. In late February, DOL held a stakeholders meeting to discuss the labor certification process. The resulting report contained three issues that employers will want to consider when pursuing a PERM application: potential fees, job titles, and skill experience.
Perhaps most disheartening about the report is the indication that DOL is considering instituting fees for the PERM process. Today, filing a prevailing wage request and a labor certification is free. But, due to a lack of funding to address the growing number of cases and backlogged audits, DOL is looking for filing fees to cover those costs and it is looking to employers. As an example of the need for increased funding, DOL reported that prevailing wage determinations, the first step in the PERM process, now take longer than 60 days to reach a determination due to a lack of staffing and funding. While there was no indication when filing fees would be implemented, they are on the horizon.
Another issue mentioned in the report is the job title of the offered position. Employers often have their own ideas about how they want to title a position, what experience will be required, where and how they want to recruit, and how much the salary will be. These ideas rarely align with DOL’s expectations, especially the job title and salary. For example, the DOL report confirmed that positions with words like “Senior,” “Chief,” or “Journeyman” in the title will merit a higher salary, often $8,000 to $12,000 more than expected, even if the position is entry-level. Employers should be mindful of this before adding arbitrary titles to entry-level positions because it will make a difference in DOL’s salary assignment.
Also, when an employer is recruiting for a position that requires three years of experience and a specific skill (like C++ programming), they need to be sure that their intended foreign worker has both three years of experience and three years of that specific skill. DOL has been issuing denials over imputed quantification of the specific skill. DOL acknowledged this practice in the report and did not express any desire to change. Likewise, DOL has been unkind to employers who describe the salary as “competitive,” “negotiable,” or “depends on experience,” or who fail to include any offered housing in the advertising language.
The PERM process is unforgiving, but if employers have a better idea of what to expect, and how to align their business needs with DOL regulations, chances of a successful PERM filing increase dramatically. This is best accomplished when employers are educated about the basics of PERM applications and work with their attorneys.
On April 18th, the U.S. Supreme Court considered United States v. Texas, a politically charged lawsuit about the legality of some of President Barack Obama’s executive actions on immigration. The initiatives in dispute — expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) — have been on hold since a district court in Texas issued a preliminary injunction in the case in February 2015. A Supreme Court decision in favor of the United States could clear the way for the initiatives to go forward as early as June 2016 and provide temporary relief from deportation to as many as 3.7 million people.
The case now before the Supreme Court involves a lawsuit filed in federal district court in the Southern District of Texas by 26 states seeking to block implementation of the President’s plan to expand DACA and implement DAPA. The states claim that expanded DACA and DAPA violate federal laws and the Constitution. Specifically, they make the following claims:
- Expanded DACA and DAPA violate the “Take Care Clause” of the Constitution, which states that the President must “take Care that the laws be faithfully executed.”
- Expanded DACA and DAPA violate the Administrative Procedure Act (APA) because these initiatives are arbitrary and capricious or otherwise not in accordance with the immigration laws.
- The federal government did not comply with certain technical procedural requirements under the APA, including notice-and-comment rulemaking, before it announced the expanded DACA and DAPA initiatives.
The Supreme Court is considering whether the states have standing, or legal capacity, to bring the lawsuit. In addition, the Court may consider whether expanded DACA and DAPA are lawful or whether they violate the Constitution or the APA.
Should the Justices reach a 4-4 decision, rather than a majority, the Fifth Circuit’s decision would remain intact. As a result, the injunction preventing implementation of DAPA and expanded DACA would remain in place, and the district court would proceed to the merits of the case.
Effective May 10, a new rule published by the Department of Homeland Security (DHS) will make a big difference for foreign students majoring in STEM (science, technology, engineering, mathematics) fields. In an effort to attract and retain more foreign students, DHS is permitting a 24-month extension for foreign students who have U.S. STEM degrees and are doing their Optional Practical Training (OPT) in a STEM field. The current rules allow for a 17-month extension for STEM students after their one year of OPT if their employers participate in E-Verify. While the new rule creates opportunities for foreign students, employers will have additional paperwork requirements in order for their foreign student employees to take advantage of the extension.
In addition to the two additional years of employment authorization post-graduation, STEM students will have additional opportunities to play the H-1B lottery during their 36 months of OPT. With the quota stagnant and the number of petitions rising, this is a huge benefit for foreign students. Summer STEM graduates often take advantage of OPT and are frequently sponsored by their employers for an H-1B visa in April. If they are selected, they transition into H-1B status in October. If not, they can apply for the STEM OPT extension and have two full years to work — and two additional chances to apply for the H-1B visa.
For foreign students to receive a STEM OPT extension, they will need to obtain an updated I-20 form from their Designated School Official (DSO). Students and employers will have to work together to create a formal training plan that identifies learning objectives and a plan to achieve those goals. While mandatory employer enrollment in E-Verify is a holdover from the current OPT STEM extension rule, employers now also must attest to the fact that they possess the resources to implement the training plan, that the work will be an educational benefit to the student, that no U.S. worker will be displaced, and that the student will be paid the wages and benefits comparable to other similarly situated U.S. workers employed at the work site.
The new rule also requires more oversight of the STEM OPT program. DHS will impose a basic validation requirement six months into the STEM OPT extension that will collect biographic and employment information from the foreign national. At the one-year mark, DHS expects a self-evaluation report to be drafted by the student and provided to their DSO. Any material changes must be reported immediately.
The additional rules and paperwork are a price worth paying for extended employment opportunities that benefit both students and employers. And, the extra chance to play the H-1B visa lottery is a huge collateral benefit for STEM students. It seems that DHS and the Administration are serious in their commitment to attracting and retaining foreign graduates.
Immigration cases often move at a snail’s pace and require much patience. Processing times often change and often do so without notice. Nevertheless, posted processing times by USCIS have, in the past, served to reasonably estimate when a case should be decided and help all concerned manage their expectations. Now not so. USCIS-posted processing times uniformly appear to be out of synch with reality. Not only are posted processing times not updated regularly, but when inquiries are made with the National Customer Service Center, USCIS representatives frequently advise that the posted processing times are not the real processing times. In response to this lack of transparency as well as a growing backlog in processing, the immigration bar has requested a meeting with USCIS Director León Rodrìguez to discuss the processing times problem. Stay tuned.
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.
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.
Extension of Sudan and South Sudan TPS to 11/2/2017: DHS has extended Sudan’s and South Sudan’s designation for Temporary Protected Status (TPS) for an additional 18 months. The extended designation is effective 5/3/2016 through 11/2/2017.
TPS Registration for Yemen Open Until 3/3/2016: The deadline to register for Temporary Protected Status (TPS) for Yemen is 3/3/2016. USCIS has been accepting applications for TPS Yemen since 9/3/2015, when DHS Secretary Jeh Johnson designated Yemen for TPS for 18 months.
Groups Request TPS for El Salvador, Guatemala, and Honduras: On January, over 270 civil rights, labor rights, immigrant, human rights, and humanitarian organizations sent a letter to President Obama asking his administration to grant Temporary Protection Status (TPS) to immigrants from El Salvador, Guatemala, and Honduras because of the dramatically escalating violence that has precipitated the humanitarian crisis of refugees fleeing the Northern Triangle countries.
Researchers Find that Immigrants Wait on Average 22 Months to Have Their Day in Immigration Court: As of the end of January 2016, cases in U.S. immigration courts have been open for an average of 667 days, a new high, up 3.7 percent from the end of FY2015, and 17.6 percent longer than at the end of FY2014. For some immigrants, delays can mean buying time before their eventual deportation; for others, it means they have to wait for remedies that may be available to them.
Pennsylvania Revokes License to Berks County Family Detention Facility: The Pennsylvania Department of Human Service informed DHS that it would not renew and would revoke the operating license for the Berks County Residential Facility, the immigration detention center that jails mothers and children in Leesport, PA, because it was not operating as a child-only residential facility, as required under the Human Services Code or the departments regulations.
Long-Ago Entry — What to Do If You Lost Your Passport and White I-94 Card and Need to Prove Your EntryMarch 4th, 2016
Foreign nationals who entered the United States before CBP moved over to an electronic arrival/departure system for I-94 records were issued white I-94 cards that were stapled into their passports. That record is important evidence to prove that the foreign national was inspected and admitted. This arises most often when the foreign national is out of status but still eligible to adjust status as an immediate relative of a U.S. citizen (spouse, parent, or child). When that record is lost, the foreign national can request a duplicate from USCIS, but USCIS cannot always find the record. What to do? Other agencies may have copies of the original records. For example, if you applied for a Social Security card – years ago, foreign nationals who had a valid and unexpired visa and I-94 were issued Social Security cards – you can request from the Social Security Administration the documents that were used to request that SS card: the passport number and the I-94 record.