Posts Tagged ‘USCIS’

Is Your Employment-Based Green Card Application Pending? What You Need to Know before Changing Jobs

Thursday, May 12th, 2016

USCIS recently published a new policy memorandum regarding a provision in the law that permits green card applicants who are beneficiaries of a valid I-140 petition to change jobs or employers in certain circumstances without having to file a new PERM and I-140.  This is known as “porting.” To successfully change or port jobs/employers, the beneficiary’s green card application (I-485) must be pending for at least 180 days and the new job must be in the “same or similar” occupational classification as the job for which the I-140 was originally filed. But, how do you know if your I-140 job and your new job are the same or similar?  The following guidance is found in the policy memo.

First, take a look at the “SOC” code that was listed on the labor certification (the PERM form filed with your I-140, page 2). The code is based on the job.  For example, 15-1134 is for Web Developers.  This six-digit number should be your primary focus when considering whether to accept a new position/employer. Your goal is to choose the job that will not result in any changes to your SOC code because USCIS will look at the new job duties to determine the proper SOC code.  While other factors like salary, title, education, etc. are considered, nothing carries more weight than the actual job duties the beneficiary will perform. (The government-approved job duties for SOC codes can be found at www.onetonline.org.)  If the SOC code from the I-140 petition is identical to the SOC code selected for your new position, USCIS will acknowledge it as the “same or similar” occupation.

If the last digit is different, say, 15-1133 (Software Developer, Systems), the USCIS adjudicator will review your job duties to determine the actual degree of overlap.  Some professions overlap considerably and may count as “similar,” while others do not.  A good indicator is the first two digits, “15” in this case. Every computer and mathematical occupation starts with 15, so you have a good chance of finding a similar occupation for porting with the “15” major group.

If your new job causes a change in the first two digits of your I-140 SOC code, you are likely outside the scope the “same or similar” job and your green card is at risk, except in one case — promotion to a managerial position.  All managers have an SOC code that starts with 11.  A Software Developer, Systems, (15-1133) who is promoted to manager will likely be classified as 11-3021, Computer and Information Systems Manager.  Because this portability provision is intended to encompass promotions, a comparison of the job duties of a software developer and their manager will reveal significant similarities because of the technicalities of the field.  However, not all promotions are handled equally.  An individual who has a valid I-140 for a cook position cannot accept a promotion to restaurant manager — the job duties are significantly different in that case.

The policy memo guidance issued by USCIS is intended to give foreign nationals more clarity and thus more job flexibility while they wait for their green cards.  Before changing jobs or accepting a promotion, discuss any and all implications on your green card with your immigration attorney.

News in Brief!

Monday, May 9th, 2016

The following additional items may be of interest to our readers:

Visa Waiver Program Users Restricted from Traveling to Libya, Somalia, and Yemen: The list of restricted countries for the Visa Waiver Program has grown by three.  Libya, Somalia, and Yemen have joined Iran, Iraq, Sudan, and Syria as “red-flag” countries.  DHS has limited eligibility for the Visa Waiver Program for individuals that have visited these countries since March 1, 2011. These restrictions do not apply to dual nationals of Libya, Somalia, and Yemen, but continue to apply to dual nationals of Iraq, Iran, Sudan, and Syria.  Other individuals such as journalists, government officials, and NGO employees can receive waivers on a case-by-case basis.

Petitioning for a Sibling? Consider Using a DNA Test: The Board of Immigration Appeals (BIA) overruled a USCIS policy that prevented consideration of sibling-to-sibling DNA tests.  The BIA held that USCIS had no real justification, scientific or otherwise, to refuse consideration of DNA tests results in sibling cases.  Therefore, a DNA test might be worthwhile to include, especially when the siblings are more advanced in years and birth certificates were issued late or not at all.  A DNA test that indicates a 99.5% match between the siblings is powerful evidence of a qualifying relationship.

TPS Designation Extended for Guinea, Sierra Leone, and Liberia:  Recent DHS notices extended the designation of Guinea, Sierra Leone, and Liberia for Temporary Protected Status (TPS) for six months, from 5/22/16 through 11/21/16. The 60-day re-registration period runs from 3/22/16 through 5/23/16.

 

USCIS Proposing to Cancel Interim Employment Authorization (EAD) Cards

Friday, May 6th, 2016

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.

Supreme Court Hears Oral Arguments on President’s Executive Actions on Immigration

Wednesday, May 4th, 2016

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.

USCIS Processing Times — What to Expect

Wednesday, May 4th, 2016

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.

New Rules Tweak Certain Nonimmigrant (E-3, H1-B1, CW-1) and Immigrant (Professor/Researcher) Visa Classifications

Wednesday, 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.

 

Visa Bulletin Changes

Thursday, October 29th, 2015

The Department of State (DOS) and USCIS announced new procedural changes to the Visa Bulletin that may provide some relief to immigrant visa applicants affected by current visa backlogs. Under the new procedure, the Visa Bulletin presents information regarding immigrant visa number availability differently. Now, there are two sets of cut-off dates for both family- and employment-based immigrant visa categories, “Application Final Action Date” and “Date for Filing.”

The “Application Final Action Date” is essentially the same as the “Priority Date” cut-off date of previous years.  The “Date for Filing” is new.  The Department of State will use this date to determine when an immigrant visa applicant may assemble and submit required documents to the National Visa Center (NVC), following receipt of notification from the NVC. USCIS, however, will not automatically use the “Date for Filing” in adjustment of status applications. Rather, it will follow the “Application Final Action Date” chart for accepting adjustment of status applications. However, upon determining that additional immigrant visas are available, USCIS may decide to then accept adjustment applications based on the “Date for Filing” chart. USCIS expects to make that determination within a week of the posting of each new Visa Bulletin. For November 2015, USCIS has determined that applicants for adjustment may use the “Date for Filing” chart.

While the new system does not make applicants in high-demand immigrant visa categories permanent residents any sooner – it does not eliminate the severe backlogs experienced by foreign nationals of certain countries – it will provide the opportunity for individuals to obtain employment authorization and travel documents sooner than they would otherwise, which alleviates the dependency on visas for temporary work authorization, and allows them to change employers.  The new procedure also should allow cut-off dates to advance at a slower and steadier pace in contrast to the widely varying speeds with which they advanced in the past

Ongoing Delays for Interview-Waivable Cases

Friday, September 18th, 2015

Since 2013, there have been extensive adjudication delays of certain interview-waivable, family-based adjustment of status cases held at the National Benefits Center (NBC), with no real relief available while the case waits. Interview-waivable cases are those that the USCIS determines a personal interview at a USCIS field office is not required for adjustment adjudication. While in theory this is a benefit because the individual is not required to appear for an interview, in practice delayed cases are often adjudicated after a year or even longer whereas individuals scheduled for an interview at a USCIS field office normally obtain a decision and their green card within 6–8 months of filing. For the past two years, USCIS has repeatedly stated that it is trying to resolve this problem; however, delays continue. According to the latest USCIS update released on April 16, 2015, USCIS hopes to bring these cases within the regular four-month NBC processing time by the end of this fiscal year – September 30, 2015. We can only hope this means all delayed cases will be adjudicated by this date and going forward all interview-waivable cases will be processed within four months.

Certain DACA Recipients with Three-year EADS Must Return Them to USCIS

Friday, August 28th, 2015

In response to the injunction challenging President Obama’s executive action on immigration (Texas v. United States), USCIS is taking extreme measures to retrieve three-year employment authorization documents (EADs) issued to DACA recipients in violation of the court’s order even though the recall only applies to recipients who received the card after February 16, 2015. Such steps included making home visits to obtain the cards. There are more than 100,000 other DACA recipients with valid three-year EADs who do not need to return them.

As of August 5, 2015, USCIS has accounted for over 99 percent of the approximately 2,600 identified invalid work permits requiring return. USCIS sent multiple letters to such recipients warning them that they must return the EAD by July 17, 2015.  Failure to return the invalid EAD without good cause, USCIS warned, may affect the recipient’s deferred action and employment authorization. Indeed, USCIS reports that 22 recipients failed to respond to the recall, and their DACA has been terminated.

Meanwhile, the DHS Inspector General found no evidence that USCIS deliberately violated the court’s injunction when it issued the three-year EADs after the court enjoined the November 2014 executive actions on immigration.

New I-129 Form Work Visas Goes Into Effect May 1

Thursday, March 19th, 2015

USCIS released a new Form I-129 Petition for Nonimmigrant Worker, that is visually and substantively different from the prior edition. The new form, containing an edition date of 10/23/14, includes a number of new attestations that must be made by the preparer. The new form is required for all filings received by USCIS on May 1, 2015 and thereafter. (USCIS had previously announced that the new forms would be required as of 2/23/15 but moved the effective date until after the H-1B filing season.)