State Dept. Moves Many Filing Dates Back From Previously Released October Visa Bulletin; Temporary Restraining Order Enjoining the Action Denied by Federal Judge
On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. A lawsuit is challenging the change.
The proposed rule awaits OMB approval before it can be published for public comment.
Congress has extended the EB-5, E-Verify, Conrad state 30 (physician J-1 waiver), and religious workers programs until December 11, 2015, as part of congressional passage of a continuing resolution to fund the government.
CBP Redesigns ESTA Website for Visa Waiver Program; U.S. Announces Expansion of ‘Trusted Traveler Trilateral Agreement with Canada and Mexico”
Some of the new features include access to frequently asked questions at any time during the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications using a smartphone; translation capability at any point in the application by choosing one of 23 languages; and availability of the Group feature at the beginning of the application process to make it easier for families and groups to submit their applications at the same time.
The new agreement outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.
USCIS Reminds Those Affected by South Carolina Floods and other Unforeseen Circumstances of Immigration Relief Options
USCIS said that requestors should explain how the flooding created a need for the requested relief.
The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017.
1. State Dept. Moves Many Filing Dates Back From Previously Released October Visa Bulletin; Temporary Restraining Order Enjoining the Action Denied by Federal Judge
On September 24, 2015, the Department of State issued an update to its previously released October Visa Bulletin. The original version of the bulletin, in conjunction with a revised process that allows beneficiaries of approved immigrant visas to file adjustment of status applications, created an opportunity for thousands of beneficiaries of approved immigrant visas to file adjustment of status applications despite their priority date not being current. These beneficiaries were thus eligible to seek certain interim benefits associated with filing an adjustment application (ie. employment authorization, re-entry permits, etc.) that were not previously available to them. While this revised process is still in effect, the updated visa bulletin drastically reduced the number of persons who can take advantage of it. As a result, many beneficiaries were eligible under the original bulletin but are no longer eligible now, despite having already invested time and money into the process of filing an adjustment application. The resulting outcry is colloquially referred to as “Visagate.”
Under the revised process, beneficiaries of approved family or employment-based immigrant visas are able to file adjustment of status applications if their priority date is equal to or earlier than the date listed on a separate chart of the bulletin titled “Dates for Filing Applications.” In the original version of the October Visa Bulletin, these filing dates were significantly earlier than the priority dates for final adjudication. However in the updated version, the Department of State rolled back filing dates substantially so that, according to USCIS, the filing dates would “better reflect a timeframe justifying immediate action in the application process.” The agency further stated that there was no way it could comply with the law without revising the bulletin.
An informal survey of immigration lawyers revealed that about 80-90% of people who were eligible to apply for adjustment of status under the original Visa Bulletin were adversely affected by the changes announced by USCIS and DOS. Many of these individuals already gathered documents, prepared applications, paid for medical examinations, and incurred other costs in reliance on the previously published dates. A class action suit challenging the change was filed in federal court on September 28, 2015 alleging irreparable harm to those “who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published.”
On October 7, 2015, a judge rejected a petition for a temporary restraining order (TRO) that, if approved, would have meant reinstatement of the original visa bulletin. The Court was not persuaded by plaintiffs’ arguments that emergency relief was in order, and explained, “While the Court appreciates the confusion caused by the two Visa Bulletins published in September and the potentially wasted expenses Plaintiffs incurred as a result, because Plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the Court cannot issue injunctive relief.” Attorneys for the plaintiffs have set up a Facebook page to track litigation.
The latest visa bulletin and information about eligibility for filing adjustment applications is available here.[Back to Top]
2. DHS Submits New Proposed Rule on Expanding F-1 STEM OPT
On October 2, 2015, the Department of Homeland Security submitted to the Office of Management and Budget (OMB) a new proposed rule to expand F-1 Science, Technology, Engineering, and Mathematics (STEM) optional practical training (OPT). The new rule comes in response to a court order from August 2013 vacating DHS’s 2008 STEM OPT extension rule, finding that DHS failed to allow for public comment on the 2008 rule in violation of administrative law. DHS properly submitted the new rule for notice and comment on October 19, 2015, and the public may comment on the proposed rule, published here, until November 18, 2015.
The proposed rule allows F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension would effectively replace the 17-month STEM OPT extension currently available to certain STEM students. The rule also increases oversight of STEM OPT extensions by, among other things, requiring the implementation of formal mentoring and training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools.
As with the current 17-month STEM OPT extension, the proposed rule would authorize STEM OPT extensions only for students employed by employers enrolled in U.S. Citizenship and Immigration Services’ (USCIS) E-Verify employment eligibility verification program. The proposal also includes the “cap-gap” relief first introduced in 2008 for any F-1 student with a timely filed H-1B petition and request for change of status. DHS said that the cap-gap relief allows such students to automatically extend the duration of F-1 status and any current employment authorization until October 1 of the fiscal year for which such an H-1B visa is being requested.
Finally, the proposed rule responds to the court decision vacating DHS’s prior regulation on procedural grounds. The proposed rule includes changes to the policies announced in the 2008 rule to further enhance the academic benefit provided by STEM OPT extensions and increase oversight. DHS noted that “[t]hese on-the-job educational experiences would be obtained only with those employers that commit to developing students’ knowledge and skills through practical application. The proposed changes would also help ensure that the nation’s colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.”
A helpful comparison of the proposed rule to the current rule is available here.[Back to Top]
3. Congress Extends Four Immigration Programs Until December 11
Just before midnight on September 29, 2015, the President signed a bill into law extending four immigration programs that were scheduled to expire on September 30th. The programs include EB-5, E-Verify, Conrad State 30 (for physicians in J-1 status), and the religious workers program. The programs were extended as part of a continuing resolution from Congress to fund the government until December 11, 2015, the deadline by which Congress must again decide whether to re-authorize the programs long-term, allow them to expire, or pass another continuing resolution.
Members of Congress hope to reauthorize and reform the EB-5 program for immigrant investors in time for the December 11th deadline; however the outcome is uncertain due to political disputes and legislative scheduling pressures. Several bills have been introduced proposing various program reforms, but some of the major issues around EB-5 remain unresolved. Text of the complete resolution may be found here.[Back to Top]
4. CBP Redesigns ESTA Website for Visa Waiver Program; U.S. Announces Expansion of ‘Trusted Traveler Trilateral Agreement with Canada and Mexico”
U.S. Customs and Border Protection launched a redesigned Electronic System for Travel Authorization (ESTA) website for Visa Waiver Program (VWP) participants on September 10, 2015, available here. Visa Waiver enables nationals of 38 designated countries to travel to the United States for tourism or business for a period of up to 90 days without having to undergo the process of procuring a visa at a local U.S. consulate.
Nationals or citizens of VWP countries must have an approved ESTA before boarding a carrier to travel by air or sea to the United States under the VWP. ESTA applications should be submitted at least 72 hours before travel. Once approved, the ESTA is generally valid for multiple entries for a period of up to two years or until the applicant’s passport expires. Travelers with valid ESTAs should note that despite the website redesign, approved participants are not required to reapply for new authorization unless they receive new passports or until their current ESTAs expire.
Some of the new features of the ESTA site include access to the “frequently asked questions” throughout the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications on their Smartphone; translation capabilities featuring 23 different languages; and the addition of a “Group” feature, available at the beginning of the application process, that makes it easier for families and groups to submit their applications at the same time.
In related news, the Department of Homeland Security (DHS) joined Public Safety Canada and the Secretariat of Governance of Mexico in a trilateral agreement to expand its “trusted traveler” programs. The new agreement, signed on July 10, 2015, outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening benefits upon arrival at international airports, including members of the Viajero Confiable (Mexico) and NEXUS (U.S.-Canada) programs. Eligible travelers can apply for expanded benefits beginning in 2016. U.S. citizens are already eligible to apply for the NEXUS and Viajero Confiable trusted traveler programs through existing partnerships between U.S. Customs and Border Protection (CBP), Public Safety Canada, and Mexico’s National Institute of Migration.
More information about the initiative is available here.[Back to Top]
5. USCIS Reminds Those Affected by South Carolina Floods and other Unforeseen Circumstances of Immigration Relief Options
Individuals affected by the deadly floods that ripped through South Carolina in early October may be eligible for relief extended by USCIS. The agency issued an alert on October 15 notifying immigrants and non-immigrants of its use of “relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe flooding in South Carolina,” including expedited processing of employment authorization and advance parole requests, or where applicable, opportunity to submit late-filed changes or extensions of non-immigrant status.
USCIS said that requestors should “explain how the flooding created a need for the requested relief.” The following measures may be available upon request:
- Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired
- Re-parole of individuals previously granted parole by USCIS
- Expedited processing of advance parole requests
- Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship
- Expedited adjudication of employment authorization applications, where appropriate
- Consideration of fee waivers due to an inability to pay
- Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to appear for an interview, submit evidence, or respond in a timely manner
- Replacing lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (green card)
- Rescheduling of scheduled biometrics appointment
More information on humanitarian relief in special situations is available here.[Back to Top]
6. DHS Designates Yemen for Temporary Protected Status
The Department of Homeland Security (DHS) designated Yemen for temporary protected status (TPS) for a period of 18 months due to ongoing armed conflict in the country and resulting humanitarian emergency. Eligible nationals of Yemen residing in the United States may apply for TPS through U.S. Citizenship and Immigration Services (USCIS). The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017. The Federal Register notice designating Yemen for TPS provides additional details about registration and eligibility.
To be eligible for TPS, applicants (including Yemen nationals and persons without nationality who last habitually resided in Yemen) must demonstrate that they have been both “continuously physically present” and “continuously residing” in the United States since September 3, 2015. Applicants will also undergo thorough security checks as part of the application process, and those with certain criminal records or who pose a threat to national security will be ineligible for TPS. Approval for TPS offers Yemeni nationals in the U.S. protection from removal for the duration of the designation period, as well as Employment Authorization Document (EAD).[Back to Top]
7. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
8. Klasko News
Fall EB-5 Seminar
Over 100 real estate developers, EB-5 regional centers and other members of the EB-5 industry attended Klasko Immigration Law Partners’ seminar entitled, “The Successful EB-5 Project: Development, Marketing and Compliance.” This is the second EB-5 seminar held by Klasko this year, following a sold-out program in February..The full day seminar was held on September 17, 2015, for the benefit of EB-5 Regional Centers and Developers interested in EB-5 financing as a source of investment for major development projects. Speakers covered the entire spectrum of EB-5 issues and processes, from deciding whether to include EB-5 in the capital stack, through the last investor’s removal of conditions, to the latest Congressional developments around the future of EB-5. The conference provided attendees with insightful, cutting edge information from various perspectives in the EB-5 world to help navigate this complex and evolving program.
William A. Stock
Bill Stock was quoted in WIRED on the story “SimpleCitizen, a TurboTax for Immigration, Lets You Skip the Legal Fees.” Bill cautions the use of software applications to complete immigration documents as there may be complexities that applications cannot understand.
In “Why Ending Birthright Citizenship Would Create A Nightmare For Everyone” appearing in Talking Points Memo, Bill highlights some of the practical implementation issues if birthright citizenship were terminated, including verifying legal citizenship for parents and grandparents among other issues.
Upcoming Speaking Engagements
H. Ronald Klasko
Ron Klasko will be at Yale University on November 11 for an annual discussion with student entrepreneurs on immigration options available to them, and will also give a general presentation on working in the U.S. after graduation. He will visit Harvard Business School in Cambridge, Massachusetts on November 12 where he speak with students about employment options, various H-1B visa options, E, L-1, O-1, H-3, and other permanent resident options including EB-5.
Andrew J. Zeltner
Andrew Zeltner will be speaking with scholars and researchers at Thomas Jefferson University in Philadelphia on November 12 to discuss H-1B visas and quotas, J-1 visas and waivers, O-1 visas, and permanent residence status, among other topics.
Elise A. Fialkowski
Elise Fialkowski will attend and present at the annual NAFSA Region VIII Conference in Alexandria, VA from November 10-13, 2015. Elise will moderate the session “Advanced H-1B Topics,” which includes issues like the impact of location change after the recent Simeo decision, prevailing wages, export control issues, AC21 extensions, travel, intermittent and part-time employment, policy development, fee payments and documenting retention and compliance.
Elise will also be a panelist on “Interagency Challenges – Ever Changing Employment Issues” a session at the New Jersey Institute for Continuing Legal Education Advanced Corporate Immigration Law Conference at The Newark Club on November 11. The panel will discuss the conflicts between and among agency interpretations, confronting both age-old questions as well as those to which no agency seems to have an answer.
Lisa T. Felix
Lisa Felix is also presenting at the Regional VIII Conference of NAFSA, leading a session on Advanced Topics in Special Handling Labor Certification for College and University Teaching Positions. Co-presented with the Associate Director of International Support Services at Virginia Tech, Dena Neese, the session will identify and discuss challenging issues from practical approaches to university-level policy decisions.
Recent Speaking Engagements
Ron spoke at the AILA Latin American and Caribbean Chapter 2015 CLE Conference in Rio de Janeiro, Brazil from November 5-6. He was a panelist on “Solving the Difficult NIV Cases,” and discussed how to deal with H-1B cap issues, the impacts of various H-1B violations on nonimmigrant status, changes in status from H-1B to L-1B to L-1A and L-1A to EB-1-3, complex specialty occupation issues, creative solutions for non-standard E-2s, and other topics of interest.
Klasko Compliance sponsored an IIUSA Webinar Series program titled “Form I-924A: Strategies for Fulfilling the Annual EB-5 Regional Center Reporting Requirement,” held on October 29. Ron served as a panelist for the program, which looked at aspects of the I-924A filing such as reporting of statistics, capital investments, industry designation (NAICS codes), as well as job creation estimation and methodology. For more information on EB-5, visit our EB-5 practice section on our new website.
Ron was in Dallas, TX on October 21-23 where he attended and spoke at the 2015 IIUSA EB-5 Market Exchange.
On October 16-17, Ron spoke at the AILA Central Florida Chapter Conference in Orlando, Florida. Ron served as a panel member on “Current EB-5 Issues,” providing updates on proposed amendments to the Act, program renewal and anticipated changes, impact of Chinese retrogression, and the new EB-5 policy memo. Ron was also a discussion leader for the session “Nonimmigrant Business Visas – Did you know this?”
On October 14, Ron spoke to current MBA students at The Wharton School of the University of Pennsylvania interested in learning about their immigration options as part of an instructive and interactive presentation called “Visa and Permanent Residence Options for MBA Students.” The event addressed several topics directly applicable to the audience, including options for investing in or starting your own business, and fielded questions from students on a wide range of topics. For more information on this event, including slides, click here.
Elise A. Fialkowski
Elise attended the Delaware Valley Relocation Council Fall Summit in Philadelphia on October 20 and led a corporate roundtable discussion entitled “Frequent Business Travelers.”
On September 30, Elise co-presented at the Pennsylvania Bar Institute’s Immigration & Naturalization Law for the General Practitioner seminar at the CLE Conference Center in Philadelphia. “Investing in America: Visas for Would-be Entrepreneurs” discussed options Including E-1, E-2 and EB-5 Investment.
William A. Stock
On October 22, Bill, in his capacity as President-Elect of the American Immigration Lawyers Association, represented AILA’s Executive Committee in meetings in Washington, DC with the USCIS Director, Leon Rodriguez, and his senior policy staff as well as the Field Operations leadership.
Bill participated as a speaker for the Citizenship and Immigration Services (CIS) Ombudsman’s Teleconference series relating to USCIS forms on September 29, 2015. The discussion about USCIS forms explored overall changes, reasons behind those changes, and the process for making changes and entertaining public comment in advance. Bill provided his perspective as President-Elect of the American Immigration Lawyers Association and as a member of a working group within AILA on the subject of forms. For inquiries relating to USCIS forms, contact Bill at email@example.com.
Bill spoke at PAIEN, the Philadelphia Area International Education Network, on September 16 on “Counseling the Entrepreneurial Student.” Bill discussed employment options for F-1 students, H-1B issues for start-up businesses, and other nonimmigrant options.
Feige M. Grundman
Feige Grundman spoke to human resource professionals at Lehigh University in Bethlehem, Pennsylvania on October 27, discussing the process of preparing H-1Bs among other topics.
“Understanding Recent Immigration Debacle Through Yogi Berra,” an article by Lisa T. Felix, was published in The Legal Intelligencer on October 21, 2015. In the article, Lisa offers a detailed discussion of “Visagate,” the recent Visa Bulletin debacle affecting applicants for green cards, guided by memorable quotes from the late baseball legend whose recent passing coincided with the immigration event. . To read the article in its entirety, click here.
“Strict L-1B Adjudications Raise Cost of International Transfers” authored by Feige M. Grundman, was published in The Legal Intelligencer on September 16, 2015. In this article, Feige discusses data showing a rise in L-1B petition denials and requests for evidence in the last nine years, and the newly released policy memorandum from USCIS aiming to clarify the L-1B adjudication process. To read the article in its entirety, click here.
Karuna Chandani-Simbeck recently authored “EB-5 Regional Center Program: A Powerful Job Creator” which was published in The Legal Intelligencer. This article highlights the history and increasing popularity of the EB-5 program. Karuna also details the proposed changes for the program’s reauthorization. To read this article, click here.
You May Have Missed: Blog Posts & Alerts
- Where Are We Now?
October 6, 2015
- Department of State Changes Visa Bulletin, Takes Away Filing Opportunity for Thousands
September 25, 2015
- Some Ideas for Resolving the Controversial Issues in the EB-5 Legislation
September 16, 2015
- Revised Procedures for Determining Immigrant Visa Availability
September 10, 2015
- China EB-5 Cut-Offs Announced
August 28, 2015
- Compliance – The Key to Success in EB-5
August 25, 2015
- USCIS Requires Filing of New LCA and H-1B Petition for Employees Working in New Location
August 18, 2015
Save the Date
Mark your calendars for Klasko Immigration Law Partners’ 12th annual Spring Seminar for Tuesday, April 19, 2016 from 9:30 am – 2:00 pm at The Union League of Philadelphia. We invite professionals involved in employment-based immigration to save the date.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Klasko Immigration Law Partners is an active member.[Back to Top]