Headlines

Summary

  1. USCIS Designates Two ‘Adopted Decision,’ Establishes Policy Guidance

    USCIS recently designated two decisions of the Administrative Appeals Office (AAO) as “adopted decisions,” meaning they “establish policy guidance that applies to and binds all USCIS employees.”

  2. USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers

    On February 25, 2016, the USCIS Ombudsman hosted a public teleconference on issues related to the Department of Motor Vehicles (DMV) benefits for certain nonimmigrant workers, including H and L nonimmigrants, with representatives from DHS, USCIS, the California DMV, and a private immigration attorney.

  3. USCIS Proposes Fee Increases, New Fee for Annual Certification of EB-5 Regional Centers

    U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule on May 4, 2016, to increase USCIS fees by a "weighted average" of 21 percent and add one new fee for EB-5 Regional Centers.

  4. USCIS Completes Data Entry of FY 2017 H-1B Cap-Subject Petitions, Begins Rejections

    U.S. Citizenship and Immigration Services (USCIS) announced on May 2, 2016, that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected randomly.

  5. Employment-Based Final Action Dates Retrogress for June

    Heightened demand for employment-based adjustments of status cause retrogression.

  6. SEC Announces Fraud Charges, Asset Freeze Against Vermont Ski Resort

    On April 14, 2016, the Securities and Exchange Commission (SEC) announced fraud charges and an asset freeze against a Vermont-based ski resort and related businesses allegedly misusing millions of dollars raised through investments solicited under the EB-5 Immigrant Investor Program.

  7. Klasko News

1. USCIS Designates Two ‘Adopted Decision,’ Establishes Policy Guidance

USCIS recently designated two decisions of the Administrative Appeals Office (AAO) as “adopted decisions,” meaning they “establish policy guidance that applies to and binds all USCIS employees.”

USCIS directs its personnel to follow the reasoning in adopted decisions in similar cases going forward. The two decisions include Matter of Z-A- and Matter of H-V-P.

USCIS designed Matter of Z-A-, Inc., as an adopted decision on April 14, 2016. The decision clarifies the relevant factors USCIS offers must consider when determining whether the beneficiary of an L-1A nonimmigrant classification will primarily manage an essential function, which includes evidence of the beneficiary’s role within the wider qualifying international organization.

Specifically, the decision notes:

  1. While an L-1A may use his or her business expertise to perform some operational or administrative tasks, he or she primarily must manage an essential function.
  2. To determine whether a beneficiary’s job duties will be primarily managerial in nature, an adjudicating officer must consider the totality of the record and weigh all relevant factors, including the nature and scope of the petitioner’s business; the petitioner’s organizational structure; staffing levels; and the beneficiary’s position within the petitioner’s organization; the scope of the beneficiary’s authority; the work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and any other factors that will contribute to understanding a beneficiary’s actual duties and role in the business.
  3. When staffing levels are considered in determining whether an individual will act as a manger, an officer must also take into account relevant evidence in the record concerning the reasonable needs of the organization as a whole, including any related entities within the “qualifying organization,” giving consideration to the organization’s overall purpose and stage of development.

The relevant USCIS policy memorandum including text of the decision is available here.

USCIS designated Matter of H-V-P- as an adopted decision on March 9, 2016. This AAO decision clarifies that, in addition to primary care physicians, medical specialists who agree to practice in any area designated by the Secretary of Health and Human Services as having a shortage of health care professionals may be eligible for the physician national interest waiver under INA § 203(b)(2)(B)(ii). The policy memo and text of the decision is available here.

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2. USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers

On February 25, 2016, the USCIS Ombudsman hosted a public teleconference on issues related to the Department of Motor Vehicles (DMV) benefits for certain nonimmigrant workers, including H and L nonimmigrants, with representatives from DHS, USCIS, the California DMV, and a private immigration attorney.

During the call, the Ombudsman noted that although federal regulations provide for a 240-day extension of work authorization if the worker timely filed a petition to extend status, whether those workers can obtain and maintain a driver’s license during that time remains an issue. The REAL ID Act requires state driver’s licenses to conform to certain federal standards. The Act also requires that states verify an individual’s immigration status before issuing a REAL ID-compliant identification card, including a driver’s license. The lack of guidance on how state DMVs should handle driver’s licenses for temporary foreign workers with pending extension of stay petitions on previously expired petitions “has led to a patchwork of state responses,” USCIS noted.

The DHS Office of Policy said the REAL ID Act complicates state interpretation of the 240-day rule because it links driver’s licenses to whether an individual has lawful immigration status, a distinct legal term of that is different from lawful presence. The 240-day work authorization extension provides for lawful presence, but not lawful status. There have been attempts in the past to amend the REAL ID Act to address this and other related issues, but these efforts were unsuccessful. As a result, several categories of immigrants – not just temporary workers – “are disadvantaged by the statute’s requirement that licenses be tied to lawful status rather than to lawful presence,” USCIS said.

One commenter discussed the impact on employers and nonimmigrant workers. Workers on a 240-day work authorization extension are provided only with a Form I-797C, the receipt for the filed extension-of-stay petition. There has been little guidance on how state DMVs should treat that document. The language on the I-797C makes it even more difficult to obtain DMV benefits because it explicitly states that the form does not grant any immigration status or benefit. Many states rely on this language to deny a license to immigrant workers with a 240-day extension. The commenter raised the added struggle for employers when the work-authorized employee cannot drive to work. And while payment of the premium processing fee for the extension-of-stay petition guarantees adjudication of the petition within an expedited time frame and could alleviate the problems associated with gaps in status, not all employers can afford the additional fee and it is not always an option, particularly where the only purpose is to allow the worker to obtain a license.

Relying on surveys, the commenter explained some states – namely those that comply with REAL ID or are moving toward compliance – have taken a hybrid approach whereby immigrants whose status has not expired can obtain a REAL ID-compliant license, while those without lawful status – but perhaps who are lawfully present – get a license that is not compliant with the Act. A few states offer limited driver’s licenses or “driver privilege cards” for undocumented immigrants. Foreign workers in the 240-day extension window could request one of those licenses, but they would have to reapply for a regular license when the extension petition is approved.

Still other states that are not compliant with REAL ID accept the I-797C as a document establishing lawful presence as long as the document can be verified in SAVE, the Systematic Alien Verification for Entitlements system. Per a representative from USCIS’s SAVE, “states have to look at their own rules and regulations for how to treat the provision of state benefits that are based on immigration status.” The Ombudsman concluded the call by saying that the Ombudsman’s Office is aware of and is closely monitoring longer USCIS processing times for nonimmigrant worker adjudications and the resulting backlogs. USCIS released a statement regarding the call, which is available here.

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3. USCIS Proposes Fee Increases, New Fee for Annual Certification of EB-5 Regional Centers

U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule on May 4, 2016, to increase USCIS fees by a “weighted average” of 21 percent and add one new fee for EB-5 Regional Centers.

The weighted average increase is the percentage difference between the current and proposed fees by immigration benefit type. USCIS further explains its calculations in the notice. In addition, USCIS proposed to clarify its position that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee.

Generally, USCIS said it anticipates that if it continues to operate at current fee levels, it will experience an average annual shortfall of $560 million between Immigration Examinations Fee Account (IEFA) revenues and costs. This projected shortfall “poses a risk of degrading USCIS operations funded by IEFA revenue,” USCIS said. The agency believes the proposed rule “would eliminate this risk by ensuring full cost recovery.”

In addition to raising fees for existing petitions, USCIS proposes a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A, which does not currently require a filing fee.

Also, the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act increased fees for certain H-1B and L-1 visa petitioners. Under this new law, USCIS explained, affected petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015. The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L-1 (including L-1A and L-1B) nonimmigrant status. USCIS began rejecting petitions after February 11, 2016 that do not include the additional fee, when applicable. This fee is in addition to the Petition for a Nonimmigrant Worker (Form I-129) fee, the Fraud Prevention and Detection Fee, and the American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as the premium processing fee (if applicable). The agency noted that these fees may not be waived. The fees under the new law will remain effective through September 30, 2025. USCIS said it is revising the instructions for the Petition for a Nonimmigrant Worker, Form I-129, and the Nonimmigrant Petition Based on Blanket L Petition, Form I-129S, to include these fees. USCIS said it is proposing to publish these new statutory fees “in the interest of transparency, information and clarity.”

USCIS noted that it collects this revenue, but does not spend it. One half of the revenue collected from such fees under the new law goes to the General Fund of the Treasury. The other half is deposited by DHS into the 9-11 Response and Biometric Exit Account to fund a biometric entry-exit data system to track the lawful entrance and departure of all noncitizens at U.S. airports and land border crossings.

Through this rule, USCIS also said it expects to collect sufficient fee revenue to fully support the USCIS Refugee, Asylum, and International Operations Directorate (RAIO); Systematic Alien Verification for Entitlements (SAVE); and the Office of Citizenship. This would allow USCIS to discontinue diverting fee revenue to fund these programs, thereby increasing resources to fund the personnel needed to improve case processing, reduce backlogs, and achieve processing times that are in line with the commitments in the FY 2007 Fee Rule, which USCIS is still committed to achieving.

In addition, USCIS is evaluating the feasibility of calculating processing times using data generated directly from case management systems, rather than with self-reported performance data provided by Service Centers and Field Offices. USCIS said preliminary findings suggest that USCIS will be able to publish processing times sooner and with greater transparency by showing different processing times for each office and form type. USCIS is also considering publishing processing times using a range rather than using one number or date. This approach would show that, for example, half of cases are decided between X and Y number of months.

USCIS also proposes to establish a three-level fee for the Application for Naturalization (Form N-400). First, the agency would increase the standard fee for Form N-400 from $595 to $640. Second, the agency would continue to charge no fee to an applicant who meets the requirements of Immigration and Nationality Act §§ 328 or 329 with respect to military service and applicants with approved fee waivers. Third, the agency would charge a reduced fee of $320 for naturalization applicants with family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

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4. USCIS Completes Data Entry of FY 2017 H-1B Cap-Subject Petitions, Begins Rejections

U.S. Citizenship and Immigration Services (USCIS) announced on May 2, 2016, that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected randomly.

USCIS has begun returning all H-1B cap-subject petitions that were not selected. USCIS said that due to the high volume of filings, the agency is unable to provide a definite time frame for return of petitions. The complete announcement is here.

USCIS requests that petitioners refrain from asking about the status of submitted cap-subject petitions until they receive a receipt notice or a returned unselected petition. USCIS will issue an announcement once all unselected petitions have been returned.

Additionally, USCIS said it is transferring some Form I-129 H-1B cap-subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. Those whose cases are transferred will receive notification in the mail. After receiving the notification, petitioners should send all future correspondence to the center processing the petition, including Form I-907, Requests for Premium Processing.

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5. Employment-Based Final Action Dates Retrogress for June

Heightened demand for employment-based adjustments of status cause retrogression.

The Department of State’s Visa Bulletin for the month of June reports that during the past two months, there have been extremely high levels of employment-based demand for adjustment of status cases filed with U.S. Citizenship and Immigration Services, necessitating retrogression of final action dates in several categories in an effort to hold visa number use within the FY 2016 annual limit.

For India, the second preference final action date has retrogressed. This date is expected to advance slowly during the last three months of the fiscal year, at a pace consistent with that of the India employment-based third preference date.

For China, both the second and third preference final action dates have retrogressed. Neither of these dates is expected to advance before the end of the fiscal year.

The bulletin states, “Every effort will be made to return the retrogressed dates to those listed in the May 2016 Visa Bulletin as quickly as possible, once the FY-2017 annual limits take effect October 1, 2016. Speculation on how quickly, or when, a full recovery might occur might not be possible until late summer.”

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6. SEC Announces Fraud Charges, Asset Freeze Against Vermont Ski Resort

On April 14, 2016, the Securities and Exchange Commission (SEC) announced fraud charges and an asset freeze against a Vermont-based ski resort and related businesses allegedly misusing millions of dollars raised through investments solicited under the EB-5 Immigrant Investor Program.

The SEC alleges in their complaint that Ariel Quiros of Miami, William Stenger of Newport, Vermont, and their companies made false statements and omitted key information while raising more than $350 million from foreign investors to construct ski resort facilities and a biomedical research facility in Vermont. Investors were told they were investing in one of several projects connected to Jay Peak, Inc., a ski resort operated by Quiros and Stenger, and that their money would only be used to finance that specific project. Instead, “in Ponzi-like fashion, money from investors in later projects was misappropriated to fund deficits in earlier projects,” the SEC said. More than $200 million was allegedly used for other-than-stated purposes, including $50 million spent on Quiros’s personal expenses, and in other ways never disclosed to investors.

According to the SEC’s complaint, Quiros improperly tapped investor funds for such things as the purchase of a luxury condominium, payment of his income taxes and other taxes unrelated to the investments, and acquisition of an unrelated ski resort.

Andrew Ceresney, Director of the SEC’s Division of Enforcement, said the defendants “diverted millions of EB-5 investor dollars to their own pockets, leaving little money for construction of the research facility investors were told would be built and thereby putting the investors’ funds and their immigration petitions in jeopardy.”

The SEC’s complaint charges Quiros, Stenger, Jay Peak, and a company owned by Quiros called Q Resorts Inc, as well as seven limited partnerships and their general partner companies with violating the antifraud provisions of § 17(a) of the Securities Act of 1933 and § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. Four other companies are named as relief defendants for the purpose of recovering investor funds transferred into their accounts. The SEC seeks preliminary and permanent injunctions, financial penalties, and disgorgement of ill-gotten gains plus interest. The agency also seeks conduct-based injunctive relief against Quiros and Stenger along with an officer-and-director bar against Quiros. The SEC’s announcement is available here.

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7. Klasko News

Klasko Annual Spring Seminar

Klasko Immigration Law Partners’ 12th annual Spring Seminar, “Immigration 2016: New Rules, New Opportunities,” was held on Tuesday, April 19, 2016, at The Union League of Philadelphia. The program attracted nearly 150 professionals involved with employment based immigration. The PowerPoint presentation and articles from the seminar are now available on the Events section of our website. If you would like us to present a free abbreviated version of this seminar or any program at your organization, please contact Bill Stock at wstock@klaskolaw.com.

Upcoming Speaking Engagements

H. Ronald Klasko | Rohit Kapuria
Ron Klasko and Rohit Kapuria have been invited to participate as speakers at the Arnstein & Lehr Annual Advanced EB-5 Seminar in Miami, Florida on May 20. This full-day seminar features leading industry experts discussing the latest on EB-5 fundamentals, EB-5 project case study, administering the EB-5 loan transaction, EB-5 legislation, and marketing projects inside and outside China. Click here to RSVP.

H. Ronald Klasko
Ron Klasko will be a key speaker at The Investment Migration Forum hosted by the Investment Migration Council (IMC) in Geneva from June 6 to 8. Ron will discuss investment migration developments around the world and participate in a panel discussion on immigration policy and investment migration. For more information and to register, click here.


Elise A. Fialkowski
Elise Fialkowski will be speaking at the 2016 NAFSA Annual Conference & Expo in Denver, Colorado from May 29 – June 3. Elise will serve as chair for the session “Advanced Employment-Based Immigration Issues,” held on June 1. This session will address current issues in employment-based immigration, including the latest developments related to H-1Bs, prevailing wage determinations, PERM, and compliance. The presenters will share practical guidance and discuss creating effective institutional policies and procedures for immigration sponsorship that also help ensure compliance. For more information and to register for this event, click here.

Elise is also a Co-Chair of the Conference Committee for the AILA Global Immigration Forum taking place on June 21 in Las Vegas, NV, where she will lead a session on “Global Immigration in a Changing World: Terrorism, Migration and Business Immigration.” Global Immigration has constantly been in the spotlight and media this year from terrorism to the refugee crisis and increased restrictions on work permits. This panel will address the complexities of obtaining visas and work permits in light of recent global developments. The panelists will address current trends and hot topics in their respective jurisdictions.

William A. Stock
Bill Stock will be speaking at the Council for Global Immigration 2016 Symposium in Washington, DC from June 18-22. The CFGI Symposium brings together top U.S. and global immigration experts and leaders from various U.S. government agencies to share their insights on the key issues and trends. Bill will discuss “Making the Case: Meeting USCIS Demands for Corroborating Evidence.” For more information on CFGI and the symposium and for registration details, click here.

William A. Stock | H. Ronald Klasko | Elise A. Fialkowski
The AILA Annual Conference on Immigration Law in Las Vegas from June 22-25 will feature Bill Stock, Ron Klasko and Elise Fialkowski.

At the Conference, Bill will be installed as AILA’s 70th National President. Bill’s installation speech will be a featured highlight of the conference kick-off plenary session. Bill will also speak on the Conference’s first substantive educational panel, “Hot Topics with the AILA Executive Committee,” after the keynote.

Ron will serve as discussion leader for the session entitled “Advanced Issues in EB-5 Investment Practice,” which will examine the special factors and pitfalls that arise when representing EB-5 investors. Ron will also speak at the AILA Global Migration Section Conference on June 21 in advance of the annual conference.

Elise will be a speaker on the session “Creative Strategies for Dependents,” and will examine different options available to assist foreign national employees and their dependents in selecting and strategically utilizing visa categories that help to achieve personal and family goals in the United States.

For more information and to review the full program, click here.

Recent Speaking Engagements

Anu Nair
Anu Nair presented at the 2016 Overseas Investment and International Wealth Management Forum (OIIF) from May 6-7, 2016 in Beijing, China. Anu discussed “Source and Path of Funds, Requirements to Maintain Green Card.” For more information on OIIF and this program, click here.

On May 8, Anu participated at the Shanghai Investment & Immigration Expo in Shangri-La, Shanghai where she spoke on “Advanced Source of Fund Issues.” More information is available here.

William A. Stock
Bill Stock spoke in Vienna, Austria on Wednesday, May 4 about current issues in international travel for visitors to the US as part of the Rome District-EMEA Chapter Conference of AILA.

On April 15, Bill presented to the AILA Texas-Oklahoma-New Mexico’s Spring Conference in Austin, Texas, where he was part of the Washington Update panel about legislative, regulatory and agency changes to be expected in the coming year.

Elise A. Fialkowski
On April 27, Elise Fialkowski co-presented “U.S. Immigration Workplace Compliance and Enforcement: What Every Employment Lawyer Needs to Know” at PBI’s 22nd Annual Employment Law Institute at the Pennsylvania Convention Center.

H. Ronald Klasko
Ron Klasko participated at the IIUSA 9th Annual EB-5 Advocacy Conference in Washington, DC from April 20-22. Ron was a panelist on “Potential Solutions to EB-5 Visa Backlog: More Visas & Investor Market Diversification.”

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.

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