USCIS Releases Controversial Draft Policy Memo on Job Portability
New Draft Memo signals potential change in “same or similar occupation” analysis.
On November 20, 2015, U.S. Citizenship and Immigration Services (USCIS) released a draft policy memorandum, “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Section 204(j) Job Portability,” the section of the INA that permits beneficiaries of an employment-based I-140 immigrant petition to change jobs or employers without having to rely on a new petition. The circumstances under which employees can take advantage of this benefit, called “porting,” requires the employee have an I-485 application pending with USCIS for 180 days or more, and that the new job is in the same or similar occupational classification as the job for which the petition was filed. This latter criterion is the subject of the draft memo. Comments are due to USCIS by January 4, 2016.
The draft memo instructs Immigration Services Officers (ISOs) on how they may use the Department of Labor’s (DOL’s) Standard Occupational Classification (SOC) codes and other evidence to determine whether a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker submitted to USCIS. USCIS said the purpose of the memo is “to promote consistency and efficiency in section 204(j) portability adjudications in accordance with the policy objectives described herein. Such adjudications require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented.”
The memo notes that despite the statutory flexibility provided in INA § 204(j), “stakeholders have raised concerns that the job portability provision is underutilized due to significant uncertainty concerning USCIS determinations in this area.” The memo “is intended to address that uncertainty by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s).”
In making these determinations, the memo explains, USCIS may refer to DOL’s labor market expertise as reflected in its SOC system, which is used to organize occupational data and classify workers into distinct occupational categories. Occupations are generally categorized based on the type of work performed and, in some cases, on the skills, education, and training required to perform the job. The memo notes that the SOC organizes all occupations into 23 “major groups,” which are then broken down in descending order into: 97 “minor groups,” 461 “broad occupations,” and 840 “detailed occupations.” All workers are classified into one of these 840 detailed occupations. Detailed occupations with similar job duties and, in some cases, skills, education, and/or training are generally grouped together in the same broad occupation.
However some attorneys complain that USCIS misses the mark with this memo and ignores the legislative history, which was, as the title of the provisions suggest, for “job flexibility,” so that workers are not treated as indentured servants and may improve their prospects by switching jobs and employers. Comments suggest that the agency incorrectly interprets “similar” to mean having a “marked resemblance,” rather than a mere “resemblance,” although it cites two dictionaries, only one of which says the resemblance must be “marked.” They also expressed concerns that USCIS mechanistically applies the SOC codes, which were never intended to be used for this purpose, and instead were a bureaucratic fix for DOL’s Dictionary of Occupational Titles, which contained 40,000+ job listings.
Fifth Circuit Upholds Injunction Against Obama Administration’s DACA/DAPA Programs
Executive Action enjoined until Court can evaluate Obama administration’s authority to act.
On November 9, 2015, nearly one year after President Obama’s Executive Order was announced, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld 2-1 a preliminary injunction against his administration’s executive actions on Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). These programs would provide expanded benefits for children who entered the U.S. under the age of 16, as well as temporary protection from removal and work authorization for parents of U.S. Citizen Children, respectively. In upholding the injunction, the court found that states challenging the program successfully showed potential injuries resulting from a denial of the injunction outweighed any harm that would result if the injunction were granted.
“The states have alleged a concrete threatened injury in the form of millions of dollars of losses,” the panel majority noted, referring to challenges from Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin, all of which joined in the suit. Conversely, 15 states and the District of Columbia filed amicus briefs expressing support and legal justification for Obama’s actions.
The majority also rejected the argument that congressional silence on immigration has conferred on the Department of Homeland Security (DHS) the power to act. The court found, among other things, that protection for parents of U.S. Citizen Children under DAPA was “foreclosed by Congress’s careful plan,” and that immigration law “prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”
Judge Carolyn King dissented, citing, among other things, a “litany of errors committed by the district court.” She noted, “There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable.”
Judge King concluded, “I have a firm and definite conviction that a mistake has been made.” The Obama administration plans to appeal the ruling on the injunction to the Supreme Court. A decision by SCOTUS to reverse the injunction could mean relief for undocumented children and parents in 2016.
State Dept. Projects Employment-Based Visa Number Availability in Coming Months
The Department of State’s Visa Bulletin for December 2015 includes information on visa number availability in the coming months.
The State Department made projections about movement in various visa categories in conjunction with the release of the December 2015 visa bulletin. For the employment fourth preference category (certain religious workers), the bulletin notes that the non-minister special immigrant (SR) program expires on December 11, 2015. That means no SR visas may be issued overseas or final action taken on adjustment of status cases after midnight on December 10, 2015. Visas issued before that date will only be issued with a validity date of December 10, 2015, and all individuals seeking admission as non-minister special immigrants must be admitted into the U.S. by midnight on December 10, 2015.
For the employment fifth preference categories (I5 and R5), visas may be issued until close of business on December 11, 2015, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas or final action taken on adjustment of status cases after December 11, 2015.
The bulletin notes that Congress is considering an extension of the SR, I5, and R5 visa categories, “but there is no certainty when such legislative action may occur.” If there is no legislative action extending one or both of these categories, those cut-off dates would become “Unavailable” on December 12, 2015.
The bulletin also notes the following potential monthly movement for employment-based categories in the coming months:
Employment First: Current
- Worldwide: Current
- China: Forward movement during FY 2015 has resulted in a dramatic increase in demand. Little, if any, movement is likely during the coming months.
- India: Up to eight months.
- Worldwide: The rapid forward movement during FY 2015 was expected to generate a significant amount of demand for numbers. If such demand fails to materialize in the near future, it will be necessary to begin advancing this cut-off date.
- China: Rapid forward movement is expected. Such movement will result in increased demand, which will require “corrective” action as early as April.
- India: Will advance up to three weeks.
- Mexico: Will remain at the worldwide date.
- Philippines: Will advance four to six week
Employment Fourth: Current
Employment Fifth: The category will remain “Current” for most countries.
- China-mainland born: Slow forward movement.
The bulletin notes that the above projections for the employment categories indicate what is likely to happen on a monthly basis through March based on current applicant demand patterns. “Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that ‘corrective’ action will not be required at some point in an effort to maintain number use within the applicable annual limits,” the bulletin states. “The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables.”
Also, pursuant to USCIS’s recently-announced policy, applicants in family-based categories may make use of the “Dates for Filing Visa Applications” chart in the December bulletin to file their applications prior to their priority date becoming current. However the Service notes that employment-based filings must continue to use the “Application Final Action Dates” for December.
USCIS Adds 16 Countries to H-2A/H-2B Visa Programs
Updated list includes several European and Asian countries and Colombia; removes Moldova.
Effective January 18, 2016, USCIS and the Department of Homeland Security (DHS), in consultation with the Department of State, are adding Andorra, Belgium, Brunei, Colombia, Finland, France, Germany, Greece, Lichtenstein, Luxembourg, Malta, Monaco, San Marino, Singapore, Taiwan, and Timor-Leste to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for 2016.
DHS noted that it reserves the right to add countries to the eligible list at any time, and to remove any country whenever the agency determines that a country fails to meet the requirements for continued designation, which contemplates each country’s cooperation in issuing travel documents and number of orders of removal against the country’s citizens among other considerations.
Secretary of Homeland Security Johnson and Secretary of State Kerry have agreed that Moldova will no longer be designated as an eligible country to participate in the H-2B program because Moldova is not meeting regulatory standards. Nationals of Moldova may still participate in the H-2A program because Moldova continues to meet those standards.
USCIS explained that the H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. Typically, USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs but it may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.
The notice does not affect the status of beneficiaries who currently are in the United States in H-2A or H-2B status unless they apply to change or extend their status. Each country’s designation is valid for one year from January 18, 2016.
USCIS Issues Policy Memo on Initial Field Review of AAO Appeals
U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on November 4, 2015 that provides guidance to USCIS employees on the proper processing of appeals to the Administrative Appeals Office (AAO) ahead of plans to revise the regulation at 8 CFR 103.3.
The new memo notes that appeals to the AAO, which are filed on Form I-290B, will first undergo an intake procedure to ensure the appeal is complete and the agency has collected any required filing fees. After intake, the USCIS field office that made the unfavorable decision conducts an “initial field review” (IFR) of the appeal to determine whether favorable action is prescribed. If no favorable action is taken during IFR, the appeal is forwarded to the AAO for normal appellate review and decision.
The purpose of IFR is “to promote the efficient review of administrative appeals of field office decisions” by enabling the office most familiar with the matter, one that may even still have the record of proceeding, to take immediate favorable action on a case where appropriate without having to engage the AAO. In other words, it gives the field office an opportunity to change its initial decision when persuaded to do so.
The USCIS memo also includes guidance on the timeliness and scope of IFR, noting that appeals processes are “undermined” if IFR is not timely, or if the appeal is inappropriately terminated. USCIS therefore maintains a processing goal of 45 days to complete IFR, though not required by regulation to do so.
Though filed on the same form, appeals and motions are separate remedies. Appeals seek review of unfavorable decisions while motions seek review and reconsideration by the same authority that issued the unfavorable decision. Under IFR, appeals intended for the AAO may be treated as motions, allowing the original office that denied the requested benefit to take favorable action. USCIS reiterates that while IFR may result in approval of a benefit request prior to review by the AAO, the process does not in any way prevent an affected party from securing its procedural right to AAO.
USCIS further notes that except in limited circumstances, field offices may not reject, dismiss, or terminate appeals including those that are untimely, lack standing, or present other enumerated defects.
Rankings and Listings
William A. Stock
Bill Stock has been recognized by Best Lawyers as the 2016 Immigration Lawyer of the Year for the Greater Philadelphia region. To read the accompanying interview, click here. Congratulations, Bill!
Klasko Immigration Receives National Tier 1 Ranking
Klasko Immigration Law Partners, LLP is pleased to announce that the firm has been recognized as a National Tier 1 firm in Immigration Law in the 2016 edition of “Best Law Firms” by U.S. News Media Group and Best Lawyers®. The U.S. News – Best Lawyers “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in the field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking in a particular practice area and metro region, a law firm must have at least one lawyer who is included in Best Lawyers in the particular practice and metro areas.
Partners Named to 2016 International Who’s Who Legal of Corporate Immigration Attorneys
H. Ronald Klasko (Ron), William A. Stock (Bill) and Elise A. Fialkowski have again been named among the world’s leading Corporate Immigration Lawyers by clients and peers in Who’s Who Legal: Corporate Immigration 2016 & Who’s Who Legal 2017 – Compendium Edition. We congratulate Ron, Bill and Elise on once again being selected and honored as the world’s leading Corporate Immigration Lawyers. To review the listing on the Who’s Who Legal website, click here.
Ron Klasko’s blog “The Draft EB-5 Bill: The Good News and The Bad News” was quoted in the Miami Herald for the story “Visa program for investors is one of the most popular in American immigration history” published on November 21, 2015.
Upcoming Speaking Engagements
H. Ronald Klasko | Daniel B. Lundy | Rohit Kapuria
The 2016 Las Vegas EB-5 Conference will take place from January 15-16 at the Bellagio in Las Vegas, Nevada sponsored by EB5Investors.com and EB5 Investors Magazine. Ron Klasko, Dan Lundy and Rohit Kapuria will be speaking at the conference. The conference will deliver an interactive and premium networking experience for all attendees and sponsors, and provide valuable information in beginner and advanced panels on various topics such as EB-5 legislative developments, using EB-5 as part of the capital stack, and current legal trends with EB-5 petition adjudication. For more information or to register, visit http://www.eb5investors.com/conferences/2016-las-vegas-eb5-conference.
Recent Speaking Engagements
William A. Stock
On December 1, Bill attended the 18th Annual AILA New York Chapter Immigration Law Symposium in New York, NY. Bill served as a co-panelist on “Ethical Issues that Counting Sheep May Not Resolve.” This session explored the ethical issues that worry family and business immigration attorneys confronted with the prospects of dual representation. The panel discussed the professional obligations under the model rules of professional conduct and agency conduct rules.
Bill also participated at the 7th Biennial IBA Global Immigration Conference titled “Global Immigration in a Shrinking but Troubled World” in London, England from November 18-20, 2015. Bill was a panelist for the session: “The new face of US immigration: 2015 and beyond – ‘higher walls, wider gates?’” This panel reviewed key legislative and administrative trends including:
- A new work-authorized status for 5 million undocumented immigrants? – Obama’s Executive actions
- Work visa challenges and options – where can you go, when the H-1 Quota says ‘no’?
- The latest trends in the US immigration system affecting employers, international investors, entrepreneurs and highly skilled professionals
- Pathways to permanent residence – ‘green cards’
- A look at the year ahead: immigration politics in the 2016 presidential election – will this finally be the end of gridlock for major immigration reform in the new Congress?
Feige M. Grundman
Feige Grundman visited her alma mater, Carnegie Mellon University, in Pittsburgh on November 16 to talk with international students about H-1B requirements, H-1B alternatives, and the permanent residency process. For more information on Feige’s presentation, click here.
On November 14, Feige also visited St. Joseph’s University in Philadelphia to speak at a program entitled, “Navigating the U.S. Job Market for International Students,” a panel discussion on the job search process from the employer’s perspective as well as a legal immigration perspective.
H. Ronald Klasko
On November 12, Ron Klasko visited Harvard Business School and spoke with students about employment options, including various H-1B visa options, E, L-1, O-1, H-3 nonimmigrant options, and permanent residency options including EB-5. To view the event webpage for this talk, please visit https://klaskolaw.com/event/immigration-options-for-entrepreneurial-mba-students-harvard-business-school/.
Ron was also at Yale University on November 11 to address an audience of entrepreneurial MBA students. Click here to review the topics discussed and download a copy of the PowerPoint presentation. Ron also spoke with students and scholars on immigration options available to them and working in the U.S. after graduation. For more information, click here.
Andrew J. Zeltner
On November 12, Andrew Zeltner visited with scholars and researchers at Thomas Jefferson University in Philadelphia to discuss H-1B visas and quotas, J-1 visas and waivers, O-1 visas, and permanent residence status, among other topics. Click here to review the PowerPoint presentation.
Elise A. Fialkowski
On November 10-13, 2015, Elise Fialkowski attended the annual NAFSA Region VIII Conference in Alexandria, VA. Elise moderated the session “Advanced H-1B Topics” and discussed issues including the impact of location change after the recent Simeo decision, prevailing wage issues, export control issues, AC21 extensions, travel, intermittent and part-time employment, policy development, fee payments and documenting retention and compliance.
Elise was also 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 discussed the conflicts between and among agency interpretations, confronting age-old questions as well as those emerging questions to which no agency seems to have an answer.
Lisa T. Felix
Lisa Felix also attended and spoke at the NAFSA Regional VIII Conference. Lisa co-presented on the session “Advanced Topics – Special Handling Labor Certifications,” covering common issues practitioners face when preparing and filing special handling labor certifications. The panel discussed advertisement placement and language; drafting DOL forms and posted notice, including a discussion on position requirements and applicant qualifications; audit file content, responses and denials; reselection processes; common errors/pitfalls when preparing a special handling labor certification application; and common post-labor certification filing I-140 issues. Contact Lisa at email@example.com to discuss your advanced special handling labor certification questions.
Daniel B. Lundy
Dan Lundy spoke at the Overseas Investment & International Wealth Management Forum in Beijing, China on November 6. Dan discussed topics of great importance to the EB-5 community including ensuring I-829 approval and the effect of the new immigration policies on EB-5 projects and developing trends.
Dan also attended and spoke at the IIUSA EB-5 Market Exchange in Dallas, Texas on October 23, 2015, covering regional center compliance requirements and developing a systematic approach to long term success.
On October 8 and 9, 2015, Dan was in Los Angeles attending the Pincus CLE Seminar, “EB-5 Investor Based Immigration Conference The Rules, The Roles, The Opportunities.” Dan presented to investment firms and real estate professionals on regional center applications and amendments.
“Immigration Petitions Increasingly Need Corroboration for Success” authored by Bill Stock was published in The Legal Intelligencer on November 18, 2015. In this article, Bill discusses the legal standard evidence needs to meet for an immigration petition to be granted, how USCIS has been gradually increasing the level of evidence its examiners say is necessary to meet that standard, and how immigration lawyers and companies have to raise their level of practice to meet USCIS’ new expectations. To read the article, click here.
Rohit Kapuria published “Emerging EB-5 Markets Spotlight: India” in the October 2015 (Vol. 3, Issue 3) edition of the IIUSA Regional Center Business Journal. In this article, Rohit dissected strategies and considerations for EB-5 developers seeking to break into the Indian EB-5 market. Rohit relayed the attractiveness and pitfalls offered by the market and also narrated his confidence in the market’s strong growth potential. For more information about investing in India, contact Rohit at firstname.lastname@example.org.
You May Have Missed: Blog Posts & Alerts
- Path America Regional Center and Giving Innocent Investors a Way Forward
December 3, 2015 by Daniel B. Lundy
- Does December 11 Matter?
December 1, 2015 by H. Ronald Klasko
- The Draft EB-5 Bill: The Good News and The Bad News
November 16, 2015 by H. Ronald Klasko
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.