D&S Immigration Alert - USCIS Suspends Final adjudication for Employment-Based Adjustment of Status Applications for Remainder of Fiscal Year

Today USCIS announced that it will be suspending adjudication of employment-based I-485 Adjustment of Status Applications effective today.  The suspension is a result of the Department of State (DoS) having reached the statutory cap for the employment-based immigrant visa preference categories for the remainder of Fiscal Year 2015 (ending on September 30, 2015). 

The fact that there is only one week remaining in the immigration fiscal year means the practical impact of the suspension will be minimal. USCIS has indicated that it will continue to accept adjustment of status applications for individuals who are current under the September Visa Bulletin and that it will resume final adjudication of employment-based adjustment applications beginning October 1, 2015, when visa numbers are again available.

Because visa adjudication will resume starting October 1, this should not affect an individual’s ability to file under the revised Visa Bulletin and applicants filing Form I-485 on or after October 1, 2015, should review the “When to File” section on the October Visa Bulletin to determine whether they are eligible to file their Form I-485 Adjustment of Status Application.

D&S will continue to monitor the situation and post updates as they become available.

Department of State October 2015 Visa Bulletin Summary

The Department of State released the October 2015 Visa Bulletin yesterday evening in conjunction with a joint announcement with USCIS implementing revised procedures for determining immigrant visa availability.  D&S provides a monthly Summary of the family and employment based priority dates.  For October, employment based priority dates (the “Final Action” dates) for EB-2 and EB-3 India experienced a slight retrogression with EB-2 india moving back 8 months from January 1, 2006 to May 1, 2005.  However, under the new system nationals of India in the EB-2 preference category with priority dates on or before June 1, 2011, will be eligible to file the adjustment of status applications starting in October, roughly 6 years earlier than they could have filed under the prior system.  For EB-3 India, which retrogressed just over 5 months to March 8, 2004, the difference between the “Application Filing” date and “Final Action” date is less significant, allowing EB-3 Indian nationals to file their permanent residence applications approximately 1 year and 4 months earlier that under the prior system.  

There was significant forward movement in priority dates (“Final Action” dates) for EB-2 China, which progressed 6 years from January 1, 2006, to January 1, 2012.   Additionally, under the new system, EB-2 Chinese nationals with priority dates on or before May 1, 2014, are able to file their permanent residence applications starting in October, over 2 years earlier than under the previous system.  There was also significant forward movement in EB-3 China of almost 7 years with priority dates (“Final Action” dates) moving forward from December 22, 2004 to October 15, 2011.  Additionally, starting in October, EB-3 Chinese nationals with priority dates on or before October 1, 2013 will be able to file their permanent resident applications, almost 2 years earlier than under the earlier system.

UPDATE: On September 25, 2015 USCIS and DOS issued a revised visa bulletin which supersedes the bulletin issued on September 9, 2015.  For more details on the official announcement please read our D&S summary.

USCIS Modifies Preparer's Declaration on Form I-129

Today, August 17, 2015, USCIS published a new version of Form I-129, Petition for a Nonimmigrant Worker, which includes a revised version of the "Preparer's Declaration" section.

The revisions come following changes made to in the Preparer's Declaration in the version of the Form I-129 with an an edition date of October 23, 2014. In that version, the I-129 Preparer's Declaration included the following language:

By my signature, I certify, swear or affirm, under penalty of perjury, that I prepared this form on behalf of, at the request of, and with the express consent of, the petitioner. I completed the form based only on responses the petitioner provided to me. After completing the form, I reviewed it and all of the petitioner's responses with the petitioner, who agreed with every answer provided for every question on the form and, when required, supplied additional information to respond to a question on the form.

Many practitioners felt this wording, which appeared to dictate the procedures used by preparers and their clients to gather the information required to complete petitions for immigration benefits, imposed an undue burden on preparers and petitioners alike. The revised Preparer's Declaration now reads:

By my signature, I certify, swear, or affirm, under penalty of perjury, that I prepared this petition on behalf of, at the request of, and with the express consent of the petitioner or authorized signatory.

The petitioner has reviewed this completed petition as prepared by me and informed me that all of the information in the form and in the supporting documents, is complete, true, and correct.

The new language appears to be more in line with the applicable regulations which require that preparers and petitioners certify that the documentation and information submitted to USCIS is true and correct but does not mandate any specific procedures for preparation and review. 

U.S. Federal Court Order Invalidates OPT STEM Extension Rule

The United States District Court for the District of Columbia issued an order finding invalid the 2008 interim Department of Homeland Security (DHS) rule that provides for a 17-month extension of F-1 Optional Practical Training (OPT) for students with degrees in Science, Technology, Engineering, and Math, commonly referred to as “STEM extensions” or “STEM OPT.” 

The rule was issued as an interim rule without a notice and comment period in order to combat issues faced by U.S. employers in the technology sector who were unable to retain skilled workers due to the unavailability of H-1B visas. However, the Court found that in implementing the rule without providing the public adequate notice of the regulation or the opportunity to provide comment, DHS failed to comply with the requirements of U.S. administrative procedures law and held that the rule was invalid as a result. 

The Court, however, recognized that immediately vacating the validity of STEM OPT would be unduly harsh causing both hardship to F-1 students currently working in the U.S. on STEM OPT as well as a significant labor disruption in the technology sector.  Therefore, the Court suspended the ruling from taking effect until February 12, 2016, during which time DHS must comply with its notice and comment obligations.

What this Means

The Current STEM OPT regulation will remain in effect until February 12, 2016. Therefore, F-1 students working pursuant to STEM OPT will remain authorized to work, so long as their STEM employment otherwise meets the current STEM OPT criteria, which require that (1) the STEM worker’s employment is related to their STEM degree and (2) the STEM worker’s employer is a currently-enrolled E-Verify user.

Pending additional USCIS guidance clarifying how the agency will handle current and new STEM OPT extension requests, which the agency is expected to issue in the coming weeks, the current rules of the program should remain in effect meaning that (1) USCIS should continue adjudication of currently pending STEM OPT extension applications; (2) eligible STEM grads should be able to file new STEM OPT extension requests; and (3) timely-filed STEM extension applications should allow F-1 students to remain work authorized for 180 days following the expiration of their initial F-1 OPT work authorization. 

Things to Keep in Mind

DHS is expected to comply with the notice and comment requirements by the February 12, 2016 deadline. The new proposed rule that DHS will issue for notice and comment is expected to also incorporate elements of President Obama’s proposed regulation enhancing employment authorization options for F-1 students in STEM fields and strengthening the ability of employers sponsoring high-skilled worker visas to simultaneously support education and training to grow the next generation of American workers in STEM careers.  

D&S continues to closely monitor developments following the District Court’s ruling and will provide timely updates as further information becomes available.

EB-5 Alert: USCIS Message Warns that Certain Regional Center Naming Conventions May Violate Federal Law

This week, the Public Engagement Division of the United States Citizenship and Immigration Service (USCIS) issued an alert to Stakeholders reminding them that EB-5 regional centers and any related commercial enterprises affiliated with the regional center should not contain the words "United States," "U.S.," "US," and "Federal" in their names.  USCIS explained that such words may falsely imply a relationship between the entity and the U.S. government and, thus, using these names on website and promotional materials could be considered a deceptive act or practice or constitute false advertising in violation of federal unfair trade and false advertising laws.

USCIS also warned that any business operating in the financial services sector should not have advertisements containing the words "Federal" or United States," as such language could constitute false advertising or misuse of names to indicate a federal agency,  both of which are violations of federal law.

In cases where the Immigrant Investor Program Office (IPO) - the office that adjudicates EB-5 petitions nationwide - determines a regional center or related commercial enterprise has a questionable name or has employed questionable language in advertisements, it may refer the case to the Federal Trade Commission or Department of Justice, as appropriate, for further action.

EB-5 investors and practitioners should continue to review all regional center materials and advertisements closely and carefully to ensure that no questionable naming conventions or advertising language is used that could subject the regional center to federal investigation.

DEPARTMENT OF STATE SEPTEMBER 2015 VISA BULLETIN SUMMARY

The Department of State released the September 2015 Visa Bulletin today.  D&S provides a monthly Summary of the family and employment based priority dates.  This month, there was forward movement in most family-based and employment-based visa categories with the exception of EB-2 India and China, both of which retrogressed to January 1, 2006 (a retrogression of almost 3 years for EB-2 India and almost 8 years for EB-2 China).  EB-3 India and China both progressed over 6 months from June 1, 2004 to December 22, 2004.  EB-5 China, which retrogressed for the first time in June 2015, experienced a moderate progression from September 1, 2013 to September 22, 2013.  

DHS Announces Intention to Implement Security Enhancements to Visa Waiver Program

On August 6, 2015, Secretary of the Department of Homeland Security ("DHS"), Jeh Johnson, released a statement announcing DHS and the State Department's intent to implement a number of additional or revised security criteria for all participants in the Visa Waiver Program ("VWP"). These criteria will apply to both new and current members of the Program.  In addition, these enhancements are intended to build upon the additional data fields of information added to the Electronic System for Travel Authorization ("ESTA") application last fall.

The most significant of the new security enhancements include:

1. The requirement that VWP members use e-passports for all travel to the U.S.
2. The requirement that the INTERPOL Lost and Stolen Passport Database be used to screen travelers crossing the borders of a VWP country.
3. Permission for expanded use of U.S. federal air marshals on international flights from VWP countries to the U.S.

Secretary Johnson's statement emphasized that the new measures were intended to enhance security without hindering lawful trade and travel between VWP participating countries.  

U.S. EMBASSY IN HAVANA, CUBA NOW OPEN

A significant step towards the Obama Administration's normalization of diplomatic relations between the U.S. and Cuba occurred July 20, 2015, when the U.S. Embassy in Havana, Cuba was reopened after 54 years.  The Embassy, which has been closed since January 1961, now has an active website and is accepting interview appointments for both nonimmigrant and immigrant visa processing.

USCIS Resumes Premium Processing Service for H-1B Extensions

USCIS announced that as of July 13, 2015, the agency has resumed Premium Processing Service for all H-1B extension petitions and will accept I-907 Premium Processing requests on any H-1B extension petition, including pending petitions filed during the premium processing moratorium. Premium Processing requests for these cases received by USCIS before July 13, 2015, however, will still be rejected. 

DEPARTMENT OF STATE AUGUST 2015 VISA BULLETIN SUMMARY

The Department of State released the August 2015 Visa Bulletin this week.  D&S provides a monthly Summary of the family and employment based priority dates.  This month, there was forward movement in most employment-based visa categories with the exception of EB-3 China, which retrogressed over 7 years from September 1, 2011, to June 1, 2004, due to high demand.  There was a progression of 4 months for EB-3 India to June 1, 2004.  Additionally, EB-2 India remained unchanged and EB-2 China progressed 2.5 months to December 15, 2013.  EB-5 China, which retrogressed for the first time in June 2015, remains at September 1, 2013.

All Consular Posts Back Online Following Technological Systems Issues

The most recent alert by the Department of State (DOS) indicates that all visa-issuing embassies and consulates are now back online, scheduling visa interviews and issuing nonimmigrant and immigrant visas.

DOS reports issuing more than 300,000 nonimmigrant visas during the week of June 22, 2015 alone and that Consular staff worked this past weekend to help clear the backlog created by the system issues. DOS expects the backlog will be cleared entirely by early this week.

UPDATE: 165 Consular Posts (85% of Nonimmigrant Visa Demand) Back Online

The most recent alert by the Department of State (DOS) indicates that 165 consular posts, representing more than 85 percent of the worldwide nonimmigrant visa demand, are now online and issuing visas. With the system largely restored, consular posts overseas issued more than 82,000 visas on June 24th and more than 238,000 non-immigrant visas this week alone.

D&S will continue to provide updates as they become available.

UPDATE: Technological Issues with Overseas Passport and Visa Systems

The Department of State (DOS) continues to experience technical difficulties with its overseas visa and passport systems but the most recent DOS alert indicates that the database responsible for handling biometric clearances has been rebuilt and that as of June 23, 2015, 39 posts are now online and issuing visas.

DOS will continue to bring additional posts online and expects the system will be fully reconnected and operational this week.

During the outage, applicants faced significant delays in visa issuance and appointment scheduling, though DOS issued approximately 1,250 visa to temporary and seasonal workers and more than 3,000 visas for urgent and humanitarian travel during this period.

While the residual delays persist, individuals have received their passports with visa stamps from several consulates, noting that most of these individuals appear to have submitted their DS-160, Online Nonimmigrant Visa Applications, before June 8, 2015. DOS indicates that interviews will now become available for those applicants who applied after June 8, 2015, and that many consular posts will begin rescheduling appointments as early as today, June 24, 2015.

Once fully operational, the DOS confirms it will continue to work as quickly as possible to clear the pending visa application backlogs, giving priority to assisting individuals with urgent humanitarian travel needs and confirms that adoption cases are still being processed.

D&S will continue to monitor the situation and provide updates as they become available.