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Immigration Newsletter
July 2015 - Volume 7, Issue 4    
In This Issue
USCIS Policy re: Change of H-1B Worksite
Checking in on Executive Action
August 2015 Visa Bulletin
PERM Processing Times
In the News: What's Happening at RS

Common Acronyms

 

AAO: USCIS Administrative Appeals Office

 

DHS: Department of Homeland Security

 

DOL: Department of Labor

 

DOS: Department of State

 

USCIS:
U.S. Citizenship & Immigration Services    


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Phone: (617) 542-5111
Fax: (617) 542-2331
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This summer has brought unexpected delays on several fronts for nonimmigrant workers and travelers. Thankfully, both the Department of State visa issues and the suspension of certain premium processing services mentioned below have now ended.

 

 

State Department Experiences Technical Difficulties

 

On June 9, DOS experienced a significant hardware failure at the facility that processes and transmits biometric data checks for U.S. Embassies and Consulates abroad. Since DOS has a legal requirement to screen visa applicants before issuing visas for travel for national security purposes, these checks cannot be bypassed, and this outage had a serious impact on DOS' ability to issue visas. Between June 9 and June 20, DOS was unable to issue visa stamps to any international applicants, with extremely limited exceptions in urgent circumstances. It wasn't until June 29 that all visa-issuing Embassies and Consulates came back online (Consulates were slowly brought back online between June 20 and 29). DOS was able to clear the 335,000 applicant backlog relatively quickly, and travelers applying for visa stamps abroad should no longer experience delays associated with this outage.

 

 

USCIS Temporarily Suspends Premium Processing for H-1B Extension Petitions

 

USCIS temporarily suspended premium processing for all H-1B petitions requesting an extension of stay that were filed between May 26 and July 10.  The reason for the suspension was to allow the Service to re-allocate personnel to adjudicate the anticipated influx of Employment Authorization (EAD) applications from H-4 spouses pursuant to the H-4 EAD rule which took effect on May 26. Any petitions filed via regular processing during the suspension period may now be converted to premium processing if desired. Any petitions filed via premium processing prior to May 26 which were not adjudicated within the requisite 15 calendar days will have the premium processing fee refunded.

 

USCIS Policy Regarding Change of Worksite for H-1B Beneficiaries  


We mentioned in our last newsletter a precedent decision issued by the AAO in April regarding the need to file a new H-1B petition any time an H-1B worker changes job sites to another site in a different prevailing wage statistical area (i.e. a worksite requiring a new Labor Condition Application). USCIS has now issued guidance regarding its policy with respect to this decision. Prior to this guidance, there was no required timeframe in which an H-1B amendment must be filed. Now, USCIS has indicated that an amendment must be filed before an H-1B worker moves to the new worksite. Assuming the amendment is properly filed, the worker may then begin work at the new job site while the amendment petition is pending with USCIS.

USCIS takes the position that failure to file an amendment petition prior to a change in worksite outside the statistical area will subject the employer to adverse action (e.g. revocation of the original H-1B petition), and the employee may be in violation of status.  Therefore, it is very important that you notify the attorney you work with in advance if one of your H-1B workers will be changing job sites, so we can properly advise you on the steps which must be taken.

 

Checking in on Executive Action  


As we previously reported, on November 21, 2014, President Obama announced that he would be taking Executive Action to address immigration practices related to border security, highly skilled workers and entrepreneurs, and certain classes of undocumented workers who have been in the Unites States for at least five years, as well as meet other requirements.  Click here to read our summary of the Immigration Accountability Executive Action.  Most of the Actions involved instructing the various agencies associated with Immigration processing and enforcement to implement new regulations, policies or procedures, and to issue guidance.  The White House issued a report this month, "Modernizing and Streamlining Our Legal Immigration System for the 21st Century," which details the steps being taken to implement some of the President's initiatives.

 

In the employment-based context, the report indicates that DOS will be revising the monthly Visa Bulletin later this year to better estimate immigrant visa availability for prospective applicants, and to allow more individuals seeking permanent resident status to work, change jobs, and accept promotions. The White House also states that DHS intends to publish a regulation which clarifies and expands on the protections granted by AC21 for employment-based immigrants and non-immigrants, an announcement which is supported by DHS' notice that it has added employment-based visa modernization to the regulatory agenda. DHS indicated that the Agency is specifically working on amended regulations governing the adjustment of status process and employment-based immigration, specifically by allowing certain approved I-140 beneficiaries to obtain work authorization, clarifying the meaning of portable work authorization, and removing unnecessary restrictions on the ability to change jobs or progress in careers, as well as providing relief to workers facing lengthy adjustment delays.

 

The White House report also indicates that DOL intends to publish a new regulation to better align the PERM program with the objectives of the immigration system and the needs of workers and employers, including updating recruitment methods, addressing the correction of minor errors in applications, and disclosing application outcome to immigrant workers. DOL also continues to implement a plan to streamline PERM adjudications processes, including audit review, in order to reduce the pending audit caseload and allow for faster adjudication of audit case processing. During a DOL panel at the American Immigration Lawyers Association's Annual Conference in June, a DOL representative stated that DOL anticipates publishing its new proposed regulation in December 2015. The panel also noted that DOL's Fiscal Year 2016 budget proposal requests the authority to charge fees. If Congress grants this authority, DOL would begin working to implement fees for PERM labor certification applications.

 

We do not have any additional information about these proposed changes at this time, but will provide more information as it becomes available.

 

Finally, implementation of two of the Executive Action initiatives - expanding Deferred Action for Childhood Arrivals (DACA, a program implemented in 2012) and introducing Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) - continues to be delayed due to a temporary injunction issued by a Texas District Court pending a lawsuit challenging these programs.  One of the provisions of the expanded DACA program is to issue EADs valid for three years instead of two, and USCIS immediately implemented this change for DACA renewal applicants after President Obama's announcement in November.  USCIS is now conducting a campaign of letters, phone calls, and home visits to collect those three-year EADs granted after the injunction was issued, and replace them with two-year EADs (which are still allowed under the initial 2012 DACA initiative).

 

August 2015 Visa Bulletin

 

The Department of State Visa Bulletin reflects continued forward movement in the EB-2 China category. EB-3 worldwide has advanced to be nearly Current, and EB-3 India has advanced farther than it has since 2007. However, EB-3 China has retrogressed to 2004 due to high usage. EB-3 Philippines became Unavailable in July, but has opened back up for August in a limited capacity.

 

EB-3 China is expected to advance again to 2010 or 2011 in Fiscal Year 2016, which begins in October. There is very little demand for F-2A Worldwide numbers, so continued rapid forward movement in that category is also anticipated.

 

Please Note:  There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers.  For purposes of this newsletter, we are including only the categories most applicable to our business clients.  For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website 


Employment-Based Preferences

  • First:  Priority Workers.  Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
  • Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.  Also includes National Interest Waiver (NIW) applicants.
  • Third:  Skilled Workers, Professionals, and Other Workers.

Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below.  "C" means current, i.e., numbers are available for all qualified applicants.   

Employment-Based

All Chargeability Areas Except Those Listed

China - mainland born

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

15DEC13

01OCT08

C

C

3rd

15JUL15

01JUN04

01JUN04

15JUL15

01JUN04

Other Workers

15JUL15

01JAN04

01JAN04

15JUL15 

01JUN04

 

 Family-Based Preferences

  • Second (A): Spouses and Children of Permanent Residents.

Family-Sponsored

All Chargeability Areas Except Those Listed

China - mainland born

India

Mexico

Philippines

F2A

15DEC13

15DEC13

15DEC13

01NOV13

15DEC13



PERM Processing Times 


As of the date of this newsletter, DOL reports that it is processing PERM labor certification cases which were filed in December 2014.  This means that if a PERM case was filed today, it would take DOL approximately seven months to adjudicate.  


DOL also reports that it is adjudicating PERM cases selected for audit which were originally filed in March 2014.  This means that if a PERM case was filed today and subsequently selected for audit, it would take DOL approximately one year and four months to adjudicate.


Please note that PERM processing times fluctuate and are subject to change. 

In the News: What's Happening at RS

  • Ross Silverman LLP congratulates Attorney Sara Fleming on the birth of her son, Theodore, on July 3.
  • Howard Silverman was awarded AILA's President's Commendation for Outstanding Volunteer Service and Assistance to AILA at the organization's annual conference last month.

 

This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.