January 2016 Newsletter
In This Issue
USCIS Seeks Comments on Proposed Rule to Change Certain Employment-Based Visa Programs
U.S. Citizenship and Immigration Services (USCIS) seeks public comments on a proposed rule published on December 31, 2015, "Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers," that would change certain aspects of employment-based visa programs. USCIS is also proposing regulatory amendments "to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs)."
Comments are due by February 29, 2016. To submit comments, follow the instructions in the notice.
Among other things, USCIS said it proposes to amend its regulations to:
A detailed summary of the proposed rule is available here. The proposed rule is here.
Omnibus Bill Includes Hefty Fee Increases for L-1 and H-1B Visas, EB-5 Regional Center Extension, Other Immigration-Related Provisions
The combined omnibus spending bill that Congress passed on December 18, 2015, includes several immigration measures. Among other things, the supplemental fees for L-1 and H-1B petitions are increasing for companies that employ 50 or more employees in the United States and have more than 50 percent of their U.S. workforce in H-1B, L-1A, or L-1B nonimmigrant status. Specifically, the previously expired fees for L-1 petitions will increase from $2,250 to $4,500, and the fees for H-1B petitions will increase from $2,000 to $4,000. These supplemental fees must be paid on initial and extension petitions.
The bill also extends without substantive changes through September 30, 2016, four immigration programs: the EB-5 regional center program, the E-Verify program, the religious worker visa program, and the Conrad State 30 waiver program for certain foreign doctors on J-1 visas.
Also passed was a prohibition against foreign nationals in the Visa Waiver Program (VWP) if they have visited Syria or Iraq at any time on or after March 1, 2011. The new law also excludes from the VWP individuals who are nationals of Iraq, Syria, Iran, or Sudan. The omnibus spending law exempts those performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government. In addition, the U.S. government may waive exclusion from the VWP program if it would be in the law enforcement or national security interests of the United States.
The new law also allows certain workers previously counted against the H-2B cap to return to the United States without being counted against the cap a second time.
Read the text of the new law.
Read the summaries:
Labor Dept. Issues Emergency Guidance on H-2B Changes
Responding to new requirements contained in the 2016 Department of Labor Appropriations Act, which was signed into law on December 18, 2015, as part of the omnibus spending bill mentioned in the prior article, the Labor Department's Office of Foreign Labor Certification (OFLC) has provided emergency guidance to employers seeking to employ nonimmigrant workers in H-2B temporary or seasonal nonagricultural employment. The operational guidance is for employers seeking to obtain prevailing wage determinations and temporary labor certifications under the H-2B nonimmigrant visa classification.
Among other things, the guidance notes that certain provisions in the Appropriations Act require non-substantive modifications to ETA Form 9165. To comply with the law, OFLC has requested emergency approval from the Office of Management and Budget (OMB) on non-substantive changes to the form. The guidance states that until a notice of action is issued by the OMB, the Certifying Officer (CO) cannot issue a prevailing wage determination where use of a private survey has been requested.
The new provisions also require non-substantive modifications to Appendix B of the Form ETA-9142B. Specifically, the current Appendix B contains references to an employer's compliance with the wage offer guarantee, corresponding employment, three-fourths guarantee, and the definition of temporary need under 20 CFR § 655.6. To comply with the new law, OFLC has requested emergency approval from OMB on non-substantive changes to the Appendix B. Until a notice of action is issued by OMB, the CO cannot issue any certification determinations on H-2B applications for temporary labor certification.
When a certification decision is issued, the CO will provide the employer with a copy of the revised Appendix B approved by OMB as well as a Final Determination Letter containing instructions for submitting all appropriate documentation to U.S. Citizenship and Immigration Services. Until OMB approves a revised Appendix B, employers may continue to file H-2B applications with the prior version of Appendix B. After receipt of the notice of action from the OMB, the OFLC will provide a revised Appendix B to the employer with a certification decision.
The OFLC said it will issue a further announcement as soon as the agency has received the notices from the OMB.
Secretary of State Kerry Sends Letter to Iranian Foreign Minister re Visa Waiver Issues
U.S. Secretary of State John Kerry sent a letter on December 19, 2015, to Iranian Foreign Minister Mohammad Javad Zarif assuring him that the United States remains committed to lifting visa sanctions as provided for under the Joint Comprehensive Plan of Action (JCPOA). The JCPOA is a diplomatic agreement intended to ensure that Iran's nuclear program remains peaceful. Among other things the JCPOA will eventually lift certain economic and visa sanctions on Iran.
Secretary of State Kerry noted that the Obama administration has the authority to waive recent changes in visa requirements passed in Congress as part of the omnibus spending bill. See the omnibus article in this issue, above. Secretary Kerry expressed confidence that the visa provisions in the omnibus spending bill “will not in any way prevent us from meeting our JCPOA commitments, and that we will implement them so as not to interfere with legitimate business interests of Iran." To this end, he noted that the United States has "a number of potential tools available to us, including multiple entry ten-year business visas, programs for expediting business visas, and the waiver authority provided under the new legislation." He said he would be "happy to discuss this further and provide any additional clarification."
House Votes for Stricter Visa Waiver Program Following Terror Concerns; Obama Announces Changes
Following recent terror attacks in Paris, France, and San Bernardino, California, the U.S. House of Representatives voted on December 8, 2015, to tighten restrictions on travelers under the Visa Waiver Program (VWP). The VWP allows people from 38 countries to enter the United States for up to 90 days without obtaining a visa. The bill passed 407 to 19. The bill would require visitors to obtain a visa if they traveled to Syria, Iraq, Iran, or Sudan during the past five years, and would increase information-sharing among the United States and other participating VWP countries, among other things. The Senate has not yet voted on the legislation.
Also, President Barack Obama announced new security measures for the VWP, including gathering more information from travelers about visits to Syria and Iraq. The administration is also considering pilot programs for collecting biometric information from VWP travelers, and is urging Congress to allow an increase in fines against air carriers that do not properly verify passport data and to require all travelers to use passports that include security chips. These measures come amid pressure separately from many U.S. governors against allowing in an additional 10,000 Syrian refugees.
The U.S. Travel Association, which supports the House-passed measure, noted that the VWP facilitates international travel to the United States, generating billions of dollars in economic output and supporting U.S. jobs. International travelers stay longer and spend more while here, the association noted, with an average of 18 nights and nearly $4,400 per person per trip. For every 35 overseas travelers who decide to visit the United States, an additional U.S. job is created, the association reported. In 2014, more than 20.4 million travelers arrived through the VWP (59% of overseas visitors), generating $190 billion in economic output and supporting nearly one million jobs. "This is why, largely as a result of the VWP, travel is our nation's number one services export, generating a trade surplus of $74 billion in 2014," the association said.
Click here for more information, including a chart showing differences between nonimmigrant visas and the VWP in eligibility requirements, the application process, pre-arrival procedures, and port of entry requirements.
Obama Orders Review of K-1 Fiancé(e) Visa Program Following California Attack
President Barack Obama has ordered a review of the K-1 fiancé(e) visa program in response to terrorism concerns following the mass shooting in San Bernardino, California, that killed 14 people and injured many others on December 2, 2015. A husband-and-wife team launched the attack following the wife's admission to the United States several years ago as a K-1 fiancée. President Obama said he ordered the Departments of State and Homeland Security to review the program.
Recent reports have noted, among other things, that security checks on the wife, Tashfeen Malik, for admission to the United States on a K-1 visa failed to uncover her support on social media of violent jihad and her statements that she wanted to participate in it. Social media is not routinely reviewed as part of Homeland Security checks. How such reviews of social media postings could occur, and whether they are appropriate, is reportedly a topic of debate within the U.S. government.
Approximately 35,925 people entered the United States in fiscal year 2014 on fiancé(e) visas.
Statistics on FY 2014 nonimmigrant visas issued by country and type of visa
USCIS Transfers Some Cases from Vermont Service Center
U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework from the Vermont Service Center (VSC) to the California Service Center (CSC) and the Nebraska Service Center (NSC) "to balance workloads."
The CSC will now process Forms I-539, Application to Extend/Change Nonimmigrant Status. The NSC will process Forms I-765, Application for Employment Authorization, filed by asylum applicants with pending asylum applications filed on or after January 4, 1995. The eligibility category for the application is (c)(8).
USCIS will notify those whose cases are transferred. The original receipt number will not change, and processing of the case will not be delayed "except for the additional time needed to transfer the file." The filing location and instructions for these forms will not change.
USCIS noted that an individual's case status can be checked at Case Status Online by entering the receipt number. Applicants can also sign up to receive automatic case status updates by email, and can submit an inquiry if they do not receive a decision within the published processing time. Inquiries may be made at 800-375-5283 (TDD 800-767-1833), or online.
Read the notice.
USCIS Updates Petition to Remove Conditions on Residence for Marriage-Based Green Cards
U.S. Citizenship and Immigration Services (USCIS) has published an update to Form I-751, Petition to Remove Conditions on Residence. The new edition is dated 11/23/15.
Beginning on February 29, 2016, USCIS will accept only the 11/23/15 edition. The edition date is at the bottom of every page of the form and instructions. The expiration date at the top says 11/30/2017.
Read the latest form and instructions.
Users Report Problems with New 9 FAM-e
Some users are reporting problems with the new 9 FAM-e, which replaced the legacy Volume 9 of the Foreign Affairs Manual (9 FAM) on November 18, 2015, and is the "authoritative source for visa guidance," according to the Department of State's (DOS) December 2015 Visa Bulletin.
DOS developed crosswalk tables correlating old citations with new, so that users could match new 9 FAM-e sections with former locations in the legacy 9 FAM. Users report, however, that the citations in some cases do not correspond appropriately. Also, some of the 9 FAM-e sections listed in the crosswalk do not yet show up in the online 9 FAM-e and are listed as "unavailable." The legacy 9 FAM is no longer available online. There are also concerns about the cross-references disappearing over time. Users are raising these concerns with DOS.
The announcement is in section F of the December 2015 Visa Bulletin.
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:
Hodkinson Law Group News
We hope our clients and colleagues all enjoyed the Christmas and New Year break as much as we did. We have returned to the office re-energised and ready to take on the challenges 2016 has to offer. We are all looking forward to a busy and productive year together.