November 2013 Newsletter
In This Issue
Federal Government Reopens; OFLC, USCIS Announce Temporary Accommodation for I-129 H-2A Petitions
The Department of Labor's Office of Foreign Labor Certification issued the following announcement on October 23, 2013:
With the reopening of the federal government, USCIS has been informed that the Department of Labor's (DOL) Office of Foreign Labor Certification is once again accepting and processing applications, including Temporary Labor Certifications (TLCs).The notice is available here. USCIS' related notice is available here.
Online Form Replaces DS-2001 for Immigrant Visa Applicants
The Immigrant Visa Section at the American Embassy, London has updated their online instructions relating to compilation of required documents for submission in support of an application for an immigrant visa. Previously, applicants were required to file the paper Form DS-2001 to notify the Section that they had collected all the necessary documents and were ready for their immigrant visa interview to be scheduled. Now, in order for the Immigrant Visa Section to schedule an appointment, applicants must complete the online Notification of Applicant Readiness Form to show that they have submitted the online immigrant visa application (Form DS-260), scheduled the medical examination and are in possession of all required documents.
USCIS Clarifies Eligibility Requirements for 17-Month Extension of Post-Completion OPT for F-1 STEM Students
On October 21, 2013, U.S. Citizenship and Immigration Services (USCIS) clarified eligibility requirements for a 17-month extension of post-completion optional practical training (OPT) for F-1 students enrolled in STEM (science, technology, engineering, and mathematics) programs.
USCIS said the issue is whether F-1 students engaging in post-completion OPT under 8 CFR § 214.2(f)(10)(ii)(A) are eligible for the 17-month STEM extension under 8 CFR § 214.2(f)(10)(ii)(C) if they have not yet completed their thesis requirement or equivalent for their STEM degree when applying for the STEM extension. USCIS said that F-1 students engaging in post-completion OPT are eligible for a 17-month STEM extension even if they have not yet completed the thesis requirement or equivalent for their STEM degree.
USCIS explained that to be eligible for post-completion OPT under 8 CFR § 214.2(f)(10)(ii)(A), F-1 students must have completed their course of study, or, for students in a bachelor's, master's, or doctoral degree program, the students must have completed all course requirements for their degree, excluding any applicable thesis requirement or equivalent.
USCIS said that with a narrow reading of 8 CFR § 214.2(f)(10)(ii)(C)(1) and (2), one might conclude that F-1 students who have been granted post-completion OPT under 8 CFR § 214.2(f)(10)(ii)(A) must have completed all course requirements for their STEM degrees, including any applicable thesis requirement or equivalent, to be eligible for the 17-month STEM extension (i.e., only after "earning a STEM degree"). However, 8 CFR § 214.2(f)(10)(ii)(C)(1) and (2) cannot be read in isolation, USCIS said; they must be read in conjunction with 8 CFR § 214.2(f)(10)(ii)(A)(3), which states that students need not necessarily have completed their thesis requirement or equivalent to be eligible for post-completion OPT. Because the 17-month STEM extension is merely an extension of a previously granted period of post-completion OPT, USCIS concluded that students who are applying for the STEM extension need not necessarily have completed their STEM degree thesis requirement or equivalent to be eligible for the extension. Such a reading "is made even more compelling from a policy perspective, given the nation's interest in attracting and retaining the world's best and brightest individuals," USCIS said. Moreover, USCIS noted, such a reading is consistent with the position taken by the Student and Exchange Visitor Program (SEVP) in policy guidance on this specific issue.
DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shows Movement in China 'Other Workers' Category
The Department of State (DOS) recently released information about how it calculates visa availability cut-off dates. Separately, the Visa Office released the latest November 2013 Visa Bulletin, which explained additional points and noted forward movement in the China employment-based third preference "Other Workers" category.
Visa availability calculations. DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current." For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.
The DOS noted that the FY 2013 employment annual limits were reached before the end of September, and no further allocation of numbers was possible after that time. Offices continued to process employment cases, submitted them in the normal manner, and such cases were then held in the Visa Office's "Pending Demand" file. All eligible cases were then allocated employment-based numbers on October 1, 2013, under the FY 2014 annual limits.
DOS said that the number of I-485 adjustment of status applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services (USCIS) has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. These filings are the result of the cut-off dates for those countries having been advanced by over three years since April. DOS said that such demand must be considered in the determination of the monthly cut-off dates to prevent any unnecessary fluctuation in those dates.
The imposition of cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals, DOS noted. In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status. Therefore, DOS said that the totals in the Visa Bulletin charts should not be interpreted to reflect the total universe of applicant demand. These totals only represent the amount of demand taken into consideration during the determination of new dates.
Visa Bulletin. The Visa Office noted in its November 2013 Visa Bulletin that:
It is important to remember that the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.The DOS's information includes charts showing the estimated total number of visas available for each employment preference category and country for fiscal year 2014. Demand data used in the determination of the November 2013 employment preference cut-off dates are also included in the charts. The information is available here. The latest Visa Bulletin for November 2013 is available here .
Congress Extends Special Immigrant Visa Program for Iraqis
Congress has extended, and President Barack Obama has signed, legislation (H.R. 3233) extending the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government. The President signed the legislation on October 4, 2013.
The law extends the authority of the Department of State (DOS) to issue SIVs to Iraqi nationals under the National Defense Authorization Act of 2008 until December 31, 2013. Visas may be issued to principal applicants under this program until that date. Approved visas are not affected by the end of the program.
The SIV program that has been extended covers Iraqi nationals who, between March 20, 2003, and September 30, 2013, were employed by or on behalf of the U.S. government in Iraq for a period of at least one year. The program had expired with respect to principal applicants on September 30, 2013, but has now been extended. The extension permits USCIS to approve petitions or applications for visas or adjustment of status to lawful permanent residence in any eligible Iraqi SIV case that were pending with USCIS or with DOS when the program expired on September 30, 2013. USCIS may also approve an additional 2,000 cases as long as the initial applications to the DOS Chief of Mission in Iraq are made by December 31, 2013.
Also, DOS's authority to issue Special Immigrant Visas to Afghan nationals expired on September 30, 2014. DOS said it welcomed any actions by Congress to extend the Afghan SIV program and to further extend the Iraqi SIV program. "Across the U.S. government, every effort is being made to ensure qualified applicants are processed in a timely fashion before the Iraqi and Afghan programs' scheduled end dates," DOS said. It is unclear how the government shutdown may have affected processing.
The authority to grant derivative SIV status to spouses and children of principal Iraqi SIVs did not sunset on September 30, 2013, and is not numerically capped.
USCIS's announcement is available here. The Department of State's announcement is available here.
Information on a separate extension for translators/interpreters in Iraq or Afghanistan who worked with the U.S. Armed Forces or under Chief of Mission authority is available here.
New Publications and Items of Interest
I-9 inspection overview. U.S. Immigration and Customs Enforcement (ICE) released a fact sheet, "Form I-9 Inspection Overview." The fact sheet includes procedures ICE follows when conducting an I-9 inspection. The fact sheet notes, among other things, that monetary penalties for violations related to knowingly hiring and continuing to employ undocumented workers range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which include failing to produce an I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, whether there was a good faith effort to comply, the seriousness of the violation, whether the violation involved unauthorized workers, and any history of previous violations. The fact sheet is available here. A related fact sheet, "Worksite Enforcement," is available here.
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:
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