December 2014 Newsletter
In This Issue
- Obama Takes Executive Action on Immigration
- Department of Labor To Modernize PERM Recruitment and Application Requirements
- Application for Immigrant Visa- Procedural Change at National Visa Center
- Changes to ESTA
- USCIS Begins Transferring Some Casework From Vermont to California
- USCIS Launches myE-Verify for Employees
- Government Agency Links
- Hodkinson Law Group News
Obama Takes Executive Action on Immigration
Shortly after the mid-term elections, President Barack Obama initiated several executive actions on immigration.
As outlined in a series of Department of Homeland Security memoranda, the executive actions include, among other things:
- Supporting high-skilled business and workers. The Department of Homeland Security (DHS) will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, DHS notes, "because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions."
Some of the actions called for in the memo include:
- U.S. Citizenship and Immigration Services (USCIS) working with the Department of State (DOS) to improve the system for determining when immigrant visas are available to applicants during the fiscal year. DOS has agreed to modify its visa bulletin system "to more simply and reliably make such determinations," and the memo states an expectation that USCIS will revise its current regulations "to reflect and complement these proposed modifications."
- USCIS considering "amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where [beneficiaries] seek to change jobs or employers."
- U.S. Immigration and Customs Enforcement (ICE) developing regulations for notice and comment to expand the degree programs eligible for Optional Practical Training (OPT) and to extend the time period and use of OPT for foreign STEM (science, technology, engineering, and mathematics) students and graduates.
- USCIS issuing guidance or regulations to clarify the standard for granting a national interest waiver green card, with the aim of promoting its greater use.
- USCIS proposing a program allowing parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for national interest waivers but "who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research." The regulation will include income and resource thresholds.
- USCIS issuing a policy memorandum to provide "clear, consolidated guidance" on the meaning of "specialized knowledge" in adjudicating L-1B petitions.
- USCIS issuing a policy memorandum providing guidance on worker portability, specifically with respect to what constitutes a "same or similar" job, with a goal of removing "unnecessary restrictions" on "natural career progression."
The memo explaining these actions is available here.
- Enforcement efforts, including commissioning three Joint Task Forces. Joint Task Force East, Joint Task Force West, and Joint Task Force Investigations. All three will incorporate elements of the U.S. Coast Guard, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. Joint Task Force East will be responsible for the southern maritime border and approaches. Joint Task Force West will be responsible for the southern land border and the West Coast. Joint Task Force Investigations will focus on investigations in support of the geographic Task Forces.
The overarching goals of the Southern Border and Approaches Campaign, of which the Joint Task Forces are a part, will be to enforce immigration laws and interdict individuals seeking to enter the U.S. without authorization; degrade international criminal organizations; and decrease the threat of terrorism. The memo explaining these actions is available here.
- Ending the Secure Communities program and replacing it with the Priority Enforcement Program, and prioritizing criminal offenses for arrest, detention, and removal. The memos explaining these actions are available at the following memorandums:
- Expanding Deferred Action for Childhood Arrivals (DACA) to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the United States before the age of 16, and not just those born after June 15, 1981. The entry date will be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. The memo explaining this action is available here.
- Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), will include individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases. The memo explaining this action is available here.
- Expanding I-601A provisional waivers to spouses and children of lawful permanent residents. The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, the administration will further clarify the "extreme hardship" standard that must be met to obtain the waiver. The memo explaining this action is available here.
- Revising parole rules. DHS will begin rulemaking to identify the conditions under which "talented entrepreneurs" should be paroled into the United States, on the ground that their entry would yield a "significant public economic benefit." DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given advance parole to leave the United States, including those who obtain deferred action, they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart. The memos explaining these actions are available at the following links:
President Obama also issued a memorandum directing the Secretaries of State and Homeland Security, in consultation with other federal agencies, to develop recommendations for improving the U.S. visa system. The recommendations will be developed in consultation with "business people, labor leaders, universities, and other stakeholders." The recommendations will be geared toward streamlining and improving the legal immigration system—including immigrant and non-immigrant visa processing—"with a focus on reforms that reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system."
In consultation with stakeholders with relevant expertise in immigration law, they will also develop recommendations "to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand." In consultation with technology experts inside and outside the government, they will develop recommendations "for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system."
President Obama also announced that he is establishing a White House Task Force on New Americans, an interagency effort "to identify and support state and local efforts at integration that are working and to consider how to expand and replicate successful models." The Task Force, which will engage with community, business, and faith leaders, as well as state and local elected officials, "will help determine additional steps the federal government can take to ensure its programs and policies are serving diverse communities that include new Americans." Among other things, the Task Force will submit an "Integration Plan" to President Obama, which will include an assessment of the members' agencies with respect to integration efforts, and recommendations. The Task Force will also identify and disseminate best practices at the state and local level, collect and disseminate data on immigrant integration, and provide technical assistance.
A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama's legal authority to expand the DACA program and to establish the Deferred Action for Parental Accountability (DAPA) program. It is available here.
President Obama also issued an "immigration blueprint," outlined in "Building a 21st Century Immigration System," which includes additional proposals. The blueprint is available here. The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info, are available here. Additional memoranda are available at the following links:
Department of Labor to Modernize PERM Recruitment and Application Requirements
The Department of Labor (DOL) has released a fact sheet announcing that it will review the PERM labor certification program and relevant regulations with a goal of updating them. DOL noted that it has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.
DOL recently marked the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of participating employers. The DOL said it has not comprehensively examined and modified the permanent labor certification requirements and process since their inception. This past fiscal year, employers submitted over 70,000 PERM applications requesting foreign workers. The majority of those job openings were for professional occupations in the information technology and science fields.
As part of the new review, DOL will seek input on the current PERM regulations, including how they can be modernized to be more responsive to changes in the national workforce. Specifically, DOL will seek input on the following:
DOL's Employment and Training Administration may also examine other aspects of the existing PERM regulations to further align the program design with the objectives of the U.S. immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.
- Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
- Methods and practices designed to modernize U.S. worker recruitment requirements;
- Processes to clarify employer obligations to ensure that PERM positions are fully open to U.S. workers;
- Ranges of case processing time frames and possibilities for premium processing; and
- Application submission and review processes and the feasibility of efficiently addressing nonmaterial errors.
The fact sheet is available here.
Application for Immigrant Visa – Procedural change at National Visa Center
The National Visa Center no longer requires original documents (other than the original signed Affidavit of Support) for processing immigrant visa applications. The Embassy has thus released a new checklist setting out the documents required on the day of the consular interview for K-1 and immigrant visa processing.
Changes to ESTA
US Customs and Border Protection posted a new ESTA form that must be used by all persons seeking authorisation to travel to the US on the Visa Waiver Program. The brief press release announcing the changes did not specify whether existing ESTA authorisations would continue to be honoured, but the posted list of FAQs states that persons with current, valid ESTA authorisations do not need to reapply. Although the CBP statement refers only to ‘additional data fields of information’ now required on the ESTA form, such as contact information, parents’ names and employment details, the crucial eligibility questions have also been rewritten and augmented.
USCIS Begins Transferring Some Casework from Vermont to California
U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework from the Vermont Service Center to the California Service Center to balance workloads. Affected casework so far includes Form I-751, Petition to Remove the Conditions of Residence, for certain marriage-related green card cases.
USCIS will send transfer notices to those affected. The original receipt number will not change and the transfer will not delay processing, USCIS said. The words “Case Type: CRI89 Approved Removal of Conditions” will be printed on the transfer notices. USCIS said that the notice may not contain the receipt number of the pending I-751. Those receiving any notice should respond to the service center that sent them the notice.
Those who do not receive a decision within the published processing time for the California Service Center may submit an inquiry using e-Request or call the National Customer Service Center at 1-800-375-5283. For TDD (hearing-impaired) assistance, please call 1-800-767-1833.
The announcement is available here. Published processing times are available here.
USCIS Launches myE-Verify for Employees
U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez recently announced the launch of myE-Verify, a new website designed for employees. myE-Verify is a "one-stop shop" for employees to create and maintain secure personal accounts and access new features for identity protection, USCIS said.
myE-Verify includes Self Check and the Employee Rights Toolkit, among other things. Users will have their identities verified through Self Check when creating myE-Verify accounts. myE-Verify introduces the following new services:
- myE-Verify accounts – Allows employees and job seekers to set up free and secure personal accounts to manage the use of their information in E-Verify and Self Check through the available myE-Verify features.
- Self Lock – Allows individuals to lock their social security numbers to prevent unauthorized or fraudulent use within E-Verify. Self Lock is available only to myE-Verify account holders.
- myResources – A section of the myE-Verify site that contains information in multi-media formats to educate employees about their rights as well as the responsibilities of employers in the employment eligibility verification process.
myE-Verify accounts and Self Lock will initially be accessible to individuals in Arizona, Idaho, Colorado, Mississippi, Virginia, and the District of Columbia. In future releases, USCIS will roll out myE-Verify across the country with additional features focused on employees and job seekers.
E-Verify is used by nearly 550,000 employers to verify the employment eligibility of persons they hire.
The announcement is available here. Information on E-Verify is available here. The myE-Verify page is at www.uscis.gov/mye-verify.
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 have all enjoyed our Thanksgiving holiday and are now looking forward to a month of holiday festivities. We wish all our clients, friends and colleagues a safe and joyous holiday and a happy, healthy and prosperous new year.
Kehrela Hodkinson continues to be active in the American Immigration Lawyers Association (AILA). She has once again been acclaimed in 'Who's Who Legal, Corporate Immigration 2014 as one of the top 15 corporate immigrations lawyers worldwide.
Sharon Noble has been practicing U.S. immigration law with Hodkinson Law Group since 1996. Her areas of expertise include non-immigrant visa petitions for corporate employees, individual investors and entrepreneurs as well as employment based immigrant petitions, extraordinary ability petitions and outstanding researcher petitions. Ms. Noble worked with Ms. Hodkinson in London for seven years before returning to the United States in 2003. She is now Of Counsel to Hodkinson law Group, working remotely from California.
Allison Ouvry has practiced law since 1996, concentrating in the field of business immigration since 2000. She is a member of the State Bar of Texas and the New York Bar, and a member of the American Immigration Lawyers Association, the American Women Lawyers in London group, and the London Library.
Tasha Wiesman is a member of the Illinois State Bar and assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility.