December 2015 Newsletter
In This Issue
Changes Coming to the Visa Waiver Program
The White House released a fact sheet on the Visa Waiver Program (VWP), including information on new security changes announced yesterday. The fact sheet states that DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travellers regarding any past travel to countries constituting a terrorist safe haven. In addition, DHS Secretary Jeh Johnson issued a statement on steps that have been taken to strengthen the screening of those who are traveling to the United States, including security enhancements to the VWP.
State Dept. Projects Employment-Based Visa Number Availability in Coming Months
The Department of State's Visa Bulletin for December 2015 includes information on visa number availability in the coming months.
For the employment fourth preference (certain religious workers) category, the bulletin notes that the non-minister special immigrant (SR) program expires on December 11, 2015. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on December 10, 2015. Visas issued before that date will only be issued with a validity date of December 10, 2015, and all individuals seeking admission as non-minister special immigrants must be admitted into the U.S. by midnight on December 10, 2015.
For the employment fifth preference (I5 and R5) categories, visas may be issued until the close of business on December 11, 2015, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 11, 2015.
The bulletin notes that Congress is considering an extension of the SR, I5, and R5 visa categories, "but there is no certainty when such legislative action may occur." If there is no legislative action extending one or both of these categories, those cut-off dates would become "Unavailable" on December 12, 2015.
The bulletin also notes the following potential monthly movement for employment-based categories in the coming months:
Employment First: Current
Employment Fifth: The category will remain "Current" for most countries.
Also, U.S. Citizenship and Immigration Services (USCIS) announced recently that for family-sponsored filings, applicants may use the "Dates for Filing Visa Applications" chart in the December bulletin. For employment-based filings, however, USCIS said the "Application Final Action Dates" for December must be used.
Read The Visa Bulletin for December 2015.
State Dept. Replaces Manual of Visa Guidance
On November 18, 2015, the Department of State (DOS) will replace the legacy Volume 9 of the Foreign Affairs Manual (9 FAM) with the 9 FAM-e. The 9 FAM-e will become the authoritative source for visa guidance.
DOS said the new 9 FAM-e represents the revision and reorganization of more than 4,000 pages of the legacy 9 FAM content that paralleled Volume 22 of the Code of Federal Regulations. The new 9 FAM-e overhauls language and organization, but not substance, DOS said. The former interpretive and procedural notes were merged, along with appendices. The new 9 FAM-e "adopts a hierarchical structure that is both more logical and better suited to modern search technologies," DOS said, noting that the revised 9 FAM-e also uses a new citation system that is similar to the citation system used in other volumes of the FAM and the Foreign Affairs Handbook. DOS also has developed crosswalk tables correlating old citations with new, so that users can match new sections with former locations in the legacy FAM.
See section F of the December 2015 Visa Bulletin
The US Citizenship and Immigration Services has published data on the number of L-1B petitions filed, approved and denied in Fiscal Year 2015. The USCIS denied about 25 percent of the petitions filed during FY 2015. Perhaps the release of the USCIS's updated policy memorandum led to a decrease in the number of denials, as compared to the 35 percent denial rate in FY 2014, but it continues to be dishearteningly high when compared to the 6 percent denial rate in FY 2006.
See the National Foundation for American Policy's report.
USCIS Issues Policy Memo on Initial Field Review of AAO Appeals
U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on November 4, 2015, on initial field review of appeals to the Administrative Appeals Office (AAO). The memo provides guidance to USCIS employees on the proper processing of such appeals.
Field offices include USCIS field and overseas offices, service centers, and the National Benefits Center. The memo notes that appeals to the AAO are filed on Form I-290B, Notice of Appeal or Motion. USCIS first conducts an intake procedure to ensure the appeal is complete and the agency has collected any required filing fees. After intake, the USCIS field office that made the unfavorable decision conducts an "initial field review" of the appeal. If the field office does not take favorable action, it forwards the appeal to the AAO for appellate review without issuing a new decision.
The memo notes that the purpose of initial field review is "to promote the efficient review of administrative appeals of field office decisions." The affected party may submit a brief and/or additional evidence with the appeal. The appeal process is "undermined" if initial field review is not timely or if the appeal is inappropriately terminated, the memo states. Therefore, the memo provides additional guidance on the timeliness and scope of initial field review.
Among other things, the memo states that the regulations do not require the field office to complete initial field review within 45 days of receipt, but USCIS is adopting 45 days as the agency's processing goal.
Read the memo.
Fifth Circuit Upholds Injunction against Obama Administration's DACA/DAPA Programs
On November 9, 2015, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld 2-1 a preliminary injunction against the Obama administration's executive actions on Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). The court found, among other things, that the states have shown that the threatened injury if the injunction were denied outweighed any harm that would result if the injunction were granted. "The states have alleged a concrete threatened injury in the form of millions of dollars of losses," the panel majority noted.
The majority also rejected the argument that congressional silence on immigration has conferred on the Department of Homeland Security (DHS) the power to act. The court found, among other things, that DAPA was "foreclosed by Congress's careful plan," and that immigration law "prescribes how parents may derive an immigration classification on the basis of their child's status and which classes of aliens can achieve deferred action and eligibility for work authorization."
Judge Carolyn King dissented, citing, among other things, a "litany of errors committed by the district court." She noted, "There can be little doubt that Congress's choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable." Judge King concluded, "I have a firm and definite conviction that a mistake has been made."
The Obama administration plans to appeal the ruling to the Supreme Court.
Read the decision, including Judge King's dissent.
USCIS Updates Paper Version of G-28 Notice of Appearance
U.S. Citizenship and Immigration Services (USCIS) recently updated the paper version of Form G-28, Notice of Entry of Appearance as Attorney or Representative. The update does not address filings made in the Electronic Immigration System.
Read the notice.
Credit Cards Now Accepted for Naturalization Fees
U.S. Citizenship and Immigration Services (USCIS) is now accepting credit cards to pay the processing fee for Form N-400, Application for Naturalization. Most applicants pay $680, which includes the $595 naturalization application fee and a biometrics fee of $85.
To pay with a credit card, an applicant must file Form G-1450, Authorization for Credit Card Transaction. USCIS explained that this change "is one of the recommendations made by the White House Task Force on New Americans." Acceptable cards include Visa, MasterCard, American Express, and Discover, along with gift cards with Visa, MasterCard, American Express, or Discover logos. The entire fee must be paid using a single card. USCIS will reject the application if the card is declined.
Read details on how to pay with a credit card.
USCIS Releases Controversial Draft Policy Memo on Job Portability
U.S. Citizenship and Immigration Services (USCIS) recently released a draft policy memorandum, "Determining Whether a New Job is in "the Same or a Similar Occupational Classification" for Purposes of Section 204(j) Job Portability." The memo was posted on November 20, 2015, and the comment period ends January 4, 2016.
The memo instructs Immigration Services Officers (ISOs) on how they may use the Department of Labor's (DOL's) Standard Occupational Classification (SOC) codes and other evidence to determine whether a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140 petition) submitted to USCIS. USCIS said the purpose of the memo is "to promote consistency and efficiency in section 204(j) portability adjudications in accordance with the policy objectives described herein. Such adjudications require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented."
The memo notes that despite the statutory flexibility provided in INA § 204(j), "stakeholders have raised concerns that the job portability provision is underutilized due to significant uncertainty concerning USCIS determinations in this area." The memo "is intended to address that uncertainty by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s)."
In making these determinations, the memo explains, USCIS may refer to DOL's labor market expertise as reflected in its SOC system, which is used to organize occupational data and classify workers into distinct occupational categories. Occupations are generally categorized based on the type of work performed and, in some cases, on the skills, education, and training required to perform the job. The memo notes that the SOC organizes all occupations into 23 "major groups," which are then broken down in descending order into: 97 "minor groups," 461 "broad occupations," and 840 "detailed occupations." All workers are classified into one of these 840 detailed occupations. Detailed occupations with similar job duties and, in some cases, skills, education, and/or training are generally grouped together in the same broad occupation. The SOC system is organized using numeric codes that generally consist of six digits. Each digit or group of digits represents the level of similarity of positions. No occupation is assigned to more than one category at the lowest level of the classification (sixth digit).
Some attorneys complain that USCIS misses the mark with this memo and ignores the legislative history, which was, as the title of the provisions suggest, for "job flexibility," so that workers are not treated as indentured servants and may improve their prospects by switching jobs and employers. These commenters note that the agency interprets "similar" to mean having a "marked resemblance," rather than a mere "resemblance," although it cites two dictionaries, only one of which says the resemblance must be "marked." They also expressed concerns that USCIS mechanistically applies the SOC codes, which were never intended to be used for this purpose, and instead were a bureaucratic fix for DOL to stop publishing the 40,000+ job listing in the Dictionary of Occupational Titles.
Read the memo.
USCIS Updates Application for Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) has published an update to Form I-765, Application for Employment Authorization. The new edition is dated 11/04/15. Previous editions dated 02/13/15, 05/27/08, or later are also being accepted.
Other recent forms updates are listed at www.uscis.gov/forms-updates, including:
USCIS Adds 16 Countries to H-2A/H-2B Visa Programs
Effective January 18, 2016, USCIS and the Department of Homeland Security (DHS), in consultation with the Department of State, are adding Andorra, Belgium, Brunei, Colombia, Finland, France, Germany, Greece, Lichtenstein, Luxembourg, Malta, Monaco, San Marino, Singapore, Taiwan, and Timor-Leste to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for 2016.
DHS noted that it reserves the right to add countries to the eligible list at any time, and to remove any country whenever the agency determines that a country fails to meet the requirements for continued designation.
Secretary of Homeland Security Johnson and Secretary of State Kerry have agreed that Moldova will no longer be designated as an eligible country to participate in the H-2B program because Moldova is not meeting regulatory standards. Nationals of Moldova may still participate in the H-2A program because Moldova continues to meet those standards.
USCIS explained that the H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and non-agricultural jobs, respectively. Typically, USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS, however, may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.
The notice does not affect the status of beneficiaries who currently are in the United States in H-2A or H-2B status unless they apply to change or extend their status. Each country's designation is valid for one year from January 18, 2016.
Read the Federal Register notice announcing the additions.
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 looking forward to a weekend in York together to celebrate the festivities. We wish all our clients, friends and colleagues a safe and joyous holiday and a happy, healthy and prosperous new year.