February 2016 Newsletter

In This Issue
  • DHS Revises Regs on H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants
  • Court Delays STEM OPT Ruling, Preserving Current STEM OPT Program
  • House Holds Oversight Hearings on USCIS, EOIR
  • Visa Bulletin Notes Statistics on Applicants in Limited Immigrant Categories for Consular Processing
  • USCIS Updates Request for Premium Processing Service Form
  • Supreme Court Agrees to Hear DAPA Case
  • Government Agency Links
  • Hodkinson Law Group News




DHS Revises Regs on H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants

In a final rule effective February 16, 2016, the Department of Homeland Security (DHS) is amending its regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1), and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, the final rule amends DHS regulations to:
  • Include H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants can work for a sponsoring employer without having to apply separately for employment authorization;
  • Authorize continued employment with the same employer for up to 240 days for an H-1B1 or principal E-3 nonimmigrant whose status has expired while his or her employer's timely filed extension of stay request remains pending;
  • Provide this same continued employment authorization for a CW-1 nonimmigrant whose status has expired while his or her employer's timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending;
  • Include principal E-3 and H-1B1 nonimmigrant classifications in existing regulations on the filing procedures for extensions of stay and change of status requests; and
  • Allow employers petitioning for EB-1 outstanding professors and researchers to submit initial evidence comparable to the other forms of evidence already listed in 8 CFR § 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.
DHS said the final rule does not impose any additional costs on employers, workers, or any governmental entity. Further, DHS noted, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants "makes them consistent with other similarly situated nonimmigrant worker classifications." Additionally, this rule "minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3, and CW-1 nonimmigrant workers." Finally, DHS expects that this change "will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions."



Court Delays STEM OPT Ruling, Preserving Current STEM OPT Program

The U.S. District Court for the District of Columbia has accepted the Department of Homeland Security's (DHS) request to modify the court's stay of its ruling that the agency invalidly issued its 2008 rule on STEM OPT (optional practical training for students in science, technology, engineering, and mathematics). The court modified the stay to give DHS an additional 90 days, until May 10, 2016, to re-issue the STEM OPT rule using valid notice-and-comment procedures.

DHS issued a proposed rule on October 19, 2015, and received more than 50,000 comments. The agency persuaded the court that it was working diligently to evaluate those comments and promulgate a final rule, but was unable to do so in time for a new rule to be effective by the February 12, 2016, deadline. The court modified its order to leave the current STEM OPT rule in effect until the new May 10, 2016, deadline.

DHS argued that it needed only the 90-day extension and that it would be able to publish the final rule in time to meet that deadline. The court said it would grant no further extensions.

The plaintiff, Washington Alliance of Technology Workers, said it planned to appeal the extension.



House Holds Oversight Hearings on USCIS, EOIR

The U.S. House of Representatives' Judiciary Committee held oversight hearings in December 2015 on U.S. Citizenship and Immigration Services (USCIS) and on the Executive Office for Immigration Review (EOIR). Leon Rodriguez, USCIS Director, testified at the USCIS hearing. Juan Osuna, EOIR Director, testified at the EOIR hearing.

At the USCIS oversight hearing, Mr. Rodriguez noted that his agency's priorities include, in addition to safety and security issues, implementing the executive actions on immigration announced in November 2014. Those include reducing unauthorized immigration at the border; prioritizing removal of the most dangerous; improving the legal immigration system for families, employers, students, entrepreneurs and workers; and, on a case-by-case basis, considering for deferred action certain undocumented immigrants under two initiatives—Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and expanding the population of individuals eligible for Deferred Action for Childhood Arrivals (DACA). Mr. Rodriguez noted that while DAPA and expanded DACA are on hold pursuant to a court injunction, USCIS and its partners in the Department of Homeland Security (DHS) and other departments have been working to implement the other parts of the executive actions. Mr. Rodriguez said that other top priorities were effective management of the Refugee Admissions Program, continuing modernization of USCIS business and applicant interaction processes and service, anti-fraud and national security screening, and other efforts.

At the EOIR oversight hearing, Mr. Osuna noted that previous budget cuts led to backlogs of more than 457,000 immigration cases across the United States as of the end of fiscal year (FY) 2015, which was exacerbated by the 2014 influx of border-crossers. Mr. Osuna said a number of new immigration judges are being hired to deal with the backlogs, as a result of new appropriations. Among other things, he also mentioned the installation of new video equipment that allows immigration judges to hear some cases remotely.

Mr. Osuna said that after taking into account attrition through the end of FY 2015, EOIR has increased the total number of immigration judges for the first time since FY 2011, and aggressive hiring efforts continue. He noted that a total of 23 new immigration judges have entered on duty since November 2014, and that as of November 15, 2015, the Attorney General had selected another 25 new judges, who are now going through the required background and security checks before they can start hearing cases. Another two dozen immigration judge candidates, he noted, are going through the final stages of the hiring process. Mr. Osuna said that all of these new judges "will greatly assist in reducing the pending caseload when they arrive in immigration courts over the coming months."

Follow these links of interest:



Visa Bulletin Notes Statistics on Applicants in Limited Immigrant Categories for Consular Processing

The Department of State's Visa Bulletin for February 2016 notes that the National Visa Center (NVC) has provided totals of applicants registered in the various numerically limited immigrant categories for processing at consular posts as of November 1, 2015.

In October, the Department of State asked the NVC at Portsmouth, New Hampshire, to report the totals of applicants on waiting lists in the various numerically limited immigrant categories. Applications for adjustment of status under INA § 245 pending at U.S. Citizenship and Immigration Services (USCIS) offices are not included in the tabulation of this immigrant waiting list data. As such, these figures only reflect petitions the Department of State has received, and do not include the significant number of applications held at USCIS offices.



USCIS Updates Request for Premium Processing Service Form

U.S. Citizenship and Immigration Services (USCIS) has posted an update to Form I-907, Request for Premium Processing Service. The new edition is dated 12/11/15. The 01/29/15 version will also still be accepted.

Employers may use the I-907 to request faster processing of certain employment-based petitions and applications. Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Worker, have been designated for premium processing service, for example. Not all designated classifications within these forms are eligible, however, and the R-1 classification is only eligible after a successful onsite inspection at the place of employment. For more information on categories eligible for premium processing, click here.




Supreme Court Agrees to Hear DAPA Case

The U.S. Supreme Court has agreed to rule on a challenge to President Obama's "Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)" program, in U.S. v. Texas, No. 15-674. Most recently, in November 2015, the U.S. Court of Appeals for the Fifth Circuit upheld an injunction based on insufficient notice and opportunity for public comment, preventing the program from proceeding until the legal matter could be addressed. The appeals court also said that President Obama had exceeded his statutory authority.

In an unusual move, the Court has asked the parties to the case whether President Obama violated his constitutional obligations to enforce U.S. laws—a question that goes to the heart of the scope of presidential power. Also at issue is whether the complaining states have standing to sue the federal government. The states argue that they would suffer direct and concrete injury in millions of additional dollars expended if DAPA goes forward; for example, Texas would have to provide driver's licenses to program beneficiaries.

According to reports, the case is expected to be argued in April and decided in June.

Follow these links of interest:



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

Kehrela Hodkinson is training for several half marathons in April and May, as well as the South Downs Way walk in the Spring. She is also enjoying her ballroom dancing lessons with her husband as well as her increased yoga practice. She has been practising US immigration law since 1981 and has been in London since 1994. Her passion for assisting both individual and corporate clients resolve their US immigration issues has never waned in her 35 years of practising law. Kehrela is continuing her activities on the By-Laws committee of AILA and she has once again been acclaimed in 'Who's Who Legal, Corporate Immigration 2015'.
 


Sharon Noble has been practicing U.S. immigration law with Hodkinson Law Group since 1996. Her areas of expertise include non-immigrant and immigrant visa petitions for corporate employees, individual investors and entrepreneurs. 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 will be climbing Kilimanjaro later this month and we all wish her safe travels. She 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.
 
 
 
 
  
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Kehrela Hodkinson has been practising immigration law in London since 1994. She has once again been included in the "Who's Who Legal, Corporate Immigration 2015"





Sharon Noble has been practicing US immigration law since 1996. She is 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.




Tasha Wiesman assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications for waivers of inadmissibility.
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