February 2016 Newsletter
In This Issue
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:
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. 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:
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