April 2014 Newsletter
In This Issue
USCIS Announces that the 2014 H-1B Cap Has Been Reached
As anticipated, the United States Citizenship and Immigration Services (USCIS) has announced that as of Monday, April 7, 2014, it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. April 7, 2014 was the final receipt date for new H-1B petitions requesting a cap number for FY 2015.
USCIS states that both the general cap of 65,000 and the Master's cap of 20,000 have been reached. Therefore, it has held a computer-generated random selection process (commonly referred to as the “lottery”) for all FY 2015 cap-subject petitions received through April 7, 2014. A selection process is first conducted under the advanced degree 20,000 cap. All advanced degree petitions not selected are then part of the random selection process for the general 65,000 cap.
USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption.
USCIS has already indicated that H-1B cap cases filed under premium processing will begin to be adjudicated on April 28, 2014.
H-1B cap-subject cases for fiscal year 2015-2016 can be filed with the USCIS again starting on Monday, April 1, 2015 for a start-date of October 1, 2015.
USCIS, Healthcare.gov Provide Highlights of Immigration Status Effects on ACA Eligibility
U.S. Citizenship and Immigration Services disseminated a stakeholder alert on March 13, 2014, noting that immigration status can affect eligibility for health care benefits under the Patient Protection and Affordable Care Act (ACA), popularly known as Obamacare. USCIS encourages stakeholders to visit www.healthcare.gov to learn more, including the most common immigration documents that may be submitted when applying for health insurance; options for families; how immigration status affects eligibility for insurance; and how to verify citizenship and immigration status.
The ACA website provides a long list of documents that can be used to show immigration status here.
The website also provides the following list of eligible immigration statuses for health coverage through the "Marketplace":
U.S. Residents Living Abroad
The Affordable Care Act requires all "applicable individuals," including lawful permanent residents (LPRs), to maintain minimum essential health care coverage. The "minimum essential coverage" is required on a monthly basis, but only during those months that qualify people as "applicable individuals." The penalties for failing to obtain coverage only apply to required coverage months. Applicable individuals must maintain minimum essential coverage for each month, qualify for an exemption click here, or pay a penalty when filing their federal income tax returns, starting with their 2014 returns.
All LPRs living outside the United States are considered "applicable individuals." The Affordable Care Act provides that U.S. tax residents, including LPRs, whose tax home is outside the United States and who are not physically present in the United States for at least 330 full days within a 12-consecutive-month period, are treated as having minimum essential coverage for that 12-month period. In general, such individuals qualify for the foreign earned income exclusion under section 911 of the Internal Revenue Code. We do not know yet whether individuals will be required to elect the foreign earned income exclusion to be deemed as having minimum essential coverage or whether a separate form will be developed for this purpose.
LPRs qualifying as having minimum essential coverage need take no further action to comply with the minimum essential coverage requirement during the months they qualify. LPRs with a tax home outside the United States who spend less than 330 full days outside the country within a 12-month period must maintain minimum essential coverage for the applicable period or pay the penalty for failing to do so.
LPRs who seek to claim a section 911-type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under court precedents. Even if LPRs assert that their trips abroad were temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government's charges that they abandoned their status. Taking a section 911 exemption can also impair the applicant's ability to show that he or she did not disrupt continuity of residence during the relevant 5- or 3-year period for naturalization purposes. INA § 316(b) states that an absence from the United States of more than 6 months but less than 1 year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence.
Penalty for Failure to Maintain Minimum Essential Coverage LPRs and other applicable individuals who fail to maintain required minimum essential coverage must pay a penalty, known as the "individual shared responsibility payment." The annual penalty is calculated in one of two ways, and the applicable individual will pay the higher of:
LPRs and other noncitizens should consult a competent tax professional before making essential decisions regarding their obligations under the Affordable Care Act. LPRs living abroad for significant periods are always at risk of losing their permanent residence status and should contact their ABIL attorney about steps that should be taken to maintain it.
For more information click here.
Renunciation of U.S. Citizenship- Eligibility for Subsequent US Visa
According to just-released Department of State statistics, not a single former U.S. citizen was found ineligible for a visa in FY 2013 for having renounced citizenship to avoid taxation.
USCIS Holds Teleconference With EB-5 Stakeholders
U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS's Immigrant Investor Program Office, led the teleconference.
Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.
USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.
USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labour pool.
Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs. USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.
As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.
The list of EB-5 regional centers by state is available here. This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.
State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games
The Department of State has waived fees for applications (i.e., machine-readable visa) and visa issuances (i.e., reciprocity) for certain participants in the 2014 Special Olympics Summer Games Invitational taking place in Los Angeles, California, from June 6 to 8, 2014, and the 2015 Special Olympics World Summer Games taking place in Los Angeles from July 25 to August 2, 2015. Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games. The included roles are:
The related cable, which includes additional information about applicable dates and other facts, is available here.
New Publications and Items of Interest
ACA resources. The National Immigration Law Center (NILC) has released webinar recordings here.
Ombudsman recommendations on work eligibility for Conrad 30 spouses. On March 24, 2014, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman released recommendations on employment eligibility for spouses of foreign medical doctors accepted into the Conrad 30 program. Under this program, each state may receive up to 30 physicians each year to provide medical services to rural, inner city, and other medically underserved communities. USCIS currently does not permit spouses to change to an employment-authorized nonimmigrant status, even where the dependent independently qualifies for such status.
The recommendations are available here.
OSC antidiscrimination posters. The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced that its antidiscrimination poster is now available in additional languages. OSC has published translations of its poster in Arabic, Chinese, French, Haitian Creole, Korean, Russian, Spanish, Tagalog, and Vietnamese.
These translations are available on OSC's worker information page here and employer information page 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:
Hodkinson Law Group News
With six weeks to go before her Coast to Coast challenge, Kehrela has stepped up her training and her four weekly training sessions will hopefully provide her with the strength and stamina she needs to walk the 190 miles from St. Bees, Cumbria to Robin Hood Bay in North Yorkshire. She will be walking to raise funds for Hospice in the Weald, a local charity. A number of clients and colleagues have requested information regarding sponsoring Kehrela on her walk. For those interested in making a donation, please go to the fundraising page.
Tasha Wiesman continues to train for the Edinburgh Half Marathon which will take place on 25 May 2014. Go Tasha!