April 2016 Newsletter
In This Issue
E-passports Required for VWP Travel
From April 1, 2016, all visitors, including UK citizens, seeking to enter the US on the Visa Waiver Program/ESTA will require an electronic passport ('e-passport'). Depending of their date of issuance, some machine-readable passports were previously accepted for travel on the VWP, but this will no longer be the case. See US Embassy in London, US Custom and Border Protection and Department of Homeland Security webpage for additional details.
USCIS Finalizes Guidance on 'Same or Similar' Occupations and Job Portability
On March 18, 2016, U.S. Citizenship and Immigration Services (USCIS) finalized guidance, effective March 21, on determining whether a new job is in the "same or similar" occupational classification with respect to job portability. The policy memorandum instructs USCIS employees on how to use the Department of Labor's Standard Occupational Classification (SOC) codes and other evidence to determine if 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) submitted to USCIS.
The memo notes that such adjudications "require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented." The memo states that SOC codes "provide some measure of objectivity in such assessments and thus can help address uncertainty in the portability determination process." Although the memo focuses on how to interpret and apply SOC codes, it points out that nothing in the memo "is intended to make SOC codes or their descriptions the only factor or a mandatory factor in portability determinations or to otherwise limit USCIS' flexibility to consider other relevant evidence."
Despite those assurances, some commenters expressed concerns that the guidance could have the practical effect of leading to a rigid application of SOC codes to "same or similar" determinations. The Alliance of Business Immigration Lawyers (ABIL) referred to comments it submitted on February 29, 2016, regarding a Department of Homeland Security (DHS) proposed rule issued on December 31, 2015, "Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers." DHS proposed a new 8 CFR § 245.25 intended to "clarify and improve" policies and procedures related to the job portability provisions of § 106(c) of American Competitiveness in the Twenty-First Century Act (AC21). ABIL believes that the proposed 8 CFR § 245.25(c) takes an overly narrow interpretation of the term "same or similar" and results in an interpretation of INA § 204(j) (created by AC21) that is "more inflexible than current practice, lessens job flexibility, and takes much-needed discretion away from USCIS adjudicators." See #2, "Job Portability Under AC21 for Certain Applicants for Adjustment of Status".
Read the memo here.
USCIS Reaches H-2B Cap for First Half of FY 2016
On March 21, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of fiscal year (FY) 2016. March 15, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2016.
Except as noted below, USCIS will reject new H-2B petitions that were received after March 15, 2016, and that request an employment start date before April 1, 2016.
USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes:
USCIS said that to avoid processing delays, petitioners who are including H-2B returning workers on their petition must complete and include the H-2B Returning Worker Certification and are encouraged to write "H-2B Returning Workers" prominently on the envelope and any cover page.
Read the alert here.
Updated Poverty Guidelines
DHS has released new poverty guidelines applicable to all I-864 Affidavits of Support filed on or after March 1, 2016. For additional information about the Affidavit of Support process please see our website articles A Beginner's Guide to the Affidavit of Support and I-864 Affidavits of Support: The Problem of 'Domicile'.
DHS Issues Final Rule Amending F-1 Regs, Breaks Record for Public Comments
On March 11, 2016, the Department of Homeland Security (DHS) published a final rule amending regulations to expand optional practical training (OPT) for students with U.S. degrees in science, technology, engineering, or mathematics (STEM) and create new obligations for F-1 students and F-1 employers starting May 10, 2016.
OPT is a form of temporary employment available to F-1 students (except those in English language training programs) that directly relates to a student's major area of study in the United States. A student can apply to engage in OPT during or after completing his or her academic program. A student can apply for 12 months of OPT at each education level (e.g., one 12-month OPT period at the bachelor's level and another 12-month period at the master's level). While school is in session, the student may work up to 20 hours per week pursuant to OPT.
DHS first introduced an extension of OPT for STEM graduates in a 2008 interim final rule. Under the 2008 rule, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of OPT (17-month STEM OPT extension), provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify employment eligibility verification program. On August 12, 2015, the U.S. District Court for the District of Columbia ordered the vacatur of the 2008 rule on procedural grounds and remanded the issue to DHS. The court stayed the vacatur until February 12, 2016, to give DHS the opportunity to issue a new rule related to STEM OPT extensions through notice-and-comment rulemaking.
On October 19, 2015, DHS published a notice of proposed rulemaking (NPRM) to reinstate the STEM OPT extension, with changes intended to enhance the educational benefit afforded by the extension and to increase program oversight, including safeguards to protect U.S. workers. The rule received more than 50,500 comments—the most in DHS history. On January 23, 2016, the court gave DHS additional time to complete the rulemaking following review of public comments and to allow the Department to publish the rule with a 60-day delayed effective date to provide sufficient time for efficient transition to the new rule's requirements.
DHS has now completed the final rule. Highlights include:
Extension period to increase from 17 to 24 months. Under the amended regulations, F-1 STEM students will be able to extend OPT for an additional 24 months beyond the initial 12 months, replacing the 2008 regulation that allowed F-1 STEM students to receive a 17-month extension of OPT, providing work authorization for employment related to their field of study.
New reporting requirements for F-1 students and university officials. New reporting requirements include: (1) a six-month validation requirement, confirming the F-1 student applicant's application for work authorization through the OPT program; (2) an annual self-evaluation required of F-1 students, for designated school officials to review; and (3) an affirmative requirement for F-1 students to report any change in employment status or material departure from the adopted Training Plan. This is in addition to the requirement for F-1 employers to report similar changes to designated school officials within five business days, which remains in effect.
F-1 employer requirement to complete formal Training Plan with F-1 student. The new regulations will increase DHS oversight over the OPT program. F-1 employers must complete a formal Training Plan, Form I-983, and comply with new wage requirements. The formal Training Plan must include concrete learning objectives with proper oversight. F-1 employers must set out the terms and conditions of employment, including the specific duties, hours, and compensation.
As part of the Training Plan, F-1 employers must attest that the F-1 employee is paid a salary commensurate with similarly situated workers and that: "(1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives."
DHS to conduct on-site visits. The new regulations state that DHS has discretion to conduct employer site visits to ensure that F-1 employers meet the requirements of the OPT program. Generally, DHS must provide notice 48 hours before an on-site inspection, unless the visit is conducted in response to a complaint or evidence of noncompliance.
Cap-gap extension language clarified. DHS has revised the cap-gap extension regulation to clarify that the extension for F-1 students with pending H-1B petitions and requests for change of status temporarily extends the OPT period until October 1, the beginning of the new fiscal year.
Additionally, the final rule states:
Also on March 11, 2016, SEVP launched a STEM OPT Hub. The Hub includes resources for students, designated school officials, and employers.
The final rule, which replaces the existing 2008 interim final rule and amends the current regulations at 8 CFR parts 214 and 274a.
Click here to read more.
Read a related ICE press release here.
Read information on completing the Training Plan form here.
Read more information about SEVP here.
Potomac Service Center Now Processing Certain I-765 Cases, Issues Guidance on Correcting Errors
On March 1, 2016, U.S. Citizenship and Immigration Services (USCIS) began transferring certain cases to the Potomac Service Center (PSC) from other service centers to balance workloads. The affected casework includes Form I-765, Application for Employment Authorization, filed by F-1 and M-1 students seeking Optional Practical Training (OPT) and J-1 dependents.
If USCIS transfers a case, the agency will send the applicant a transfer notice. The original receipt number will not change and the transfer will not delay processing, USCIS said.
Also, the filing location and instructions for these forms are not changing. USCIS is instructing applicants to continue to file the forms at the address listed under "Where to File" in the I-765 instructions.
How to correct errors. If an Employment Authorization Document (EAD) card was approved by the PSC and contains incorrect information that the applicant believes is due to USCIS error, the applicant should submit a letter that explains the error, and include the EAD card containing the incorrect information, documents showing that USCIS made an error (such as a copy of the application sent to USCIS with the correct information, and a copy of the applicant's birth certificate with the correct name). The letter and supporting documents should be sent to the Nebraska Service Center:
U.S. Citizenship and Immigration Services
Nebraska Service Center
ATTN CCS Unit
P.O. Box 82521
Lincoln, NE 68501-2521
USCIS asks that individuals not send the letter and card to the PSC. "If USCIS made an error, you do not need to submit a new Form I-765 or pay a new filing fee," USCIS noted.
Read the announcement here.
CBP Announces Electronic Visa Update System for Certain Chinese B Visa Holders
On March 15, 2016, U.S. Customs and Border Protection (CBP) announced the establishment of the Electronic Visa Update System (EVUS), a new platform under development to enhance border security in accordance with the bilateral arrangement with China to issue 10-year-validity tourist and business visas.
Beginning in November 2016, nationals of the People's Republic of China holding 10-year visas B-1/B-2, B-1, and B-2 visas must complete an online form to update certain biographic information. Travelers will need to enroll in EVUS before traveling to the United States. An EVUS enrollment is valid for two years or until the traveler obtains a new passport, whichever comes first.
"More than 2.7 million nationals of the People's Republic of China are part of the 10-year visa program, a milestone in diplomatic relations between the U.S. and China," said CBP Commissioner R. Gil Kerlikowske. "The Electronic Visa Update System will enable CBP to enhance the security of the program while facilitating legitimate travel."
In addition to having valid 10-year visas and being required to complete EVUS enrollments before their first travel to the United States, such travelers will need to update their enrollments at least once every two years to be admitted into the United States. A nominal fee will be charged at the time of the EVUS enrollment and subsequent updates. The update will generally be valid for two years and will help to facilitate entry into the United States.
EVUS will be launched in November 2016. Travelers will be asked to update or verify their name, address, date of birth, passport number, and other basic biographic information needed to expedite entry into the United States. Visa holders do not need to do anything until the platform has officially launched, CBP said.
The EVUS process is similar to the process that travelers from 38 other countries must follow before traveling to the United States, CBP noted. "If Chinese travelers do not update their information at least every two years, or upon obtaining new passports after EVUS becomes effective, they will not be able to use their 10-year visas," CBP said.
Read the announcement here.
State Dept. Announces Phase-Out of Employment Authorization for Diplomats' Dependents on A-2 Visas
The Department of State (DOS) recently announced the phase-out of DOS's endorsement of employment authorization requests for dependents of foreign government employees holding A-2 visas who are considered to be permanently resident in the United States for purposes of the Vienna Conventions on Diplomatic and Consular Relations ("PA2 employees"). DOS's Office of Foreign Missions (OFM) will consider new applications only from dependents of PA2 employees who began employment between July 1 and December 31, 2015. OFM will consider renewal applications only from a PA2 employee's dependents whose current employment authorization cards expire on or before June 30, 2016.
Read the DOS note 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:
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