May 2016 Newsletter

In This Issue
  • USCIS To Resume Premium Processing for Cap-Subject H-1B Petitions; Temporarily Suspends Use of Pre-Paid Mailers for Certain B-1B Cap-Subject Petitions
  • USCIS Designates Two 'Adopted Decisions', Establishing Policy Guidance
  • USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers
  • Current I-9 Form Remains Effective, USCIS Says
  • E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary
  • Government Agency Links
  • Hodkinson Law Group News

USCIS To Resume Premium Processing for Cap-Subject H-1B Petitions; Temporarily Suspends Use of Pre-Paid Mailers for Certain H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on April 22, 2016, that the agency will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master's degree or higher. Premium processing guarantees a 15-calendar-day processing time. USCIS had previously announced that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap would be met in the first 5 business days of the filing season.

For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day premium processing period will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date on which the premium processing fee is received.

USCIS also announced on April 20, 2016, that for two weeks after premium processing resumes for H-1B cap-subject petitions, USCIS will not use pre-paid mailers to send out final notices for premium processing of H-1B cap-subject petitions. Instead, the agency will use regular mail. USCIS said this is "due to resource limitations as we work to process all premium processing petitions in a timely manner. After the two week period, we will resume sending out final notices in the pre-paid mailers provided by petitioners."

As expected, U.S. Citizenship and Immigration Services (USCIS) quickly reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. On April 9, 2016, USCIS completed the computer-generated process ("lottery") to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2017 Cap Season webpage here.

The notice announcing the May 12 start date for premium processing is available here.
The notice announcing the temporary suspension of prepaid mailers is available here.

Related USCIS announcements are available here.

USCIS Designates Two 'Adopted Decisions', Establishing Policy Guidance

U.S. Citizenship and Immigration Services (USCIS) recently designated two decisions of the Administrative Appeals Office (AAO) as "adopted decisions," meaning that they "establish policy guidance that applies to and binds all USCIS employees." USCIS directs its personnel to follow the reasoning in these decisions in similar cases.

Matter of Z-A-. USCIS designated Matter of Z-A-, Inc., as an adopted decision on April 14, 2016. This AAO decision clarifies that when determining whether the beneficiary of an L-1A nonimmigrant classification will primarily manage an essential function, USCIS officers must weigh all relevant factors including, as pertinent in the instant case, evidence of the beneficiary's role within the wider qualifying international organization.

Specifically, the decision notes:
  1. While an L-1A function manager may use his or her business expertise to perform some operational or administrative tasks, he or she primarily must manage an essential function.

  2. To determine whether a beneficiary's job duties will be primarily managerial in nature, an adjudicating officer must consider the totality of the record and weigh all relevant factors, including the nature and scope of the petitioner's business; the petitioner's organizational structure, staffing levels, and the beneficiary's position within the petitioner's organization; the scope of the beneficiary's authority; the work performed by other staff within the petitioner's organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and any other factors that will contribute to understanding a beneficiary's actual duties and role in the business.

  3. When staffing levels are considered in determining whether an individual will act as a manager, an officer must also take into account relevant evidence in the record concerning the reasonable needs of the organization as a whole, including any related entities within the "qualifying organization," giving consideration to the organization's overall purpose and stage of development.

Matter of H-V-P-. USCIS designated Matter of H-V-P- as an adopted decision on March 9, 2016. This AAO decision clarifies that in addition to primary care physicians, medical specialists who agree to practice in any area designated by the Secretary of Health and Human Services as having a shortage of health care professionals may be eligible for the physician national interest waiver under INA 203(b)(2)(B)(ii).

The USCIS policy memorandum on Matter of Z-A-, which includes the text of the decision, is available here.

The USCIS policy memorandum on Matter of H-V-P-, which includes the text of the decision, is available here.

USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers

On February 25, 2016, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman hosted a public teleconference on issues related to Department of Motor Vehicles (DMV) benefits for certain nonimmigrant workers, including H and L nonimmigrants. Individuals whose employers timely file for extension of nonimmigrant status receive an automatic 240-day extension of work authorization while the petition remains unadjudicated. Representatives from the Department of Homeland Security (DHS), USCIS, the California DMV, and a private immigration attorney responded to questions posed by the Ombudsman and the public. The discussion focused on the impact of the REAL ID Act on how state DMVs treat individuals subject to the 240-day rule.

During the call, the Ombudsman noted that although federal regulations provide for a 240-day extension of work authorization after a temporary worker's status expires if the worker has a pending petition to extend that status, whether those workers can obtain and maintain a driver's license during that time remains an issue. The REAL ID Act requires state driver's licenses to conform to certain federal standards. The Act also requires that states verify an individual's immigration status before issuing a REAL ID-compliant identification card, including a driver's license. The lack of guidance on how state DMVs should handle driver's licenses for temporary foreign workers with pending extension of stay petitions "has led to a patchwork of state responses," USCIS noted.

The DHS Office of Policy said the REAL ID Act complicates state interpretation of the 240-day rule because it links driver's licenses to whether an individual has lawful immigration status, a distinct legal term that is different from lawful presence. The 240-day work authorization extension provides for lawful presence, but not lawful status. There have been attempts in the past to amend the REAL ID Act to address this and other related issues, but these efforts were unsuccessful. As a result, several categories of immigrants—not just temporary workers—"are disadvantaged by the statute's requirement that licenses be tied to lawful status rather than to lawful presence," USCIS said.

One commenter discussed the impact on employers and nonimmigrant workers. Workers on a 240-day work authorization extension are provided only with a Form I-797C, the receipt for the filed extension-of-stay petition. There has been little guidance on how state DMVs should treat that document. The language on the I-797C makes it even more difficult to obtain DMV benefits because it explicitly states that the form does not grant any immigration status or benefit. Many states rely on this language to deny a license to immigrant workers on the 240-day extension. The struggle for employers is that the 240-day rule becomes less useful where the worker cannot drive to get to work, she said. Payment of the premium processing fee for the extension-of-stay petition guarantees adjudication of the petition within an expedited time frame and could alleviate the problems associated with the gap in status. However, not all employers can afford the additional fee, she noted, and it is not always an option, particularly where its only purpose would be to allow the worker to obtain a driver's license.

Relying on surveys, the commenter explained that some states that comply with REAL ID or are moving toward compliance have taken a hybrid approach. In those states, immigrants whose status has not expired can obtain a REAL ID-compliant license, while those without lawful status—but perhaps who are lawfully present—get a license that is not compliant with the law. A few states offer limited driver's licenses or "driver privilege cards" for undocumented immigrants. Foreign workers in the 240-day extension window could request one of those licenses, but they would have to reapply for a regular driver's license once their extension-of-stay petitions are approved. Some states that are not compliant with the REAL ID Act accept the I-797C as a document establishing lawful presence, as long as the document can be verified in SAVE.

A representative of USCIS's Systematic Alien Verification for Entitlements (SAVE) system explained that the agency issued guidance on this issue to state DMVs in 2014. That guidance "essentially punted to the states on their treatment of the 240-day extension," USCIS said. SAVE only provides information on an individual's immigration status—it does not indicate whether a state-level benefit should be granted. In that regard, USCIS said, "the states have to look at their own rules and regulations for how to treat the provision of state benefits that are based on immigration status."

The Ombudsman concluded the call by saying that the Ombudsman's Office is aware of and is closely monitoring longer USCIS processing times for nonimmigrant worker adjudications and the resulting backlogs.

The USCIS statement is avalable here.

Current I-9 Form Remains Effective, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced on April 5, 2016, that until further notice, employers should continue using the current Form I-9, Employment Eligibility Verification. The agency said this current version of the form continues to be effective even though the Office of Management and Budget control number expiration date of March 31, 2016, has passed.

USCIS said it will provide updated information about the new version of the I-9 when it becomes available. The announcement is available here.

E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary Announces

Department of Homeland Security (DHS) Secretary Jeh Johnson recently announced that effective April 1, 2016, Visa Waiver Program (VWP) participants must have an e-Passport to travel to the United States. Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, VWP travelers who do not have an e-Passport from a participating VWP country must obtain a visa to come to the United States.

Secretary Johnson's statement is available 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

Kehrela Hodkinson has once again been named one of the 10 most highly regarded corporate immigration lawyers outside of the United States by Who's Who Legal in its just-released 2016 Corporation Immigration Analysis. Kehrela 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.

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 business immigration law 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. Allison works with the firm's corporate clients to find creative solutions to enable the companies' employees to work in the United States on both a short term and long term basis.

Tasha Wiesman will be relocating back to Chicago from where she will remotely continue to assist our clients in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility. She is a member of the Illinois State Bar and is actively involved in The American Immigration Lawyers Association Military Assistance Program.
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Kehrela Hodkinson has been named as one of the ten most highly regarded immigration lawyers outside of the US by "Who's Who Legal, Corporate Immigration 2016".

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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