July 2015 Newsletter
In This Issue
U.S. Supreme Court Decides Two Immigration Cases
The U.S. Supreme Court has decided two immigration cases with potentially far-reaching implications:
Kerry v. Din. Kanishka Berashk is an Afghan who formerly worked in the Taliban-controlled government as a payroll clerk. Due to a terrorism-related statute, he was denied a visa to enter the United States to live with his U.S. citizen spouse, Fauzia Din. The Supreme Court held that because Mr. Berashk is not a U.S. citizen, he had no right to a court review, and his U.S. citizen wife had no due process right to challenge the visa denial in federal court. This left the longstanding doctrine of consular absolutism untouched. The decision is available here.
Mata v. Lynch. Noel Reyes Mata, an undocumented person from Mexico, was convicted of assault and put in removal proceedings. His original attorneys failed to submit an appeals brief and missed a deadline in filing a motion to reopen. The Supreme Court held that the federal court has jurisdiction to hear his case and decide whether those in removal proceedings can extend their deadlines. The decision is available here.
Visa, Passport Computer Problems Mostly Resolved
The Department of State's Bureau of Consular Affairs initially reported on June 12, 2015, technical problems with overseas passport and visa systems. The issue was not specific to any particular country, citizenship document, or visa category. Those problems reportedly were generally resolved by the end of June.
Among other things, the problems caused delays at the U.S.-Mexico border with seasonal workers being unable to enter the United States. Daren Gee, a California strawberry grower, said the delay was costing him $25,000 to $30,000 per day in lost revenue because 200 seasonal workers he intended to employ were unable to enter the country. "The vans are there, the buses are waiting. But we can't seem to get workers across," he said.
Some businesspeople were also unable to obtain passports. David Lummas, who was waiting for his passport in Bangkok, Thailand, so he could continue working for a British multinational company, said, "They are holding my passport so I have been grounded this week from traveling."
The Department of State told the Wall Street Journal that 100 technicians were working on the problem, and that it was prioritizing visas for urgent humanitarian cases and agricultural workers.
A State Department announcement about its progress on these problems is available at http://travel.state.gov/content/travel/english/news/technological-systems-issue.html. The State Department announced that as of June 26, 2015, all visa-issuing embassies and consulates were back online. The State Department is scheduling visa interviews and issuing nonimmigrant and immigrant visas.
USCIS Temporarily Stops Accepting Electronic Versions of Several Forms
On June 15, 2015, U.S. Citizenship and Immigration Services (USCIS) stopped accepting electronically filed Forms I-539, Application to Extend/Change Nonimmigrant Status, and Forms I-526, Immigrant Petition by Alien Entrepreneur. Recently, USCIS also updated the Form I-539 and Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. USCIS also discontinued the EB-5 Regional Center Document Library.
USCIS said that to ensure that the paper and electronic versions of these forms are consistent with each other, "we must temporarily remove the current electronic versions until we develop these updated forms in our new USCIS online filing system."
USCIS said this change will not adversely affect those who have pending or draft cases that were created before June 15. "We will adjudicate those cases to completion and allow the standard 30 days" for completion or submission of draft cases, USCIS said.
USCIS issued the following instructions:
Filing a Form I-539 or Form I-526 Customers who need to file a Form I-539 or Form I-526 must now file the paper version of the form. If you already started an electronic Form I-539 or Form I-526, you will have 30 days from the day you began your application/petition to complete and submit it online. If you are unable to complete your electronic form within this 30-day time period, you will need to file a new paper application or petition. … If You Filed Electronically Before June 15, 2015 If you filed a Form I-539 or Form I-526 electronically, you will still be able to access your account to check your case status, change your address, and respond to requests for evidence while USCIS processes your case. If you filed a Form I-526 electronically, you will still be able to review and attest existing deal packages created by the Document Library Manager. However, Document Library Managers will not be able to create new document libraries or deal packages.The notice is available here. Instructions on how to file a paper Form I-539 are available here. Instructions on how to file a paper I-526 are available here.
New CBP Preclearance Locations
The US Department of Homeland Security has announced that it intends to begin negotiations to expand air preclearance operations to ten additional airports outside the US, including London Heathrow and Manchester in the UK. Preclearance stations, already found in 15 airports around the world, allow travellers to go through US immigration and customs procedures in the departure airport before boarding rather than upon arrival in the US. A precleared passenger may then disembark in the US airport as if from a domestic flight, avoiding the inspection queues and delays in the US that sometimes make it difficult to catch a connecting flight. The negotiations for preclearance also include airports in Belgium, the Dominican Republic, Japan, the Netherlands, Norway, Spain, Sweden and Turkey.
The notice is available here.
USCIS Reopens FY 2015 H-2B Cap for Temporary Nonagricultural Workers
On June 5, 2015, USCIS reopened the congressionally mandated fiscal year (FY) 2015 cap and is accepting petitions requesting new H-2B temporary nonagricultural workers with an employment start date between April 1 and September 30, 2015.
USCIS explained that its role in managing the H-2B cap involves ensuring that enough Form
I-129 (Petition for a Nonimmigrant Worker) H-2B petitions with a sufficient number of beneficiaries have been approved to fully subscribe the H-2B cap each year. The agency noted that "[i]t can be difficult to estimate in advance how many beneficiaries of an H-2B petition approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa" by the Department of State (DOS). USCIS said it "strives to reasonably estimate the number of petitions the agency may approve before the annual cap will be reached."
USCIS said it continues to work in collaboration with DOS to monitor the issuance of H-2B visas. On April 2, 2015, USCIS announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000 H-2B visas. From June 3, 2014, through March 26, 2015, USCIS accepted about 3,900 petitions (about 77,000 beneficiaries) toward the H-2B FY 2015 cap. USCIS initially believed this was sufficient to fully meet the FY 2015 cap. However, USCIS has determined that as of June 5, 2015, DOS received fewer than the expected number of requests for H-2B visas. A recent analysis of DOS H-2B visa issuance and USCIS petition data revealed that the number of actual H-2B visas issued by DOS was substantially less than the number of H-2B beneficiaries seeking consular notification listed on cap-subject H-2B petitions approved by USCIS. In light of this new information, USCIS determined that there were still available H-2B visa numbers remaining for the second half of the FY 2015 cap.
Filing procedures. On June 5, 2015, USCIS began accepting additional FY 2015 cap petitions with employment start dates between April 1 and September 30, 2015, and is considering them in the order in which USCIS receives them.
To petition for an FY 2015 H-2B cap number, employers must:
USCIS noted that it will consider petitions received on or after October 1, 2015, and/or requesting a start date on or after that date, toward the FY 2016 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2016 H-2B cap filings. USCIS started accepting FY 2016 H-2B cap petitions on June 3, 2015.
The announcement is available here.
Green Cards Don't Always Have Signatures, USCIS Reminds
U.S. Citizenship and Immigration Services (USCIS) recently issued a reminder that green cards (Permanent Resident Cards) do not always include the holder's signature.
In limited cases, USCIS may waive the signature requirement for certain people, such as children under the age of consent or individuals who are physically unable to provide a signature. Also, since February 2015, USCIS has been waiving the signature requirement for people entering the United States for the first time as lawful permanent residents after obtaining an immigrant visa abroad from a U.S. embassy or consulate.
When the agency issues a green card without a signature, the card will say "Signature Waived" on the front and back of the card where a signature would normally be located.
The announcement is available here.
Agencies Investigate H-1B Outsourcing Firms; Layoffs Provoke Controversy
Several companies have been in the spotlight recently due to hiring H-1B workers and laying off U.S. workers in similar positions.
According to reports, the Departments of Labor (DOL) and Justice (DOJ) are investigating several companies for possible labor and immigration law violations. The companies include several Indian outsourcing firms that provided H-1B workers to Southern California Edison (SCE), a power company. The latter company hired Infosys and Tata Consultancy Services to bring in H-1B workers and laid off hundreds of U.S. workers, some of whom said they had to train their replacements.
DOL sent a letter to Rep. Judy Chu (D-Cal.) on June 10, 2015, stating that the agency "has recently opened investigations related to Tata and Infosys' provision of H-1B workers to SCE." DOL also noted in the letter that it had "recently referred allegations concerning SCE and its contractor consultants to the Office of Special Counsel for Immigration-Related Unfair Employment Practices" at DOJ.
Meanwhile, U.S. Citizenship and Immigration Services (USCIS) sent a letter to Rep. Chu dated May 29, 2015, saying the agency was following up on concerns such as those Rep. Chu had raised "regarding [SCE] to ensure that petitions are entirely consistent with our legal framework." The letter said USCIS would "work with the Department of Labor to review visa petitions and labor condition and certification applications, as appropriate."
The labor condition application (LCA) instructions in ETA Form 9035CP state, among other things, "The employer attests that H-1B, H-1B1 or E-3 foreign workers in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers."
At Disney/ABC Television in New York and Burbank, California, where a reorganization included a plan to lay off U.S. workers and hire H-1B workers, according to reports, Disney subsequently canceled the layoffs. That followed on the heels of several hundred layoffs at Walt Disney World in Orlando, Florida. One laid-off IT worker complained that "[s]ome of these folks were literally flown in the day before to take over the exact same job I was doing." He said he had trained his replacement.
USCIS Releases Processing Times at International Offices
On June 9, 2015, U.S. Citizenship and Immigration Services (USCIS) began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters. USCIS said those with cases before USCIS "can use this information to better manage their expectations for when their cases will be processed at USCIS offices. We will update this information every quarter."
The information 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
We hope that our clients are managing to stay cool during our current heat wave. Congratulations to our Legal Assistant Charis Hall on her recent marriage. We wish her many years of health and happiness with Alec.