August 2014 Newsletter
In This Issue
Consular Visa/Passport System Crashes
According to reports, the Department of State's Consular Consolidated Database (CCD), used to print and approve visas and passports, has been having significant problems, including outages, since July 19, 2014. The CCD is back up and running in a limited capacity, the Department said, but the Bureau of Consular Affairs is still working through the resulting backlogs. The problems are worldwide and not confined to any particular category.
Marie Harf, deputy spokesperson, said, "We apologize to applicants and recognize this may cause hardship to applicants waiting on visas and passports." The database is one of the largest in the world with 100 million visa case records.
At a press briefing on July 24, Ms. Hart noted, "We do not believe there was any malicious action or anything untoward here. This was a technical issue, and again, we are working to correct it and should be fully operational again soon. We’re operating at a little bit of limited capacity right now, though, so we're trying not to overload the system."
Immigrant Visa Validity period
The Foreign Affairs Manual has been amended to confirm that the validity of an immigrant visa must coincide with the validity of the applicant’s medical exam report, which is valid for a six month period of time. The validity period of the immigrant visa terminates six months from the date the medical report is submitted to the Immigrant Visa Section.
August Visa Bulletin Shows Advances in China and 'Other Workers' EB-3 Preference Categories, India EB-2 Preference
The Department of State's Visa Bulletin for August 2014 notes that cut-off dates for the China-mainland born employment third preference, and third preference "Other Workers," categories have advanced for the month of August and could do so again for September.
The bulletin notes two reasons for this advance: (1) a decline during the past two months in heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date, and (2) declining number use in the family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year. These developments have resulted in the availability of several hundred numbers for use in the China-mainland born employment third preference category.
During the past two months, the India employment second preference cut-off date also has advanced very rapidly based on the projected availability of "otherwise unused" numbers under the worldwide preference limit. The bulletin notes that it must not be assumed that this cut-off date will continue to advance at the same pace during the coming months. "A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be," the bulletin states. Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, the bulletin notes, at which time the cut-off date is likely to retrogress significantly.
The Visa Bulletin for August 2014 is available here.
USCIS Issues Policy Memo on Adjudication of H-1B Petitions for Nursing Occupations
On July 11, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum providing guidance on the adjudication of H-1B petitions for nursing positions. The memo assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo states that it supersedes any prior guidance on the subject and is binding on all USCIS employees unless specifically exempted. USCIS noted that about 12 years have passed since USCIS issued guidance on determining whether a nursing position is a specialty occupation. USCIS decided it was time to update this guidance.
As background, the memo notes that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation. Most registered nurse (RN) positions do not qualify as specialty occupations because they do not normally require a U.S. bachelor's or higher degree in nursing (or its equivalent) as the minimum for entry into those positions. In some situations, however, a petitioner may be able to show that a nursing position qualifies as a specialty occupation, the memo states. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor's or higher degree in a specialty as the minimum for entry.
The updated guidance notes that the private sector "is increasingly showing a preference for more highly educated nurses." Among other influences, the American Nurses Credentialing Center's (ANCC) Magnet Recognition Program recognizes health-care organizations that advance nursing excellence and leadership. Achieving Magnet status indicates that an institution's nursing workforce has attained a number of high standards, with an emphasis on bachelor's degrees.
The memo lists some of the nursing positions that may qualify as specialty occupations. The memo notes that having a bachelor's degree is not, by itself, sufficient to qualify for H-1B classification. A critical factor, the memo states, is whether a bachelor's or higher degree is normally required for the position. A beneficiary's credentials to perform a particular job are relevant only when the job is found to qualify as a specialty occupation. USCIS noted that it must "follow long-standing legal standards and determine whether the proffered position qualifies as a specialty occupation, and whether a beneficiary is qualified for the position at the time the nonimmigrant visa petition is filed."
Among other things, the memo notes that if a state requires at least a bachelor's degree in nursing to obtain a nursing license, a registered nurse position in that state would generally be considered a specialty occupation. No state currently requires a bachelor's degree in nursing for licensure, the memo notes.
The memo outlines the evidence needed to establish that a position qualifies as a specialty occupation under the "preponderance of the evidence" standard. Among other things, documentation submitted by petitioners often includes the nature of the petitioner's business; industry practices; a detailed description of the duties to be performed; advanced certification requirements; ANCC "Magnet Recognized" status; clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.
USCIS recognizes the Department of Labor's Occupational Outlook Handbook (OOH) as an authoritative source on duties and educational requirements. However, the memo notes that it is not always determinative and other authoritative and/or persuasive sources provided by the petitioner will also be considered.
The new guidance memo is available here. Information on registered nurses is available here. The guidance indicates that advanced practice nursing positions include nurse anesthetists, nurse midwives, and nurse practitioners. Further information on these specialties is available here.
CBP Seeks Comments on International Travel Improvements, Closes Border Crossing
The following are recent developments from the U.S. Customs and Border Patrol (CBP):
International travel improvements. CBP seeks comments by August 15, 2014, on proposed improvements in the entry process and airport-specific plans for international travelers to the United States. On May 22, 2014, President Obama directed the Secretaries of Commerce and Homeland Security to lead an interagency team over the next 120 days, in close partnership with industry, to develop a national goal and airport-specific plans to enhance the entry process for international travelers to the United States. The measures the administration is taking to expedite the arrivals process are intended to enhance security by focusing officer time on the highest-risk passengers and facilitating the process for the vast majority of legitimate travelers. The notice seeks comments on a list of questions. The questions ask for suggestions for improvement in the international arrival experience, technology, passport and baggage inspections, and related issues.
Jamieson Line, New York, border crossing closes. As of August 21, 2014, CBP is closing the Jamieson Line, New York, border crossing in Burke. CBP said the primary reason was the Canada Border Services Agency's closing of the adjacent port of entry in Québec, Canada. Other factors included very limited usage (less than six privately owned vehicles per day); alternative ports located at Trout River, New York, and Chateaugay, New York; lack of sufficient infrastructure at the border; and the cost of renovations if the port were to remain open.
The Federal Register notice announcing the proposed improvements in international travel 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 and Tasha participated in the British 10k in London in July. As a team we have also enjoyed several lunchtime picnics in the park while taking advantage of the wonderful weather we’ve been having recently.