August 2016 Newsletter

In This Issue



Global Entry Now Available to all UK Citizens

U.S. Customs and Border Protection (CBP) is now accepting applications for Global Entry from all UK citizens. This programme is an automated entry system which allows registered 'trusted travelers' to skip the long queues at designated Ports of Entry in the US and check themselves in at an automated kiosk. To register for Global Entry, British citizens must first be vetted by applying through the UK Home Office website, and if successful may then apply through the Global Online Enrolment System (GOES). For the past two years, only UK citizens who were invited by a British airline carrier, the U.S. Embassy or U.S. Customs and Border Protections ("CBP”) were eligible to apply for Global Entry, this has now been extended to include all UK citizens.

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Global Entry Enrolment Center to Open at American Embassy, London

U.S. Customs and Border Protection will open a Global Entry enrolment center at the U.S. Embassy in London for 60 days beginning of September 26. Conditionally-approved Global Entry applicants can now register for an interview with a CBP officer at the London location on the Global Online Enrolment System (GOES) website. Global Entry, a CBP Trusted Traveler Program, allows for expedited clearance of pre-approved, low-risk travelers.

The enrolment center will be open Monday through Wednesday from 8 a.m. to 4:30 p.m. CBP officers will only interview Global Entry applicants with appointments.

To register for Global Entry, UK citizens will apply through the UK Home Office website and pay a £42 processing fee. If the applicant passes the UK vetting process, they will receive a "UK Access Code”, which applicants will need to enter when applying for Global Entry through CBP's Global Online Enrolment System (GOES). The non-refundable application fee for a five-year Global Entry membership is $100 and applications must be submitted online. Once the application is approved, a CBP officer will conduct a scheduled interview with the applicant and then make a final eligibility determination.

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EB-4 Visa Limits Reached for Special Immigrants from India

As predicted, the Department of State's Visa Bulletin for the month of August 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from India. This means that starting on August 1, 2016, applicants from India who filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visa numbers become available.

The July bulletin previously noted that the establishment of the EB-4 preference Final Action Date of January 1, 2010, "does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries."

India has reached its EB-4 visa limit as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 will appear in the Department of State's October Visa Bulletin, which will be published this September.

U.S. Citizenship and Immigration Services (USCIS) released the following related information:

What this action means to EB-4 applicants from India:

Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant

Petitioners from any country, including India, may continue to file Form I-360. There is no annual limit on the number of Form I-360 petitions that USCIS may approve.

Form I-485, Application to Register Permanent Residence or Adjust Status

The final action date is January 1, 2010. This final action date will become effective August 1, 2016.

USCIS will accept all properly filed submissions of Form I-485, Application to Register Permanent Residence or Adjust Status, under the EB-4 classification until July 31, 2016, and will continue to adjudicate applications while visas remain available.

If you file Form I-485 under the EB-4 classification on or after August 1, 2016:
  • We will process and make a decision on your Form I-485 only if you filed your Form I-360 petition before January 1, 2010, and your Form I-360 is ultimately approved.
  • We will reject and return other Form I-485 applications but will continue to process Form I-360 petitions (even if submitted together with a Form I-485 that gets rejected).

EB-4 applicants from other countries

The final action date for special immigrant applicants for adjustment of status from India, Mexico, El Salvador, Guatemala and Honduras remains January 1, 2010.
Read the USCIS's announcement

Read the Visa Bulletin for August 2016.

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Mayors Send Open Letter to Presidential Candidates Urging Immigration Reform

A national coalition of mayors, Cities for Action, sent an open letter on July 26, 2016, to "the next President of the United States" calling for immigration reform. The letter urges leaders from both the Democratic and Republican parties to commit to supporting immigration reform in the first 100 days of the next presidency, including providing a path to citizenship for undocumented immigrants.

The letter calls for reform that creates a "broad, humane and timely" path to citizenship; supports local economic growth "while protecting the rights and labor standards of all workers"; upholds "immigrants' due process rights and the rights of those seeking refuge"; and offers "robust local implementation and immigrant integration support."

The letter also calls on the presidential candidates "to pledge to defend and expand President Obama's executive actions on immigration" to offer temporary relief to undocumented immigrants "with deep community ties who are not priorities for enforcement." The letter also asks for a commitment to investments in English classes and legal assistance, municipal ID programs, immigrant entrepreneurial support and language access. "[W]e are ever-deepening our commitment to fostering immigrant-friendly municipalities," the letter states. "We recognize that the well-being of immigrants impacts the well-being of all."

The letter was signed by almost 60 mayors and others, including mayors from Baltimore; Boston; Buffalo; Chicago; Denver; Houston; Los Angeles; Minneapolis; New York City; Philadelphia; Phoenix; Salt Lake City; San Francisco; Seattle; and Washington, DC.

Click here to read the letter.

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Various Categories Oversubscribed for August, State Dept. Reports

The Department of State's Visa Bulletin for the month of August 2016 reports that various employment-based categories are oversubscribed:

India E4 and certain religious workers categories. The bulletin notes that there has been extremely high demand in the EB-4 and SR categories, primarily for Juvenile Court Dependent cases filed with U.S. Citizenship and Immigration Services (USCIS) for adjustment of status. This has now required the implementation of E4 and SR Application Final Action Dates for India, which has reached its per-country limit. The bulletin says that this action will allow the Department to hold worldwide number use within the maximum allowed under the FY 2016 annual limits. The India EB-4 and SR dates will become Current for October.

The August bulletin reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from India. This means that starting on August 1, 2016, applicants from India who filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, cannot obtain an immigrant visa or adjust status until new visa numbers become available.

The July bulletin previously noted that the establishment of the EB-4 preference Final Action Date of January 1, 2010, "does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries."

China and India EB-1 categories. The continued high level of demand for EB-1 visa numbers for USCIS adjustment of status applicants has required the establishment of a cut-off date for August, the bulletin states. This has been done in an attempt to hold number use within the Worldwide EB-1 annual limit. The EB-1 date for these two countries will once again become Current for October, the first month of fiscal year 2017, the bulletin notes.

Worldwide, El Salvador, Guatemala, Honduras, Mexico, and Philippines E2 categories. Continued high demand for numbers for USCIS adjustment of status applicants has required the establishment of a date for August, the bulletin notes. This action has been required to hold number use within the Worldwide EB-2 annual limit. The date for these countries will once again become Current for October, the first month of fiscal year 2017.

The bulletin for August here.

Additional details are available here.

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USCIS Launches 'Refresh' of InfoPass Appointment Scheduler

U.S. Citizenship and Immigration Services (USCIS) recently launched a "refresh" of InfoPass, an online system that allows users to schedule appointments at USCIS offices.

New features include a mapping function that USCIS said makes it easier to find a local office in the United States and a visual style that matches the rest of uscis.gov, as well as a new web address.

The announcement is available here.

Click here for InfoPass.

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Justice Dept. Petitions Supreme Court for Rehearing of U.S. v. Texas

The Department of Justice (DOJ) petitioned the Supreme Court on July 18, 2016, to rehear U.S. v. Texas when a ninth Supreme Court justice is confirmed. The Court's deadlock in that case blocked the Obama administration's Deferred Action for Parents of Americans (DAPA) program, which would have allowed undocumented persons who are the parents of U.S. citizens and lawful permanent residents to apply to remain in the United States and work.

In the petition, Acting Solicitor General Ian Gershengorn argued, among other things, that "there is a strong need for definitive resolution by this Court at this state." DOJ said that the Court "should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a non-precedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance." Although rehearings are uncommon, the petition noted that they have been granted in some cases where a Court vacancy resulted in a tie.

If the rehearing is granted, it is unlikely to occur for some time.

Read the petition.

More information about the Obama administration's executive actions on immigration.

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USCIS Ombudsman's 2016 Report to Congress Recommends Changes

By statute, the Ombudsman of U.S. Citizenship and Immigration Services (USCIS) submits an Annual Report to Congress by June 30 of each year. The report summarizes the most pervasive and serious problems encountered by individuals and employers applying for immigration benefits with USCIS. The Annual Report also reviews past recommendations to improve USCIS programs and services, and makes new recommendations.

USCIS Ombudsman Maria M. Odom told Congress on June 29, 2016, that USCIS "still has much work to do to resolve longstanding systemic issues that compromise efficiency, quality of adjudications, and customer service." Noting the agency's myriad competing priorities, she said USCIS "has made insufficient progress to address processing time delays (critically on the rise in the past 2 years); inconsistencies in adjudications across service centers; substantial failure to meet the 90-day regulatory adjudication deadline for employment authorization documents; and the continued issuance of overly burdensome and unnecessary requests for evidence." She said she believed the agency would achieve its full potential "as a 21st century immigration agency when its customer service and adjudicatory functions are consistently prioritized, resourced, and afforded equal oversight."

This year's Annual Report, among other things, reviews issues involving the mobility of beneficiaries of employment-based petitions, the integrity of immigrant investor petitions, challenges faced by employees and employers in the H-2 programs, and delays in obtaining employment authorization documents.

Highlights of the report include:

Employment-based immigrant petitions. The report notes that USCIS has taken a number of steps to implement President Obama's Immigration Accountability Executive Action for businesses and immigrant workers. On November 20, 2015, the agency published the draft policy memorandum, Determining Whether a New Job is in "the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability; and a Notice of Proposed Rulemaking (NPRM) on December 31, 2015, to implement certain provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). The report notes that USCIS has still not changed its position that foreign worker beneficiaries lack legal standing in the petition process despite mounting case law to the contrary. The Ombudsman said that USCIS must reconsider its position on employee standing with respect to Form I-140, Immigrant Petition for Alien Worker, "and make a corresponding regulatory change, fully aligning its policy to the letter and spirit of AC21 to provide certain qualified employees greater employment mobility while awaiting the completion of the permanent residence process."

EB-5 immigrant investor program. The report states that processing times for EB-5 petitions continue to degrade. Stakeholders expressed concerns about USCIS's Investor Program Office's (IPO) regulatory authority to administer the program; outdated regulatory requirements; program integrity in light of allegations and findings of fraud or noncompliance with other federal laws; the manipulation of Targeted Employment Areas through gerrymandering; and the inconsistent implementation of policy. The Ombudsman said her office will monitor regulatory and statutory changes to the program initiated by IPO and Congress, and will continue to address stakeholders' concerns about the quality, consistency, and timeliness of IPO's adjudications of EB-5 applications and petitions.

H-2 temporary workers and labor trafficking. During the reporting period, the Ombudsman heard from workers' rights organizations regarding the vulnerabilities and exploitation of H-2 workers sponsored by U.S. employers. The report notes that exploitation takes the form of involuntary servitude or forced labor, and can result in other workplace-based crimes. The Ombudsman participated in interagency activities to address stakeholder concerns, and worked to resolve requests for case assistance by workers encountering challenges in their pursuit of protective immigration benefits. The Ombudsman said her office will continue to explore ways USCIS can collaborate with federal agency partners to address employee exploitation and human trafficking, and will convene Department of Homeland Security (DHS) representatives to discuss how to enhance protections within DHS's authorities.

H-2B temporary nonagricultural workers. The report notes that stakeholders continue to assert that the H-2 program "is overly regulated and bureaucratic, causing significant challenges in hiring foreign workers" to fill temporary agricultural (H-2A) and nonagricultural (H-2B) jobs. Recent regulatory and legislative developments "have exacerbated conditions affecting both employers and employees, contributing to an overall increase, at least temporarily, in H-2B processing delays," the report states. The Ombudsman said her office will continue to monitor stakeholder concerns about the treatment of both employers and employees in the H-2B program "to promote improved program functionality and address abuse concerns."

Requests for evidence. The Ombudsman monitors the rates at which requests for evidence (RFEs) are issued by the Vermont Service Center (VSC) and the California Service Center (CSC) in three high-skilled nonimmigrant visa categories: H-1B (Specialty Occupation Workers), L-1A (Intracompany Transferee Managers and Executives), and L-1B (Specialized Knowledge Workers). The FY 2015 RFE rates for these categories "continues to show disparities between the two service centers, including fluctuations in RFE issuance rates and unexplained divergences," the report notes. The FY 2015 RFE data in other employment-based nonimmigrant visa categories "also revealed high rates of issuance in two product lines at the VSC: O-1 (Individuals with Extraordinary Ability or Achievement), reported at 49 percent, and P-1 (Internationally Recognized Athletes), which increased to 65 percent," the report states. The Ombudsman said her office will continue to monitor and engage USCIS on issues pertaining to the quality and frequency of RFEs.

Employment authorization documents. In 2006, 2008, and 2011, the Ombudsman issued formal recommendations suggesting ways to reduce USCIS's processing delays for employment authorization documents (EADs). USCIS adopted some of the Ombudsman's recommendations, the report notes, but did not agree that EAD processing was a significant issue, given the small percentage of delayed EADs. However, FY 2015 data showed that EAD adjudications after 90 days reached a "troublesome" 22 percent, or 449,307 filings. With a proposal to eliminate the 90-day processing requirement currently under consideration by the agency, timeliness "remains a real concern for EAD processing," the report says. The Ombudsman believes the proposed regulatory changes "are not likely to result in decreased processing times, absent significant commitment from the agency to devote resources to improving processing times across the product line." The Ombudsman said her office "continues to highlight EAD processing delays as a systemic issue, and will continue to monitor and engage the agency as long as EAD delays persist."

Read the Ombudsman Odom's message to Congress.

Read the Annual Report.

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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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Hodkinson Law Group News

We hope our friends, colleagues and clients are enjoying the summertime weather. Historically our offices has been quieter over the summer months as clients enjoy their summer holidays. For some reason this year, we're even busier than normal. Is it Brexit, or the upcoming US election? These certainly are interesting times!

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 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 has relocated 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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