September 2015 Newsletter

In This Issue
  • USCIS Announces Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status
  • New L-1B Memo Addresses Some Issues, But Concerns Remain
  • Expansion of Customs and Border Protection Preclearance Procedures at International Airports
  • USCIS Discontinues Legacy E-Filing System
  • Federal Prosecutors Drop Criminal Case Based on Evidence Seized From Laptop
  • DHS Announces Security Enhancements to Visa Waiver Program
  • Canada Introduces New Entry Requirement for Some Visa-Exempt Foreign Nationals Travelling by Air
  • District Court Strikes Down DHS Rule Extending STEM OPT, But Stays Action Until 2016
  • GAO Calls for Better Assessment of Fraud Risks, Economic From EB-5 Program
  • Government Agency Links
  • Hodkinson Law Group News



USCIS announces revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

U.S. Citizenship and Immigration Services (USCIS) and the U.S. State Department (State) have just announced an improved method of gauging immigrant visa demand by revising the Department of State's monthly Visa Bulletin. There will now be two charts: one that indicates "Application for Final Action Dates" and another that reports "Dates for Filing Visa Applications." The former is the traditional report of visa availability for cases filed with certain priority dates. The latter is a newly created mechanism whereby individuals with certain priority dates can now file their Application to Register Permanent Residence or to Adjust Status (Form I-485). This latter mechanism is to put the Department of State on notice of the USCIS pipeline of approved petitions and immigrant visa demand. From a practical perspective, this change will enable many individuals to file their Form I-485 sooner than expected. It is likely that this also means the corresponding benefits of filing the Form I-485 should follow: employment authorization via Form I-765 for applicants and dependents, travel permission via Form I-131, flexibility in changing to jobs of the same or similar occupation, and preservation of the right of children to obtain permanent residency as dependents of their parents by "freezing" their age at the time of filing Forms I-485. A copy of the Visa Bulletin can be found here.




Expansion of Customs and Border Protection Preclearance Procedures at International Airports

US Customs and Border Protection has published an informative article with information about the expansion of the preclearance process and the additional preclearance operations planned for ten airports around the world, including London Heathrow and Manchester airports.




New L-1B Memo Addresses Some Issues, But Concerns Remain

A new L-1B policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess "specialized knowledge" from their foreign operations to their operations in the United States. It provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda. Some practitioners expressed concerns that the memo still gives adjudicators broad discretion to issue requests for evidence (RFEs) and denials. The memo notes the following "non-exhaustive" list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:
  • The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization's U.S. operations.
  • The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer's productivity, competitiveness, image, or financial position.
  • The beneficiary's claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
  • The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
  • The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
  • The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace.
The memo notes that specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals. Specialized knowledge need not be proprietary or unique to the petitioning organization. The memo also notes that the L-1B classification does not involve a test of the U.S. labor market, and that specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.

The memo, issued August 17, 2015, is available here.




Expansion of Customs and Border Protection Preclearance Procedures at International Airports

US Customs and Border Protection has published an informative article with information about the expansion of the preclearance process and the additional preclearance operations planned for ten airports around the world, including London Heathrow and Manchester airports.




USCIS Discontinues Legacy E-Filing System

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is discontinuing its legacy "e-Filing" system to maintain data security standards and focus resources on a replacement Electronic Immigration System.

The legacy e-Filing system offered online filing for several USCIS forms. After the legacy system is decommissioned and before the new system is fully operational, applicants must use paper forms when filing all categories of:
  • Form I-131, Application for Travel Document
  • Form I-140, Immigrant Petition for Alien Worker
  • Form I-765, Application for Employment Authorization
  • Form I-821, Application for Temporary Protected Status
  • Form I-907, Request for Premium Processing Service
The last day to start new forms in the e-Filing system was August 30, 2015. Applicants must complete and submit all forms by September 20, 2015, or file a paper form. Those who have a pending case submitted through the legacy e-Filing system do not need to take any action. USCIS said it will adjudicate those cases to completion.

USCIS noted that the forms being removed from the legacy e-Filing system will not be available immediately in the new Electronic Immigration System, but the agency plans to add them in the future. USCIS did not indicate when the new system would be fully implemented.

The USCIS announcement available here.




Federal Prosecutors Drop Criminal Case Based on Evidence Seized From Laptop

Federal prosecutors have dropped a criminal case against Jae Shik Kim, a Korean businessman, who was charged with violating economic sanctions based on evidence seized from his laptop. On August 11, 2015, prosecutors told the U.S. Court of Appeals for the D.C. Circuit that they would not pursue the criminal case or challenge an order U.S. District Judge Amy Berman Jackson made in May ruling that the evidence, seized without a warrant at the Los Angeles airport, could not be used.

Judge Jackson had noted, "Given the vast storage capacity of even the most basic laptops, and the capacity of computers to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane." Jeff Ifrah, one of Kim's lawyers, speculated that the federal government didn't appeal the decision because it "could have resulted in some bad precedent about the type of searches that are going on every day at airports. I think they don’t want to be responsible for having a circuit court of appeals rule that those searches are illegal." He called the case "clearly a violation of the Fourth Amendment."

Judge Jackson's May 2015 order is available here.






DHS Announces Security Enhancements to Visa Waiver Program

On August 6, 2015, Department of Homeland Security (DHS) Secretary Jeh C. Johnson announced the agency's intent to implement security enhancements to the Visa Waiver Program (VWP). He said that DHS, along with the Department of State and other federal agencies, will begin introducing "a number of additional or revised security criteria" for all VWP participants, to apply to both new and current members of the program. The VWP currently has 38 participating countries.

Most significant among the new security requirements, he said, would be required use of e-passports for all VWP travelers coming to the United States; required use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a VWP country's borders; and permission for the expanded use of U.S. federal air marshals on international flights from VWP countries to the United States.

U.S. Customs and Border Protection (CBP) has noted that DHS is concerned about the risks posed by the situation in Syria and Iraq, where increasing instability has attracted thousands of foreign fighters, including many from VWP countries. Such individuals could travel to the United States for operational purposes on their own or at the behest of violent extremist groups in Syria, CBP warned. Among other things, DHS has expanded the amount of information collected by its Electronic System for Travel Authorization (ESTA).


Canada Introduces New Entry Requirement for Some Visa-Exempt Foreign Nationals Traveling by Air

As of August 1, 2015, Canada has introduced a new entry requirement, known as Electronic Travel Authorization (eTA), for certain visa-exempt foreign nationals traveling to Canada by air. Exceptions include U.S. citizens and travelers with valid visas. Entry requirements for other methods of travel (e.g., land, sea) have not changed.

Eligible travelers can apply online for an eTA. On March 15, 2016, this entry requirement will become mandatory and such travelers will need an eTA before they can board a flight to Canada.

Click here for more information or to apply for an eTA.




District Court Strikes Down DHS Rule Extending STEM OPT, But Stays Action Until 2016

The U.S. District Court for the District of Columbia recently struck down an interim rule promulgated by the Department of Homeland Security (DHS) in April 2008 extending, for eligible science, technology, engineering, and mathematics (STEM) students, the duration of optional practical training (OPT) by 17 months. However, the court stayed that action until February 12, 2016, to avoid disruption and allow DHS to submit the rule for notice and comment.

The plaintiff, Washington Alliance of Technology Workers, a collective-bargaining organization that represents STEM workers, had challenged the interim rule. The complaint alleged, among other things, that the plaintiff's members who had technology-related degrees in the computer programming field and had applied for STEM employment were in direct and current competition with OPT students on a STEM extension.

OPT allows a nonimmigrant foreign national on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. When DHS published the interim rule, the agency explained that OPT employees often are unable to obtain H-1B status within their authorized period of stay in F-1 status, including the 12-month OPT period, and thus are forced to leave the United States. "The inability of U.S. employers, in particular in the fields of science, technology, engineering and mathematics, to obtain H-1B status for highly skilled foreign students and foreign nonimmigrant workers has adversely affected the ability of U.S. employers to recruit and retain skilled workers and creates a competitive disadvantage for U.S. companies," DHS said.

The court vacated the 17-month STEM extension described in the interim rule at 73 Fed. Reg. 18944 (Apr. 8, 2008), but stayed the vacatur until February 12, 2016, and remanded to DHS for further proceedings. The court concluded that immediate vacatur of the 2008 rule would be "seriously disruptive," noting that in 2008, DHS estimated that there were approximately 70,000 F-1 students on OPT and that one-third had earned degrees in a STEM field. While DHS has not disclosed the number of people currently taking advantage of the OPT STEM extension, the court said it had no doubt that vacating the 2008 rule would force thousands of foreign students with work authorizations to scramble to depart the United States Vacating the 2008 rule could also impose a costly burden on the U.S. tech sector, the court noted, if thousands of young workers have to leave their jobs quickly. The court said it saw no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector. As such, the court ordered that the vacatur be stayed until February 12, 2016, "during which time DHS can submit the 2008 Rule for proper notice and comment."

Read the decision




GAO Calls for Better Assessment of Fraud Risks, Economic Benefits From EB-5 Program

The U.S. Government Accountability Office (GAO) recently released a report that calls for additional actions to better assess fraud risks and report economic benefits in the EB-5 program. The GAO noted that fraud risks are constantly evolving and that U.S. Citizenship and Immigration Services (USCIS) continually identifies new fraud schemes, but the agency does not have documented plans to conduct regular future risk assessments.

Among other things, fraud risks previously identified include uncertainties about whether invested funds are obtained lawfully and various investment-related schemes to defraud investors. The GAO noted that USCIS has taken steps to address fraud risks by enhancing its fraud risk management efforts, including establishing a dedicated entity to oversee these efforts. However, USCIS's information systems and processes limit its ability to collect and use data on EB-5 program participants to address fraud risks. The GAO noted that USCIS plans to collect and maintain more complete data in its new information system; however, the GAO reported in May 2015 that the new system is nearly four years delayed. In the meantime, USCIS does not have a strategy for collecting additional information, including some information on businesses supported by EB-5 program investments, that officials noted could help mitigate fraud, such as misrepresentation of new businesses. Given that information system improvements with the potential to expand USCIS's fraud mitigation efforts will not take effect until 2017 at the earliest and that gaps exist in USCIS's other information collection efforts, developing a strategy for collecting such information would better position USCIS to identify and mitigate potential fraud, the GAO said.

The GAO noted that USCIS increased its capacity to verify job creation by increasing the size and expertise of its workforce and providing clarifying guidance and training, among other actions. However, the GAO said that USCIS's methodology for reporting program outcomes and overall economic benefits "is not valid and reliable because it may understate or overstate program benefits in certain instances" because it is based on the minimum program requirements of 10 jobs and a $500,000 investment per investor instead of the number of jobs and investment amounts collected by USCIS on individual EB-5 program forms. For example, the GAO noted, USCIS reported 4,500 jobs for 450 investors on one project using its methodology instead of 10,500 jobs reported on EB-5 program forms for that project. Further, investment amounts are not adjusted for investors who do not complete the program or invest $1 million instead of $500,000. USCIS officials said they were not statutorily required to develop a more comprehensive assessment. However, tracking and analyzing data on jobs and investments reported on program forms would better position USCIS to more reliably assess and report on the EB-5 program's economic benefits, the GAO said.

The report, "Immigrant Investor Program: Additional Actions Needed to Better Assess Fraud Risks and Report Economic Benefits" (GAO-15-696), 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

Now that our summer holidays are almost a distant memory and the autumn weather has returned it is perfect running weather. Kehrela is running the Richmond Half Marathon this month in preparation for the Dublin Marathon next month. She will be speaking at London Business School about US visa options for graduate students.

Kehrela Hodkinson has been practising US immigration law since 1981 and has been in London since 1994. She spoke about "Non-Immigrant and Immigrant Waivers of Inadmissibility – Fundamentals" at the American Immigration Lawyers Association annual conference in Washington DC. Kehrela is continuing her activities on the By-Laws committee of AILA and she has once again been acclaimed in 'Who's Who Legal, Corporate Immigration 2015'.
 


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 law since 1996, concentrating in the field of business immigration 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.
 


Tasha Wiesman is a member of the Illinois State Bar and assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility.
 
 
 
 
  
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Kehrela Hodkinson has been practising immigration law in London since 1994. She has once again been included in the "Who's Who Legal, Corporate Immigration 2015"





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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