LinkedIn

Monday, November 16, 2015

Obama Administration to seek Supreme Court Review of Immigration Plan


The Justice Department has indicated that it intends to appeal the Circuit Court's decision to uphold the temporary injunction halting the implementation of President Obama's expanded deferred action immigration plans to the U.S. Supreme Court.

On November 9, 2015 the Fifth Circuit Court of Appeals upheld the preliminary injunction that had been issued by the U.S. District Court for the Southern District of Texas in Texas v. United States. That injunction temporarily halts the implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA). By a 2-1 decision the three-judge panel found that President Obama's Immigration Accountability Executive Action, which sought to provide wide-reaching relief to millions of undocumented persons, was likely to lose on the merits, based on violations of the Administrative Procedure Act.

National attention had focused on President's plan to provide temporary deferred action for the parents of U.S. citizens and permanent residents (DAPA). The president also removed the age restrictions for the Deferred Action for Childhood Arrivals (DACA) program.  Both the DACA and DAPA programs' theoretical basis depended on the President's authority to exercise discretion in the prosecution and enforcement of immigration cases.

Friday, October 9, 2015

Visa Bulletin Revision Allows Some Applicants to File Early Adjustment Applications



By Alexandria Lewis

On September 9, 2015, the State Department began publishing a revised monthly Visa Bulletin reflecting a new process that allows earlier dates for the filing of adjustment of status for foreign nationals seeking U.S. permanent residency and advances the processing of immigrant visa applicants at U.S. consulates and embassies abroad.[1]

This Visa Bulletin revision was made in response to President Obama’s Presidential Memorandum of November 21, 2014, directing federal agencies to develop recommendations to improve the current visa system and to implement certain needed reforms to bring the U.S. immigration system in line with current economic and national security needs.

Adjustment of status applicants often wait many years for their visa numbers to become available to allow for the filing of their green card applications.  In response to the Obama administration’s reform objectives, the State Department, in conjunction with the USCIS, developed new policies permitting the early filing of adjustment of status applications by individuals as well as advancing immigrant visa processing for overseas applicants with pending immigrant petitions and non-current priority dates.  The individuals who take the opportunity to file early for adjustment of status will receive the benefits of having a pending adjustment application such as advance parole travel permission and employment authorization.
­

The monthly Visa Bulletin now reflects the revised process by exhibiting two charts for the family and employment-based preference categories.  The first chart will determine final action dates, which are dates when immigrant visas may be finally issued or adjustment of status accomplished.  The other chart will determine filing dates, which are dates when applicants may begin final immigration application filings.

The State Department’s National Visa Center will prompt immigrant visa applicants to advance their visa application process if their priority date is earlier than the date listed on the “Filing Date” chart for their preference category and country of chargeability.  If the priority date is current and document processing completed, an immigrant visa interview may be scheduled.

Inside the U.S., adjustment of status applicants may file their applications based on either the “Final Action Date” chart, or the “Filing Date” chart.  If their priority date is earlier than the “Filing Date” deadline, they may file adjustment applications that month and may also apply for the benefits of employment authorization and advance parole.  If the applicant’s priority date is reached on the “Final Action Date” chart, then the adjustment application may be approved by the USCIS.
The current Visa Bulletin may be found online at the State Department’s website www.state.gov.


[1] On September 25, 2015, the State Department and USCIS issued a replacement October 2015 Visa Bulletin that retrogressed permitted filing dates for several categories of immigrants, including EB-2 India, EB-3 Philippines, EB-2 China, and EB-3 China.  This retrogression on permitted filing dates drastically reduced the number of applicants who could file adjustment applications beginning on October 1, 2015. The replacement bulletin maintained the State Department’s ability to improve and streamline the system for determining when immigrant visas are available to applicants during the fiscal year, but retrogressed permitted filing for affected prospective employment-based immigrants.

Friday, April 17, 2015

H-1B Lottery Conducted for more than 230,000 Petitions



The USCIS announced receipt of 233,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 13, the agency used a computer-generated random lottery, to select petitions for the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption (masters' cap). The agency conducted the masters' cap selection process first. All unselected advanced degree petitions then became part of the random selection process for the general 65,000 limit.

Friday, February 27, 2015

Last Call for New H-1Bs in advance of the April 1st filing date



H-1B petitions will be accepted by the USCIS for employer filing for October 1, 2015 employment on April 1, 2015. Last year, U.S. Citizenship and Immigration Services (USCIS) announced on April 9, 2014, that it had received 172,500 H-1B visa petitions for the 65,000 H-1B available numbers.  This exceeded the 124,000 H-1B visa petitions the USCIS received in the previous year.  USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  
Because of the large number of petitions received during the filing period, the agency used a computer-generated random selection process or “lottery” to select petitions to meet the 65,000 cap for the general category and the 20,000 advanced degree cap under the advanced degree exemption limit. It is likely that the low cap numbers will be not be sufficient for this year's volume demand and that the cap will close quickly as it did last year.

Sunday, January 4, 2015

Top Ten 2015 H-1B Tips



Immigration Attorney Chuck Miller lists his Top Ten H-1B tips for employers and professional employees, in advance of the start of the April 1, 2015 H-1B filing period

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for October 1, 2015 employment is April 1, 2015.
Last year, U.S. Citizenship and Immigration Services (USCIS) announced on April 9, 2014, that it had received 172,500 H-1B visa petitions for the 65,000 H-1B available numbers.  This exceeded the 124,000 H-1B visa petitions the USCIS received in the previous year.  USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  

Because of the large number of petitions received during the filing period, the agency used a computer-generated random selection process or “lottery” to select petitions to meet the 65,000 cap for the general category and the 20,000 advanced degree cap under the advanced degree exemption limit. It is likely that the low cap numbers will be not be sufficient for this year's volume demand and that the cap will close quickly as it did last year.

To maximize your chances for H-1B employment authorization, your company should consider the following ten tips:

1. U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers. There is also competition for those additional numbers as that cap was also quickly reached last year.

2. Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

3. Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers. TNs are now eligible for a three year admission, providing flexibility for employers’ long-term employment strategy of the North American foreign professionals.

4. Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

5. The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

6. DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs. The accepted employment must be with employers enrolled and considered by the CIS to be in good standing in the E-Verify program. The successful STEM OPT extension, with the approval of the school’s DSO and the proper and timely filing of the extension, may represent a bridge to an opportunity for the unsuccessful applicant’s next opportunity for successful H-1B petition.

7. A qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year.  If your employer an institution of higher education; related or affiliated to a higher education institution nonprofit entity, or a nonprofit research organization or a governmental research organization, you may expect favorable exempt treatment for your H-1B petitions.

8.  Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2014.

9. Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

10.  Watch the news for changes in immigration benefits for professionals and highly skilled employees.  On November 20, 2014, President Obama outlined his long-awaited executive action to provide wide-reaching relief to millions of undocumented persons. In addition, the President proposed changes to the legal immigration system that would benefit foreign graduates and highly skilled professionals, including:
  • Greater utilization of the EB-2 National Interest Waiver for the "brightest and best" high skilled potential immigrants
  • Modernization of the employment-based immigrant visa system
  • National interest waiver and parole for foreign inventors, researchers and founders of start-up enterprises
  • Expansion and extension of on-the-job training for STEM graduates of U.S universities.