The city of Denver has a found a legal loophole to avoid complying with federal immigrant reporting requirements, while avoiding the loss of funds from the federal government. In the past, all municipal crimes carried a maximum sentence of 365 days. Now, only the most serious offenses, such as continuous domestic violence and violence assaults, carry a maximum year-long sentence. Other lower crimes such as initial domestic violence, trespassing, and shoplifting would result in only a maximum of 300 days in jail. This change in sentencing laws allows Denver to still be eligible for federal tax dollars, yet removes Denver from the “business of immigration enforcement”
-By Timmy Yip, J.D.

https://www.washingtonpost.com/news/morning-mix/wp/2017/05/24/denver-fights-back-against-trumps-deportation-crackdown-with-surprisingly-simple-change-in-law/?utm_term=.86cced96f686

The CRS report comes at a time when the Trump administration has threatened to withhold federal funds from jurisdictions that continue sanctuary policies. These jurisdictions must now consider what is at stake, complicated by the lack of an accepted definition of a sanctuary city. Some police chiefs and mayors have stated that they comply fully with federal law, and simply direct their law enforcement officers not to perform the duties of federal immigration authorities.

According to the CRS report, there is no formal definition of a sanctuary jurisdiction, but such policies generally fall into three categories. They “don’t ask”, “don’t tell,” and “don’t enforce,” which bars local police from asking a person about their immigration status, sharing certain information with federal immigration authorities and providing those authorities with assistance.

The Supreme Court’s 2012 ruling in Arizona v. United States reaffirmed that the federal government has “broad, undoubted power” over the status of aliens and the subject of immigration. While the Supremacy Clause of the U.S. Constitution means that Congress can preempt state law, the Supreme Court has cautioned that not every state or local enactment dealing with immigration is per se preempted by the federal government’s exclusive power over immigration.

The policies of sanctuary cities grew out of a movement in the 1980s of church groups that provided refuge or sanctuary to undocumented immigrants from Central America fleeing political violence. Major cities such as New York and Chicago now have sanctuary policies.

The CRS report also addressed the Executive Order 13768, signed by President Trump on January 25, 2017. The order seeks to encourage state and local cooperation with federal immigration enforcement and disincentivize sanctuary policies. It instructs the Secretary of Homeland Security and the Attorney General to ensure that sanctuary jurisdictions are not eligible to receive federal grants. Two California entities have filed suit seeking to halt the implementation of the executive order, on the ground that it violates the Tenth Amendment, which prohibits the federal government from “commandeering” state or local police forces to enforce federal law.

For all your Immigration needs contact Banerjee & Associates

Please note that it is extremely important to maintain your non immigrant status. You can continue in your F-1 or H-4 visas. You may extend your OPT for the allotted time

If you (or your spouse) are not born in India or China and you have time left on your OPT, the Employer has the option to jump straight into the PERM-Labor Certification and Green Card (Permanent Resident Card) process. You might not need to change status, and might get the Green Card (Permanent Resident Card).

If you want to work, an H-3 Trainee visa may be possible. But your job needs to provide details of such training, including course materials. This is better if your job already has a training program on hand

Many nationalities (except Indians) can have a E treaty visa. If you are a Canadian or Mexican Citizen, a TN is possible. Other non immigrant categories like L, or O might be possible.

Also note an academic institution of higher education, (like a college) or a non profit research organization can sponsor you on an H-1B visa any time because they are not subject to the cap.

You can still file the H-1B next year.

For more information, call Banerjee & Associates

The second way is by immigrant visa. By nature, the foreigner does intend to remain in the U.S. and at the very least, strive to become a permanent resident.

Family-based immigrant visas are always accompanied by the filing of an I-130. Employment-based immigrant visa are always accompanied by the filing of an I-140. The remainder of this article will discuss the basics of an I-140.

A I-140 is a form to petition the U.S. Citizenship and Immigration Services (USCIS) to make a determination that a foreign alien qualifies for an employment-based immigrant visa. It can be filed alone or with another employment-based visa (assuming a visa number is available, depending on that alien’s country of origination).

For I-140, there are two broad categories: Extraordinary-based (EB) and PERM (Program Electronic Management Review System). PERM allows employers to sponsor employees for permanent residency by demonstrating that a particular job opening cannot be fulfilled by a U.S. worker at a preset prevailing wage approved by the Department of Labor. EB-1 petitions are not PERM-based. EB-2 can be either PERM-based or National Interest Waivers. EB-3 petitions are all PERM-based. These examples include:
EB-1(1) – Self-petitions of extraordinary ability, or an outstanding professor/researcher);
EB-1(2) – University-sponsored, non-profit-sponsored, or for-profit sponsors of outstanding professors/researchers. University-sponsored professors must be tenured or on tenure-track;
EB-1(3) – L-1A conversions to I-140

EB-2 – PERM with Master’s degree or Bachelor’s degree + 5 years of experience minimum; National Interest Waivers;

EB-3 – PERM with Bachelor’s degree and no experience, or PERM with Associates’s degree + 2-3 years experience minimum.

There are two requirements that must be completed before the filing of the PERM. The first requirement is that the employee must qualify by having the minimum requisite education and/or experience necessary for the job. The second requirement is fulfilled by the employer’s ability to pay.

The employer’s ability to pay can be met by either the “bright line” test or “grey line” test. The employer meets the “bright line” standard by demonstrating it can pay the employee’s prevailing wage stated in the PERM. Alternatively, the employer can meet this standard by proving it has a net profit greater than the salary(ies) of the total number of PERM-sponsored employee(s). The “grey line” test typically comes into play when the economy is in a recession. Here, if the employer can show that is has been a historically reliable company in paying its PERM-sponsored employees, it will given some leeway in meeting the ability-to-pay standard.
-Timmy Yip

Employment Authorization Cards will be red with a bald eagle

The new executive order is narrower in scope. It still imposes a 90-day travel ban, but Iraq is no longer included. The order affects travelers from Syria, Libya, Sudan, Somalia, Iran and Yemen, who face a suspension of visa processing. Current visa holders and permanent residents are excluded from the ban. The modified executive order replaced an indefinite ban on Syrian refugees with a 120-day freeze, and did away with language giving religious minorities preferential status. The new order cuts the number of refugees admitted to the United States each year from about 110,000 to 50,000.

Judge Derrick K. Watson, of U.S. District Court in Honolulu, invoked President Trump’s public comments in stating that an objective observer would see the new executive order as having the purpose of disfavoring a particular religion, despite its stated religious neutrality. Judge Theodore D. Chuang in Maryland also found that the executive order’s likely purpose was to ban Muslims. Speaking at a campaign-style rally in Nashville, President Trump criticized Judge Watson’s decision, saying that the ruling was made for political reasons. President Trump also called the modified executive order a “watered-down version of the first one.”

The Justice Department has announced its intent to appeal each ruling.

If prior years is a guidance, we get receipt notices until about mid May. Then we start getting the rejections in the mail.

Keeping fingers crossed

For more information call Banerjee & Associates

• Rigorously use all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution
• Consider changes to the Labor Condition Application for future application cycles. The Labor Condition Application, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.
• Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.
The problem is that laws already exist to protect the American people. The Employers have to pay the Employee a prevailing wage, and H-1B employees cannot be paid more than American workers. Site visits wont do away with fraud, because the fraud is not that the Employee is not getting paid, but that the employee is not qualified. My proposals are:

1. DO away with an artificial H-1B quota. This quota and lottery leads to a mad dash of filings, and the lottery does not, and cannot pick the brightest and the best.

2. Change the nature of the Computer Consulting business. Right now, when big companies have a project, they contract the project out to a “Vendor”. These vendors then contracts with other vendors and staffing companies to get the necessary personnel. Instead, the companies themselves need to hire staff who will look for Employees to fill the project. These are all short time, part time projects. This staff can look for the project leader and they will be given time deadlines to get projects finished. If it is discovered that someone cannot work efficiently, and if that person is on H-1B, then their visas will be taken away, and they will not be permitted to enter USA again. Drastic, I know, but necessary to stop fraud. Google and Facebook does not tolerate this. Why should big Companies with short projects do?

For more information contact Annie Banerjee at Banerjee & Associates

For more information visit Banerjee & Associates

U.S. employers can still request and USCIS will continue to accept requests to expedite H-1B cases based on severe financial loss to a company or a person, emergency situations, humanitarian reasons, or other reasons.  In practice, though, USCIS approves only a small number of such requests.

USCIS advised that the goal of its H-1B premium processing suspension is to permit the agency to reduce H-1B processing times for long pending H-1B cases and to focus USCIS’ resources on H-1B petitions involving extension of status that have been pending nearly 240 days, the time period when interim employment authorization ends.

USCIS indicated that the H-1B premium processing suspension may last up to 6 months and that the agency would make an announcement when H-1B premium processing will resume.

“USCIS review​s​ all​ expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.​ The burden is on the applicant or petitioner to demonstrate that one or more of the e​xpedite criteria have been met.​​

​USCIS may expedite a​ petition or application if it meets one or more of the following criteria:​

Severe financial loss to company or ​person​;​
Emergency situation;​
Humanitarian reasons;​
Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
USCIS error; or​
Compelling interest of USCIS.”

For more information contact Banerjee & Associates

For more information, please contact Banerjee & Assoiates

President Trump’s executive order banned for 90 days entry of individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen into the United States. The states of Washington and Minnesota challenged the executive order as unconstitutional, and a district court issued a temporary restraining order. The U.S. government asked the Ninth Circuit for an emergency stay of the TRO.

In denying the emergency motion for a stay, the appellate panel said that the states had shown that even temporary reinstatement of the executive order would cause substantial injury. The judges said that the government had not provided evidence that any alien from any of the nations targeted by the order had perpetrated a terrorist attack in the United States. As to the Trump administration’s argument that the courts did not have the right to review the order, the panel said that that claim “runs contrary to the fundamental structure of our constitutional democracy.”

President Trump initially vowed to fight the decision in court, and a Ninth Circuit judge requested that the full court vote on whether to reconsider the decision reached by the panel of three judges. However, Trump later said he would rescind the executive order and issue a new order tailored to the Ninth Circuit’s decision. The Justice Department filed a brief on February 16 stating that it did not need a larger Ninth Circuit panel to rehear its emergency challenge to the TRO, as a new executive order would be forthcoming.

As background, an employment based immigrant visa petition in the advanced degree or exceptional ability category requires an employer to first test the U.S. labor market and obtain certification from the Department of Labor that there were no ready, willing and able U.S. workers found to fill the position offered by an employer before the foreign national beneficiary can be certified for the position. The labor certification requirement can be waived if the waiver is in the national interest. It is how to determine “the national interest” that is at the core of this decision.

The Matter of DHANASAR 26 I&N Dec. 884 (AAO 2016) decision adopts a new framework for deciding NIW petitions. To be approved, a NIW petition must show that: (1) the endeavor proposed by the foreign national has national importance and substantial merit; (2) that the foreign national is in a position to advance the endeavor; and (3) that it would be beneficial to the U.S., on balance, to waive the job offer and labor certification requirements, as a matter of discretion. The petitioner in a NIW case can be the employer, or the foreign national can self petition.

The Matter of DHANASAR case overruled a 1998 case, Matter of New York State Department of Transportation (NYSDOT). That case had required a petitioner to meet a three prong test: (1) that the area of employment was of substantial intrinsic benefit; (2) that any proposed benefit from the foreign nationals work would be national in scope; and (3) that the national interest would be adversely affected if labor certification were required for the foreign national.

The AAO found certain portions of the NYSDOT decision had proved to be unworkable, especially the third prong. The AAO reasoned that the third prong of the test could be misinterpreted so that some petitioners believed that evidence was needed regarding the labor market test that the waiver was designed to eliminate, and that other petitioners believed that evidence was needed “comparing foreign nationals to unidentified U.S. workers.” The AAO scraped the third prong and replaced it requiring a broad showing that the benefit to the United States is “sufficiently urgent” from the foreign nationals contributions to merit the waiver without requiring a demonstration of harm to the national interest or a comparison “against U.S. workers in the petitioner’s field.”

For more information contact Banerjee & Associates

We have been hearing rumors that no one is allowed to get into the plane in Karachi, Pakistan. There are also rumors that other countries will be added to the ban. Thus American Immigration Lawyer’s Association asked Department of State to clarify.

In response to rumors of plans to expand the travel ban to other countries, DOS informed American Immigration Lawyer’s Association that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.” This includes Columbia and Venezuela which have been widely rumored to be under consideration and Pakistan. DOS confirmed that there is no information that supports such a rumor and asked that AILA members help end the spread of this false information.

So as of now, only people holding passports of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are being detained. Green Card (Permanent Resident Card) holders and visa holders from these countries are also being put to secondary inspection which is taking at least 6-7 hours after they come to US from foreign travel. Some officers might be prejudiced and worse than others. The Green card holders might even be asked to give up their green cards. Never do that. Resist and ask for an attorney

So far, if you were born in these countries, but have other passports, then you are not stopped.

No refugees form these seven countries will be allowed in from these seven countries for at least 90 days

However please note that when Trump made the Executive Order the Department of State was not informed about it. They learned it just like all of us.

Written by Banerjee & Associates

For the next 90 days, nearly all travelers, except U.S. citizens, traveling on passports from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen will be temporarily suspended from entry to the United States.

Green Card (Permanent Resident Card) holders of the United States traveling on  the above passports will be allowed to board U.S. bound aircraft and will be assessed for security at arrival ports of entry.  They may be taken to Secondary Inspection and this might take time, upon arrival

DHS and the Department of State have the authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these countries into the United States when it serves the national interest. These seven countries were designated by Congress  as posing a significant enough security risk to warrant additional scrutiny in the visa waiver context.

The Refugee Admissions Program will be temporarily suspended for the next 120 days while the “Government” review screening procedures to ensure refugees admitted in the future do not pose a security risk to citizens of the United States.

The Executive Order does not prohibit entry of, or visa issuance to, travelers with diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas. All other visa applicants are advised not to make applications to US Consulates or attend visa interviews abroad, because the chances of getting a visa will be slim

Upon resumption of the U.S. Refugee Admissions Program, refugee admissions to the United States will not exceed 50,000 for fiscal year 2017.

The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit tracking system of all travelers into the United States.

If you meet the requirement to become a Citizen, do so as soon as possible.

For more information contact Banerjee & Associates

1. Under the old NYSDOT test, the research had to have intrinsic merit—-This excluded pure and theoretical sciences. In many cases of pure Math, there are no direct impact. For instance, Einstein’s theory of relativity in itself is just purely a theory, and does not have any immediate consequences. Yet, there are so many uses which is based off of this theory. We could not file NIW under NYSDOT, but can do so under Dhanasar
2. Local in scope. The other weird thing about NYSDOT was that the impact had to be national and not local. This presented a huge problem for those of us who worked with oil industry geologists. They did research on say, North Texas oil basin. That would lead to discovery of oil in Texas. But although the research did not have direct national consequences, discovery of significant oil reserves would reduce the US dependency of foreign oil, and lead to national economic benefit
   Maybe if Mr. Trump restricts Immigration, the courts will step up and make things easier.

For more information visit Banerjee & Associates

Senators Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) are promoting the Bar Removal of Individuals who Dream and Grow our Economy, or the BRIDGE Act. The proposed legislation would protect deportation reprieves and at least 740,000 young immigrants who received work permits as low priority removal candidates with no criminal record, under the Obama administration, allowing DACA recipients to keep those benefits for three additional years. Senators Jeff Flake (R-Ariz.), Dianne Feinstein (D-Calif.) and Lisa Murkowski (R-Alaska) are also supporting the bill. It is unclear how much support the bill will have in the Republican-controlled Senate.

Many welcomed the introduction of the bill, noting that the United States has invested in educating young immigrants who were brought here as children, and three-quarters of a million of them have come forward to pursue higher education and become tax-paying members of society.

The young immigrants who qualify for Obama’s deferred action initiative are often referred to as DREAMers because they constitute most of the individuals who meet the requirements of the Development, Relief and Education for Alien Minors (DREAM) Act, a legislative proposal that has so far failed to pass Congress.

Thus the 43rd and 44th President of USA did what was fair and just despite opposition from both parties. Pres. Obama, you are my President, you always shall be.

For more information contact Banerjee& Associates 

Moreover under 8 CFR §214.2(b)(2), Canadian visitor’s with a B visa has to be given a minimum of 6 months. I-94s might be given for shorter duration.

This procedure, done very quietly by CBP, might put a lot of Canadians in illegal status. Then depending on the length of their illegal stay, they may be barred from entering the United States for 3 to 10 years. This bar means no cross border shopping or even visiting your winter home down south.

Please go here to check your I-94 and get the date by which time you will need to leave USA.

For more information, please contact Banerjee & Associates.

For more information contact Banerjee and Associates

Please call Banerjee & Associates for more information

H-1B:
Eliminate the quota, but become stricter on enforcement. Make employers PROVE that the job is there, and it is real. Make site visits mandatory where the Sponsor has less than 200 employees. If an H-1B employee lose his job, he will get an automatic 6 months to stay in the US. After that time, if he has found no jobs, he has to leave. He can also switch to a dependent visa like H-4, but cannot switch to a student visa (F-1), without going back to the home country. If an Employer is found to have changed the resumes of the Employee in order to get a job for that employee, then both the Employer and the Employee will be barred from future filings for 5 years. The Employee will never be given the chance to adjust status through employment and will be deportable.

L-1A:
Focus more on viability and less on job description. If a Japanese restaurant owner has to oversee cooks and waiters who are not “Professional” employees, it’s no big deal. What matters is, is the restaurant viable? Is it making money, and will it survive? If a large multinational, foreign Company, (for instance let’s say Suzuki) wants a small office in the US, which coordinates their North American business, then they should be allowed to have an L-1. Even though they may not be creating US jobs, the fact that they are doing business means that they are helping US population in some way. When the time comes for the Company to grow in the US, they will grow. But by denying them the right to have a small office, we will actually drive business to Canada or Mexico. Whether the manager is managing a function, or doing full time managerial job is immaterial. Good managers do everything. If you are the CEO of a profitable company, you can clean a room, if it looks bad, and you have the time. It won’t kill you.

L-1B:
The focus should be on the technical aspect, and not so much on the proprietary aspect. We have a shortage of technical people in the US. So even though it’s fair to say that the job has to be proprietary to the Company, the focus should be on whether the Employer can get anyone in the US to do the job with some training. If the Company is viable and profitable, then we should let the Company prosper with their L-1B candidates. After all, they will pay US taxes.

For more information contact Banerjee & Associates

ITINs are tax processing numbers that are issued to foreign nationals and others who do not qualify for Social Security numbers but have federal tax filing or reporting requirements. This includes some non-resident aliens, and dependents or spouses of U.S. resident aliens or non-resident alien visa holders.

ITINs that the taxpayer has not used on a federal tax return in the past three years are no longer valid unless the taxpayer takes action to renew the ITIN. In addition, ITINs issued before 2013 must be renewed, even if such numbers have been used in the past three years.

Taxpayers who need to renew their ITIN but fail to do so before filing a tax return may not be eligible for certain tax credits, such as the American Opportunity Tax Credit and the Child Tax Credit, until the taxpayer renews the ITIN. In addition, failure to renew an expired ITIN may cause a refund delay. ITINs only need to be renewed if the taxpayer has to file a federal tax return.

The changes in ITIN requirements were necessitated by the Protecting Americans from Tax Hikes (PATH) Act, which Congress passed in December, 2015.

The Senate is expected to take up the measure on December 9, 2016, and President Obama is expected to sign the measure once it clears the Senate

1. The Employee applies.
2. The Citizenship and Immigration Service takes a long time to adjudicate the application
3. The Employment Authorization Document expires
4. The Employee cannot work legally after this day, and loses the job.

I have had individuals leave the country on this issue. There is no way to expedite this, and although Citizenship and Immigration Service is required, by regulation to adjudicate the card within 90 days, sometimes that does not happen.  Understandably, the Citizenship and Immigration Service is inundated by large volumes of Employment Authorization Document Extensions.  Nationals from India and China have long wait lines before they get their Green Card (Permanent Resident Card), so they need to renew their cards frequently.  The same is true for DACA, TPS etc.

This problem has been solved by the recently enacted changes to the Immigration code.  Enacted on November 18, 20165, it goes into effect on January 17, 2017, 8 CFR § 274a. 12 (c) (35-36) states that due to “compelling circumstances” Employment Authorization Document will be extended for 180 days if:

1. The individual files a request to renew his Employment Authorization Document prior to the expiration date
2. The individual is requesting an extension under the same category as before, for example DACA, I-485 pending, TPS, Dependent visas, like H-4, L-2, or J2.
3. However, the underlying status needs to be valid. This means for example if someone is divorced and does not have the H-4 or L-2 status anymore, then this provision does not apply

The receipt notice of the Employment Authorization Document serves as proof of such extension for 180 days

Hopefully the Citizenship and Immigration Service will adjudicate these cases by 180 days

Please call Banerjee & Associates for more information

But, you say, you thought that you were presumed innocent until proven guilty in America.  And you are right.  Yet, the Department of State has the right to suspend your visa.  Because this is not a legal ground of inadmissibility, it’s a medical ground of inadmissibility

If your I-94 (here) is still valid, you can continue to work in the USA.  However, if you go outside the USA, you will be required to revalidate your visa.  The post will send you to a medical doctor, who will evaluate whether you are “medically fit” (read not an addict) to do your job.

So have fun, drink, but don’t drive if you do drink.  Or at least, don’t get caught

Please contact Annie Banerjee at Banerjee & Associates for more information

1. Go dressed well for the interview
2. If you get a 221 G –con tact your attorney. Consulate decisions are final, and if you are denied, you will not be able to reenter
3. After you submit your answer for a 221G, please have patience.
4. The posts tell you to wait at least 60 days before inquiring. We actually advise 90 days. The posts are busy, so if you make yourself or your attorney a pest, the post will simply deny the visa.
5. Once you get your visa, you buy your tickets. We advise that you enter during working hours on week days, even if those tickets cost a bit more. This is because on week days and working hours the Customs and Border Patrol personnel are more senior, hass more experience and has seen your type of case before
6. Please note that if you do get into Secondary Inspection, this is not an adversarial encounter. Yes, it is difficult to wait hours after arriving from an International destination. However the visa officer is simply doing her job.
Also please note that Canadians are given I-94s. Please check your I-94 status here. Please do not overstay your visa.

Please contact Annie Banerjee at Banerjee & Associates for more information.

Highlights on the newly revised I-9 include drop-down lists and calendars to assist the preparer, checks to certain fields to assist the employer in correctly entering information, screen instructions to assist in completing the I-9 form, and areas for multiple preparers and translators, which are welcome changes.  There is also a space reserved for an employer to enter additional information instead of the current practice of requiring employers to enter such information in the I-9 margins.

This document is to be completed by foreign nationals entering the United States with nonimmigrant visas. Travelers entering the United States by land may now save time by paying the $6 I-94 application fee and entering their biographical and travel information online, up to one week before entry.

The goal of advance online I-94 processing, is to expedite entry via land ports and reduce administrative duties of CBP officers, while maintaining high levels of security.

Travelers may now submit information online that would otherwise be collected in person at the land port of entry. Upon submitting the application and making payment, on the I-94 website, travelers will receive a provisional I-94 that includes biographical and travel information. To use the online submission, travelers arrive at a land port of entry, within one week, and speak to a CBP officer to finalize the I-94 issuance process, which may include biometrics. The Arrival Departure Record provides evidence of lawful admission to the United States.

The CBP automated the Form I-94 process for air and sea arrivals in May 2013, and estimates saving the U.S. government approximately $34.5 million in the first two years of its operation.

1 Unless the same party is in charge of the legislature and the executive, Comprehensive Immigration Reform is NOT going to happen. Reform Immigration piecemeal
2 Tackle Business Immigration first—-both Republicans and Democrats love this. Silicon Valley and fruit pickers jointly agree. Construction Companies and Chicken Processors agree
3 Concede to Trump’s agenda to reduce the Business Immigration backlog
4 Take away H-1B quotas and let market place dictate demands. If an employer does not have a valid job offer and files for anyone, make employer pay a fine and bar them from sponsoring anyone for 5 years
5 Introduce legislation where ordinary folks can sponsor cleaning ladies, pool cleaners, lawn maintenance guys as Guest workers—-with visas renewable every 2 years. Everyone needs to receive a fair salary. Everyone has to pay taxes
6 If guest workers can prove continuous employment after 10 years, make them pay a fine and become legal residents. Then they have 5 years and the exam to become citizens
7 Reduce the quota for family Immigration, unless it’s a spouse of USC or a Permanent Resident. If Immigrants want family connections, they can go back. This issue is hotly challenged by Republicans and it stands to reason. Parents are usually older and tax our already falling apart health care system.
8 I feel that if the above rules are implemented, then illegal immigration will slowly diminish. People won’t stay in the US, unless they have a job offer. After 2 years of implementation, the border issue can be tackled.

Written by Annie Banerjee, for Banerjee & Associates

Written by Annie Banerjee, for Banerjee & Associates

Nepalese citizens seeking to register for this extension of TPS must do so within the 60 day window between October 26, 2016 and December 27, 2016.  Nepalese TPS applicants will receive a new Employment Authorization Document (“EAD”) with a June 24, 2018 expiration date.  USCIS acknowledges that some applicants will not receive their new EAD before their current EAD will expire on December 24, 2016, and for that reason, the announcement of the TPS extension designation also automatically extends existing EADs through June 24, 2017.  Employers are cautioned to comply with USCIS instructions in re-verifying automatically extended EADs.

For more information contact Banerjee & Associates 

USCIS calculates the increases to be a weighted average of 21 percent.  Federal law requires DHS to review its fee structure biennially and make fee adjustments such that the fees charged cover the full cost of providing immigration and naturalization adjudications.

Highlights of the new fees include: EB-5 Regional Center Designations: $17,795, up from $6,230; Annual Regional Center Certification: $3,035, a new fee; EB-5 immigrant petition: $3,675, up from $1,500; a 3 tier naturalization fee: $640, up from $595, no fee for qualifying military service applicants, and a reduced fee of $320.00 for applicants whose family income falls between 150% and 200% of the poverty guidelines.

Other, more frequent filings include:   Petition for a Fiancé: $535, up from $340; Petition for Alien Relative: $535, up from $420; Immigration Petition for Alien Worker: $700, up from $580; and Application to Adjust Status: $1,140, up from $985.

We will be publishing the complete list of fees on our web site shortly.

The new enactments that affect passport rules are the International Megan’s Law (IML), which provides for advance notification of traveling sex offenders to prevent the exploitation of children and other sex crimes, and the Fixing America’s Surface Transportation Act (FAST Act). The Department of State’s new regulation incorporates requirements for the denial and revocation of passports of certain sex offenders under the IML, individuals with a serious tax delinquency as defined by the FAST Act, and certain applicants who fail to submit a valid Social Security number with their passport application.

The Department of State said that the new regulation was being published as a final rule without a notice and comment period because it implements Congressional mandates within the IML and the FAST Act, and public comment would be impractical, unnecessary and contrary to the public interest. For the same reasons, the rule became effective as of the date of publication, which was September 2, 2016.

H.R. 5325 Continuing Appropriations and Military Construction, Veterans Affairs and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act, extends both the employment based fourth preference non-minister special immigrant program for religious workers and employment based fifth preference EB-5 Regional Center programs and funds the federal government until December 9, 2016, well after the November, 2016 presidential election.  Members of Congress from both parties have stated their intent to draft legislation which would make significant changes to the EB-5 program prior to that date.

In November of 2014, President issued another Executive order granting the same benefit to DAPA (Deferred Action for Parents of Americans). He also extended the DACA to include individuals who came before 2010, and under the age of 31. However that executive action also had other provisions, which both Democrats and Republicans relating to Business Immigration. Most notably H-4 spouses of H-1B holders who has an approved I-140 can apply for work permit. Other Business Immigration visas adjudications would standardize adjudication by Citizenship and Immigration Service memorandum. Please note that these Business Immigration provisions are in place and both Democrats and Republicans agree on these provisions.
State of Texas sued on grounds that DAPA and DACA exceeded the President’s authority. The Supreme was deadlocked 4/4 on the case in June of 2016. The Obama administration filed for another certiorari, but SCOTUS has refused to hear it this coming year when the new Justice is presumably appointed.
The SCOTUS did not give any reason for this refusal. Maybe the SCOTUS thinks that President Obama will not be in office, any Executive Actions he could have taken would be moot. Maybe the Court wants Congress to tackle Comprehensive Immigration Reform. Whatever the case might be, we will be left with people driving without a license or insurance, people falling sick with no health insurance, and people earning without paying taxes. Yes, it makes no sense. This is not a Green Card (Permanent Resident Card), it’s just a work permit so that undocumented aliens can pay their fair share for living in our midst.
For more information contact Banerjee and Associates

The chances of getting into the lottery in 2016 is a little more than one in three. As our country grows, its needs grow resulting in more and more petitions and less chances for petitions to be selected. If an attorney prepares the H-1B file, the employer loses the attorney’s fees if they do not get into the lottery. Thus big companies like Google, Facebook, Microsoft and other Silicon Valley Billion dollar company can afford to lose money and file thousands of petitions every year. Google for instance filed 9280 petitions last year. That’s like buying 9280 lottery tickets rather than one that the small employer can afford. And although the lottery probably is random, the probability for winning it is higher if you buy more lottery tickets. And yes, we business Immigration attorneys earn a lot of money during that process as well.
The Citizenship and Immigration Service always maintained that the lottery process was fair. However, two companies in Portland Oregon—-Tenrec Inc. and Walker Macy LLC has filed a lawsuit against the Citizenship and Immigration Service to make the lottery process more transparent. A federal judge has ruled that the plaintiffs have standing to sue. What the plaintiffs’ are asking for though, is to not close the accepting of Petitions for the first 5 business days in April, but prolong it year long. That might actually be worse in creating log jams and increasing processing times for H-1B petitions. And American Immigration Lawyer’s Association has also filed a FOIA suit to make the lottery process more transparent.
Although greater transparency is desired from any Governmental organization, mere transparency will not solve the H-1B problem. The market place works on a supply and demand theory. The artificial quota system demands that employers project their need in the beginning of the year, think about the lottery and apply as many petitions as possible. Similarly highly educated tech employees in India and elsewhere seek out employers and in many cases pay them to file their cases. But doing away with the quota requires a Congressional Act, and as we all know, Congress does not act.

For more information call Banerjee& Associates.

The registration period for DV2018 begins at noon on October 4, 2016, Eastern Daylight Time (“EDT”) and runs through noon, on November 7, 2016, EDT.  For DV2018, the Department of State will conduct the program entirely electronically.  Each entrant will make his or her submission on line. No paper applications will be accepted.

Each successful registrant will receive an entry confirmation number and can periodically check on line to learn if he or she has been selected.  To combat fraud, the Department will not use e-mail nor paper notice of DV selection.   Entrants make their submissions and check submission status at dvlottery.state.gov.  Only one entry for each person can be made in each year’s DV program.

Ineligible countries for DV2018 are: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (but not Northen Ireland), and Vietnam.  Hong Kong, Macau and Taiwan are eligible.

As background, all non-citizens seeking to be admitted to the United States must be admissible – that is, not have engaged in certain conduct which would prevent their admission to the United States, such as criminal conduct, or unlawful presence, and if a foreign national did engage in prohibited conduct, that person may still become admissible if he or she obtains a waiver of the ground or grounds of inadmissibility. A section of federal immigration law contains a broad waiver provision that allows nonimmigrants such as tourists, students and foreign workers to qualify if the ARO approves their waiver application. The grant of a waiver is a discretionary decision.

Current processing times for nonimmigrant waivers averages four to six months, but in some cases can take much longer. Waivers have typically been issued with an initial renewal period of one or two years, and with a five-year renewal issued thereafter.

The combination of a long processing time and short waiver period led some applicants to file a new application immediately upon receiving approval of the initial application. To improve efficiency and reduce backlogs, the ARO announced that beginning in or around January 2017, both initial and renewal waiver applications would be approved for five year periods.

DHS plans to measure an entrepreneur’s substantial for rapid business growth and employment creation by whether he or she has received significant U.S. investment from U.S. investors with established successful track records, in addition to grants from governmental entities within the U.S., among other factors.  DHS stated that parole would be for up to 2 years with an extension for an additional 3 year period.  Parole decisions are made on a case-by-case basis.

The proposed rule provides no immediate benefit.  After DHS receives comments, it will decide on what changes if any to make to the proposed rule, and whether or when to publish an implementing rule.

The EB-5 investor visa program allows a foreign national to obtain a green card if he or she invests money in the United States which creates jobs in the United States. An individual must invest $1 million, or $500,000 in certain rural or high-unemployment areas, and create or preserve at least 10 U.S. Worker jobs. The foreign national can invest directly in his or her own project or in a government approved Regional Center. A Regional Center assembles and manages EB-5 investment projects and an investment in a Regional Center project can count direct and indirect job creation.

Critics of the EB-5 program say that it has fraud and security risks. Without action by Congress, the program will expire on September 30, 2016. The organizations said in their letter to Congress that the program has played an important role in creating jobs in the United States, and allowing it to lapse would have “immediate negative consequences” to U.S. projects and businesses counting on EB-5 funding.

“The EB-5 Regional Center program, while imperfect, has resulted in investments in the United States exceeding $15 billion in the last 10 years which have generated 100,000 U.S. jobs,” said Stewart Rabinowitz, a Dallas immigration attorney with Rabinowitz & Rabinowitz, P.C. “Instead of killing a program with substantial employment impact, Congress should consider integrity and other program improvements.”

An attempt to renew the program failed in the Senate in December, 2015.. Lawmakers agree that stronger national security and anti-fraud provisions are needed, and the organizations said in their letter that they support those reforms. The coalition said that lawmakers and stakeholders should join together to build consensus and create a compromise reform package.

Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
Whose startup was formed in the United States within the past three years; and
Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received.

Note:
1. The proposed rule does not take into effect immediately. It typically takes the Government quite a few months after the comment period to adopt the rule. I personally don’t think this will happen before 2017
2. The rule does not grant permanent status as of now. It just gives temporary stay of up to 5 years
3. Both the Democrats and the Republicans support this rule.
4. This would have been law, due to bipartisan support, but the Democrats wanted “Comprehensive” Reform and not the piecemeal legislation
5. Thus I expect this rule to continue no matter who our next President is.

For more information contact Annie Banerjee

Here are highlights of his predicted visa availability:

EB-1 China and India: This category is expected to become current in October, 2016.

EB-2 China: This category is expected to move to early 2007.

EB-3 China: This category will experience slow movement and remain at a 2005 date.

EB-4 India and Mexico: This category will become current in October, 2016.

EB-4 El Salvador/Guatemala/Honduras: This category will likely move to a summer, 2015 date in October, 2016.

EB-5 China: Mr. Oppenheimer was not able to predict EB-5 dates for the fiscal year.  Information forthcoming in September and October, 2016 will assist will a prediction.

NOTE:

EB-1= persons with extraordinary ability, outstanding professors and researchers, and certain multi-national transferees.
EB-2 = members of the professional holding advanced degrees or persons of exceptional ability
EB-3 = skilled workers, professional, and other workers
EB-4 = Special Immigrant Juveniles and religious workers

Johnson said that DHS is enforcing immigration laws consistent with priorities set by President Obama in November 2014, including public safety and border security. According to Johnson, more than 99 percent of people in immigration detention fit those enforcement priorities, and about 85 percent are in the top priority for removal. 60 percent of people deported by Immigration and Customs Enforcement today are convicted criminals, compared to 35 percent in 2009.

According to Johnson’s statement, the Border Patrol effected 34,463 apprehensions on the southwest border in June 2016, a decrease from May and April, but higher than the number of apprehensions per month in the first quarter of 2016. Overall, apprehensions are higher this year than in fiscal year 2015, but lower than 2014 and 2013. The number of apprehensions is indicative of the number of attempts to illegally cross the border, Johnson said.

Johnson said that he visited Central America in May, for the third time in two years. He said there was a need to provide a legal and safe path to the United States, and that many immigrants from Central America should be regarded as refugees. He also said that the “ultimate solution” is long-term investment to help with the humanitarian crisis and underlying problems in the region.

For more information please contact Immigration Lawyer, Annie Banerjee in Houston

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an attorney, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

I know Trump makes for a great opening line in any blog, so I will start with Trump.  Trump criticized Mr. Khan, the Gold Star parent by saying that Khan, a lawyer took money from Muslims so that they could buy their citizenship.  What he was referring to is the EB-5 investor visa program which is controversial.  But before I go into any details, let me say that Trump used EB-5 foreign money to build his luxury rental apartments in New Jersey called Trump Bay Towers.

The EB-5 is a program where investors can invest 1 million USD (or $500,000 in underdeveloped areas) and create at least 10 jobs.

The funds have to be obtained “lawfully” and USCIS traces the source of the funds meticulously.  If for instance, one inherits a property and sells it to obtain funds, the Citizenship and Immigration Service will demand that one traces the source of funds used by the buyer to buy the property.  This requirement is very strict

The investors have to put the funds “at risk”.  That means that the investor has to invest the money into a for profit, new venture. Very often, people invest in “regional Centers”—- businesses which pool a lot of these investment and build a new project.  However they create very little interest, and the money is tied up for about 10 years.  The interest is not enough to be able to live in the US

Over the years investors in this program have invested billions of dollars and have created thousands of jobs.  So why is this program criticized?  .  The problem with this program is not what Mr. Trump thinks, Muslims bringing in illegal money.

The problem is China.  90% of the individuals and capital come from China.  At first it would seem that China sells so much goods to us, that it is wonderful for them to invest capital in the US.  But PRC is not a free country, and that’s the problem.  Ordinarily PRC does not allow money to be brought outside the country. However, it turns a blind eye to the EB-5 program.  The investors do not directly find investment opportunities in the USA. China has state run brokers who liaise with owners of Regional Centers in the US. So these state run brokerage have access to how real estate is done in the US. They also have access to computer files.  They also can invest and control flow of capital in strategic areas.  Some have criticized that China is using economic, information and technological “warfare” with us through this EB-5 program.

The program expires on September 30^th, 2016. But my guess is that this Congress will simply extend the program for one year, and let this be the problem of the new administration.

For more information, contact Houston Immigration Lawyer, Annie Banerjee

Here are highlights of visa availability for the balance of this fiscal year:

F-2A and F-3: These categories are likely to have numbers go backwards only for September, 2016.

F-4 China: This is expected to remain at January 1, 2003 through the end of the fiscal year.

F-4 India: This is expected to remain at January 1, 2001 through the end of the fiscal year.

EB-2 and EB-3 China: This is expected to remain at January 1, 2010 for the rest of the fiscal year.

EB-2 and EB-3 India: EB-2 is expected to move a bit to a 2005 Final Action date by September, 2016, with EB-2 being 1 week ahead of of EB-3.

EB-3 Worldwide: This is expected to remain close to “Current” for the rest of the fiscal year.

EB-4 (Special Immigrant Juveniles and Religious Workers): The cut off for the four (4) countries of El Salvador, Guatemala, Honduras and Mexico of January 1, 2010 will continue through the end of the fiscal year due to high SIJ demand.  The EB-4 cutoff date for India of January 1, 2010, is also expected to continue through the end of the fiscal year.

NOTE:

F-2A = spouses and children under 21 of permanent residents
F-2B = unmarried sons and daughters of permanent residents
F-3 = married sons and daughters of U.S. citizens
F-4 = brothers and sisters of U.S. citizens

EB-2 = members of the professional holding advanced degrees or persons of exceptional ability
EB-3 = skilled workers, professional, and other workers
EB-4 = Special Immigrant Juveniles and religious workers

The H-1B visa classification permits a U.S. employer to offer a professional position to a degreed foreign national and employ that foreign national to work in such a position in the United States. Tenrec, Inc., a web development company, sought to hire a Ukrainian citizen, and Walker Macy LLC, a landscape architecture and urban design firm, sought to hire a Chinese citizen. Both companies are based in Portland, Oregon and each one filed its H-1B petition on or shortly after April 1, 2016, the earliest time period permitted by regulation to obtain a sought after H-1B visa number for an October 1, 2016 employment start date. Neither company’s H-1B petition was selected in the USCIS H-1B lottery. USCIS implemented an H-1B lottery by regulation to address how it will proceed when USCIS receives more H-1B petitions than there are statutorily allocated H-1B visa number permitted per fiscal year. In 2016, USCIS received a record 236,000 petitions for 85,000 available H-1B visas.

The lawsuit alleges that there is no legal justification to support the H-1B lottery system. The plaintiffs believe the statute implementing H-1B requires a system which issues H-1B visa numbers in the order in which H-1B petitions are submitted. The lawsuit seeks class action status, and demands that the current annual five-day filing window which is part of the H-1B lottery system be replaced with year-round filing.

This employers’ lawsuit follows a suit filed by a U.S. immigration attorneys’ organization demanding that USCIS produce documents showing how the H-1B lottery process works. The plaintiffs in that suit previously filed a Freedom of Information Act request and claim that the government’s response to that request was inadequate.

The EB-5 Regional Center program will expire on September 30, 2016 unless Congress reauthorizes it, and many in Congress are concerned about fraud after the Vermont Jay Peak indictments, the largest of many which have occurred, and also about ways to measure the economic benefits of the program.  EB-5 interest groups have begun pressure on Congress to extend the Regional Center provisions accepting many proposed integrity changes and even a likely increase in the investment amount perhaps to $1,200,000 or $800,000 if in a high unemployment or rural area.  The EB-5 program has never had an increase in the investment threshold since the program came into existence in 1990.  Efforts to extend the EB-5 Regional Center program failed last December, 2015, and Congress extended the program unchanged until this coming September.

In its July, 2016 EB-5 processing time information, USCIS reports a 16+ month adjudication time for EB-5 petitioners seeking conditional permanent resident status, and an additional 20+ months for those investors with conditional residence who file to remove conditions of their residence, which is another petition filed with USCIS about 2 years later.  While these processing delays are long, they have not affected investors’ interest and participation in the EB-5 program arising out of the processing wait period.

For citizens of China, though, it is not just processing time that delays gaining lawful permanent resident status, it is having a visa number available.  Unlike foreign nationals from every other country who use the EB-5 program and who have a visa number immediately available, a factor unrelated to USCIS petitioning processing time, investors from China who filed their EB-5 petitions for conditional lawful permanent resident status in February, 2014 have a visa available in August, 2016.  Those Chinese investors who have filed there EB-5 petitions after February, 2014 must wait for a visa number to become available before the investor and his or her family can immigrate to the U.S.  Current information is that USCIS has about 40,000 EB-5 cases filed by Chinese EB-5 investors which are awaiting to be decided, and 20,000 additional Chinese investor EB-5 cases which USCIS has approved but are awaiting visa availability.  Visa availability is an issue because there is an annual quota of just 10,000 EB-5 visas available for investors world-wide, not just from China.  The likelihood is that the wait for all pending and approved EB-5 Chinese investor cases will be years before all such EB-5 Chinese investor cases will have a visa number available.  This multi-year visa wait will likely decrease EB-5 demand from China, prompting EB-5 Regional Centers to seek out investors other countries, especially from India and Vietnam, to benefit from the program.

Stay tuned to EB-5 Regional Center developments as they unfold.

Under the proposed, interim rule, DOL will increase the civil monetary penalty per violation from $1,000 to $1,782 for a violation pertaining to a strike or lock out, or a substantial notice violation required by the LCA, or for misrepresentations on the LCA, or for an early termination penalty paid by the employee, or for violation of the public access provisions.

For willful failure relating to wages, working conditions, a strike or a lock out, willful misrepresentation on the LCA, or discrimination against the employee, DOL will increase its  civil monetary penalty per violation from $5,000 to $7,251.

And for an employer that displaces a U.S. worker during the period 90 days before and 90 days after the filing of an H-1B petition relating to willful violations of wages, working conditions, strike or lockout, or a willful misrepresentation on an LCA, DOL will increase its civil monetary penalty per violation from $35,000 to $50,758.

The Court ruled that “…The judgment is affirmed by an equally divided Court..”  With these 9 words, the Court split 4 to 4, and without a 9th and deciding Justice, permitted an injunction against implementing these programs imposed by a Texas District Court and upheld by the Fifth Circuit to stand.

As background, in November, 2014, and arising out frustration with Congressional inaction  on comprehensive immigration legislation, President Obama and his Administration created two executive actions programs: Deferred Action for Parents of Americans and Permanent Residents (“DAPA”) and an expanded program for Deferred Action for Childhood Arrivals (“DACA”), an earlier executive action program to benefit certain children who accompanied their parents into the United States at an early age.  The programs if implemented would shield certain parents of U.S. citizens and permanent residents from removal, and certain young people from removal based on enforcement priorities, and would expand who could qualify for DACA.  Texas and 25 other states sued the federal government alleging overreach of the powers of the executive branch in taking these steps.

There has been no trial on the merits, only appeals on the propriety of the injunction decision itself up to the Supreme Court.  The case now goes back to the District Court to be tried.  Procedurally, the Administration could request a rehearing before the full Court.  Whether it does so remains to be seen.

USCIS has announced that E-Verify users who do not log in to their E-Verify accounts every 270 days will have the account deactivated.  The remedy?  Users who do not timely log in will have to sign up with E-Verify again.  This new policy will likely affect small business E-Verify users who may not add staff often.

The EB-5 visa provides lawful permanent resident (LPR) status to foreign nationals who invest $1 million in the United States, or half that amount in a Targeted Employment Area, and who employ at least 10 U.S. workers. The investment can be made directly or through specially set up and approved Regional Centers which create EB-5 projects in which indirectly created employment can count toward the creation of 10 U.S. Worker jobs.

The CRS report outlines the EB-5 policy issues that are currently under debate in Congress. The report points out that while proponents argue that the U.S. economy benefits from the investments that the program brings, critics contend that the program allows people to buy their way into the United States. According to the report, many EB-5 stakeholders are concerned about delays in processing EB-5 applications, and some question whether U.S. Citizenship and Immigration Services (USCIS) has the expertise to administer the embedded business components of the program. Others contend that the EB-5 program is susceptible to fraud and threats to national security, as evidenced by the recent, massive fraud allegations against the EB-5 Regional Center at the Jay Peak Resort in Vermont.

The Congressional debate over EB-5 visas will continue ahead of the scheduled September 30, 2016 program expiration. Whether major changes will occur in a Presidential election year remain to be seen.

In addition, the NSC will accept concurrent applications for H4 spouses to extend their stay and concurrent applications for certain H4 spouses who may be eligible for employment authorization.

With this refinement in filing location, USCIS is now requiring an H-1B employer to be yet more mindful of which USCIS Service Center is appropriate for the type of H-1B petition that the employer is filing.

Here are some of the key findings of the report:

• There are more foreign-born residents in the United States today — 42.4 million in 2014 — than at any other point in history.
• Immigration in recent decades has not been dominated by three or four countries as it was in the early 20th century.
• The proportion of foreign-born residents in the United States was 13.3 percent in 2014, approaching a level last seen in 1910, when the proportion of foreign-born residents reached 14.8 percent.
• In fiscal year 2013, approximately 991,000 aliens gained legal permanent resident (LPR) status, with about 65 percent entering the United States based on family ties.
• There were 9.9 million temporary visas issued in fiscal year 2014, an increase from 2004, when 5.0 million temporary visas were issued.
• Overall, there has been an increase in all temporary, employment-based visa categories since 1994, with the number rising each year except for a brief dip during the recession.
• There were 617,000 employers enrolled in the E-Verify employment eligibility verification system at the end of fiscal year 2015, representing about 10 percent of U.S. employers.
• There were 462,463 formal removals in fiscal year 2015, compared to 30,039 in 1990.
• The population of unauthorized resident aliens grew from 8.5 million to 12.2 million from 2000 to 2007, but then dipped to 11.3 million in 2014.

Under these new STEM rules, STEM graduates must receive a wage similar to U.S. workers doing similar work, must be employed by a U.S. employer who participates in the USCIS E-Verify program, and must be employed under an employer designed training program for the benefit of the student.  The training program must have goals and objectives, a means to measure student progress, and a supervision structure to oversee student activities.  The employer must certify that the student is not replacing a part time or full time U.S. worker.

The Employment-Based Fifth Preference Immigrant Investor Program, known as the EB-5 program, and administered by the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS), permits immigrant investors who meet certain requirements to obtain lawful permanent resident status in the United States. To be eligible, an immigrant entrepreneur can directly invest $1 million in a business that will create 10 or more jobs, or invest half that amount in an area that is rural or has high unemployment while creating 10 or more jobs. Alternatively, immigrant entrepreneurs can invest in a project through specially set up and approved EB-5 Regional Centers with the same investment amount break points, but where the entrepreneur can be credited with indirect creation of 10 or more jobs.

USCIS had previously conducted multi-agency EB-5 fraud risk assessments in fiscal year 2012 and again 2015 as one-time efforts. While USCIS acknowledged the constantly evolving nature of new fraud schemes, it lacked plans to conduct future risks assessments. GAO recommended regular future fraud assessments be done and USCIS agreed. In February 2016, USCIS agreed to develop such plans by the end of this fiscal year.

According to Gambler’s testimony, while USCIS has increased the size and expertise of its workforce to assess job creation, USCIS still needs to develop a strategy to enhance its information collection, and a methodology to analyze information submitted on program forms to better evaluate the actual number of jobs created and to determine whether the investment amount was appropriate. The GAO recommended that USCIS track and verify data to confirm total investment and jobs created and DHS agreed to implement this recommendation by the end of fiscal year 2017.

Federal law permits a maximum of 65,0000 first time H-1B petitions, and an additional 20,000 first time U.S. earned advanced degree holder H-1B petitions each fiscal year.  Each federal fiscal year begins on October 1 and employers can file H-1B petitions 6 months in advance of that date which makes April 1 in recent years the target date for H-1B filings which have the following October 1 as the H-1B start date.

USCIS will randomly select those petitions which are to be counted against the 65,000 and additional 20,000 H-1B annual cap.  It will first complete an intake processing for all H-1B petitions which it received before the announcement date.  USCIS will then randomly determine which U.S. earned advanced degree H-1B petitions will be counted for the 20,000 advanced degree exemption, and then select the general H-1B category “lottery” winning employer H-1B petitions. USCIS will reject all subsequent cap subject H-1B petitions which it receives after April 7, 2016.

In Fiscal Year 2016, USCIS received more than 230,000 H-1B petitions, and H-1B filings for Fiscal Year 2017 may approach or exceed that number.  Owing to high volume, USCIS does not know when it will conclude the selection process.

Not all H-1B employer petitions are subject to these annual caps, though.  Foreign nationals already in H-1B status are exempt from annual H-1B numerical limitations, as are institutions of higher education or related non-profit entities, non-profit research organizations, and government research organizations.  There is no numerical limit on the number of H-1B petitions such employers can file.

The CRS report points out that states and localities often have an interest in how the federal government enforces immigration law regarding undocumented immigrants. On the one hand, some cities have implemented policies to limit cooperation with federal enforcement efforts. On the other, states with large populations of undocumented immigrants have sued the federal government, unsuccessfully, seeking stronger enforcement measures through local law.

More recently, states have challenged the Deferred Action for Childhood Arrivals (DACA) initiative of the Obama Administration and a similar program, known as DAPA, for undocumented immigrants who are parents of certain lawful permanent residents or of U.S. citizen children. In this litigation, Texas v. United States, the U.S. Court of Appeals for the Fifth Circuit found that the programs violate the Administrative Procedure Act. The U.S. Supreme Court granted the federal government’s request for certiorari on January 19, 2016, and the high court indicated that when it considers the case later in the year, it will also consider the plaintiffs’ claims that DACA and DAPA violate the Take Care clause of the Constitution.

The CRS report concluded by stating that even if the decisions of the lower courts withstand appeal, the ability of states to challenge alleged “failures” of the federal government to enforce immigration laws is limited.

The change will affect all K-1 approved petitions that the National Visa Center receives after March 31, 2016.  The U.S. post in Vancouver will process and interview all approved K-1 petitions which it receives before that date.

H-1B is the visa classification given to Professional employees to come work in US Companies. Although all types of professions use this visa, the vast majority of these visas are used by computer consulting companies for computer professionals. The end user is the place that the computer professional will actually work. Usually these are big companies. These companies contract out their work, and sometimes the intermediary companies enter into contracts with others. Thus very often the company employing the H-1B worker has one or more intermediaries between them and the end client. The petitioning consulting companies (hereinafter petitioner) often change the employees resumes to suit a job, although the employee may not have that skill. This can be stopped if the end client can have a testing requirement to before accepting someone for the job. Initially it will be a burden to devise these tests, but then, that will ensure that their work is done in an efficient way.

But the real problem is that there is a quota of 65,000 visas per year for H-1Bs (plus 20K for those who have US Masters) and there are more than 233,000 petitions filed on the first day in 2015. So the Citizenship and Immigration Service does a random lottery and the lucky 85 K get in. Then the Citizenship and Immigration Service takes a long time to adjudicate these cases, and often it’s January of the following year that the employee can get in and start working Thus employers have to calculate their need and apply with projected rather than actual figure. Since these visas lead to Green Card (Permanent Resident Card), they are coveted by employees. Thus many employees seek employers to enter the lottery. The employees often pay money to the employers to enter the lottery, which is of course against the law. The employers then file for the H-1B lottery for these employees. By the time the employee can make it to the United States, the project that was originally applied for has already been completed.
Do H-1B employees take American jobs? Please note that the Government fees for H-1B is 1575 to 4325 USD- per individual. Add attorney’s fees to that. The Employer has to pay the employee at least the Prevailing Wage, which is often higher than local employees’ pay. And even if it’s the same wage for three years, its still the same as an American worker. But we do have computer science graduates in this country. They do not want to lead the lifestyle of the computer consultant. The computer consultant is like a travelling Computer guru, who moves from project to project. They may stay in Memphis for 6 months, followed by Iowa City for 3 mts, followed by Houston for 5 mts. You get the picture. They cannot have roots anywhere. If they have families, the family has to be positioned in some place, and they usually go back for the week end. But to make up for it, they work 12 hour days from Monday to Thursday. It’s just a hard life that Comp Sci grads from this country simply do not want.

Thus the solutions to these problems are:
1. Do away with the H-1B quota and let the market dictate need:
The market is a much better predictor of demand than an artificial quota. The quota forces employers to project their need for a whole year and file accordingly. It also creates uncertainly because of the lottery and creates artificial demand. Very often the petitioner just has one or two big project and file 20 cases, even though the need maybe 5. They hope that at least 5 people get picked. This of course leads to fraudulent practices. And there can be no guarantee which employee will be lucky enough to get in. Without the quota the optimally qualified available personnel, rather than the lucky personnel will get the job.

2. Create a system whereby the HR director of the end user has to verify the employment of the employee
The Department of Labor, to end fraud in the Labor Certification program established a system where the Company has to verify that the Labor certification is a real job that does exist in the Company. The Citizenship and Immigration service is testing an employer verification system. But they need to create a simple program whereby the system sends out an e mail asking if this job exist. The adjudication (which needs to be done fast) will proceed upon a yes answer. If the e mail is fraud, then the petitioner will be barred from using the H-1B program again, and the end user will pay a fine.

3. Do Away with Control and Simeio issues:
The Obama administration created complex and useless rules to curb H-1B fraud which do not work. In 2010, the Citizenship and Immigration Service issued a memo that said these professional employees need to be “controlled”. The Government tried to say that if the petitioner does not control the employee, then they are not the Employer. The Government then proceeded to introduce this requirement ONLY to the computer consulting industry, and not to the healthcare industry, which employ the same model. Just a simple e mail from the end user should suffice. The “control” issue goes into the business model of this industry, over which the Citizenship and Immigration Service does not have jurisdiction.

Similarly in a 2015 case, Simeio, the ruling was that if an H-1B employee changes job location, the employer has to file an H-1B petition. As mentioned above these H-1B employees change job locations very frequently. Thus the Immigration Service is inundated with the H-1B petitions. The Government is taking almost a year to adjudicate these petitions. By then the employee has moved three times, making the adjudication of two of these petitions moot and a waste of time.
These two measures are quixotic and serve no purpose other than to harass employers and make attorneys rich. In order to curb fraud, the system should be made simple, hassle free and fast to keep pace with the for profit industry. Otherwise the Immigration code will quickly grow into something like the tax code, complex and filled with loop holes.

For more information contact Houston Immigration attorney, Annie Banerjee

Effective February 16, 2016, persons in employment authorized H-1B1 status from Chile and Singapore whose employers have timely filed to extend their stay automatically continue employment while USCIS decides the employer’s extension petition.  Similarly, persons in employment authorized E-3 status from Australia, and persons in employment authorized CW-1 status from the Commonwealth of Northern Mariana Islands also are entitled to seek this benefit.

H-1B1, E-3 and CW-1 nonimmigrants are now added to the list of many other employment authorized nonimmigrants for whom this benefit has been available, including A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1 and TN.

The H-1B program permits a U.S. employer to file for a foreign national to temporarily fill a position in the United States provided the position requires at minimum a bachelor’s degree, and the United states Citizenship and Immigration Service (“USCIS”) deems the position to be professional.  There are other requirements, too, including an employer representation certified by the Department of Labor that the employer will pay prevailing or actual wages to the foreign worker as it does to U.S. workers in the area of intended employment, or to its other, similarly situated workers.

The statute caps H-1B visa numbers at 65,000 each fiscal year, and provides an additional 20,000 visas solely for U.S. earned masters or higher degree holders.  In recent years, the statutory allotment of H-1B visas has proven to be inadequate.  Last year, U.S. employers submitted ~224,000 H-1B petitions for the 85,000 visa numbers which became available on October 1, 2015.  Employers can file 6 months in advance of the upcoming fiscal year.  By the end of the first week in April, 2015, the earliest time when employers could file, all H-1B visa numbers for the following fiscal year were accounted for.  USCIS conducted a “lottery” to randomly select which petitions were the ones chosen to fill the quota.

As the economy continues to improve, FY 2017 may result in even greater number of H-1B visa petitions for the number of H-1B visas available.

Many employers, especially in the high tech sector, use the H-1B program to employ STEM graduates to address marketplace shortages of U.S. workers in this and other areas.  One study done in 2012 in partnership with the U.S. Chamber of Commerce, found that every foreign national U.S. university graduate who remains in the U.S. employed in a STEM field generates on average of 2.62 U.S. worker jobs.  Principal sectors of the economy which benefit from the H-1B program include manufacturing and healthcare.

Employers today have to evaluate the chances of their H-1B petition being chosen and the costs of preparing the application against the value that the foreign national represents in skill and talent, and the paucity of similarly skilled and available U.S. workers.  No U.S. employer should be handicapped and made to rely on a lottery to fill key staffing needs.

The bill, S.2540 entitled Fair Day in Court for Kids Act of 2016, provides that the Attorney General may appoint attorneys at government expense to represent aliens in immigration proceedings and requires that appointed attorneys are to be given copies of case relevant DHS documents.  The bill specifically provides that immigration court proceedings cannot go forward  until the alien’s attorney has both received the relevant documents and has had time to review them.  The bill mandates the appointment of attorneys at government expense for unaccompanied alien minors and vulnerable populations such as aliens with disabilities, or those who are the victims of abuse, or violence, or other have circumstances where appointment of counsel is needed to assure a fair hearing.

In addition, the bill mandates that all aliens who are detained in facilities supervised by ICE or the Border Patrol be provided access to attorneys no matter where such facilities are located, and detained persons be provided with information about legal services programs which may apply to them.

The chances for passage of the bill are limited in light of rhetoric of the 2016 presidential election.

The bill, S.2540 entitled Fair Day in Court for Kids Act of 2016, provides that the Attorney General may appoint attorneys at government expense to represent aliens in immigration proceedings and requires that appointed attorneys are to be given copies of case relevant DHS documents.  The bill specifically provides that immigration court proceedings cannot go forward  until the alien’s attorney has both received the relevant documents and has had time to review them.  The bill mandates the appointment of attorneys at government expense for unaccompanied alien minors and vulnerable populations such as aliens with disabilities, or those who are the victims of abuse, or violence, or other have circumstances where appointment of counsel is needed to assure a fair hearing.

In addition, the bill mandates that all aliens who are detained in facilities supervised by ICE or the Border Patrol be provided access to attorneys no matter where such facilities are located, and detained persons be provided with information about legal services programs which may apply to them.

The chances for passage of the bill are limited in a 2016 presidential election year.

The proposed rules amend existing regulations to incorporate USCIS policies that have been put in place since October 2000, the date of enactment of the America Competitiveness in the Twenty First Century Act (AC21). To date, the first rules that USCIS has proposed for AC21 would do the following:

• Clarify that a foreign national’s place in line waiting for a visa number, known as a Priority Date, is established on the date that a labor certification is filed with the Department of Labor. If no labor certification is needed, the priority date is the date on which USCIS receives the employer’s petition properly signed, together with the required fee.
• State that employment based petitions filed in the EB-1, EB-2 or EB-3 category provide a foreign national with a Priority Date for any subsequently filed EB-1, EB-2 or EB-3 petition, and if multiple immigrant visa petitions are filed for the same person, the foreign national beneficiary is entitled to the earliest priority date.
• Clarify that a Priority Date on an employment based immigrant visa petition is lost when USCIS revokes the petition for fraud or willful misrepresentation, or upon DOL revocation of the accompanying labor certification. Unless revoked, an employment-based petition is valid indefinitely.
• Provide employment authorization eligibility for EB-1, EB-2 or EB-3 beneficiaries if four conditions are met: 1) Their petition has been approved; 2) Their status is E-3, H-1B, H-1b1, O-1 or L-1; 3) No immigrant visa number is available in the category sought; and 4) USCIS chooses to exercise its discretion based on the person’s showing of compelling circumstances. Spouses can obtain employment authorization, too, if the principal beneficiary has been granted employment authorization.
• Provide a regulatory 10-day grace period to depart at the conclusion of their authorized stay in E-1, E-2 E-3, H-1B, L1 or TN classifications, and provide foreign nationals in any of those classifications who cease to continue their employment a one-time period of 60 days without losing status. Such persons remain eligible to file an extension petition during that period.
• Eliminate the regulatory requirement to adjudicate an Employment Authorization Document (EAD) within 90 days of filing, eliminate the current regulatory requirement that USCIS issue interim an EAD when EAD adjudication is delayed, and provide an automatic extension of EADs for up to 180 days for an applicant who has filed to renew his or her EAD.

DOL reports receiving 83,749 LCAs during the first quarter.  It certified 80, 137, denied 1,274 and had the balance of LCA applications withdrawn.

The top 5 occupations in order are: Computer Systems Analysts (62,780), Software Developers, Applications (29,081), Accountants and Auditors (15,869), Computer Occupations, all Other (15,795), and Computer Programmers (13,136).

The top 5 state users of the H-1B program in order are: California (48,819), Texas (24,532), New York (17,972), New Jersey (12,213), and Pennsylvania (12,062).

Finally, the top 5 employers of H-1B workers in order are: Cognizant Technology Solutions U.S. Corporation (30,657), Deloitte Consulting, LLP (19,705), Apple, Inc. (18,744), PricewaterhouseCoopers Advisory Services, LLC (12,400), and PricewaterhouseCoopers, LLP (11,849).

In brief, here is what he said:

India:    EB-2s from India have advanced significantly in the last few months arising out of lower than anticipated demand.  DOS is taking steps to ensure that cases can be concluded and visas issued within the fiscal year by aggressively moving visa numbers in these categories.  It is unclear if lower demand arose from fewer India EB-3 to EB-2 conversions than previously were expected, or whether prior months’ visa movement met the India EB-2 visa demand, or whether USCIS reduced its EB-2 backlog from India so that demand appears to be lower.

China:    China EB-2s are expected to trail EB-3s, although DOS expects the China EB-2 demand will diminish from high usage levels seen in October, 2015.  EB-2 demand has decreased ever since.  China EB-3 demand has remained low and EB-3 visa numbers are expected to move forward because first quarter FY 2016 visa usage targets were not reached.  Continued EB-3 movement could result in EB-2 to EB-3 conversions.  China EB-2 and EB-3 may re-balance as a result.  Both China EB-2 and EB-3 are expected to move forward in March, 2016.

As background, since 2004, the DHS has been required to accelerate the plan to develop an automated entry and exit control system to match arrival and departure records for foreign nationals entering and leaving the United States which is able to report data on foreign nationals who have stayed beyond the time permitted to them to be in the United States.  From 2006 onward, DHS’ biometric entry capability has been in service at all ports of entry.  But DHS has yet to place into service a corresponding biometric exit capability which produces reliable data to track overstays.

The GAO report again suggests that DHS create time frames and specific goals for a biometric air exit system and a means to determine the reliability of the data which it has collected.  The GAO reports that as of January, 2016, DHS has neither reported its overstay data nor on data reliability, nor provided a time when DHS would respond to GAO’s recommendations on these points.

The rule harmonizes the regulations with the implementing statute so that both state that H-1B1 and E-3 nonimmigrant workers are authorized to work for a specific employer incident to their status.  The rule clarifies that there is no further filing needed with USCIS to document the H-1B1 or E-3 nonimmigrant’s employment authorization in the United States.

The rule also permits E-3 and H-1B1 nonimmigrants to continue employment with a specific employer upon the employer’ filing of a timely extension of stay petition for the E-3 or H-1B1 nonimmigrant for 240 days beyond the initial time that the Department of Homeland Security granted while USCIS adjudicates the pending extension filing.  Additionally, the rule now specifically provides that E-3 and H1B1 nonimmigrants can change status or extend their stay in the United States.

Finally, the rule permits EB-1 outstanding professors and researchers to submit comparable evidence of eligibility instead of or in addition to the specific type of evidence set forth in the regulations, if the latter do not readily apply.

The report, Immigration: Visa Security Policies, details the security checks that visa applicants must currently undergo before being issued a U.S. visa. These include submitting fingerprints, a photograph and identification information. All prospective lawful permanent residents, and some prospective nonimmigrants, must undergo physical and mental examinations. U.S. consular posts use a biometric and biographic database called the Consular Consolidated Database (CCD) to screen visa applicants, and consular officers also search a Consular Lookout and Support System database (CLASS). From 2013 onward, Consular offices use the Terrorist Identities Datamart Environment (TIDE) to check for known and suspected terrorists or terrorist groups.

The report also details policy proposals intended to improve the efficiency and effectiveness of visa security policies. One proposal involves a sharing of confidential information with foreign governments to bolster security, but it raises concerns with the government’s responsibility to protect personal information. Another proposal is to apply visa security checks more broadly, making more foreign nationals coming to the U.S. subject to heightened consular screening procedures. On the other side of security concerns is a desire to welcome foreign travelers who are a boon to the U.S. economy and thus not to unduly hamper the vast majority of legitimate foreign nationals who seek to come to the U.S. for mutual benefit. Reaching the right balance between the two is the major policy challenge.

As background, the Washington Alliance of Technology Workers sued DHS alleging that DHS  impermissibly issued F-1 STEM regulations in 2008.  The court agreed with the plaintiffs but stayed vacating DHS’ current F-1 STEM regulations until February 12, 2016 to permit DHS time to properly issue new F-1 STEM regulations.  DHS issued its proposed F-1 STEM regulations on October 19, 2015.

Citing extraordinary circumstances in its receipt of more than 50,000 comments to its proposed regulations which it must review and to which it must respond, DHS stated that it needs approximately 30 additional days to complete rulemaking and an additional 60 day period to train its personnel and provide training aids and materials for foreign students, universities and employers beyond the current February 12, 2016 date.

DHS seeks an extension of the court’s vacatur order until May 10, 2016.

The report, by Legislative Attorney Alexandra M. Wyatt, presents an overview of the legal debate on birthright citizenship and the issue of children born in the U.S. to alien parents. The report examines the historical development of birthright citizenship, early and modern litigation on the issue and the parameters of the modern legal debate.

The U.S. Constitution provides for birthright citizenship in the Fourteenth Amendment, which states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This is usually interpreted to mean that anyone born in the U.S. automatically becomes a U.S. citizen, even if their parents are undocumented immigrants, as the Supreme Court held in United States v. Wong Kim Ark, an 1898 case.

The CRS report details how many opponents of birthright citizenship favor a narrower interpretation of the Fourteenth Amendment’s Citizenship Clause, arguing that the term “jurisdiction” should mean “complete jurisdiction” in the sense of undivided allegiance and mutual consent of sovereign and subject. Some opponents of birthright citizenship also argue that Wong Kim Ark did not squarely address the question of whether the Citizenship Clause requires a broad view of jurisdiction.

Wyatt points out that since the early 1990s, bills have been introduced in Congress to deny citizenship to people born in the U.S. if their parents were not lawful residents. Whether such a statute would pass constitutional muster in the almost certain court challenge should such legislation become law would remain to be seen.

HR 156 bars visa waiver country citizens from using the vis waiver program if they have traveled to Iraq or Syria within the last 5 years.

In the EB-5 area, there are 5 different, proposed legislative changes to the program which address many components of the EB-5 program, including increases in the minimum investment amount, making the program permanent, changing job creation methodology, changing TEA designations and definitions, and addressing means to reduce and identify fraud in Regional Centers and regional center projects.

Stay tuned for an update for news about Congressional decisions on these issues.

All VWP applicants must register in advance of their proposed travel through the online Electronic System for Travel Authorization or ESTA.  Only VWP applicants who clear ESTA can board a U.S. bound aircraft; those who do not must apply for and receive a U.S. visitors visa before coming to the U.S.  Within the last year, the Department of Homeland Security and the Department of State have increased their coordinated efforts to improve security.

After the Paris terrorist attacks in November, 2015, DHS is taking immediate steps to collect additional information on the ESTA application to learn which VWP applicants have traveled to terrorist active countries.  The data is designed to assist in making risk assessments.  DHS is exploring plans for pilot programs to capture applicant biometrics.  It also seeks to identify which countries whose citizens can participate in the VWP are deficient in screening and sharing information with the United States.  Coordination and sharing of information between the National Intelligence Director, the FBI, DHS, the Department of State are now in high gear.  These efforts are targeted towards making current information available on each VWP applicant to keep the U.S. safe from terrorist threats by making the VWP defensively robust.

The Office of Special Counsel investigated and concluded that McDonald’s practices regarding how it re-verified lawful permanent residents was in violation of law.  McDonald’s denied the allegations and, after the Office of Special Counsel reviewed McDonald’s immigration compliance policy, its Form I-9s and it processes, both parties agreed to a settle the charges.

Under the terms of the settlement, McDonald’s denied any violation of law, but agreed to pay a civil fine of $355,000, provide back pay to employees or former employees who suffered under McDonald’s prior employment eligibility re-verification practices, and agreed not to discriminate based on citizenship or national original.

In addition, McDonald’s agreed to provide employees and applicants visual access to an Office of Special Counsel poster regarding employment eligibility in each store, provide Company HR consultants with the latest Form I-9 and the USCIS Employment Eligibility Handbook, and provide the Office of Special Counsel with a written description of all steps taken to ensure that McDonalds is not re-verifying Permanent Resident Cards.  It also agreed to take the Office of Special Counsel’s training sessions regarding compliance with the immigration-related employment provisions of federal law.

Public Law 111-230 was signed into law by President Barack Obama on Aug. 13, 2010. The law directed up to $600 million toward border security, paid for in part by an increased visa filing fee for companies with more than 50 employees in the U.S., with greater than 50 percent of employees in L-1 or H-1B status. These companies were required to pay an additional $2,250 for each L-1 petition and $2,000 for each H-1B petition. The law included a sunset provision that allowed the requirement to expire as of Sept. 30, 2015. As Congress did not act to renew the provision, as of Oct. 1 the additional fees are no longer required.

The additional fees had greatly increased visa petition costs for affected employers, and those employers — at least for now — can now file visa applications without these additional fees.

Other L-1 and H-1B fees still apply, including the case filing fee and the anti-fraud fee. Where applicable, the American Competitiveness and Workforce Improvement Act of 1998 Fee also applies. U.S. Citizenship and Immigration Services (USCIS) reminds petitioners that petitions may be rejected if the correct fees are not submitted, and that USCIS requests separate checks for each filing fee.

The Notice, published on November 9, 2015, provides that a student is eligible under the Notice if he or she is a citizen of Nepal, was lawfully present in the United States in F-1 status on April 25, 2015 and was enrolled in a SEVIS certified school and maintaining F-1 status, and is experiencing severe economic need arising out of the direct effects of the earthquake.  Eligibility means that the student can register for a reduced case load per semester and engage in employment on or off campus and still be engaged in a full course of study for the purpose of maintaining F-1 status.  USCIS estimates that there are more than 9,300 Nepalese students to whom this Notice can apply.  The benefits provided under the Notice end on December 24, 2016.

Eligible Nepalese F-1 undergraduate students must register for 6 semester hours per semester and eligible Nepalese graduate students must register for 3 hours per semester.  The Notice also provides that both undergraduate and graduate students can count the equivalent of 1 course or 3 credit hours of online or distance learning to satisfy the reduced required per semester course load.

Eligible Nepalese F-1 students can engage in on-campus employment for more than 20 hours per week.  Eligible Nepalese F-1 students can engage in off-campus employment without having been in F-1 status for 1 full academic year, nor demonstrating that accepting employment will not interfere with carrying a full course of study, nor with a limitation of working more than 20 hours per week off campus while school is in session.

The school’s DSO makes the determination whether a Nepalese F-1 student has demonstrated severe economic need to enter authorization for these benefits in the Nepalese student’s SEVIS record.  The Notice does not provide employment authorization for the spouses of covered F-1 Nepalese students.

According to the Office of Special Counsel, Yellow Checker Star required non-U.S. citizens, but not similarly-situated U.S. citizens, to present additional documentation to prove employment eligibility.  Federal law contains an anti-discrimination provision which punishes employers who require more or different documentation from employees who are work-authorized than U.S. citizen employees at the time of hire because of their citizenship status or national origin.

Yellow Checker Star settled with the Department by agreeing to pay $445,000 in civil penalties, and agreeing to take additional steps reflecting the company’s commitment to comply with the anti-discrimination provisions in the future, such as placing print advertisements in a monthly trade publication for six months, advising employees of the anti-discrimination provision in questions, undergo monitoring for 3 years, and train its employees on this provision of the law.

As background, foreign students are admitted to the United States as nonimmigrants for the purpose of pursuing their studies at United States educational institutions. Students pursuing higher education are admitted in F-1 status and students pursuing vocational studies are admitted in M-1 status.

The Department of State has an Exchange Visitor program, which is multi-faceted and provides opportunities for nonimmigrant foreign nationals in diverse areas through programs for university students, professors and researchers, physicians, short term scholars, teachers and many others. Exchange visitor program participants are admitted to the United States in J-1 status.

The Student and Exchange Visitor Information System (SEVIS) maintains information about all F-1, M-1 and J-1 nonimmigrants in the United States and the report draws its data from SEVIS.

The following are highlights of the report:

• There are presently 1.05 million students in the United States in F-1 or M-1 nonimmigrant status.
• There are presently 244,766 exchange visitors in the U.S. in J-1 status.
• More than 300,000 F and M students in the United States are from China.
• More than 150,000 F and M students in the United States are from India.
• SEVP has certified 8,887 United States schools to have international students enrolled.
• 77% of all schools certified by SEVP have 50 or less F and M students.
• 74% of F and M students are in doctoral, master’s or bachelor’s programs.
• The fields of science, technology, engineering and mathematics (STEM) account for 405,314 F and M students.
• 38% of all F and M students in the United States are studying in STEM fields.
• Engineering, computer sciences and biological and biomedical science programs account for 75% of all F and M STEM students.
• In Texas, 24% of F and M students are from India and 17% are from China.
• The number of active J-1 exchange visitors increased 21.9% from February 2015 to July 2015, from 200,779 J-1s to 244,766.
• The number of F and M students decreased 6.9% in the same time period, from 1,132,636 to 1,054,505.

On September 9, 2015, DOS issued its Visa Bulletin for October, 2015, containing a new feature called Date of Filing. The Date of Filing sets out when an applicant in the United States may file for adjustment of status in the family and employment based categories. This addition represents an major benefit for those immigrants whose categories are severely backlogged. Immigrants and their immediate family members with a current Date of Filing can file for adjustment of status, and can seek employment authorization and travel permission as ancillary benefits sooner than their Priority Date now renamed Final Action Date. The inclusion of a Date of Filing in the Visa Bulletin has generated much excitement especially in immigrants whose categories have long wait times.

But the September, 25, 2015 revisions to the October, 2015 Visa Bulletin made the following specific Date of Filing changes: EB-2s for China retrogressed from May 1, 2014 to January 1, 2013, EB-2s for India retrogressed from July 1, 2011 to July 1, 2009, and EB-3s for the Philippines retrogressed from January 1, 2015 to January 1, 2010. F1s for Mexico retrogressed from July 1, 1995 to April 1, 1995, and F3s for Mexico retrogressed from October 1, 1996 to May 1, 1995. The retrogressions have disappointed many immigrants.

The revision resulted after further discussions between DOS and the Department of Homeland Security. According to DOS, “…the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process…”

DHS has advised that it will rely on the revised October, 2015 Visa Bulletin in determining when an applicant becomes eligible to file for adjustment.

For October, 2015, the Filing Date in family sponsored preference categories is approximately 1 year sooner that the Final Action Date.  The exception is the Philippines, which permits filings 4 years sooner than the Final Action Date.

In the employment based preference categories, EB2s for China have a Filing Date that is 2+ years sooner than the Final Action Date.  The biggest difference between Filing Date and Final Action Date is for EB3 Other Workers from the Philippines, and then EB2s for India.  The former category has a Filing Date that is 8 years sooner than the Final Action Date.  The latter has a Filing Date 6+ years sooner than the Final Action Date.  Significantly, EB5s for China has a Filing Date of 1.5+ years sooner than the Final Action Date.   Highlights of other categories follow:

Category                  Country   Filing Date          Final Action Date

EB3                               China        10/01/2013             10/15/2011
EB3                               India         07/01/2015             03/08/2004
EB3                               Mexico     09/01/2015             08/15/2015
EB3 Other Worker    China        01/01/2007             01/01/2006
EB3 Other Worker    India         07/01/2005             03/08/2004
EB3 Other Worker    Mexico     09/01/2015              08/15/2015
EB3 Other Worker    Philippines   01/01/2015          01/01/2007
EB5                               China        05/01/2015              10/08/2013

Please see http://www.travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html for the complete October, 2015 Visa Bulletin.

Previously, the Visa Bulletin listed only a Priority Date, that is, a cut-off date of the first applicant who could not be reached within the numerical limits for a specific month.  Now, Priority Date has been re-named Application Final Action Date (or “Final Action Date”).  Added is a new date, Dates for Filing Applications (or“Filing Date”), that is, the date on which an applicant can file for adjustment of status.  These changes apply to both family based and employment based immigrant visa categories.

A key benefit for adjustment applicants is the eligibility to file for employment authorization and travel permission while their adjustment application pends.  In addition, for many employment based categories, once the adjustment application has been pending for 6 or months, the applicant can port to a different employer in the same or similar job classification.  These are welcome changes to many applicants in heavily backlogged visa categories.

Although an applicant can file for adjustment of status in advance of the Final Action Date, USCIS cannot approve the application until a visa number actually becomes available.  In reading the Visa Bulletin, applicants filing for adjustment must use the Final Action Date unless the Visa Bulletin states that the Filing Date can be used.   For the month of October, 2015, the Visa Bulletin references a USCIS determination that the Filing Date can be used in determining whether the applicant can submit their application or applications to USCIS.  Each month thereafter, USCIS will make a determination regarding adjustment projection numbers and the Visa Bulletin will state whether the applicant can use the Filing Date or must use the Final Action Date.

Please see http://www.travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html for the October, 2015 Visa Bulletin.

Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.) introduced Senate Bill 1501 on June 3. The proposed legislation would implement a five-year extension of the EB-5 regional center program, which would otherwise expire in September 2015. The EB-5 program permits an immigrant investor to obtain permanent resident status by investing either in a new or existing business, or in a project developed by a regional center in the United States. Regional centers create projects for immigrant investors mostly in targeted employment areas, which have a minimum investment amount of $500,000. Regional center projects can use indirect job creation to meet the statutory EB-5 job creation requirements. S.B. 1501 is the first bill introduced to extend this popular investment program.

S.B. 1501, called The American Job Creation and Investment Promotion Reform Act, aims to provide EB-5 investors with more information about their investments and to help investors avoid scams. A pertinent example involved a California-based oil and gas company which the U.S. Securities and Exchange Comission (SEC) recently charged with violations of securities laws for allegedly running a Ponzi-like scheme to defraud investors, including EB-5 investors.

Highlights of the proposed legislation include, but are not limited to:

• Increasing the minimum investment amount from $500,000 to $800,000 for targeted employment area investments and non-targeted areas investments from $1,000,000 to $1,200,000
• Removing an immigrant investor’s spouse and minor children from the overall quota calculation, which would have the affect of eliminating visa backlogs which currently exist for China.
• Removing authority from the states to designate tracts of land as targeted employment areas
• Creating a special $20,000 per year annual fee for each regional center to pay for government audits and fraud detection

S.B. 1501 is the start point in legislative proposals to extend the EB-5 program. The bill will be subject to many proposed changes between now and when the legislation goes to Congress for a final vote.

Citing a global threat environment as a reason to know more about those persons using the VW program, DHS announced three new security requirements: (1) VW Program travelers now must use e-passports; (2) DHS will use the INTERPOL Lost and Stolen Passport Database for VW travelers; and (3) DHS will seek to expand its use of U.S. air marshals on flights from VW countries to the United States.

DHS considers these changes as part of is commitment to do more to address a growing threat of foreign terrorists, without impeding international travel to the United States.

Matter of Simeio Solutions, LLC concerns the H-1B visa classification, a nonimmigrant category which permits a U.S. employer to employ a foreign national worker temporarily in a specialty occupation in the United States. The precedent decision stated that a U.S. employer must file an amended petition when a change in an H-1B worker’s worksite location requires a new Labor Condition Application (LCA). USCIS guidance released in May, 2015, made that process retroactive, requiring a new LCA and an amended H-1B petition for each worker whose location changed prior to the decision. USCIS set August 19, 2015, as the amended petition deadline for compliance.

In its final guidance issued July 21, 2015, USCIS changed that position. USCIS now states that it will generally not pursue adverse actions, solely based on an employer’s failure to file an amended petition, against employers whose H-1B employees moved to a new area of employment on or before April 9, 2015 (the date that Matter of Simeio Solutions, LLC was decided). Thus, a new LCA application and an amended petition is only required for a location change occurring after April 9, 2015.

In addition, the deadline of August 19, 2015, was moved to January 15, 2016. USCIS will consider an amended H-1B petition filed by the amended deadline to be timely. The precedent decision and policy guidance demonstrate the importance and complexity of this issue. Employers employing foreign workers in H-1B status should work with an experienced immigration attorney to ensure compliance.

The new AAO decision, In the Matter of Simeio Solutions LLC, holds that if a new Labor Condition Application (LCA) is filed for an H-1B employee to reflect a change in work location that is outside the metropolitan statistical area of the original worksite or worksites set forth on the LCA and in the original H-1B petition, then the H-1B employer must now file an amended petition with a new LCA with USCIS for that worker.

The requirement of an amended petition only applies when the work location is in a different MSA, or metropolitan statistical area, from the original work location. Therefore, an amended petition is not necessary when a worker is moved to a different worksite within the same MSA, although the original LCA must still be posted at the new worksite. Similarly, an amended petition is not needed when a worker is simply traveling to a non-worksite location, such as for a training event. In some circumstances, a worker may also be placed at a new worksite, even in a different MSA, for a short-term placement without the need for an amended petition. This applies when the original worksite is still the employee’s base, but the worker is moved to a different worksite for less than 30 days, or in some cases, 60 days.

Subsequent to the AAO decision, which USCIS considers to apply retroactively, USCIS issued guidance to employers, stating that employers who move H-1B employees to new worksites prior to the issuance of the decision have until August 19, 2015 to file amended petitions.

Stewart Rabinowitz, Board Certified, Immigration and Nationality Law – Texas Board of Legal Specialization. Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses, families, and individuals.

Number 83
Volume IX
Washington, D.C

A. STATUTORY NUMBERS1.  This bulletin summarizes the availability of immigrant numbers during August. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by July 10th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Number 82
Volume IX
Washington, D.C

A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by June 9th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Bad facts make bad law. And Citizenship and Immigration Service loves bad law. Employer filed H-1B and Labor Condition Application for an In House project with an address in Long Beach, CA for $50,232/- Employer moves employee to a third party location in Camarillo CA and Hoboken, NJ. Employer files new Labor Condition Application, but not an H-1B amendment. These placements were not short term placements. The Citizenship and Immigration Service’s audit found the initial H-1B address is actually a home address. The question that the Administrative Appeals Office (AAO) decided is whether a change of location to a new Metropolitan Statistical Area (MSA) constituted a “Material Change” requiring the employer to file an amendment.

THE DECISION:

In a precedent decision the AAO held that a change of location to a new metropolitan area, requiring 9000 USD more yearly, is a material change. They based it on three grounds:

1. Apparently the original Labor Condition Application was 9000 yearly less, and that was huge to the AAO.
2. The change in location to another place in the USA was MATERIAL
3. The original petition does not have this new itinerary

GRIPE:

Time used to be when people traveled an entire day in carriages to travel 50 miles. Time used to be when 9K used to mean a lot. These were material changes. But this is the 21 C. We work at the speed of light.

The REAL reason why filing the Amendment is controversial: In 2010, Citizenship and Immigration Service came out with a memo imposing stupid requirements that these professional has to be controlled. Then the ex-congressman who actually proposed the H-1B regulation told them Congress had no intent to control H-1B employees. This Congressman is now an immigration attorney representing the health care industry. So Citizenship and Immigration Service still uses the control memo, but selectively applies it only for the Computer Consulting Industry.

Disney said it’s a small world in 1964. Since then, we have invented the net, Facebook, Twitter, etc etc. Yet the Labor Condition Application gives you only 3 locations that one can work from. I can completely understand that the Department of Labor has a responsibility to not have employers hire H-1B employees (at 65K people annually, really?) and pay them less than Americans. But if the pay is in 6 figures, it should meet the criteria in all of United States. Before you require employers to file amendments, costing them attorney’s fees, why can you not have a Labor Condition Application option that covers The ENITRE U S of A?

Please contact Houston Immigration Attorney , Annie Banerjee for more information

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Spouses of H-1B. The H-1B individual needs to have: (1) and Approved I-140 and (2) Maintain his or her H-1B status.

The H-4 person needs to also maintain his or her H-4 status

So this is not spouses for recent arrivals who just has H-1B and has not started the Green Card (Permanent Resident Card) process yet.  Note L-2 can apply for work permit immediately upon entry into the US.

2. When can the H-4 apply ?

Starting from May 26, 2015.  Citizenship and Immigration Service will reject applications filed before this date.

3. Is this a sure thing?

This is under the Executive Action which is being currently challenged in Court. So this is not 100% sure. To date Citizenship and Immigration Service has not released any new forms or regulations

4. Documents: These would probably be the necessary documents
   1. Copy of marriage certificate (with English translation)
   2. Copy of children’s birth certificate, if any
   3. Copy of H-4 approval and/or Visa page
   4. Copy of H-1B spouse’s H-1B approval
   5. Copy of H-1B spouses I-140 approval
   6. Three Recent paystubs of H-1B spouse
   7. Two passport size pictures of H-4 Employment Authorization Document applicant

Please contact Houston Immigration Attorney, Annie Banerjee for more details

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