Immigration Law Update August 2016

Mayors Send Open Letter to Presidential Candidates Urging Immigration Reform

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

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

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

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


Various Categories Oversubscribed for August, State Dept. Reports

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

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

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

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

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

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

The bulletin for August is available here. Additional details are available here.


USCIS Has Returned Unselected FY 2017 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on July 8, 2016, that it has returned all FY 2017 H-1B cap-subject petitions that were not selected in the agency's computer-generated random selection process. USCIS previously announced on May 2, 2016, that it had completed data entry of all selected cap-subject petitions.

Those who submitted an H-1B cap-subject petition between April 1 and April 7, 2016, and did not receive a receipt notice or a returned petition by July 22, 2016, may contact USCIS (click here for contact information). The current announcement is available here. The previous announcement about completing data entry is available here.


DHS Extends Designation of El Salvador for Temporary Protected Status for 18 Months

The Department of Homeland Security (DHS) is extending the designation of El Salvador for El Salvador Flag temporary protected status (TPS) for 18 months, from September 10, 2016 through March 9, 2018. The 60-day re-registration period began July 8, 2016 and runs through September 6, 2016. DHS said it is important for re-registrants to timely re-register during the 60-day re-registration period and not to wait until their employment authorization documents (EADs) expire.

The extension allows currently eligible TPS beneficiaries to retain TPS through March 9, 2018 so long as they otherwise continue to meet the eligibility requirements for TPS. DHS said an extension is warranted because the conditions in El Salvador supporting the TPS designation continue to be met: "There continues to be a substantial, but temporary, disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador remains unable, temporarily, to handle adequately the return of its nationals."

DHS also set forth procedures necessary for nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) to re-register for TPS and to apply for renewal of their EADs with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of El Salvador and whose applications have been granted.

Certain nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) at least one of the late initial filing criteria; and (2) all TPS eligibility criteria (including continuous residence in the United States since February 13, 2001, and continuous physical presence in the United States since March 9, 2001).

USCIS will issue new EADs with a March 9, 2018, expiration date to eligible El Salvador TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time needed for processing TPS re-registration applications, DHS said it recognizes that not all re-registrants will receive new EADs before their current EADs expire on September 9, 2016. Accordingly, DHS has automatically extended the validity of EADs issued under the TPS designation of El Salvador for 6 months, through March 9, 2017. The notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on Employment Eligibility Verification (Form I-9) and the E-Verify processes.

The notice, which was published in 81 Fed. Reg. 44645-51 (July 8, 2016), is available here. A related USCIS notice is available here.


USCIS Launches 'Refresh' of InfoPass Appointment Scheduler

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

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

The announcement is available here. InfoPass is available here.


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

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

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

If the rehearing is granted, it is unlikely to occur for some time. The petition is available here. More information about the Obama administration's executive actions on immigration is available here.


USCIS Ombudsman's 2016 Report to Congress Recommends Changes

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

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

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

Highlights of the report include:

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

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

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

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

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

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

Ombudsman Odom's message to Congress is available here. The Annual Report is available here.

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