Immigration Law Update June 2014

Garfinkel Immigration Law Firm New Website Launch

We are pleased to announce the launch of Garfinkel Immigration Law Firm's new website, located at The new site reflects an extensive re-design in an effort to bring clients and viewers a more streamlined and intuitive layout and functionality. The website features informative content, easily accessible by corporate and individual users. It also includes a safe and secure area for online payments, as well as a Client Login button for private access to our web portal.

As it grows and evolves, Garfinkel Immigration Law Firm remains committed to finding new ways to address current and future client needs. We invite you to check out our website and enjoy our new look.

OCAHO Launches E-Filing Pilot, Rules That E-Verify Participation Does Not Provide Blanket Protection

E-filing pilot. The Department of Justice's Office of the Chief Administrative Hearing Officer (OCAHO) has launched a voluntary pilot program to test an electronic filing system in certain cases filed with OCAHO under 8 U.S.C. § 1324a and b.

The pilot program began on May 30, 2014, and will run until November 26, 2014. Under the pilot, filing with OCAHO and service on other parties can be accomplished by email in eligible cases. OCAHO said it is undertaking this temporary testing initiative in an effort to make submission of case documents more convenient and to reduce the time and expense incurred in paper filings.

The Federal Register notice describes the procedures for applying for and participating in the pilot program. It is available here.

Ruling: E-Verify participation does not provide blanket protection. In a recent case, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.

OCAHO noted that the employer, Golf International d/b/a Desert Canyon Golf, had failed to ensure that various employees properly completed I-9 employment authorization verification forms. Golf contended that the violations were technical, but OCAHO found them to be substantive. Among other things, section 2 was blank for 93 employees, and signatures were missing in section 2 for 14. Several employees checked a box indicating permanent resident status but failed to provide their A numbers.

OCAHO noted that "[a]n employer's first responsibility in [the E-Verify] program is, in fact, to properly complete an I-9 form for each new employee. As [U.S. Immigration and Customs Enforcement] points out, the E-Verify Memorandum of Understanding that must be signed by a participating employer provides that 'The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.' "

The decision is available here.

USCIS Limits Validity Period for Report of Medical Examinations/Vaccination Record

As of June 1, 2014, U.S. Citizenship and Immigration Services (USCIS) is now limiting the validity period for Form I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit the I-693 to USCIS within one year of the immigration medical examination. USCIS said it will provide additional ways to submit an I-693. This updated policy applies to any I-693 supporting a benefit application that USCIS adjudicates.

USCIS permits filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, without the medical report. USCIS will issue a request for evidence for the report, which will be valid for submission within one year of the civil surgeon's signature and valid for one year from submission. Although the medical examination report is generally valid for adjudicatory purposes up to one year after filing, the officer may order an additional immigration medical examination at any time if he or she has concerns about an applicant's inadmissibility on health-related grounds. The medical examination report may be submitted to USCIS concurrently with the immigration benefit application, or at any time after filing the application but before adjudication. If not filed concurrently with the application, USCIS "encourages applicants to wait until USCIS requests the medical examination report before submitting it." This includes a request to bring the medical examination report to the interview.

USCIS will hold an engagement on Thursday, June 12, 2014, to address questions about the new policy and provide guidance on filing Form I-693. The agency also has updated the I-693 webpage.

The announcement is available here. See also here. The updated I-693 webpage is available here.

USCIS Extends TPS Re-Registration Period for Haitians

The Department of Homeland Security (DHS) has extended the re-registration deadline to July 22, 2014, for Haitian nationals who have already been granted temporary protected status (TPS) and seek to maintain that status for an additional 18 months. USCIS strongly encourages Haitian TPS beneficiaries to apply as soon as possible.

DHS began accepting re-registration applications on March 3, 2014, from TPS Haiti beneficiaries when DHS announced an 18-month extension of the TPS designation for Haiti from July 23, 2014, through January 22, 2016.

Approximately 51,000 TPS Haiti beneficiaries are expected to file for re-registration. TPS is not available to Haitian nationals who have not continuously resided in the United States since January 12, 2011.

DHS also automatically extended by six months, through January 22, 2015, the validity of employment authorization documents (EADs) for eligible Haitian TPS beneficiaries. USCIS said this would allow sufficient time for eligible TPS beneficiaries who re-register on time to receive an EAD without any lapse in employment authorization.

To re-register, TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization. Individuals seeking to re-register do not need to pay the I-821 application fee. However, all re-registrants 14 years of age and older must pay a biometric services fee or submit a fee waiver request. All re-registrants seeking employment authorization through January 22, 2016, must also submit the I-765 fee (or a fee-waiver request). Re-registrants who do not want employment authorization must still submit a completed I-765 but do not need to submit the I-765 fee.

The revised I-821 is available here. The announcement, with additional related links, is available here.

Corporate Immigration Policies: A Survey

Many companies hire Foreign National (FN) employees, especially in the science, technology, engineering, and mathematics disciplines. Many of these FNs have been sponsored by their employers to work pursuant to nonimmigrant (temporary) work visas. Such visas often limit the amount of time the FN may remain in the United States and impose other restrictions on them (i.e., limits on the ability to change jobs and /or change employers, and prohibiting spouses on dependent visas from securing work authorization). Although the American Competitiveness in the 21st Century Act (AC21) has mitigated some of these hardships for FNs sponsored under the H-1B category, significant challenges remain.

FN employees on nonimmigrant work visas are therefore often anxious to start the employment-based green card process. Their options to obtain green cards through other avenues are limited under current immigration laws. The timing for initiating the green card process is also vital, as it would enable extensions of the H-1B work visa beyond the maximum six-year limit under AC21. Given that the usually required PERM labor certification process can take two years to complete if an audit is required, waiting significantly more than a year can lead to serious complications in completing the green card process.

Earlier this year, the Alliance of Business Immigration Lawyers surveyed its members on the topic of Corporate Immigration Policies. The survey requested information from ABIL member firms regarding their corporate clients' policies on such topics as: (1) how long a FN employee would have to work for the company before sponsorship would be started; (2) whether that timing has changed since the height of the financial crisis; and (3) whether there are contingencies on initiating/continuing the green card sponsorship process.

ABIL members concluded that the survey results would interest companies that hire FN employees, including those who have a policy in place as well as those that do not. Below are highlights of the key findings of the survey:

1. The majority of ABIL members who responded to the survey (66%) reported that their client companies wait one year before starting the green card process. The next highest percentage responded that their clients wait more than one year; the third highest reported a wait of six months.

2. When asked whether this time frame changed since the height of the financial crisis, an equal percentage of respondents reported that the wait time had shortened as those responding that there was no change to the wait time.

3. When asked about contingencies on starting (or continuing) the process, over 80% of respondents stated that the employee's manager must "sign off" to have the process initiated. One-half of respondents stated that an employee on a performance plan or under some other disciplinary action would cause the process to be delayed or stopped.
One member reported that some client companies have "nomination periods" when managers can nominate certain employees for green card sponsorship.

4. When asked about the payment of green card sponsorship, most members (over 80%) reported that the employer pays all fees and expenses in connection with sponsorship. The next highest percentage reported that the employer pays all fees for the employee but requires the FN employee to pay costs related to family members. The smallest percentage reported that the employer pays up to a certain amount toward the process and the employee covers the balance.

5. When asked about the source of immigration-related costs, the largest percentage (over 90%) reported that the business unit hiring the employee pays for the process. A few respondents reported situations where the legal or human resources department pay.

6. Responses varied with respect to reimbursement policy. An equal number of ABIL members reported that their corporate clients had no reimbursement policy as those who reported that their clients had such a policy (where the employee agrees to repay a portion of the costs of sponsorship if the employee leaves the company within a certain time frame after receiving the green card).

Under federal regulations, the employer is responsible for all fees and costs associated with the PERM labor certification process-the first step in the majority of employment-based green card cases-and such fees may not be reimbursed by the employee.

More and more companies are finding that a corporate immigration policy is a useful tool, and that having no policy or a restrictive policy can lead to inconsistencies that can present significant challenges. From the threat of key employees resigning to take up employment with more "FN-friendly" employers to the risk of litigation, prudent employers should consider reviewing their existing policy or adopting a new one.

For companies that determine a corporate immigration policy is beneficial, the results of the ABIL survey will shed light on how many employers approach the topic.

DHS Proposes Rule To Extend Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants

As part of the Obama administration's efforts to attract highly skilled workers, the Department of Homeland Security (DHS) has proposed extending the availability of employment authorization to USCIS Logocertain H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are seeking lawful permanent resident status through employment.

The proposed rule includes such spouses of H-1B nonimmigrants who are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act.

DHS said this regulatory change is intended to lessen any potential economic burden on the H-1B principal and H-4 dependent spouse during the transition from nonimmigrant to lawful permanent resident status, furthering the U.S. goals of attracting and retaining highly skilled foreign workers. The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardship for the families of H-1B nonimmigrants the longer they remain in the United States, DHS noted. In many cases, for those H-1B nonimmigrants and their families who wish to remain permanently in the United States, the time frame required for an

H-1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years. As a result, DHS pointed out, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers. "Retaining highly skilled persons who intend to acquire lawful permanent residence is important to the United States given the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which correlate highly with overall economic growth and job creation," the agency said.

DHS believes that this proposal would further encourage H-1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents (to the detriment of their U.S. employers) because their H-4 nonimmigrant spouses are unable to obtain work authorization. DHS said this proposal also would remove the disincentive for many H-1B families to start the immigrant process due to the lengthy waiting periods associated with acquiring lawful permanent resident status.

DHS seeks public comments on the proposed rule. The agency noted that the most useful comments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support the change.

The proposed rule is available here.

DHS Proposes Rule To Enhance Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants

In another Obama administration effort to attract highly skilled workers, the Department of Homeland Security (DHS) has proposed updating its regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of those authorized for employment incident to status with a specific employer, to clarify that H-1B1 and principal E-3 nonimmigrants can work in the United States without having to apply separately to DHS for employment authorization.

DHS also is proposing to provide authorization for continued employment with the same employer if the employer has timely filed for an extension of a nonimmigrant's stay. DHS proposes this same continued work authorization for Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrants if a Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, is timely filed to apply for an extension of stay.

In addition, DHS is proposing to update the regulations describing the filing procedures for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications. These changes would harmonize the regulations for E-3, H-1B1, and CW-1 nonimmigrant classifications with the existing regulations for other similarly situated nonimmigrant classifications.

Finally, DHS is proposing to expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

DHS said it is proposing these changes to the regulations to benefit these highly skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

The proposed rule is available here.

China EB-3 Visa Numbers Retrogress Six Years Unexpectedly; State Dept. Warns That EB-5 Category May Retrogress

Retrogressions are looming for several employment-based categories:

EB-3. Due to an "unexpected and dramatic increase" in demand, the Department of State announced in the Visa Bulletin for June 2014 that visa number use in the employment third category has neared the annual limit. As a result, the E-3 cutoff dates will retrogress in June for the China, Worldwide, and Mexico categories. The China E-3 cutoff date is retrogressing by six years, to October 1, 2006.

EB-5. A Department official speaking at an immigration law conference in Washington, DC, on April 11, 2014, warned that higher-than-anticipated visa number usage in the EB-5 immigrant investor category may require the agency to impose a cut-off date this summer. If so, this would be the first time the EB-5 category would have a backlog in its 24-year history.

Every employment-based immigrant visa category has an annual limit. For EB-5, it is approximately 10,000 visas per year. That number includes principal EB-5 investors, their spouses, and their children under 21. For EB-5 cases, a person's priority date is the date the USCIS receives their I-526 petition.

Investors from mainland China constitute about 80% of all EB-5 petitions. The Department would create a waiting list for Chinese investors first to make certain that some EB-5 green cards remain available for investors from other countries. Investors should file their I-526 petitions as soon as possible so that their EB-5 priority dates will be as early as possible. This will help them when EB-5 retrogression occurs. It is unclear when that will happen, possibly in late summer or early fall 2014.

Contact your Garfinkel Immigration Law Firm attorney for assistance with specific cases.

The June 2014 Visa Bulletin, which includes charts showing the employment-based and family-based priority dates, is available here.

USCIS Accepting Only Current Naturalization Applications

As of May 5, 2014, U.S. Citizenship and Immigration Services is now only accepting current versions of the Form N-400, Application for Naturalization, dated 9/13/2013. USCIS will reject and return all naturalization applications using previous versions.

Among other things, the revised form has a barcode, which USCIS said will result in fewer rejected forms. USCIS said that it also clarified the instructions and made the form more "user-friendly."

USCIS issued the revised version of the N-400 on February 4, 2014. The agency allowed applicants to continue using previous versions of the N-400 for a 90-day transition period, which has expired.

The announcement is available here. The revised form is available electronically here, but it can also be printed and completed by hand in black ink. The form must be signed and sent with the filing fee. A USCIS video about the changes to the form is available on USCIS's YouTube channel here.

Dept. of State Releases DV-2015 Results

The Department of State's Kentucky Consular Center has registered and notified those selected in the DV-2015 diversity visa lottery. Approximately 125,514 applicants have been registered and notified, and may now apply for an immigrant visa. The Department said it is likely that not all of those Dept of State logo registered will pursue their cases to visa issuance. Therefore, this larger figure should ensure that all DV-2015 numbers will be used during fiscal year 2015 (October 1, 2014, to September 30, 2015).

Applicants registered for the DV-2015 program were selected at random from 9,388,986 qualified entries (14,397,781 with derivatives) received during the 30-day application period that ran in late 2013. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. Cameroon received the most selections, at 5,000; followed by Ethiopia and Egypt, tied at 4,988; and Iran, at 4992.

During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly, the Department said.

Registrants living legally in the United States who wish to apply for adjustment of status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the total 50,000 visa numbers have been used, the program for fiscal year 2015 will end. Selected applicants who do not receive visas by September 30, 2015, will derive no further benefit from their DV-2015 registrations. Similarly, spouses and children accompanying or following to join DV-2015 principal applicants are only entitled to derivative diversity visa status until September 30, 2015.

Dates for the DV-2016 program registration period will be widely publicized in the coming months, the Department said.

The Department noted that the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulated that up to 5,000 of the 55,000 annually allocated diversity visas be made available for use under the NACARA program. The reduction of the limit of available visas to 50,000 began with DV-2000.

The DV-2015 results, including a country-by-country chart, are available in the Visa Bulletin for June 2014 here.

CBP Provides Webpage Access to Arrival/Departure Date Records

A U.S. Customs and Border Patrol webpage now provides access to arrival/departure date records for nonimmigrants without necessitating a Freedom of Information Act request. The user can input the person's first and last name, date of birth, passport number and country of issuance, and is supposed to receive information about the person's recent I-94 arrival/departure record or a full travel history dating back several years.

Reportedly, the system records the date of departure when the person books a departing flight, not the actual departure. Users have tried the system to obtain records for lawful permanent residents but have reported that the travel dates listed are sometimes incomplete.

It is available to individuals and their legal representatives here.

ABIL Global: Germany

Germany has become the world's top migration spot after the United States.

According to recently published OECD statistics from 2012, Germany has seen significant growth in migration and has skyrocketed to second place on the list of the world's top migration spots after the United States:

Germany became the second-largest immigration country, after the United States, in the OECD in 2012, receiving more than 10% of all permanent immigration to the OECD area. In 2009, it was only the eighth largest. This spectacular increase has been fueled mainly by inflows from central and eastern European countries and, to a lesser degree, southern Europe.

Based on official statistics published by Germany's Federal Statistic Office for 2013, an additional 146,000 foreigners (a surplus of 13% in comparison to 2012) have migrated to Germany. The total number of foreign migrants for 2013 was 1,108,000. Since during the same period 649,000 foreigners have left the country, there is a significant migration surplus of 459,000 foreigners (387,000 in 2012). That is the highest growth to report since 1993.

The spike in migration to Germany is partly a result of the economies of southern European countries not doing well (e.g., Greece, Italy, Portugal, and to a lesser extent Spain), and others are also struggling to a certain extent (e.g., France, Netherlands). By contrast, Germany has a very strong economy despite the global economic crisis. The fact that Germany is attracting more foreigners is, however, mainly due to the stable political situation and the reliable legal system that together create an environment that seems friendly to investors and new arrivals. With regard to the latter, securing a "residence title for the purpose of gainful employment" (the official name of the work permit) is still highly regulated and complex. The conditions for establishing a business in Germany, for entering into business relationships by way of contracts with business partners and customers, and also for litigation, if needed, are generally seen as advantageous.

The mix of all these aspects makes migration to Germany attractive. There is nevertheless still room for improvement of the regulations that currently apply. For example, the fact that for many visa categories a local employment contract is a must poses as many problems as the requirement to have health insurance at least equivalent to German standards (which is difficult to prove when there is no local coverage). Moreover, processing times are still slow, and lack of communication by some authorities remains an issue. Finally, some commentators argue in favor of access to a fast-track procedure and to special authorities or competence centers for corporate immigration.

It will be interesting to see if in 2014 Germany can keep up this pace and continue or even increase migration to the country. Stay tuned.

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