Immigration Law Update May 2016

Garfinkel Immigration Law Firm Celebrates Employee's Service

Garfinkel Immigration Law Firm is proud to announce that three employees recently celebrated their 10-year anniversaries with the Firm.

"We congratulate these three valued employees as we celebrate their 10-year anniversaries with Garfinkel Immigration Law Firm," said Managing Partner Steven H. Garfinkel. "We are happy to have employees with such tenure, and we believe their high level of dedication is reflective of our service and dedication to our clients, as well as our firm culture."

USCIS To Resume Premium Processing for Cap-Subject H-1B Petitions; Temporarily Suspends Use of Pre-Paid Mailers for Certain H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on April 22, 2016, that the agency will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master's degree or higher. Premium processing guarantees a 15-calendar-day processing time. USCIS had previously announced that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap would be met in the first 5 business days of the filing season.

For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day premium processing period will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date on which the premium processing fee is received.

USCIS also announced on April 20, 2016, that for two weeks after premium processing resumes for H-1B cap-subject petitions, USCIS will not use pre-paid mailers to send out final notices for premium processing of H-1B cap-subject petitions. Instead, the agency will use regular mail. USCIS said this is "due to resource limitations as we work to process all premium processing petitions in a timely manner. After the two week period, we will resume sending out final notices in the pre-paid mailers provided by petitioners."

As expected, U.S. Citizenship and Immigration Services (USCIS) quickly reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. On April 9, 2016, USCIS completed the computer-generated process ("lottery") to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2017 Cap Season webpage here. The notice announcing the May 12 start date for premium processing can be found here. The notice announcing the temporary suspension of prepaid mailers can be found here. Related USCIS announcements are here and here.

USCIS Designates Two 'Adopted Decisions,' Establishing Policy Guidance

U.S. Citizenship and Immigration Services (USCIS) recently designated two decisions of the Administrative Appeals Office (AAO) as "adopted decisions," meaning that they "establish policy guidance that applies to and binds all USCIS employees." USCIS directs its personnel to follow the reasoning in these decisions in similar cases.

Matter of Z-A-. USCIS designated Matter of Z-A-, Inc., as an adopted decision on April 14, 2016. This AAO decision clarifies that when determining whether the beneficiary of an L-1A nonimmigrant classification will primarily manage an essential function, USCIS officers must weigh all relevant factors including, as pertinent in the instant case, evidence of the beneficiary's role within the wider qualifying international organization.

Specifically, the decision notes:

(1) While an L-1A function manager may use his or her business expertise to perform some operational or administrative tasks, he or she primarily must manage an essential function.

(2) To determine whether a beneficiary's job duties will be primarily managerial in nature, an adjudicating officer must consider the totality of the record and weigh all relevant factors, including the nature and scope of the petitioner's business; the petitioner's organizational structure, staffing levels, and the beneficiary's position within the petitioner's organization; the scope of the beneficiary's authority; the work performed by other staff within the petitioner's organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and any other factors that will contribute to understanding a beneficiary's actual duties and role in the business.

(3) When staffing levels are considered in determining whether an individual will act as a manager, an officer must also take into account relevant evidence in the record concerning the reasonable needs of the organization as a whole, including any related entities within the "qualifying organization," giving consideration to the organization's overall purpose and stage of development.

Matter of H-V-P-. USCIS designated Matter of H-V-P- as an adopted decision on March 9, 2016. This AAO decision clarifies that in addition to primary care physicians, medical specialists who agree to practice in any area designated by the Secretary of Health and Human Services as having a shortage of health care professionals may be eligible for the physician national interest waiver under INA § 203(b)(2)(B)(ii).

The USCIS policy memorandum on Matter of Z-A-, which includes the text of the decision, is available here. The USCIS policy memorandum on Matter of H-V-P-, which includes the text of the decisions, is available here.

USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers

On February 25, 2016, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman hosted a public teleconference on issues related to Department of Motor Vehicles (DMV) benefits for certain nonimmigrant workers, including H and L nonimmigrants. Individuals whose employers timely file for extension of nonimmigrant status receive an automatic 240-day extension of work authorization while the petition remains unadjudicated. Representatives from the Department of Homeland Security (DHS), USCIS, the California DMV, and a private immigration attorney responded to questions posed by the Ombudsman and the public. The discussion focused on the impact of the REAL ID Act on how state DMVs treat individuals subject to the 240-day rule.

During the call, the Ombudsman noted that although federal regulations provide for a 240-day extension of work authorization after a temporary worker's status expires if the worker has a pending petition to extend that status, whether those workers can obtain and maintain a driver's license during that time remains an issue. The REAL ID Act requires state driver's licenses to conform to certain federal standards. The Act also requires that states verify an individual's immigration status before issuing a REAL ID-compliant identification card, including a driver's license. The lack of guidance on how state DMVs should handle driver's licenses for temporary foreign workers with pending extension of stay petitions "has led to a patchwork of state responses," USCIS noted.

The DHS Office of Policy said the REAL ID Act complicates state interpretation of the 240-day rule because it links driver's licenses to whether an individual has lawful immigration status, a distinct legal term that is different from lawful presence. The 240-day work authorization extension provides for lawful presence, but not lawful status. There have been attempts in the past to amend the REAL ID Act to address this and other related issues, but these efforts were unsuccessful. As a result, several categories of immigrants-not just temporary workers-"are disadvantaged by the statute's requirement that licenses be tied to lawful status rather than to lawful presence," USCIS said.

One commenter discussed the impact on employers and nonimmigrant workers. Workers on a 240-day work authorization extension are provided only with a Form I-797C, the receipt for the filed extension-of-stay petition. There has been little guidance on how state DMVs should treat that document. The language on the I-797C makes it even more difficult to obtain DMV benefits because it explicitly states that the form does not grant any immigration status or benefit. Many states rely on this language to deny a license to immigrant workers on the 240-day extension. The struggle for employers is that the 240-day rule becomes less useful where the worker cannot drive to get to work, she said. Payment of the premium processing fee for the extension-of-stay petition guarantees adjudication of the petition within an expedited time frame and could alleviate the problems associated with the gap in status. However, not all employers can afford the additional fee, she noted, and it is not always an option, particularly where its only purpose would be to allow the worker to obtain a driver's license.

Relying on surveys, the commenter explained that some states that comply with REAL ID or are moving toward compliance have taken a hybrid approach. In those states, immigrants whose status has not expired can obtain a REAL ID-compliant license, while those without lawful status-but perhaps who are lawfully present-get a license that is not compliant with the law. A few states offer limited driver's licenses or "driver privilege cards" for undocumented immigrants. Foreign workers in the 240-day extension window could request one of those licenses, but they would have to reapply for a regular driver's license once their extension-of-stay petitions are approved. Some states that are not compliant with the REAL ID Act accept the I-797C as a document establishing lawful presence, as long as the document can be verified in SAVE.

A representative of USCIS's Systematic Alien Verification for Entitlements (SAVE) system explained that the agency issued guidance on this issue to state DMVs in 2014. That guidance "essentially punted to the states on their treatment of the 240-day extension," USCIS said. SAVE only provides information on an individual's immigration status-it does not indicate whether a state-level benefit should be granted. In that regard, USCIS said, "the states have to look at their own rules and regulations for how to treat the provision of state benefits that are based on immigration status."

The Ombudsman concluded the call by saying that the Ombudsman's Office is aware of and is closely monitoring longer USCIS processing times for nonimmigrant worker adjudications and the resulting backlogs.

The USCIS statement is available here.

Current I-9 Form Remains Effective, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced on April 5, 2016, that until further notice, employers should continue using the current Form I-9, Employment Eligibility Verification. The agency said this current version of the form continues to be effective even though the Office of Management and Budget control number expiration date of March 31, 2016, has passed.

USCIS said it will provide updated information about the new version of the I-9 when it becomes available. The announcement can be found here.

E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary Announces

Department of Homeland Security (DHS) Secretary Jeh Johnson recently announced that effective April 1, 2016, Visa Waiver Program (VWP) participants must have an e-Passport to travel to the United States. Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, VWP travelers who do not have an e-Passport from a participating VWP country must obtain a visa to come to the United States.

Secretary Johnson's statement is here.

May Visa Bulletin Sets Final Action Date for EB-4 Visas for El Salvador, Guatemala, Honduras Special Immigrants

The Department of State's Visa Bulletin for May 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from El Salvador, Guatemala, and Honduras. This means that Dept of State logo starting in May, an applicant from any of these countries who filed a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visas become available. The final action date became effective upon publication of the May Visa Bulletin on April 12.

The Visa Bulletin explains that these three countries have already reached their EB-4 visa limits as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 for El Salvador, Guatemala, and Honduras will appear in the October Visa Bulletin (to be published in mid-September).

Petitioners from any country, including El Salvador, Guatemala, and Honduras, may continue to file Forms I-360. There is no annual limit on the number of I 360 petitions that USCIS may approve.

The Department said it will accept all properly filed submissions of Form I-485, Application to Register Permanent Residence or Adjust Status, under the EB-4 classification until April 30, 2016. USCIS noted:

* We will process and make a decision on your Form I-485 application only if you have a Form I-360 filed before January 1, 2010, that is ultimately approved.

* If you have a pending Form I-360 filed on or after January 1, 2010, we will process and make a decision on your Form I-360 but withhold a decision to approve your Form I-485 application pending availability of an EB-4 visa.

The Department also stated:

If you file Form I-485 under the EB-4 classification after April 30, 2016:

* We will process and make a decision on your Form I-485 only if you filed your Form I-360 petition before January 1, 2010, and your Form I-360 is ultimately approved.

* We will reject and return other Form I-485 applications but will continue to process Form I-360 petitions (even if submitted together with a Form I-485 that gets rejected).

The May 2016 Visa Bulletin is here. Information on final action dates is here.

ICE Nabs 21 With Fake 'Pay-to-Stay' New Jersey Sham College Sting

Twenty-one brokers, recruiters, and employers were arrested on April 5, 2016, who allegedly conspired with more than a thousand foreign nationals to fraudulently maintain student and foreign worker visas through a "pay-to-stay" New Jersey sham college set up as a sting operation. The arrests resulted from an extensive probe led by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI).

According to ICE, the defendants, many of whom operated recruiting companies for purported international students, were arrested for their involvement in an alleged scheme to enroll foreign nationals as students in the University of Northern New Jersey (UNNJ), a purported for-profit college located in Cranford, New Jersey. HSI special agents created UNNJ in September 2013.

Through UNNJ, undercover HSI agents investigated criminal activities associated with ICE's Student and Exchange Visitor Program (SEVP), including but not limited to student visa fraud and the harboring of aliens for profit. The UNNJ was not staffed with instructors or educators, had no curriculum, and conducted no actual classes or education activities. The UNNJ operated solely as a storefront location with small offices staffed by special agents posing as school administrators.

UNNJ represented itself as a school that, among other things, was authorized to issue a Form
I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students. During the investigation, HSI special agents identified hundreds of foreign nationals, primarily from China and India, who previously entered the U.S. on F-1 nonimmigrant student visas to attend other SEVP-authorized schools. Through various recruiting companies and business entities located in New Jersey, California, Illinois, New York, and Virginia, the defendants then enabled approximately 1,076 of these foreign individuals-all of whom were willing participants in the scheme-to fraudulently maintain their nonimmigrant status in the U.S. on the false pretense that they continued to participate in full courses of study at UNNJ.

Acting as recruiters, the defendants solicited the involvement of UNNJ administrators to participate in the scheme, ICE said. During the course of their dealings with undercover agents, the defendants fully acknowledged that none of their foreign national clients would attend any courses, earn credits, or make academic progress toward an actual degree in a particular field of study. Rather, the defendants facilitated the enrollment of their foreign national clients in UNNJ to fraudulently maintain student visa status in exchange for kickbacks, or "commissions." The defendants also facilitated the creation of hundreds of false student records, including transcripts, attendance records, and diplomas, which ICE said were purchased by their foreign national conspirators for the purpose of deceiving immigration authorities.

In other instances, ICE noted, the defendants used UNNJ to fraudulently obtain work authorization and work visas for hundreds of their clients. By obtaining this authorization, a number of defendants were able to outsource their foreign national clients as full-time employees with numerous U.S.-based corporations, also in exchange for commission fees. Other defendants devised phony IT projects that were purportedly to occur at the school. These defendants then created and caused to be created false contracts, employment verification letters, transcripts, and other documents. The defendants then paid the undercover agents thousands of dollars to put the school's letterhead on the sham documents, to sign the documents as school administrators, and to otherwise go along with the scheme, ICE said.

"All of these bogus documents created the illusion that prospective foreign workers would be working at the school in some IT capacity or project," ICE said. The defendants then used these fictitious documents fraudulently to obtain labor certifications issued by the Department of Labor and then ultimately to petition the U.S. government to obtain H1-B visas for nonimmigrants. These fictitious documents were then submitted to U.S. Citizenship and Immigration Services (USCIS). In the vast majority of circumstances, the foreign worker visas were not issued because USCIS was advised of the ongoing undercover operation, ICE said.

In addition, ICE said that HSI Newark is coordinating with the ICE Counterterrorism and Criminal Exploitation Unit (CTCEU) and the SEVP to terminate the nonimmigrant student status of the 1,076 foreign nationals associated with UNNJ and, if applicable, administratively arrest and place them into removal proceedings.

A chart at the link below outlines the charges for each defendant. The charges of conspiracy to commit visa fraud and making a false statement each carry a maximum potential penalty of five years in prison and a $250,000 fine. The charges of conspiracy to harbor aliens for profit and
H-1B visa fraud each carry a maximum penalty of 10 years in prison and a $250,000 fine.

Meanwhile, SEVP announced on April 5, 2016, that it terminated initial and active student records of any nonimmigrant student enrolled at UNNJ, as well as many active nonimmigrant students who have since transferred from UNNJ.

The announcement is here. A related announcement from the Department of Justice's U.S. Attorney's Office for the District of New Jersey is here.

ABIL Global: Mexico

Mexicans in the United States are returning to Mexico in increasing numbers.

Between 2009 and 2014, nearly one million Mexican nationals (including their U.S.-born children) left the United States for Mexico of their own accord. That number is higher than the number of legal Mexican migrants who came to the United States. This increased tendency for repatriation from Mexico to the United States began to take shape during the financial troubles of 2008 in the United States. Although the Mexican National Survey of Demographic Dynamics (ENADID) reported that nearly 61% of repatriated Mexicans returned for the purpose of familial reunification, arguably this mass repatriation, the reversal of a diaspora created by economic conditions, is tied inseparably to the dynamics of the global economy and its inherent social dimensions in addition to the decision to return to be reunited with loved ones.

With the continual polarization of U.S.-Mexico border politics, stricter enforcement of immigration laws within the United States has contributed to a noticeable drop in the number of Mexican nationals entering the United States. In 2004, U.S. border apprehensions of Mexicans numbered 1,142,807. That figure plummeted to 230,000 by 2014 (Office of Immigration Statistics, 2014). The U.S. Department of Homeland Security reported that between 2009 and 2014, nearly 870,000 Mexican nationals legally entered and achieved legal permanent residence in the United States. Between 1990 and 1999, nearly 2,700,000 legal Mexican migrants entered the United States; from 2000 to 2009, nearly 1,700,000 entered (Office of Immigration Statistics, 2014). The trend is downward.

Since the economic liberalization of the 1980s and 1990s, Mexico's role in the international economy, and especially in the North American trade bloc, has grown exponentially. Since the signing of the North American Free Trade Agreement (NAFTA), Mexico's export value has risen nearly 475%, from US $60.8 billion to US $349.6 billion from 1994 to 2011. While the Mexican economy was certainly hit hard in 2009 by its dependence on the United States as a market for exports, it was not hit nearly as hard as the United States' economy, and had been steadily improving since the signing of NAFTA. In other words, the economic conditions and opportunities in Mexico had been steadily improving in the years leading up to the 2008 crash, especially as foreign companies began to flood into Mexico.

Keeping the above in mind, the abysmal economic situation of the United States for migrant workers is illustrated by the estimated 15% drop in remittances sent to Mexico from the United States in the years 2008 to 2009. The U.S. Bureau of Labor Statistics estimated that when the unemployment of marginally attached and part-time laborers is included, U.S. unemployment rates reached 16% in 2009 (Bureau of Labor Statistics, 2015).

The evaporating employment opportunities for migrants in the United States has been supplemented by expanding opportunities in Mexico provided by the influx of foreign capital made possible by free trade agreements like NAFTA. Mexico holds the world record for most currently effective free trade agreements. While economic hardship hit all sectors of the United States, the damage was relatively lower in Mexico; historically sought-after remittances to Mexico were not only harder to come by but were becoming somewhat less necessary. Just as the influx of capital brought by NAFTA made possible the conditions under which more Mexicans could return to their own country, more Mexican nationals are likely to return home as new trade agreements, such as the Trans-Pacific Partnership, continue to advance Mexico's economy and bring the diaspora home to greater economic opportunity.