Headlines:
1. USCIS, State Dept. Revise Procedures for Determining Visa Availability for Adjustment of Status Applicants -Applicants will be able to file adjustment applications before their priority dates become current, based on a new second chart in the Visa Bulletin listing when applications can be filed.
2. CBP Redesigns ESTA Website for Visa Waiver Program -Some of the new features include access to frequently asked questions at any time during the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications using a smartphone; translation capability at any point in the application by choosing one of 23 languages; and availability of the Group feature at the beginning of the application process to make it easier for families and groups to submit their applications at the same time.
3. United States Announces ‘Trusted Traveler’ Trilateral Agreement With Canada and Mexico -The new agreement outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.
4. DHS Designates Yemen for Temporary Protected Status -The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017.
5. New Publications and Items of Interest -New Publications and Items of Interest
6. ABIL Member/Firm News -ABIL Member/Firm News
7. Government Agency Links -Government Agency Links
Details:
1. USCIS, State Dept. Revise Procedures for Determining Visa Availability for Adjustment of Status Applicants
U.S. Citizenship and Immigration Services (USCIS), in coordination with the Department of State (DOS), is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored adjustment of status. Applicants will be able to file adjustment applications before their priority dates become current, based on a new second chart in the Visa Bulletin listing when adjustment applications can be filed. This change is expected to be particularly significant for Chinese (EB-2), Indian (EB-2), and Philippines (EB-3) applicants, who have experienced large backlogs.
USCIS said the revised process “will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.” USCIS also said the revised process will enhance DOS’s ability to predict more accurately overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. “This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates,” USCIS said.
The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Barack Obama and Secretary of Homeland Security Jeh Johnson.
The changes include two charts per visa preference category in the DOS Visa Bulletin:
- Application Final Action Dates (dates when visas may finally be issued); and
- Dates for Filing Applications (earliest dates when applicants may be able to apply).
Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. USCIS said applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status. To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:
- Documentarily qualified visa applicants reported by DOS;
- Pending adjustment of status applications reported by USCIS; and
- Historical drop-off rate (for example, denials, withdrawals, abandonments).
The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority dates. The priority date is generally the date when the applicant’s relative or employer filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification must be filed with the applicant’s immigrant visa petition, the priority date is when the labor certification application was accepted for processing by the Department of Labor.
Comments. The Alliance of Business Immigration Lawyers (ABIL) commends DOS and USCIS for announcing these important changes that will provide much needed relief to Indian, Chinese, and Philippines applicants who are caught in the backlogs, such as the ability to obtain employment authorization and more job mobility. Even beneficiaries of family-based petitions will be able to take advantage of these benefits, if they are eligible to file for adjustment of status in the U.S. ABIL also proposed this change in its comments on modernizing the U.S. immigrant and nonimmigrant visa system in response to a notice published in 79 Fed. Reg. 78458 (Dec. 30, 2014), summarized at http://www.abil.com/news_detail.cfm?NEWS_ID=1225.
Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” USCIS similarly views visa availability opaquely as including “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.” These new interpretations provide more flexibility for DOS to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application, along with all the accompanying benefits, and to even lock in the age of a child under the Child Status Protection Act, whether the applicant is in the United States or processing at a U.S. consulate. While ABIL strongly advocates that the same interpretation concerning visa availability that applies to eligibility for adjustment of status should also apply to the CSPA, we need to await further confirmation from the government on CSPA eligibility.
Below are some preliminary observations after a brainstorming session with a few members of ABIL on September 9, 2015. While we await further guidance from DOS and USCIS to be sure, ABIL strongly advocates these positions:
- I-485 adjustment applications filed under the new filing priority date will result in the same benefits: EAD, Advance Parole, 204(j) portability, and CSPA protection.
- With respect to an “after acquired” spouse, where the principal already has a pending
I-485, the spouse can file under the new filing priority date. Ultimately, both the principal’s and spouse’s I-485 application will be adjudicated when the priority date of the principal becomes current under the final action priority date. - There is no prohibition to filing a concurrent I-140/485 or I-130/485 under the filing priority date.
- With respect to a priority date that has been captured from an old EB petition, the same rules apply—you have to see whether the captured priority date coincides with the filing priority date or the final action priority date.
- There may be no need to submit a medical with an I-485 filed under the filing priority date, especially when there is a long interval (years) between the filing and the final action priority date.
- The new policy applies to both family I-130 and employment I-140 petitions.
- With respect to consular processing of cases, the filing priority date would be equally applicable, especially to lock in the age of a child under CSPA.
- Do we have to rush to file all our I-485s in October 2015? The jury is not yet out whether the dual priority dates system will cause more backlogs and retrogression, although probably not, since the filing priority date, unlike the 2007 July Visa Bulletin, does not signify that visas are immediately available. We have enough time (around the 10th of the month) to wait and watch how the dates will progress in November and beyond.
This change may also create an interesting strategic consideration for H-4 spouses who are eligible for an EAD. Will it be better to obtain an EAD as an H-4 spouse or obtain an EAD/Advance Parole “combo” card based on an I-485 filing? There will be pros and cons to each approach depending on the specific individual’s situation.
ADDITIONAL INFORMATION ABOUT WHEN TO FILE AN ADJUSTMENT APPLICATION
The executive actions being implemented in the Visa Bulletin were detailed in the White House report, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century,” issued in July 2015.
The changes are first appearing in the October 2015 Visa Bulletin.
2. CBP Redesigns ESTA Website for Visa Waiver Program
U.S. Customs and Border Protection launched a redesigned Electronic System for Travel Authorization (ESTA) website for Visa Waiver Program (VWP) participants on September 10, 2015.
Some of the new features include access to frequently asked questions at any time during the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications using a smartphone; translation capability at any point in the application by choosing one of 23 languages; and availability of the Group feature at the beginning of the application process to make it easier for families and groups to submit their applications at the same time.
CBP said it conducted focus groups as part of the redesign process to better understand how to improve the website for the more than 19 million VWP visitors who use it each year. VWP visitors who have already applied for ESTA will be able to access their accounts on the new site. Travelers with valid ESTAs will not have to reapply for new ones until their current ESTAs expire or they receive new passports.
CBP noted that the VWP enables nationals of 38 designated countries to travel to the United States for tourism or business for stays of up to 90 days without first obtaining a visa. All nationals or citizens of VWP countries must have an approved ESTA before boarding a carrier to travel by air or sea to the United States under the VWP. ESTA applications should be submitted at least 72 hours before travel. Once approved, the ESTA is generally valid for up to two years or until the applicant’s passport expires. Authorizations are valid for multiple entries.
CBP’s ANNOUNCEMENT OF THE REDESIGN
REDESIGNED ESTA APPLICATION WEBSITE
3. United States Announces ‘Trusted Traveler’ Trilateral Agreement With Canada and Mexico
The Department of Homeland Security (DHS) has joined Public Safety Canada and the Secretariat of Governance of Mexico in a trilateral agreement to expand “trusted traveler” programs. The new agreement, signed on July 10, 2015, outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.
As part of the agreement, Mexican nationals who are members of Mexico’s Viajero Confiable program will be able to apply for the U.S.-Canada NEXUS trusted traveler program, making them eligible for expedited screening benefits upon arrival at international airports in the United States and Canada. The arrangement will also allow Canadian citizens who are members of NEXUS to apply for Viajero Confiable, making them eligible for expedited screening benefits upon arrival at select international airports in Mexico. U.S. citizens are currently eligible to apply for the NEXUS and Viajero Confiable trusted traveler programs through existing partnerships between U.S. Customs and Border Protection (CBP), Public Safety Canada, and Mexico’s National Institute of Migration. Eligible travelers will be able to apply for each program beginning in 2016.
At the 2014 North American Leaders Summit in Toluca, Mexico, the leaders of the United States, Canada, and Mexico committed to the development of a trilateral trusted traveler network to facilitate air travel in North America. Facilitating secure air travel within North America is also a goal of the U.S.-Canada Beyond the Border initiative, the U.S.-Mexico 21st Century Border Management Initiative, and the U.S.-Mexico High-Level Economic Dialogue.
4. DHS Designates Yemen for Temporary Protected Status
The Department of Homeland Security (DHS) has designated Yemen for temporary protected status (TPS) for 18 months due to the ongoing armed conflict within the country. Eligible nationals of Yemen residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017.
DHS noted that Yemen “is experiencing widespread conflict and a resulting severe humanitarian emergency, and requiring Yemeni nationals in the United States to return to Yemen would pose a serious threat to their personal safety.” The designation means that during the designated period, eligible nationals of Yemen (and people without nationality who last habitually resided in Yemen) who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD).
To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since September 3, 2015. Applicants will also undergo thorough security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.
FEDERAL REGISTER NOTICE designating Yemen for TPS, and providing additional details about registering and eligibility
5. New Publications and Items of Interest
Webinars on E-Verify. Upcoming webinars on various aspects of E-Verify are available. Customized sessions on the topic, date, and time of your choice are available by e-mailing E-VerifyOutreach@uscis.dhs.gov. INFORMATION ABOUT UPCOMING WEBINARS
The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The latest edition adds chapters on Ghana and Peru. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS
6. ABIL Member/Firm News
Several ABIL members and their colleagues were selected for inclusion in the 22nd Edition of The Best Lawyers in America in the practice area of Immigration Law:
Bruce Buchanan (of Siskind Susser, PC)
Laura Danielson
Steve Garfinkel
Mark Ivener
H. Ronald Klasko
Charles Kuck
Vincent Lau
Robert Loughran
Sharon Mehlman
John Nahajzer
Julie Pearl
William Reich
Gregory Siskind (of Siskind Susser, PC)
William A. Stock (of Klasko Immigration and Nationality Law, LLP)
Lynn Susser
Andrew Wilson (of Serotte Reich Wilson, LLP)
Bernard Wolfsdorf
Stephen Yale-Loehr
Mr. Klasko participated as a panel member on the topic of “Investing Cash from Loan Proceeds” at the 4th Annual California EB-5 Conference, hosted by EB5 Investors Magazine. He explained the new USCIS policy to deny EB-5 petitions when the collateral for indebtedness is not owned by the investor. The conference welcomed nearly 500 regional centers, attorneys, and EB-5 program stakeholders, who joined keynote speaker Bob Goodlatte (R-VA), U.S. House of Representatives Judiciary Committee Chairman, and special guest speaker Ed Rendell, former Governor of Pennsylvania.
Mr. Lau and Steve Clark will speak on “Navigating Complex Waters of U.S. Immigration” before the Consulate General of Canada on September 17, 2015.
Mr. Lau will speak on several other upcoming panels:
- “H-1B Trends,” American Immigration Lawyers Association’s New England Chapter Meeting, September 24, 2015
- “Startup in America: Guidance on Foreign Entrepreneurship in the U.S.,” MIT Alumni Leadership Conference, September 25, 2015
- “Business Immigration Compliance Affecting Your Global Workforce,” co-sponsored by the Massachusetts Chapter of the Federal Bar Association and the Federal Bar Association Immigration Law Section, September 30, 2015
- “How U.S. Immigration Law Can Benefit Your Corporate Clients,” National American Pacific American Bar Association Regional Conference, October 3, 2015
- “H-1B Issues,” National Association of Foreign Student Advisors Regional Conference, Farmington, Connecticut, October 21, 2015
- “Prevailing Wage Determinations—The Highs and Lows,” American Immigration Lawyers Association, national webinar, December 3, 2015
Cyrus Mehta has authored several new blog entries. “Godot Has Arrived: Early Adjustment of Status Applications Possible Under the October 2015 Visa Bulletin” “Board of Immigration Appeals Provides Safeguards for Asylum Applicant With Mental Competency Issues”
Angelo Paparelli was quoted in Law360 in “4 Ways China’s Crash May Alter U.S. Real Estate Investment.” He said, “If anything, the China stock market plunge has primed the EB-5 pump. Before, potential EB-5 investors may have held off to see how high their stock holdings might go before liquidating assets and signing up for the U.S. investor green card program.” Now, he said, Chinese investors seem to be liquidating stocks before their values fall further. “Their goal is to diversify the asset mix and acquire holdings abroad—preferably in promising commercial real estate deals.” He noted that “Chinese investors’ interest in the EB-5 program remains robust.”
7. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post
