The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.
Update: USCIS Final Guidance on When to File an Amended or New H-1B Petition after Matter of Simeio Solutions, LLC
Today USCIS issued its long awaited USCIS final guidance on how to implement the AAO precedent decision Matter of Simeio Solutions, LLC on when an amended or new H-1B petition must be filed. By way of background, after years of allowing ‘LCA Amendments’ in H-1B cases involving solely a change in job sites, on April 9, 2015, the AAO’s sudden adoption of Matter of Simeio Solutions as precedent now requires a full H-1B amendment to be filed in most such cases: for many H-1B employers the AAO holding essentially mandates increased risk, complexity, cost, delay and uncertainty Interestingly, it is probable that the need for a Matter of Simeio Solutions came about, at least in part, to combat the widespread adoption of LCA amendments which became more popular after the USCIS issued the January 2010 Neufeld Memo, (about which I was interviewed by BBC Hindi), another suddenly imposed mandate that also increased risk, complexity, cost, delay and uncertainty for H-1B businesses (and from which USCIS somewhat backed away on later that same year). In any case, after August 19, 2015 USCIS will require that a full H-1B amendment be filed together with a $325 fee. Judging by recent H-1B regular processing times, USCIS may adjudicate these cases 3-6+ months after they are filed (faster if the Employer also pays USCIS a $1225 premium processing government fee).
USCIS guidance on Matter of Simeio Solutions provides an H-1B petitioner (employer) three different deadlines depending on when its employee changed location:
a) If, on or before April 9, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): an H-1B requirement may be filed, but is not required to be filed.USCIS indicates that in such cases, it “will generally not pursue new revocations or denials based upon failure to file an amended or new petition. However, notices of intent to revoke, revocations, requests for evidence, notices of intent to deny, or denials issued prior to July 21, 2015 (date of this final guidance) remain in effect and the petitioner must comply with them”
b) If, after April 9, 2015 but prior to August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition by January 15, 2016. USCIS will consider filings prior to the deadline for this safe harbor period to be timely for purposes of the regulation. However, if the petitioner does not file the amended or new petition within the time permitted, the petitioner will be out of compliance with DHS regulations. The petitioner’s current Form I-129, Petition for a Nonimmigrant Worker, H-1B petition approval will be subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.”
c) If, on or after August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment not covered by an existing, approved H-1B petition.”
While acknowledging favorably USCIS’ grant of additional time for compliance with Matter of Simeio Solutions, one of the primary issues faced by an H-1B employer presently is that while it may place its H-1B employee at a new job site and initiate work there at roughly the same time as in LCA amendment situations, in reality it may be immeasurably difficult to expect all affected parties to wait for a final USCIS adjudication (for which a longer wait than usual is likely based on the number of applications expected to be filed). Second: such adjudications are often preceded by the issuance of and response to (usually) lengthy Requests for Evidence that frequently require both the employer and the employee to essentially ‘reinvent the wheel’, in other words, reestablish many elements of the case over again, including, amazingly, specialty occupation and beneficiary’s qualifications. These adjudications can be expensive, time consuming and can ultimately result in denials of previously approved H-1B petitions, at an especially inopportune moment for the Employer/Employee (new assignment, new project etc). This is both because unlike Matter of Simeio Solutions, the vast majority of AAO are non-precedent/ not binding on USCIS, and because USCIS is simply not required to grant discretion in extensions or amendments of H-1B employment involving the same employee and same employer,
“CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d).”
Yates Memo of April 23, 2004 “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.”
In short: minor location changes alone will now expose an H-1B employer to additional delay, expense and to the Totality of USCIS Scrutiny. Matter of Simeio Solutions and today’s policy guidance are certain to have a widespread impact on a variety U.S. business sectors, and like the January 2010 Neufeld Memo, both maintain the appearance of being engineered specifically to target the U.S.’ Information Technology Consulting sector, and by extension, Indian Nationals, who also received 70% of all H-1B petitions approved in FY2014.
There is a sharp dichotomy between our Nation’s Business and Family Immigration Policies: the former is lucky to receive an iota of the political attention and importance that the latter enjoys fairly consistently. By ratifying Matter of Simeio Solutions, USCIS has taken a firm step towards joining the Department of State/ Consulates in steering the H-1B program down the same Road to Redundancy most recently traveled by the once-useful-but-no-longer-viable-for-US-business L-1B and ‘B-2 in Lieu of H-1B‘ programs (The F-1 OPT is next – and already targeted by anti-H-1B groups). However, for U.S. businesses to grow, particularly those within STEM fields, our policymakers and stakeholders must acknowledge the critical import of Business Immigration programs such as the H-1B, and the significant contribution that H-1B professionals make towards our Nation’s future. Aid must be provided in identifying and removing unreasonable obstacles from these programs in favor of sustainable solutions which must be effected through a lengthier rule-making process incorporating greater input from stakeholders to establish expeditious, cost-effective and workable solution(s) that to satisfy both USCIS and U.S. Business’ requirements.
It is abundantly clear that the U.S. maintains a critical and demonstrated need for H-1B professionals, and certainly for the continued viability of the H-1B program itself. This fact is demonstrated most recently in April 2015 by the 233,000 H-1B applications filed by professionals for one of the approximately 85,000 spots in our (insufficient) yearly quota. Our rejection of hundreds of thousands of professional workers over the years is untenable: it negatively impacts our ability to conduct business and attract the world’s Best and Brightest. Further, while other nations eagerly recruit STEM workers (sometimes from within our own borders) each year we see more restrictions and obstacles ‘added-on’ to Business Immigration Programs, most particularly the H-1B.
USCIS POLICY GUIDANCE OF JULY 21, 2015 – Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC
NEUFELD MEMO – January 2010 Neufeld Memo
USCIS has several immigration relief measures that may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015.
Measures that may be available to eligible Nepali nationals upon request include:
- Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
- A grant of re-parole;
- Expedited processing of advance parole requests;
- Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
- Expedited adjudication of employment authorization applications, where appropriate;
- Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
- Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).
To learn how to request relief or more about how USCIS assists customers affected by unforeseen circumstances in their home country, visit uscis.gov/humanitarian/special-situations or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833).
H-1B Update: On May 4, 2015 USCIS Completed Data Entry of FY 2016 H-1B Cap-Subject Petitions and will begin Returning Rejected Cases
USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.
Insight into anticipated EB-2 (India) Visa Priority Date Movements from AILA/U.S. Department of State
On January 9, 2015, the American Immigration Lawyers Association’s Department of State Liaison Committee asked Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State for his thoughts on current and future trends/projections with regards to immigrant visa preference categories. The Committee hopes that this action may help provide additional insight, beyond the basic visa availability updates that are provided in the monthly Visa Bulletin.
Bitcoin entrepreneur Roger Ver gave up U.S. Citizenship and left but denied U.S. entry for a short visit under INA 214(b), a regulation aimed at preventing the entry of individuals who would Overstay their Visa
Coindesk.com notes that Bitcoin entrepreneur Roger Ver was denied a non-immigrant visa for the third time this week. He was planning to speak at the North American Bitcoin Conference in Miami later this month.
Interestingly, Mr. Ver was denied under Section 214(b) of the Immigration and Nationality Act (INA) which states, “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case – that the applicant only intends to visit America for a short duration and maintains ties abroad that would compel them to leave the U.S. at the end of the temporary stay. Consular officers have a substantial say in adjudicating each applicant to determine whether that applicant has overcome the requirements of this section.
It is strange then, to say the least, that Mr. Ver was denied by the U.S. Consular General, Barbados, under a regulation that requires he prove his intent to depart the U.S. when he appears to have already done so. While the Coindesk article does note that Mr. Ver’s “parents, siblings and extended family all live in the US“, his decision last year to legally relinquish his U.S. Citizenship (at an apparent cost of $350,000, which he paid into the U.S. treasury) his decision to take up citizenship of a different country, his having resided mainly abroad for the past 9 years – these facts objectively constitute clear, material and probative evidence establishing an intent to depart the U.S. after a short visit.
While Mr. Ver can attempt to enter the US in the future (a denial under section 214(b) is not permanent) chances for subsequent approval diminish with each denial. Meaning: the fourth time is probably not going to be the charm.
While it’s a good time for us to revisit INA 214(b) – an overbroad, overused “hatchet” which has kept many a qualified individual out of the U.S, it appears possible that Mr. Ver’s visa denial is actually predicated upon other (read: political) grounds.
Fixing Our Broken Immigration System Through Executive Action – Key Facts
A recent article by CNBC entitled “Investors to Obama: We need more foreign workers” explores the substantial problems faced by investors and entrepreneurs in securing sufficient numbers of foreign professional workers: the engine of innovation in the U.S. Last year we met the H-1B cap the first week it was open, again: the only solution to the problems highlighted in the article is an increase in H-1B visas, else the demand for the same will relocate to a country like Canada, which intelligently recognizes the true value of such talent.
The CNBC article was forwarded to me by a highly capable entrepreneur/investor client of mine. His situation warrants a short discussion, because it is supports the message in the article as well as the broader subject of our defective Business Immigration laws. This client moved his family to the U.S., and recently invested almost $500,000 in a new U.S. based business which employs nine (9) U.S. workers. Further, this client has purchased two Mercedes Benz vehicles and plans on buying a large house and, in the near term, investing another $1 to $5 million dollars in the U.S. – but only if USCIS approves an extension of his Business Immigration case. Unfortunately, USCIS seems a step away from denying his case, as our 1200+ page application on his behalf (which by the way weighed more than a newborn baby) was met with a ten (10) page Request for Additional Evidence (“RFE”).
Executive Actions on Immigration
On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
These initiatives include:
USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.
Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative.
While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish your:
Share this page with your friends and family members. Remind them that the only way to be sure to get the facts is to get them directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, go to the Avoid Scamspage.
Below are summaries of major planned initiatives by USCIS, including:
Key Questions and Answers
Q1: When will USCIS begin accepting applications related to these executive initiatives?
A1: While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes factors such as their:
USCIS expects to begin accepting applications for the:
Others programs will be implemented after new guidance and regulations are issued.
We strongly encourage you to subscribe to receive an email whenever additional information is available on the USCIS website. Remember that the only way to get official information is directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services.
Q2: How many individuals does USCIS expect will apply?
A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.
Q3: Will there be a cutoff date for individuals to apply?
A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.
Q4: How long will applicants have to wait for a decision on their application?
A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.
Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives?
A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.
Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?
A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months.
Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?
A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name, and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.
In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.
Q8: What if someone’s case is denied or they fail to pass a background check?
A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.
Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?
A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.
Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?
A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:
This policy covers family members and guardians, in addition to you.
Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?
A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services. For information on the existing parole-in-place policy for military personnel, please read this policy memorandum.
You can find definitions of other terms used on our website in Glossary of Terms.
Last Reviewed/Updated: 11/20/2014
PRESS RELEASE FROM THE WHITE HOUSE: Presidential Memorandum — Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century
Presidential Memorandum — Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century
November 21, 2014
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century
Throughout our Nation’s history, immigrants have helped the United States build the world’s strongest economy. Immigrants represent the majority of our PhDs in math, computer science, and engineering, and over one quarter of all U.S.-based Nobel laureates over the past 50 years were foreign-born. Immigrants are also more than twice as likely as native-born Americans to start a business in the United States. They have started one of every four American small businesses and high-tech startups, and more than 40 percent of Fortune 500 companies were founded by immigrants or their children.
But despite the overwhelming contributions of immigrants to our Nation’s prosperity, our immigration system is broken and has not kept pace with changing times. To address this issue, my Administration has made commonsense immigration reform a priority, and has consistently urged the Congress to act to fix the broken system. Such action would not only continue our proud tradition of welcoming immigrants to this country, but also reduce Federal deficits, increase productivity, and raise wages for all Americans. Immigration reform is an economic, national security, and moral imperative.
Even as we continue to seek meaningful legislative reforms, my Administration has pursued administrative reforms to streamline and modernize the legal immigration system. We have worked to simplify an overly complex visa system, one that is confusing to travelers and immigrants, burdensome to businesses, and results in long wait times that negatively impact millions of families and workers. But we can and must do more to improve this system. Executive departments and agencies must continue to focus on streamlining and reforming the legal immigration system, while safeguarding the interest of American workers.
Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to modernize and streamline the U.S. immigration system, I hereby direct as follows:
Section 1. Recommendations to Improve the Immigration System. (a) Within 120 days of the date of this memorandum, the Secretaries of State and Homeland Security (Secretaries), in consultation with the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, the Director of the Office of Science and Technology Policy, the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education, shall develop:
(i) in consultation with private and nonfederal public actors, including business people, labor leaders, universities, and other stakeholders, recommendations to streamline and improve the legal immigration system — including immigrant and non-immigrant visa processing — with a focus on reforms that reduce Government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;
(ii) in consultation with stakeholders with relevant expertise in immigration law, recommendations to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand; and
(iii) in consultation with technology experts inside and outside the Government, recommendations for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.
(b) In developing the recommendations as set forth in subsection (a) of this section, the Secretaries shall establish metrics for measuring progress in implementing the recommendations and in achieving service-level improvements, taking into account the Federal Government’s responsibility to protect the integrity of U.S. borders and promote economic opportunity for all workers.
Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.
President Obama will address the nation tonight to lay out the executive actions he’s taking to fix our broken immigration system. The address will be made at 8 p.m. ET and a live feed is available at WhiteHouse.gov/Live
This is a step forward in the President’s plan to work with Congress on passing common-sense, comprehensive immigration reform. He laid out his principles for that reform two years ago in Del Sol High School in Las Vegas — and that’s where he’ll return on Friday to discuss why he is using his executive authority now, and why Republicans in Congress must act to pass a long-term solution to immigration reform.
The Department of State released the Visa Bulletin for November 2014 which notes a slight forward movement in most categories, except the employment-based, second preference (EB2) India category, which retrogressed from May 1, 2009 to February 15, 2005. The Visa Bulletin, see below, also included notes on potential visa availability in the coming months.
Florida Immigrant Coalition’s “Drive for Common Sense” seeks Drivers Licenses for all Floridians Regardless of Immigration Status
The Florida Immigrant Coalition (FLIC) is a statewide coalition of more than 30 member organizations and over 100 allies, founded in 1998 and formally incorporated in 2004.
The FLIC has organized “The drive for common sense” which would allow Florida drivers to hold a driver’s license regardless of immigration status. A petition endorsing this position is available to sign on FLIC’s website which elaborates on the status quo: