The Yearbook of Immigration Statistics is a compendium of tables that provides data on foreign nationals who, during a fiscal year, were granted lawful permanent residence (i.e., admitted as immigrants or became legal permanent residents), were admitted into the United States on a temporary basis (e.g., tourists, students, or workers), applied for asylum or refugee status, or were naturalized. The Yearbook also presents data on immigration enforcement actions, including alien apprehensions, removals, and returns. The Yearbook tables are released as they become available. A final PDF is released in September of the following fiscal year.
USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
- Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
- Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
- They are the principal beneficiaries of an approved Form I-140 petition,
- An immigrant visa is not authorized for issuance for their priority date, and
- They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
- Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
- Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
- Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
- Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
The Department of Homeland Security’s website notes that subsequent to USCIS changes to STEM optional practical training (OPT) regulations, the Student and Exchange Visitor Information System (SEVIS) Release 6.26 was deployed which, while not providing a fix addressing all of USCIS’ changes, will help solve some issues presented by the new regulations, including document generation for F-1 OPT students who have applied for an EAD/I-765 so they may respond to USCIS’ requests for evidence. The update also:
DHS, USCIS Ofﬁce of Inspector General, Information Technology Management Report entitled “Progress and Challenges” covers IT recommendations for USCIS
DHS, USCIS Ofﬁce of Inspector General, Information Technology Management Report entitled “Progress and Challenges”
U.S. Citizenship and Immigration Services Information Technology Management Progress and Challenges (PDF, 36 pages – 1.34 MB)
Spotlight (PDF, 1 page – 125 KB)
Infosys Fined an Unprecedented $35,000,000.00 by the U.S. Government for Employing B-1 Visas in Lieu of H-1Bs
The Wall Street Journal reports that the U.S. Government will fine Infosys, an Indian Technology/Consulting giant, almost $35,000,000.00 for employing B-1 visa workers in lieu of H-1B visa workers.
By way of background, last year, Judge Thompson of the Federal Court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas. Palmer’s rejected claims were subsequently resurrected by the U.S. Department of Justice and the Department of Homeland Security, which continued its investigation into whether Infosys wrongly filed B-1 visas for workers performing work that actually required H-1B visas.
In a 2011 blog post I wrote about how Infosys may have been engaging in a perfectly legal action; per 9 FAM 41.31 N11, “ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3″:
“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”
(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be
However, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.
Moving back to present: Infosys’ fine is unprecedented in the history of Immigration law. It will have a major impact on both our nation’s technology/consulting sector and on our Immigration policy. In light of the fact that other nations are eagerly recruiting the world’s best and brightest (sometimes from within our borders), it can only be hoped that the Infosys fine will reinvigorate the push for the creation of a new U.S. visa category specifically designed for short term consulting projects, and/or to increase the U.S.’s yearly quota for H-1B professional workers to a level that isn’t exhausted in one week.
AILA’s recommendations on filing H-1B, PERM and other applications while DOL’s iCERT and PERM Websites are Shutdown
The American Immigration Lawyers Association (AILA) has indicated that they are trying to obtain guidance from USCIS and US Department of Labor (DOL) about how attorneys should move forward in filing applications like the H-1B and PERM/Labor Certifications which have been affected by the DOL’s shutdown (resulting from the Federal Government’s Shutdown).
AILA does not have official guidance from the USCIS and DOL yet and indicates that there are “conflicting reports” regarding DOL’s ability to even accept mail. For now, however, AILA recommends the following:
Implementation of the Supreme Court Ruling on the Defense of Marriage Act
Statement from Secretary of Homeland Security Janet Napolitano:
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
Frequently Asked Questions
NFAP Report: DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals
The recently released National Foundation for American Policy (NFAP) report underscores the severe consequences that will result if the U.S. Department of Labor’s proposed changes to form ETA 9035 (LCA) are implemented.
INFORMATION ON PRESIDENT OBAMA’S RECENTLY ANNOUNCED DEFERRED ACTION PROGRAM ENABLING LEGAL STATUS FOR CERTAIN YOUNG IMMIGRANTS
Jacksonville, FL – Immigration lawyer Ashwin Sharma welcomed the Administration’s recent announcement that younger immigrants may be eligible for “Deferred Action” and work authorization. The policy will grant qualified immigrants the opportunity to live free from fear of deportation and allow them to work legally. This is an exciting new development which brings hope to immigrants and their families. It is not, however, a permanent fix and does not grant permanent legal status to anyone.
To qualify, an individual must:
This Office of Immigration Statistics Annual Flow Report presents information obtained from applications for LPR status on the number and characteristics of persons who became LPRs in the United States during FY 2010.
(PDF, 6 pages, 446 KB)
Global Entry is a pilot program managed by U.S. Customs and Border Protection which allows pre-approved, low-risk travelers expedited clearance upon arrival into the United States. Although this program is intended for “frequent travelers” who make several international trips per year, there is no minimum number of trips an applicant must make in order to qualify. Participants may enter the United States by utilizing automated kiosks located, at the following airports:
- Boston-Logan International Airport (BOS)
- Chicago O’Hare International Airport (ORD)
- Dallas/Ft. Worth International Airport (DFW)
- Detroit Metropolitan Airport (DTW)
- Ft. Lauderdale Hollywood International Airport (FLL)
- George Bush Intercontinental Airport, Houston (IAH)
- Hartsfield-Jackson Atlanta International Airport (ATL)
- Honolulu International Airport (HNL)
- John F. Kennedy International Airport (JFK)
- McCarran International Airport, Las Vegas (LAS)
- Los Angeles International Airport (LAX)
- Miami International Airport (MIA)
- Newark Liberty International Airport (EWR)
- Orlando International Airport (MCO)
- Philadelphia International Airport (PHL)
- San Francisco International Airport (SFO)
- San Juan-Luis Múñoz Marin International Airport (SJU)
- Orlando-Sanford International Airport (SFB)
- Seattle-Tacoma International Airport-SeaTac (SEA)
- Washington-Dulles International Airport (IAD)
The process requires participants to present their machine-readable U.S. passport or permanent resident card, submit their fingerprints for biometric verification, and make a customs declaration at the kiosk’s touch-screen. Upon successful completion of the Global Entry process at the kiosk, the traveler is issued a transaction receipt and directed to baggage claim and the exit, unless chosen for a selective or random secondary referral.
Travelers must be pre-approved before they can participate in the pilot program. All applicants will undergo a rigorous background check and be interviewed by a CBP officer before they are enrolled. Automated enforcement checks will occur each time the member uses the kiosk to enter the United States. Although pre-approved for the program and determined to be low risk, members of Global Entry may be examined at any time when entering the United States.
Members entering the United States must complete the declaration questions prompted by the kiosk. If bringing items that must be declared, after completion of the kiosk transaction, the member will be directed to see a CBP officer.
Global Entry has a zero tolerance policy for violations. If a Global Entry member violates any of the terms and conditions, CBP officers will take appropriate enforcement action and will cancel the person’s membership privileges. The application fee is non-refundable.
What Are the Benefits of Global Entry?
The benefits are:
- Bypass the traditional passport control line.
- No more filling out a paper customs declaration form.
- Expedited exit process.
- Mutual benefits with other countries.
- Conveniently located at airports throughout the country.
- Cross the border with a minimum of customs and immigration questioning.
- Although this program is intended for frequent travelers, there is no minimum number of trips that must be completed.
Global Entry allows applicants to complete a single application and pay one fee. This form can be submitted online via the Global Online Enrollment System (GOES. Qualified applicants are required to come to a Global Entry Enrollment Center, for an interview). Global Entry allows United States border agencies to concentrate their efforts on potentially higher-risk travelers and goods, which helps to ensure the security and integrity of our borders.
Who May Apply for Global Entry?
- Individuals who are 14 years of age and older who are U.S. citizens, U.S. nationals, U.S. Lawful Permanent Residents, or citizens of certain other countries.
*Note: If enrolled parents are traveling with children under 14 and clearing as a family, they may not use the kiosk and must clear using the regular passport control process.
However, individuals may not qualify if they:
- Are inadmissible to the United States under applicable immigration laws;
- Provide false or incomplete information on their application;
- Have been convicted of a criminal offense in any country;
- Have been found in violation of customs or immigration laws; or
- Fail to meet other Global Entry requirements.
If an individual does not meet the requirements of Global Entry, their application will be denied.
Applications must be completed and submitted online through the Global Online Enrollment System (GOES). ( GOES ) A non-refundable $100 fee will be collected before the submission of the application. If an applicant is denied participation, he/she will not receive a refund of the $100. NEXUS and SENTRI members may activate membership in Global Entry at no additional fee.
Applicants who are not accepted into the Global Entry pilot have three channels for forwarding their inquiries: a) directly with the enrollment center; b) DHS Travelers Redress Inquiry Program (DHS TRIP); and c) the CBP Trusted Traveler Ombudsman. Please see the DHS Traveler Redress Inquiry Program page for more information on how to seek redress. (DHS Traveler Redress Inquiry Program )
Consistent with privacy law and national security considerations, DHS and CBP may not reveal the specific reason for an applicant’s denial in either the initial notification or the redress process depending on the circumstances of a particular case.