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Texas Service Center to Begin Processing Form I-129 for L Visas and Vermont Service Center will no longer process L visa petitions

February 12, 2018, Washington, D.C. The Texas Service Center (TSC) of USCIS will begin processing certain Form I-129, Petition for a Nonimmigrant Worker petitions for L nonimmigrant classification, also known as L visas. The TSC will share this workload with the California Service Center to balance workloads and to provide flexibility as USCIS works towards improving processing times and efficiency.

The Vermont Service Center will no longer process any new Form I‑129 petitions requesting L nonimmigrant classification. Petitioners requesting an L nonimmigrant classification should file their Form I-129 at the address indicated on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Starting March 12, 2018, USCIS may reject any of these applications that are filed at the wrong service center.

Skilled workers and employers should not be alarmed by McClatchy DC’s report that DHS weighs major change to H-1B foreign tech worker visa program

By citing unnamed sources McClatchy DC reports that the Department of Homeland Security (DHS) weighs major change to H-1B foreign tech worker visa program. DHS is considering new regulations that would prevent H-1B visa extensions, according to two U.S. sources briefed on the proposal. The measure potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. The proposal, being drafted in memos shared between DHS department heads, is part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign.

Skilled workers and employers should NOT be alarmed by the news report because an executive order or rule adopted by the government cannot re-write a Congressional Act. Executive order can regulate activities within purview of Executive Branch under the constitution, and it could adopt rules based on legal authority from particular Congressional Act(s). The H-1B extensions beyond six years are based on specific Congressional Act, Pub. L. 106-313 American Competitiveness in the Twenty-first Century Act of 2000_(“AC 21”), therefore, it is very unlikely that the government will seek to pursue such an executive action or a rule making as reported by McClatchy DC. Even if the government adopts such a regulation, it still has to pass the muster under the constitution and applicable statutes. It is also likely that such a regulation or executive action may be challenged at the court of law.

It should be also noted that the Congress has the exclusive constitutional authority to regulate U.S. immigration, the executive branch enforces the immigration laws passed by Congress.

Under the Immigration and Nationality Act (INA), there are several provisions which state “Attorney General (now Secretary of DHS pursuant to Homeland Security Act of 2002) may”. This basically means DHS makes a decision on case by case basis and it does not mean that the DHS has the discretion and it could deny the extensions without lawful grounds. For the purpose of extensions beyond 7th years, the Section 104(c) of AC 21 is applicable which states:

“(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3)
section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those
paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s
application for adjustment of status has been processed and a decision made thereon.”

The above statutory provisions means that  such an immigrant “may apply” for an extension, therefore, Attorney General too “may grant” such an extension until the alien’s application for adjustment of status has been processed and a decision made thereon. In other words if the alien chooses to apply for an extension then the Attorney General may grant an extension if the following elements are met:

  1. the alien is the beneficiary of a petition filed under Section 204(a) of INA (EB1, EB2 or EB3);
  2. the alien is eligible to be granted that status (i.e. employment-based EB1, EB2 or Eb3 immigrant status) but for per country limitation. (eligibility to apply for immigration visa is based on priority date as published in the Visa Bulletin)

This means the alien has to affirmatively prove above facts with documentary evidence, therefore, the extension is not automatic and the Attorney General will still examine those evidence to ascertain that the alien meets the criteria for extension under AC 21. Therefore, H-1B petitioners often submit copy of I-140 approval notice, copy of passport, and the latest visa bulletin for the H-B extensions based on Section 104(c) of AC21.

While the executive branch may be able to cause some temporary disruption, it cannot adopt executive actions or rules that contravene the statutes promulgated by the legislative branch. Therefore, while employers using the H-1B visa should continue to watch for potential changes to immigration laws, they should not be concerned that their current H-1B employees will be denied extensions beyond 6 years.

 


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com instead of falling for unsubstantiated news reports. 

Trump administration may “potentially” end H-4 EAD

On February 25, 2015, DHS had published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

RegInfo.gov is a United States Government website produced by the Office of Management and Budget (OMB) and the General Services Administration (GSA).

USCIS to Begin Accepting Applications under the International Entrepreneur Rule

WASHINGTON, D.C. —U.S. Citizenship and Immigration Services (USCIS) announced today it is taking steps to implement the International Entrepreneur Rule (IER), in accordance with a recent court decision.

Although the IER was published during the previous administration with an effective date of July 17, 2017, it did not take effect because the Department of Homeland Security (DHS) issued a final rule on July 11, 2017, delaying the IER’s effective date until March 14, 2018.  This delay rule was meant to give USCIS time to review the IER and, if necessary, to issue a rule proposing to remove the IER program regulations.

However, a Dec. 1, 2017, ruling from the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS’final rule to delay the effective date. The Dec. 1, 2017, court decision is a result of litigation filed in district court on Sept. 19, 2017, which challenged the delay rule.

USCIS notes the IER was published during the previous administration to provide an unlimited number of international entrepreneurs a new avenue to apply for parole, enter the U.S., and use American investments to establish and grow start-up businesses. Parole is a discretionary grant made by the Secretary of Homeland Security and is granted only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The rule established new criteria to guide the adjudication of parole applications from certain foreign entrepreneurs, providing them with temporary permission to come to the country. The rule did not afford a path to citizenship, which only Congress can do.


On Jan. 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements, which requires the Secretary of Homeland Security to ensure that parole authority is exercised only on a case-by-case basis, and only when an individual demonstrates urgent humanitarian reasons or a significant public benefit due to the parole.

Guidance on how to submit IER applications is available on our International Entrepreneur Parole page.

While DHS implements the IER, DHS will also proceed with issuing a notice of proposed rulemaking (NPRM) seeking to remove the Jan. 17, 2017, IER. DHS is in the final stages of drafting the NPRM.

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For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at info@adhikarilaw.com

VC Group Gets Win In Foreign Entrepreneur Rule Row

A D.C. federal judge on Friday granted a venture capital group’s bid to vacate a Trump administration rule that delayed an Obama-era regulation for international entrepreneurs, finding it unlawful because the government failed to give time for public. (Lexis) (proposed foreign entrepreneurs  program, find here https://adhikarilaw.com/start-upentrepreneur/final-rule-international-entrepreneur-published-federal-registrar/)

News coverage:

SF Chronicle

American Immigration Council

Lexis-Nexis

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SF Chronicle (citing unnamed source): Trump administration has plans to wipe out work permits for H-1B spouses

Citing unnamed source SF Chronicle reports that Trump administration has plans to wipe out work permits for H-1B spouses. The Trump administration plans to stop granting work permits to spouses of H-1B holders, overturning a 2015 rule and affecting thousands of foreigners currently in the United States, according to sources who have spoken to The Chronicle about the move.

About 130,000 spouses and children of H-1B visa holders came to the U.S. on H-4 visas last year, a number that has been steadily increasing since 2012. Before President Barack Obama created a work permit for certain H-4 visa holders in 2015, these foreigners — often women — were not allowed to hold a job here or be issued a Social Security number.

From October 2015 to September 2016, 41,526 people received authorization to work under the program. Complete figures for the most recent fiscal year, which ended in September, are not yet available.


For now this is “just a guess” and we do not know exactly what is going to happen to the rule.

Do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com if you will have any questions about H-4 EAD or would like to discuss the plan and strategy to pursue in light of possible changes.

Now the Premium Processing is Available for all types of H-1Bs

WASHINGTON, D.C. — U.S. Citizenship and Immigration Services (USCIS) resumed premium processing today for all H-1B visa extension of stay petitions. Premium processing is now available for all types of H-1B petitions.

H-1B visas provide skilled workers for a wide range ofspecialty occupations, including information technology, engineering, and mathematics. When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time. If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

In addition to resumption of premium processing for H-1B visa extension of stay petitions, USCIS had previously resumed premium processing for H-1B petitionssubject to the annual cap, petitionsfiled on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers and certain H-1B petitions that are not subject to the cap.


Do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com you want to learn more about this change, want to upgrade regular processing to premium processing, has general questions about H-1B program, or need any other legal services. 

DHS announced to wind down Deferred Action for Childhood Arrivals (DACA) program

Washington, DC. On September 5, 2017, the Department of Homeland Security (DHS) initiated the wind down of the program known as Deferred Action for Childhood Arrivals (DACA). On June 29, the attorneys general of Texas and several other states sent a letter to U.S. Attorney General Jeff Sessions asserting that the DACA program is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding an expansion of the DACA program and the now-rescinded program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  Yesterday, Attorney General Jeff Sessions sent a letter to Acting Secretary of DHS Elaine Duke articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.” Attorney General Sessions recommended that the Department wind down the program in an efficient and orderly fashion, and his office reviewed the terms of DHS action.

The program had been started on June 15, 2012 by the Secretary of Homeland Security, allowing certain undocumented immigrants to apply for work authorization, deferred action from deportation, and advance parole (permitting travel internationally). An individual granted deferred action under DACA was considered to be lawfully present for the duration of the granted period, but was not granted lawful status or excused for any previous or subsequent period of unlawful presence.

What This Means for DACA Recipients

DACA Beneficiaries With Valid EADs

Current DACA beneficiaries will retain their privileges until current expiration, unless terminated or revoked. DACA benefits are typically valid for two years from the date of issuance.

Initial DACA Applications and EAD

Applications for DACA protection and associated EAD cards received after September 5, 2017, will be rejected. Those filed and accepted by USCIS as of September 5, 2017, will be determined on a case-by-case basis.

DACA Beneficiaries Applying for EAD Extensions

Current DACA beneficiaries whose EAD cards will expire between September 5, 2017, and March 5, 2018, may apply for an EAD extension by October 5, 2017. These applications will be renewed on a case-by-case basis. All requests to renew DACA and associated applications for EADs after October 5, 2017 will be rejected.

Advance Parole

Effective September 5, 2017, USCIS will no longer accept any new Form I-131 Applications for Travel Document (Advance Parole) to permit international travel for DACA beneficiaries. Pending applications will be terminated and fees refunded. Those with currently valid Advance Parole documents will generally retain the benefit until the expiration date of the Advance Parole; however, U.S. Customs and Border Protection (CBP) has the ultimate authority to determine admissibility at the border.

Protections After Expiration

The Department of Homeland Security (DHS) claims that once an individual’s DACA benefits expire, his or her case will not be referred to U.S. Immigration and Customs Enforcement (ICE) for enforcement purposes, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE as set forth in USCIS’s Notice to Appear guidance.

What This Means for Employers

Employees who are DACA beneficiaries remain work-authorized throughout the validity period of their acceptable work authorization, and employers should rely on their I-9 compliance records and completed I-9 form expiration dates to confirm employees’ work authorization expiration dates.

An employer should confirm timely reverification of an employee’s expiring work authorization under the Form I-9 rules but should not treat DACA beneficiaries differently during the employment reverification process.

Employers must continue to accept employees’ valid work authorization documents (and may not restrict an employee’s choice of acceptable documents), and should not take any unlawful adverse action, such as termination of employment, against these employees. Taking premature action based on the September 5 announcement is risky is not recommended and employers should not identify or treat DACA employees differently unless further legislative or judicial action is taken.

Further reading can be found in the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA) and the DHS Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) webpage.

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If you want to learn more about changes in DACA program or need our legal services for the compliance with DHS guidance in winding down DACA program and I-9 compliance do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at info@adhikarilaw.com

Bloomberg BNA: Immigration Agency May Be Expanding Anti-Fraud Program

By Laura D. Francis

Some immigration attorneys are seeing what could be a quiet expansion of a U.S. Citizenship and Immigration Services effort to root out fraud in the immigration system. That could translate to greater scrutiny of companies that transfer workers with uniquely specialized knowledge to their U.S. offices. “There are so many different things going on in terms of enhanced investigation now, that it’s hard to sort the reality out,” attorney David Grunblatt of Proskauer in Newark, N.J., recently told Bloomberg BNA. But whereas the USCIS in the past announced new initiatives “with a lot of fanfare,” the agency is “being a lot more secretive about what they’re doing lately,” he said. [Read more]