USCIS adopts recent AAO decision about L-1A functional managers
On April 14, 2016, USCIS issued a Policy Memorandum officially adopting Matter of Z-A-, Inc. and establishing policy guidance that applies to and binds all USCIS employees adjudicating L-1A petitions for managers. In its holding in Matter of Z-A-, Inc., the Administration Appeals Office ("AAO") confirmed USCIS officers must weigh all relevant factors in determining whether the beneficiary of an L-1A will manage an essential function, including evidence of the beneficiary's role within the wider qualifying international organization.
In the instant case, USCIS had initially denied the employer's L-1A functional manager petition on behalf of one of its company Vice Presidents. In its denial, USCIS stated the Petitioner did not establish it had an organizational structure sufficient to support the Beneficiary in a qualifying managerial capacity in light of there only being two U.S. payroll employees in sales and administrative positions. USCIS suggested that because of this small organizational structure, the Petitioner had not adequately demonstrated how Beneficiary would be working in a managerial capacity rather than as a sales person or administrator. The AAO disagreed and found USCIS failed to take into account the fact that the Beneficiary, in addition to supervising the two U.S. payroll employees, also oversaw the duties performed by eight foreign staff located in Japan whose roles support the U.S. enterprise.
In making future determinations concerning managing an essential function of an organization, USCIS must now consider evidence presented by the Petitioner of personnel employed by another related entity within the qualifying organization who perform day-to-day non-managerial tasks of the petitioning entity. To read the new Policy Memo and AAO decision in the Matter of Z-A-, Inc., visit USCIS's policy memorandum site.
E-Verify is going mobile
On April 27, 2016, the Department of Homeland Security ("DHS") announced testing for the new E-Verify Mobile App, encouraging up to 2,000 E-Verify users to test the App on their iPads and report performance time through the Apple TestFlight feedback tool.
E-Verify is a free, internet-based system offered by DHS to allow employers to determine the eligibility of their employees to work in the U.S. Since 1986 U.S. law has required employers to verify worker eligibility and to maintain records through the use of form I-9. E-Verify was officially introduced in 2007 after a pilot program that allowed employers to electronically verify worker eligibility in the U.S. The program has grown to over 602,000 participating employers verifying over 13 million employees each year.
While E-Verify is an optional program, it is a required program for certain federal contractors and for any employer who seeks to employ F-1 students during their additional two years of work authorization in the U.S. following graduation as part of the STEM OPT program. The E-Verify Mobile App is the next step DHS hopes will attract more users to its program. If your company uses E-Verify and you have an Apple iPad (2nd and 3rd generation only) and want to participate in the test program, email the E-Verify program at MobileE-Verify@uscis.dhs.gov by May 4, 2016.
Immigration relief available for those affected by severe earthquakes
In the wake of several major earthquakes in Ecuador, Japan and Burma, USCIS announced a variety of immigration relief measures available to people affected by these natural disasters. In its April 26, 2016 press release, USCIS described the measures available upon request including a change or extension of nonimmigrant status (even if the request is filed after an authorized period of admission has expired), expedited processing of advance parole or employment authorization documents, consideration of fee waivers due to inability to pay, and replacement of a lost or damaged Legal Permanent Resident Card ("green card") or other immigration or travel documents issued by USCIS.
Foreign nationals seeking relief under these measures must file the appropriate forms with USCIS and include information with their requests about how the natural disaster created the need for the requested relief. For more details, please visit USCIS's website section for Humanitarian Relief and Special Situations.
USCIS begins accepting H-1B petitions for FY2017
On April 1, 2016, USCIS began accepting H-1B petitions for FY2017. In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 1st - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 233,000 H-1B petitions in the first five business days of April. For updates on when USCIS reaches the cap, the lottery, start date for premium processing, and other H-1B related news, visit USCIS's H-1B FY2017 site and look for breaking news on our website's news and updates section.
DHS announced major changes for employers and F-1 students on STEM OPT
On March 11, 2016, the Department of Homeland Security ("DHS") published its new rule on STEM OPT. Previously, F-1 students who came to the U.S. and graduated with a degree in a STEM field were eligible for a 17 month extension to the existing one year of work authorization for their period of Optional Practical Training ("OPT"). As a result of litigation over the 2008 rule that authorized STEM OPT, DHS published a new rule that includes significant changes for employers, F-1 students, and Designated School Officials ("DSOs") at U.S. colleges and universities. The new regulations include a 24 month extension to OPT, a new requirement for a training plan signed by employers, a requirement employers report wages offered to F-1 students on STEM OPT, and provisions for the transition period between now and the rule taking effect on May 10, 2016 for students currently on STEM OPT. To read a detailed summary of the new rules, visit our firm's website and click the News and Updates tab.
USCIS adopts recent AAO decision affirming National Interest Waiver category includes medical specialists in addition to primary care physicians
In February the Administrative Appeals Office ("AAO") decided an important case for physicians applying for immigrant visas in the National Interest Waiver category, and on March 9, 2016 USCIS issued a Policy Memorandum officially adopting the AAO's decision as agency policy. In its decision in Matter of H-V-P, the AAO held that 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 or in a VA facility may be eligible for the physician National Interest Waiver category of green cards. This expansion to include medical specialists is a major victory for American communities suffering from a shortage of qualified physicians and foreign-born medical specialists who with to remain in the U.S. If you have questions about whether physicians working for your organization may qualify for a green card in the National Interest Waiver category, please contact one of the attorneys at Iandoli Desai and Cronin at info@iandoli.com or by calling us at 617-482-1010.
USCIS transfers cases in an effort to address processing delays
Responding to the need to develop more streamlined processing of various applications and petitions and decrease processing times, USCIS announced a series of case transfers in March. As of March 28, 2016, the Potomac Service Center will process all I-765 Applications for Employment Authorization filed by F-1 and M-1 students seeking Optional Practical Training. All such applications will be marked with the prefix "YSC" to note that the application is at the Potomac Service Center.
The Vermont Service Center ("VSC") has begun to transfer some H-1B and H-4 cases to the Nebraska Service Center ("NSC"). Specifically, the VSC will transfer certain Form I-129 Petitions for Nonimmigrant Workers for petitioners requesting H-1B classification, Form I-539 Applications to Extend/Change status for H-4 classification, and Form I-765, Applications for Employment Authorization for H-4 eligible dependents. Petitioners should refer to the form instructions and the filing addresses listed on the USCIS website and, when applicable, continue to file petitions with the VSC. The VSC will then decide which cases to transfer to the NSC. In cases where an I-129 is transferred to the NSC, any Form I-907 upgrade for premium processing should be sent to the NSC.
Similarly, USCIS may transfer certain L-1 and L-2 cases from the VSC to the California Service Center ("CSC"). The processes affected for L-1 and L-2 beneficiaries will include certain I-129, I-539 and I-765 applications. Petitioners should still refer to the form instructions and the filing addresses listed on the USCIS website and, when applicable, continue to file petitions with the VSC. In cases where an I-129 is transferred to the CSC, any form I-907 upgrade for premium processing should be sent to the CSC. For more details and to review the official press releases, please visit USCIS's website's News and Alerts section and click the links for the alerts from March 29, 2016.
USCIS updates FAQs on employment authorization for certain H-4 spouses
On March 10, 2016, USCIS updated its FAQ on employment authorization for certain H-4 spouses. Pursuant to new regulations that went into effect last May, an H-4 spouse whose H-1B spouse is the principal beneficiary of an approved I-140 Petition for Immigrant Worker or whose H-1B spouse has filed for an extension of status beyond the normal six-year limit in accordance with the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21") is now eligible to request employment authorization. In March, 2016, USCIS updated its FAQ on this topic to address several unique issues that arise for H-4 spouses seeking this employment authorization.
This multi-page FAQ helps applicants determine if they are eligible to file, reviews the application process, explains the basis for adjudication of the applications, discusses the applicant's status while awaiting adjudication, and outlines what happens once employment authorization is received. In particular the FAQ confirms the H-4 spouse must be physically present in the U.S. to apply for employment authorization and additionally confirms that if the applicant's I-765 application is filed concurrently with an I-539 application to change status to H-4, the applicant must remain in the U.S. until the request to change status to H-4 is approved. USICS will deny both the I-539 and I-765 application for employment authorization if the applicant travels abroad before the change of status is approved. To read the full FAQ, please visit the USCIS website.
USCIS publishes chart on I-485 Adjustment of Status applications
On March 23, 2016, USCIS published a chart listing all I-485 applications received, approved, denied, and pending adjudication between October 1, 2015 and December 31, 2015. The chart breaks down I-485 applications into four main categories: family-based applications, employment-based applications, humanitarian-based applications, and other applications. On the employment-based side, the most striking figure is the number of cases still pending: 125,161. While there appears to be a slight uptick in processing times of late, the vast majority of I-485 applications continue to take between six and eight months for adjudication.
Where these delays can cause considerable hardship to applicants with long-pending cases, we strongly urge all applicants with Employment Authorization Documents ("EADs") and/or advance parole issued based on a pending I-485 to track the expiration of those EAD/AP combo cards. When the EAD/AP combo card is due to expire within four months, applicants should immediately file for extensions of work and travel permission since USCIS may take up to 90 days to adjudicate the extensions. These extension requests do not require payment of additional filing fees, and the timing should be carefully considered in order to avoid interruptions in work authorization and cancellation of travel plans. For more information or to contact an attorney at Iandoli Desai & Cronin with questions about this process, please e-mail us at info@iandoli.com.
Naturalization application denied for unauthorized employment prior to gaining legal permanent residence
In a recent decision, the U.S. Circuit Court for the 8th Circuit denied an application for U.S. citizenship after determining the applicant had engaged in unauthorized employment while in the U.S. pursuant to a non-immigrant, R-1 visa. The applicant in this case began working for an employer more than six months prior to the date that he was authorized by USCIS to do so, making him ineligible to apply for adjustment of status. This period of unauthorized employment was not known to USCIS at the time the agency approved his green card, but came to light when he listed his employers and dates of employment on his application for U.S. citizenship. As this unauthorized employment would have caused the applicant's green card application to be denied, the USCIS adjudicator conducting the naturalization interview determined that the legal permanent resident status should never have been granted in the first place and therefore denied the naturalization application. Both a U.S. District Court and the U.S. Circuit Court for the 8th Circuit upheld USCIS's denial.
This outcome is a warning to any foreign nationals who believe receiving a green card ends any possibility of further scrutiny into their employment and immigration history. This case also highlights the importance of applicants ensuring any and all work undertaken in the U.S. prior to receiving a green card is specifically authorized. If you have questions regarding employment authorization or whether it could impact a green card or naturalization application, you should contact one of our immigration attorneys at info@iandoli.com or by calling us at 617-482-1010 before applying.