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Scammers posing as immigration authorities are calling immigrants and seeking payment, the Department of Homeland Security has warned in a fraud alert.
The scammers identify themselves as “U.S. immigration” employees and the caller ID appears as though the calls originate from the DHS Office of Inspector General’s 1-800 hotline. They then ask for personal information, often by claiming that the recipient has been the victim of identity theft.
Reminders:
BAL Analysis: Unfortunately, email, phone and phishing website scams have become increasingly common around the world. Individuals should protect their personal information, including any relevant immigration-related details, and hang up if they receive suspicious calls seeking personal information or demanding payment. Additional information on common scams and tips to avoid them is available at the USCIS avoiding scams website.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
A federal judge has dismissed a lawsuit brought by the Washington Alliance of Technology Workers (WashTech) that challenged the STEM OPT regulations.
The lawsuit challenged the 2016 regulation that allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to extend their one-year Optional Practical Training (OPT) period for an additional 24 months. The lawsuit also challenged the 1992 regulation that introduced the one-year OPT for certain F-1 students.
Among their legal claims, WashTech alleged that the regulations violated the Administrative Procedures Act, discriminated against American tech workers and increased the number of foreign employees in direct competition with U.S. workers for tech jobs.
Key points:
Background: The litigation dates to 2014, when WashTech sued the Department of Homeland Security (DHS) over the previous regulation in force at the time that permitted the 17-month STEM OPT extension. A federal judge agreed that the STEM OPT rule, promulgated in 2008, was deficient in the way it was issued, but allowed DHS time to issue a new regulation through proper rulemaking procedures. DHS proposed a new rule for notice and comment, and issued a final rule in March 2016. In June 2016, WashTech filed the lawsuit challenging the new rule.
BAL Analysis: The dismissal ends this lawsuit, and the current rules governing OPT and the 24-month STEM extension remain in place. WashTech has not yet indicated whether it will appeal the ruling. The Trump administration has signaled an intention to limit work authorization for foreign students but has not yet taken action. If the administration seeks to modify the OPT regulation, it is expected that the government will do so through notice-and-comment rulemaking. As a practical matter, this would mean that the current version of the OPT regulation would remain in place for the next six to 12 months. BAL will continue to monitor for any developments regarding the STEM OPT program.
U.S. Citizenship and Immigration Services has announced that in May it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s May Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in May.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will also be required to use the Final Action Dates chart applicable to family-sponsored immigrants, which was also in the May Visa Bulletin.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com. Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
U.S. Citizenship and Immigration Services said in a policy memo that a ruling by the Administrative Appeals Office in the case Matter of O-A-, Inc. will be adopted and followed by USCIS officers in similar cases.
The ruling addresses educational credentials of foreign individuals under the EB-2 category and clarifies how USCIS will calculate years of requisite post-baccalaureate experience, where the individual has earned a provisional certificate before receiving a formal diploma. The EB-2 advanced degree category requires a bachelor’s degree plus five years of post-baccalaureate experience.
Background: The case involved a computer software company sponsoring a software developer for a green card in the employment-based second preference category. The employer presented evidence that the individual had five years of experience following the date of her provisional certificate, but USCIS denied the petition on the grounds that she fell just short of the five years if counted from the date of her actual diploma.
The employer also submitted a letter from a director of the university stating that the provisional certificate was proof that the individual completed all degree requirements and that issuance of the formal diploma was delayed because of administrative reasons.
On appeal, the AAO ruled that the statute and regulations on the EB-2 classification speak in terms of “degrees,” not diplomas, and a case-specific analysis is required to determine whether a provisional certificate meets the substantive requirements of a degree.
BAL Analysis: The adoption of the ruling by USCIS adjudicators will benefit employers sponsoring EB-2 candidates on the basis of a provisional educational certificate. Officers will take a case-specific approach and employers bear the burden of proving that the provisional certificate is equivalent to fulfilling all degree requirements.
U.S. Citizenship and Immigration Services is working through a backlog of premium processing requests that were submitted before the program was temporarily suspended April 3. In some cases, processing fees have been returned because the agency was unable to process petitions within 15 days.
Key Points:
BAL Analysis: It remains unclear how long USCIS will take to process cases for which it has returned premium processing fees, though the agency said such cases will continue to be prioritized. Those with case-specific questions should contact their BAL attorney.
President Donald Trump signed an Executive Order Tuesday that includes directives to revamp the H-1B program.
BAL Analysis: The Executive Order does not make immediate changes to the H-1B program, but directs the relevant federal agencies to come up with ideas for creating a system that gives more weight to higher skilled, higher paid workers. This year’s H-1B lottery process will not be affected.
U.S. Citizenship and Immigration Services announced Monday that it received 199,000 cap-subject H-1B petitions during this year’s filing period. The agency has completed the computer-generated lottery to determine which petitions will be eligible for processing.
BAL Analysis: The number of H-1B petitions easily exceeded the H-1B cap again this year, even as the number of petitions dropped by about 15 percent. The odds of success in the lottery are still relatively low, and companies may want to consider alternative visa options or overseas assignments for high-skilled employees whose petitions are not selected. Please consult with a BAL professional for advice regarding alternatives to the H-1B visa category and other strategic options to fulfill workforce needs. BAL is continuing to monitor for any effects the current suspension of premium processing might have on overall case timeframes.
The U.S. Citizenship and Immigration Services (USCIS) appeals panel ruled this week that visa petitions based on illegal employment contracts will be rejected—and, specifically, that L-1B petitioners intending to keep workers on foreign payroll must meet both federal and state minimum-wage requirements.
BAL Analysis: The ruling makes it clear that petitioners must be prepared to meet the requirements of both federal and state minimum-wage laws, and it has potentially significant consequences for companies that file L-1 petitions with USCIS for workers who will remain on foreign payroll. USCIS has noted in past policy memoranda that what counts as “‘total compensation’ is fact-dependent, but may include, besides wages or salary, other guaranteed forms of payment made to an employee for services to be rendered for the petitioner” and that this compensation “may be paid in the form of money, a commodity, a service, or a privilege, including food, transportation and housing allowances, as well as guaranteed bonuses.” Those with any questions on minimum compensation requirements, including requirements as they related to the I-Corp case, should contact BAL.
Priority cutoff dates for China EB-2 and most EB-3 categories will advance modestly next month, according to the State Department’s May Visa Bulletin. Cutoff dates for employment-based categories for Indian nationals will see very little or no movement.
Key movements in priority cutoff dates:
Additional notes: All EB-1 categories will remain current. All EB-2 categories other than India and China will also remain current.
The State Department also released its Dates for Filing chart for May. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless USCIS confirms it via a web posting. BAL will update clients once officials confirm whether the chart can be used in May.
The U.S. Labor Department has posted processing times current as of March 31 for permanent labor certification (PERM) applications and prevailing wage determination requests.
PERM processing: Applications filed in January 2017 and earlier are currently being adjudicated, according to the department. Audit reviews are being conducted on applications filed in August 2016 and earlier, and at least some appeals filed in February and earlier are being reviewed for reconsideration.
Average PERM processing times in February:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in January 2017 and earlier for H-1B cases and PERM cases. Redeterminations are being considered on appeals filed in January 2017 and earlier for H-1B cases and PERM cases. Center director reviews are being conducted on appeals filed in February for H-1B and PERM cases.
Average time for issuance of prevailing wage determinations in February:
The Labor Department reports PERM and prevailing wage determination processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in January 2017 or earlier and is awaiting prevailing wage determinations for requests filed in January 2017.