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In the wake of the terrorist attacks in Paris, the White House on Monday announced new screening measures for travelers coming to the U.S. on the Visa Waiver Program.
The program allows certain foreign nationals to undergo pre-screening and obtain an Electronic System for Travel Authorization (ESTA) to enter the U.S. without being required to apply for a visa at a consulate. Thirty-eight countries participate in the program and an estimated 20 million travelers use the program annually.
Under new measures, travelers will be screened regarding any past travel to countries considered “terrorist safe havens.” The White House did not provide a list of countries, but stated that the Department of Homeland Security and the Director of National Intelligence will regularly identify and review the countries. DHS will issue a review of the Visa Waiver Program within 60 days and recommend pilot programs to collect biometrics information to increase security. DHS’s report to the President will also identify measures to obtain cooperation by countries that have been deficient, including suspending ESTA issuances and renewals or requiring more frequent ESTA submissions.
The U.S. will also step up information collection and sharing with the 38 countries participating in the program. Other measures include working with Congress to add biometrics (fingerprinting and photos) to the program and to increase fines on air carriers that fail to verify passengers’ passport data from $5,000 to $50,000.
BAL Analysis: Travelers using the Visa Waiver Program should expect additional screening measures in the ESTA application, as DHS will immediately modify ESTA to capture information regarding past travel. The White House is working with Congress on other changes, such as accelerating the requirement that all travelers in the Visa Waiver Program hold e-passports. BAL will update clients on additional changes as they are proposed.
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In a draft policy memorandum to its officers, U.S. Citizenship and Immigration Services has fleshed out the criteria used to determine whether a green card applicant has moved to a “same or similar job” for purposes of preserving an approved immigrant visa petition.
The issue of portability is important to tens of thousands of immigrants waiting in backlogged categories who may seek to change jobs without jeopardizing their place in line. Applicants may preserve an approved I-140 petition if they move to a “same or similar job” and their adjustment of status application has been pending for 180 days or more.
Below is a summary of some key provisions of the draft memorandum:
In reviewing a request of portability to a new employer, immigration officers will consider the “totality of the circumstances,” and an applicant is required to prove only by a “preponderance of the evidence,” i.e., that it is more likely than not, that the new job is the same as or similar to the original job.
Officers may refer to the Standard Occupation Classification (SOC) codes published by the Labor Department to determine whether two jobs are the same or similar. Jobs that share the same six-digit code will generally be considered to be in the same job classification; two jobs grouped under the same broad job classification may be considered similar, depending on whether they share the same duties, experience and educational backgrounds.
Officers will recognize career progression in comparing two jobs. When an individual moves into a more senior but related position that does not have a managerial or supervisory role, the guidance instructs officers to “consider whether the original position and the new position are in the same or similar occupation classifications.”
Where the new position involves managing the same or similar functions of the original job or the work of others whose jobs are the same or similar to the applicant’s original job, officers “may treat such evidence favorably in determining whether the two jobs are in similar occupational classifications.” Even if the new job does not involve managing workers in the same or similar occupational classifications as the original position, the applicant may show that he or she is overseeing some of the functions of the original job to demonstrate that the two jobs are similar.
Even if the two jobs are not grouped together under the SOC codes or do not reflect career progression, based on the totality of the circumstances, if the two jobs “share essential qualities or have a marked resemblance or likeness, the individual may be eligible to port to the new position.” The draft guidance also notes that “variations in job duties arising from performing jobs for different employers, including employers in different economic sectors, do not necessarily preclude two positions from being in similar occupational classifications.”
Wage differences or similarities are not conclusive in determining whether or not two jobs are similar. Allowances should be made for normal raises and for different sectors, geographical locations and other characteristics of the employers. The guidance indicates that applicants should explain any “substantial discrepancy in wages between the original position and the new position in detail.”
DHS expected to propose rule The Department of Homeland Security has also announced that it is working on a rule aimed at employment-based green card applicants who are waiting in backlogged visa categories. According to a summary published by the Office of Management and Budget, the rule proposes to “provide stability and job flexibility” to applicants with an approved employment-based immigrant visa petition while they wait to become lawful permanent residents. The proposed rule is expected to be published in December.
BAL Analysis: The memorandum is set to take effect March 21, 2016. Employers and other immigration stakeholders may comment on the draft memorandum until Jan. 4, 2016, by submitting comments directly to DHS or by working with their BAL representative.
The Department of Justice has asked the U.S. Supreme Court to review an appeals court ruling that has maintained the temporary hold on two of President Obama’s executive actions, which would expand the Deferred Action for Childhood Arrivals (DACA) program and create a similar program for some undocumented parents of U.S. citizens and lawful permanent residents.
In its formal request for review, or petition for writ of certiorari, the Justice Department argued that the Supreme Court should hear the case because it poses a question of national importance and the appeals court erred in finding that the Department of Homeland Security lacked substantive authority to adopt the executive actions. The government argues that Congress has given DHS broad discretion to establish policies to defer deportation of certain individuals and that the states do not have standing to sue because the executive actions at issue are nonbinding, revocable, discretionary actions not subject to judicial review.
The department seeks review of the Nov. 9 decision by the 5th U.S. Circuit Court of Appeals affirming a temporary injunction on the executive actions. DHS issued memoranda to implement these executive actions in November 2014, but the two programs that would defer deportation for approximately 5 million undocumented immigrants were not allowed to go into effect due to the litigation.
The lawsuit was brought in December 2014 by 26 states, which claimed they would have to bear the costs if undocumented immigrants were allowed to be lawfully present in the U.S. and obtain employment authorization.
BAL Analysis: The filing does not ensure that the Supreme Court will hear the case. If the Court decides to take up the case this term, it will issue a decision before the term ends in June 2016. The expanded DACA and proposed DAPA programs remain on hold in the meantime.
U.S. Citizenship and Immigration Services and other federal agencies will be closed Thursday, Nov. 26 for the Thanksgiving holiday. Offices will reopen Friday, Nov. 27.
Employers with urgent filing needs may want to submit applications and petitions by Wednesday, Nov. 25. Up-to-date information about local USCIS office closures is available here.
BAL Analysis: While the Thanksgiving holiday is not expected to cause significant delays, it falls during a peak season for those in need of services related to immigration or international travel. Applicants are encouraged to plan ahead, file early and prepare for possible delays.
Under a rule that takes effect Jan. 1, U.S. passport holders will no longer have the option of adding extra pages to their passports.
Currently, American citizens can apply for either a 28-page or 52-page standard passport and then request to add visa pages to them while they are still valid if passport holders need more pages for visa stamps.
To accommodate frequent travelers, the State Department began issuing the larger 52-page passports in October 2014 to all overseas applicants at no extra cost, while Americans applying domestically can request the larger passports on the application form at no extra cost.
The rule was proposed in May and was published in the Federal Register today. The primary reason for eliminating visa page inserts is to protect the integrity of the Next Generation Passport books, which will roll out in 2016.
BAL Analysis: U.S. passport holders who expect to need extra pages should apply before the rule change or apply for a new passport containing 52 pages ahead of travel plans. Some U.S. passport agencies have already begun asking travelers to request new passports instead of processing requests to add additional passport pages, and some of the agencies may require new passport applications in lieu of adding additional pages. Travelers with existing visas who obtain a new passport may be required to apply for a new visa, depending on the policies of the individual country. Travelers should plan accordingly.
Today, U.S. Citizenship and Immigration Services (USCIS) has confirmed that in December it will only accept employment-based adjustment of status applications according to the Final Action Dates chart – not the Dates for Filing chart – contained in the State Department’s December Visa Bulletin released earlier this week.
As a result, many employment-based immigrants will no longer be eligible to file for adjustment of status in December.
According to today’s announcement, in December 2015, employment-based immigrants must follow the Final Action Dates chart in the December Visa Bulletin to determine if they are eligible to submit their adjustment of status petitions. Family-based immigrants may, however, use the applicable Dates for Filing chart in December.
Therefore, employment-based immigrants whose priority dates are earlier than the dates in the following Application Final Action Dates chart for their preference category are eligible to file for adjustment of status in December:
Application Final Action Dates for Employment-Based Preference Cases
Under the new two-tiered system introduced in October, the State Department’s monthly visa bulletin contains the familiar Final Action Dates chart for approvals of immigrant visa applications and a new Dates for Filing chart indicating cutoff dates for purposes of eligibility to file for adjustment of status. However, in an added wrinkle, USCIS will take up to one week after the publication of the bulletin to determine and post to its website whether it will accept filings based on the Final Action Dates chart or the Dates for Filing chart.
BAL Analysis: Employment-based immigrants currently eligible under the Dates for Filing chart should file as soon as possible, as the more restrictive Final Action Dates chart will control whether they remain eligible to file in December.
A Senate bill introduced Tuesday by Chuck Grassley, R-Iowa, and Dick Durbin, D-Ill., would restrict employers’ use of H-1B and L-1 visas.
The “H-1B and L-1B Visa Reform Act,” S. 2266, would impose a host of new duties and limitations on employers, including a requirement that every employer attest that it will not replace a U.S. worker with an H-1B or L-1 worker at any time and placing a strict 50 percent limit on the combined H-1B and L-1 workforce composition of employers with 50 or more workers.
Employers would be subject to stricter job advertising rules and would have to meet higher wage criteria for H-1B visas, and the duration of H-1B visas would be reduced from six years to three years unless the holder has an approved immigrant petition. L-1B visas would be subject to a more restrictive statutory definition of “specialized knowledge.”
The bill also calls for increased oversight, investigations and monetary penalties by the Department of Labor and the Department of Homeland Security and mandatory information sharing between U.S. Citizenship and Immigration Services and the Labor Department. DHS and the State Department would be required to submit annual reports, including lists and details of employers who petitioned for H and L visas.
A detailed table of the bill’s provisions may be viewed here.
The bill is co-sponsored by Senators Bill Nelson, D–Fla., Richard Blumenthal, D-Conn., and Sherrod Brown, D–Ohio.
BAL Analysis: The legislation is considerably more restrictive than any previous legislation introduced by Senators Grassley and Durbin. Every company that hires H-1B or L-1 workers would face new restrictions, obligations and liabilities. BAL is working with clients and through trade associations to evaluate the legislation and develop appropriate strategies. Please reach out to the BAL attorney you normally work with if you have questions regarding the legislation and how it would affect your business.
A federal appeals court Monday upheld an injunction blocking the implementation of President Barack Obama’s programs to protect roughly 5 million undocumented immigrants from deportation.
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled 2-1 to block two of Obama’s initiatives — the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and an extension of the Deferred Action for Childhood Arrivals program (DACA).
Federal law “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” Judge Jerry Smith wrote.
Smith was joined by Judge Jennifer Walker Elrod in upholding a lower court’s injunction preventing DAPA and the DACA expansion from taking effect. Judge Carolyn Dineen King dissented.
In her dissent, King wrote that the Department of Homeland Security “is faced with important prioritization decisions as to which aliens should be the subject of removal proceedings. Congress has made clear that those decisions are to be made by DHS, not by Congress itself — and certainly not by the courts.”
BAL Analysis: The ruling has no effect on the administration’s immigration policies related to high-skilled workers, but is another setback for Obama on immigration, effectively blocking two of his key programs. A Justice Department spokesman said the government would appeal the ruling to the Supreme Court.
Application Final Action Dates for Indian nationals in the EB-2 category will advance 10 months to June 1, 2007 (from Aug. 1, 2006), according to the State Department’s December Visa Bulletin published today.
EB-2 China’s cutoff date will remain at Feb. 1, 2012. All other EB-2 categories will remain current.
Several countries will advance in the EB-3 category. The cutoff date for EB-3 China will advance by more than three months to April 15, 2012 (from Jan. 1, 2012). EB-3 Philippines will advance six weeks to Aug. 1, 2007 (from June 15, 2007), and EB-3 India will advance by three weeks to April 22, 2004 (from April 1, 2004). All other countries will advance by two weeks to Sept. 1, 2015 (from Aug. 15, 2015).
All EB-1 categories will remain current.
Application Final Action Dates for Employment-based Preference Cases
Dates for Filing of Employment-Based Visa Applications
There are no changes to the Dates for Filing from last month. However, under the new system, USCIS will post to its website within one week of the Visa Bulletin’s publication whether applicants may file their adjustment of status petitions according to the Dates for Filing chart in place of the Final Action Dates chart.
The White House today released the final text of the Trans-Pacific Partnership, a trade deal that liberalizes trade and travel barriers among 12 countries – Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam.
The 2,000-page agreement includes provisions for country-to-country reciprocal easing of entry requirements for temporary workers and cross-border trade in services. Notably, the U.S. did not make any commitments under the provisions for “Temporary Entry for Business Persons,” which streamlines and promotes transparency in applications for temporary admission. The White House has indicated that the TPP will not require any changes to U.S. immigration law.
BAL Analysis: President Obama reportedly indicated to Congress his intent to sign the agreement, which triggers a 90-day clock before he can sign the deal under fast-track legislation. BAL will be releasing additional alerts and analysis on individual provisions of the agreement that affect immigration and business travel in key countries.