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What is the change? Beginning next month, U.K. citizens will be able to apply for the U.S. Global Entry program that allows pre-approved travelers to move through U.S. airports faster and receive expedited pre-screening.
What does the change mean? U.K. citizens who wish to become members must apply to the U.K. Home Office for an access code to be used in applying for the Global Entry program online through U.S. Customs and Border Protection. They would also be required to attend an interview with a CBP officer.
Background: To register, U.K. citizens will apply online with the U.K. Home Office and, if approved, will receive an access code to enter on the application form when enrolling in the CBP’s Global Online Enrollment System. Applicants must first pay a U.K. government fee of £42 (about US$65) and then a U.S. government application fee of $100 for a five-year membership. The applicant must also appear for an interview with a CBP officer, who will determine whether the applicant is eligible.
The extension of the Global Entry program to U.K. citizens follows the U.K.’s launch of the Registered Traveller program for select nationals, including U.S. citizens, last year.
BAL Analysis: U.K. citizens pre-approved for the Global Entry program can benefit from streamlined entry procedures at 46 U.S. airports and may qualify for pre-clearance by CBP when exiting designated international airports.
Copyright © 2016 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.
As the deadline for the comment period on the recently proposed regulation related to the Optional Practical Training program for F-1 foreign students draws closer, employers may be interested in the following information on how to engage on the issue.
The regulation, as proposed by the Department of Homeland Security on Oct. 19, will affect U.S. companies that hire foreign students pursuant to the OPT program. As drafted, it would:
Comments are due by midnight on Nov. 18, 2015.
Employers may engage in the following ways:
Confidential Survey – Companies are encouraged to participate in a confidential survey by the Immigration Benchmarking Association regarding the proposed changes to the OPT program. No company name or identifying information is collected or required to participate in the survey, and all answers will be aggregated.
Comment Submission – Companies may also submit comments to DHS through the online system. More than 5,900 comments have already been submitted in the first two weeks. Companies may submit a comment through this link, and may also access all comments already submitted to the government.
Meanwhile, in ongoing litigation over the OPT program, opponents of the F-1 OPT program filed an appeal Sept. 23, asking a federal appeals court to reverse a lower court’s ruling that DHS acted within its statutory authority in allowing the OPT program and questioning the standard of review the court applied. The appeal, filed with the U.S. Court of Appeals for the District of Columbia, also challenges the lower court’s decision to give DHS until Feb. 12, 2016 to issue a new regulation. Final briefs are due Feb. 10, 2016, and a decision would not be expected before spring of 2016.
The deadline for individuals to register for participation in the Diversity Visa Lottery is Nov. 3 at noon EST (GMT -5).
Applicants must apply online by submitting the Electronic Diversity Visa Entry Form at www.dvlottery.state.gov.
The program provides 55,000 immigrant visas per year to individuals from countries with historically low levels of immigration to the U.S. Applicants must meet certain eligibility requirements to qualify and are selected through a randomized drawing.
Complete instructions are available at the State Department’s Diversity Visa Instructions page. Applicants should note that the online form is the only way to apply and that there is no cost to submit an entry form (though winners must pay government visa fees).
Lottery winners are selected through a random computerized process starting May 3, 2016 and continuing to Sept. 30, 2017. Applicants can find out if they are selected only by returning to the website and entering their unique confirmation number and personal information on the Entrant Status Check page. Lottery winners may apply for their green cards beginning Oct. 1, 2016.
BAL Analysis: Individuals seeking to register for the Diversity Lottery should do so immediately, as the State Department has cautioned applicants that the final week of registration will see heavy demand, which may cause website delays.
The Department of Homeland Security has published a proposed form and instructions relating to the extension of Optional Practical Training for students in science, technology, engineering, and mathematics (STEM) fields and the proposed new program requirements for employers and universities.
Under the proposed rule published last week in the Federal Register, the government would require the student and prospective employer to complete and submit to the school’s Designated School Official (DSO) a formalized “Mentoring and Training Plan” using a new Form I-910DHS. Instructions for completing the form may be viewed here.
The Form I-910 collects extensive information about the student seeking the STEM extension and the sponsoring employer. For example, the employer must report the number of hours per week the student will work, the salary amount and frequency of payment, and other compensation. An official with signatory authority for the employer must sign the form, affirm under penalty of perjury that the information provided is true and correct, and certify the following:
The Mentoring and Training Plan section of the form requests descriptions of:
The student’s supervisor is responsible for signing this section of the form under penalty of perjury. The Form I-910 also provides forms for evaluation of the student’s progress, which the student and the supervisor must review and sign every six months and at the conclusion of the program.
The proposed rule would require the student’s educational institution to retain copies of the Mentoring and Training Plan for a period of three years after the completion of the STEM practical training opportunity, and make it available to the Student and Exchange Visitor Program within 30 days of receiving it. Though the proposal does not require that the Form I-910 be submitted to U.S. Citizenship and Immigration Services or Immigrations and Customs Enforcement, it provides that both agencies may request it.
The public has 30 days to comment on the proposed form and instructions.
BAL Analysis: Employers are encouraged to carefully review the new form and its instructions. Though it is welcome news that the government is seeking to expand and extend Optional Practical Training, DHS is also seeking to impose new substantive and procedural obligations on companies, foreign students, and universities. BAL is working with clients and trade associations to evaluate the proposed regulation and accompanying form. If you are interested in contributing to those efforts, please contact the BAL professional with whom you normally work.
Travelers planning international trips to or from the U.S. in the coming months can reduce delays and last-minute headaches by planning now for the peak holiday travel season and observing the following tips.
Is your passport valid?
Is your visa in order?
Trusted traveler programs
Frequent travelers to the U.S. may wish to apply for membership in a trusted traveler program, such as Global Entry, NEXUS, SENTRI, or FAST. The programs allow members to use automated airport clearance and streamlined customs for faster entry into the U.S.
Allow extra time
Travelers should leave early for their departures and expect longer-than-normal lines at airport security checkpoints.
In addition to the tips above, the U.S. government also provides useful guidance for hassle-free holiday travel. The State Department website includes tips for preparing for emergencies, driving overseas, bringing copies of travel documents, handling money, learning about local laws, vaccinations, health insurance and packing prescription medicine. CBP suggests travelers crossing U.S. land borders use less-popular routes, keep travel documents handy, be prepared to declare all items upon returning to the U.S., and download the Border Wait Times app for current information on ports of entry at the borders with Canada and Mexico.
BAL is available to assist employers and individuals in need of additional information or more tailored advice.
The Department of Homeland Security has proposed a new regulation on Optional Practical Training (OPT) that expands the STEM extension and imposes new obligations on employers. The proposed regulation will be published in the Federal Register Oct. 19, after which DHS will accept comments from stakeholders for a period of 30 days.
The proposed rule, entitled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” comes in response to the Aug. 13 court decision holding that the rule implemented by DHS in 2008 was procedurally deficient, and affording the agency a six-month period in which to properly promulgate a new rule. The proposal focuses on the extension of OPT available to students in science, technology, engineering and math (STEM) fields and does not make changes to the 12-month OPT program.
OPT Eligibility
The proposed rule would reinstate the STEM OPT extension and make the following key changes:
New Employer Obligations
DHS’s proposal would also impose new obligations on employers. It would require students and their employers to prepare a formalized “Mentoring and Training Plan” that the student would submit to the designated school official (DSO) before the official could recommend a STEM OPT extension in the Student and Exchange Visitor Information System (SEVIS). The proposed rule does not mandate that the plan be submitted to the government, but grants DHS the authority to require its submission. As part of the Mentoring and Training Plan, employers would sign a sworn attestation certifying that:
Employers would also be required to attest that the terms and conditions of the STEM practical training opportunity are commensurate with those provided to similarly situated U.S. workers, and to provide DHS with compensation information. Students would also report their compensation in the Mentoring and Training Plan and report any adjustments to the government.
Enforcement and Oversight
The proposal would increase oversight of STEM OPT by clarifying accreditation requirements for educational institutions and granting Immigration and Customs Enforcement discretion to conduct site visits to ensure employer compliance. Employers would be required to report to the designated school official within 48 hours when an individual on STEM OPT ceases employment prior to the end of the authorized employment period, and students would be required to submit evaluations every six months to the designated school official and confirm the validity of the information provided in SEVIS.
Grace Period for Students
Currently, F-1 students may be unemployed for up to 90 days during OPT after graduation, and an additional 30 days if the student receives the 17-month STEM OPT extension. The proposed rule would retain the 90-day maximum period during the initial period, and students who obtain 24-month STEM OPT extensions would be allowed an additional 60 days. Students would have 60 days from the date of the designated school official’s recommendation for STEM OPT in which to apply for an Employment Authorization Document from U.S. Citizenship and Immigration Services.
E-Verify and H-1B Cap Gap
The proposal would preserve other provisions of the previous rule, including E-Verify requirements for STEM OPT employers, and would keep in place “cap-gap” protection allowing DHS to extend F-1 status for students whose H-1B status will become effective Oct. 1 of the following fiscal year.
Pending Applications
Applications for the STEM OPT extension that are currently pending or are submitted before the effective date of any final rule will be evaluated under the regulations existing at the time of application. However, DHS proposes that when a final rule takes effect, certain students already working under the STEM extension would be allowed to request the additional time that would be allowed under the new rule. These students and their employers would then be subject to the new obligations imposed by the proposed rule.
BAL Analysis: Employers are reminded that DHS has issued the regulation as a proposed rule and that the provisions will not take effect until published as a final regulation. DHS acknowledges in the regulation that the STEM OPT program may be disrupted if the regulation is not finalized by Feb. 12, 2016, the date imposed by the court. BAL will be working with clients and business immigration trade associations to analyze the regulation and prepare comments for submission during the 30-day period ending Nov. 18. If you are interested in contributing to that process, please reach out to the BAL professional with whom you normally work.
U.S. Citizenship and Immigration Services (USCIS) has announced a monthly schedule for how it will inform immigrants of whether it will apply the State Department’s cutoff dates for filing of adjustment of status applications (“Dates for Filing”).
Within one week of the State Department’s publication of the Visa Bulletin, USCIS will post on its website whether applicants may use the Dates for Filing chart as stated in the Bulletin. Unless otherwise stated on the USCIS website, applicants must follow the Final Action Dates chart instead of the Dates for Filing chart as published in the Visa Bulletin to determine when they may file applications. Going forward, USCIS’s determination of whether it will honor the Dates for Filing chart in the Visa Bulletin will depend on its calculation of whether there are more immigrant visas available for a fiscal year than the known applicants for each visa category.
Under a new format, the State Department publishes two charts in its monthly Visa Bulletin: Final Action Dates (for approval of visa petitions) and Dates for Filing (for filing of adjustment of status petitions). The Dates for Filing chart was added to the Visa Bulletin for October 2015 and would have allowed many thousands of immigrants in backlogged categories to file applications for adjustment of status sooner.
However, the State Department retracted the original Visa Bulletin it had issued on Sept. 9 and issued a new one for October 2015 that dramatically reduced the number of applicants who could benefit from the new system. This prompted strong negative reactions from the public, including statements of opposition from members of Congress, trade associations and advocacy organizations, and a class-action lawsuit filed by affected immigrants. Last week, the court refused to grant a temporary restraining order in the lawsuit to require the government to accept applications filed in reliance on the rescinded Visa Bulletin.
The State Department has declined to reinstate the Sept. 9 Visa Bulletin, and proceeded to issue the November 2015 Visa Bulletin with the same two-chart structure that did not alter the Dates for Filing published in the revised Bulletin for October 2015.
BAL Analysis: The government has not shown any willingness to reinstate the Dates for Filing that were announced on Sept. 9 and has instead chosen to defend its actions in court. Though the class-action lawsuit will continue to proceed, that process is lengthy and companies and applicants should not expect relief any time in the coming months. Companies and applicants should therefore look to the November Visa Bulletin and monitor the USCIS website for announcements regarding filing dates, and consult with their BAL professional on steps the company should take to retain workers and minimize the harm that results from the extended visa backlogs.
The U.S. will conduct interviews of Global Entry candidates at several locations in Germany beginning Oct. 26. The Global Entry program is a trusted traveler program that allows pre-approved, low-risk foreign nationals to use automated clearance kiosks at select airports for faster entry into the U.S.
Interviews dates and locations will be available as follows:
German citizens applying for membership in the Global Entry program must first undergo clearance by the German Federal Police and may then fill out an online application. Applicants who are conditionally approved will receive an email to schedule an interview with U.S. Customs and Border Protection (CBP). Interviewees will be screened and have their biometrics (photo and fingerprints) taken. Additional information for German applicants is available on the CBP’s website.
Global Entry is available to U.S. citizens, U.S. lawful permanent residents, and citizens of Germany, Mexico, the Netherlands, Panama and South Korea. Canadian citizens may enjoy Global Entry benefits through membership in the NEXUS program.
Application Final Action dates will advance for Indian nationals in the EB-2 category and Philippine nationals in the EB-3 category, according to the November Visa Bulletin released by the State Department.
Final Action cutoff dates for EB-2 India will advance by one year to Aug. 1, 2006 (from May 1, 2005). EB-2 China will also advance moderately by one month to Feb. 1, 2012 (from Jan. 1, 2012). Final Action dates for all other countries in the EB-2 category will remain current.
In the EB-3 category, Final Action dates for Chinese nationals will advance by more than two months to Jan. 1, 2012 (from Oct. 15, 2011), and EB-3 India will advance by three weeks from March 8, 2004 to April 1, 2004. Cutoff dates for the EB-3 Philippines category will advance more than five months to June 15, 2007 (from Jan. 1, 2007). Final Action dates for all other countries in the EB-3 category will not move from last month’s priority date of Aug. 15, 2015.
All EB-1 categories will remain current. Additionally, the recent extension of the Special Immigrant Religious Workers program under Congress’ stopgap budget measure renders that category current for all nationals.
There will be no changes to cutoff Dates for Filing from those announced in the revised October Visa Bulletin on Sept. 25. This means that the cutoff dates for filing adjustment of status applications for EB-2 Chinese nationals will remain at Jan. 1, 2013; EB-2 India will remain at July 1, 2009; and EB-3 Philippines will remain at Jan. 1, 2010. Employment-based immigrants whose priority date is earlier than the Date for Filing cutoff date for their category are eligible to file an application to adjust status.
Summary of the November Visa Bulletin:
Final Action Dates for Approval of Employment-based Petitions:
Dates for Filing for Employment-based Adjustment of Status Applications:
In the first stage of a class action lawsuit over the State Department’s revised October Visa Bulletin, immigrants did not prove they are entitled to emergency relief to compel the government to accept their green card applications under the rescinded version of the bulletin, a federal judge has ruled.
While the immigrants have been denied an emergency temporary restraining order, their lawsuit will continue to proceed.
The plaintiffs – high-skilled immigrants from India and China in the EB-2 preference category – contend that the State Department violated the Administrative Procedures Act and due process when it abruptly revoked its original October Visa Bulletin and replaced it with a revised bulletin that rolled back dates for filing green card applications. Under the revised dates, the plaintiffs were no longer eligible to file. They argue that they spent thousands of dollars in preparing to file in reliance on the original bulletin.
The judge ruled that the immigrants did not prove the necessary elements to justify an emergency order at this time to force the government to follow its first bulletin.
“While the court appreciates the confusion caused by the two Visa Bulletins… and the potentially wasted expenses plaintiffs incurred as a result, because plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the court cannot issue injunctive relief,” U.S. District Court Judge Ricardo S. Martinez stated in a written order.
Specifically, the judge found that the plaintiffs did not demonstrate that they were likely to succeed on their claims or that they will incur irreparable harm – necessary elements for the granting of an emergency temporary restraining order. Even if revising a Visa Bulletin is a “final agency action” subject to the Administrative Procedures Act, the second bulletin contained a plausible explanation for the State Department’s action and appeared to clarify erroneous statements in the previous bulletin rather than substantially alter or diminish the plaintiffs’ rights, the court said. The plaintiffs also did not point to any law establishing that reliance on a Visa Bulletin creates a constitutional right to due process. The court said that because most of the harm to the plaintiffs has already occurred, they have not shown they would face irreparable harm if the court denied emergency relief. Finally, the court said that “it is in the public’s interest that the agency has the authority to update its guidance when necessary.”
BAL Analysis: Though the court did not issue a temporary restraining order, the government’s handling of the Visa Bulletin is likely to face increased scrutiny by Congress and in the courts. BAL continues to work with the government and through business trade associations on this issue.