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The Department of Homeland Security is proposing rules that would expand the Optional Practical Training (OPT) program for students on F-1 visas graduating in science, technology, engineering or mathematics (STEM) fields from certified schools.
The announcement by the Office of Management and Budget means that the 90-day review process has begun and signals that the proposed OPT rules are in the final review stage by the White House and other agencies. As a result of a lawsuit challenging the OPT regulations, the government has a court-imposed deadline of Feb. 12, 2016 to promulgate a new regulation authorizing the STEM OPT extension.
The administration is taking this opportunity to expand the OPT program, a goal that President Obama announced in 2014 as part of his executive actions on immigration. While the proposed rule has not been published yet, a summary of the rule indicates that F-1 students with degrees in STEM fields from certified Student and Exchange Visitor Program schools will have enhanced opportunities under OPT. In June, DHS briefed a Senate committee on a proposal to expand the STEM extension from the current 17 months to two 24-month periods.
BAL Analysis: The announcement is a good sign that new, expanded OPT regulations are underway and are likely to clear the review stage by the end of the year. After the proposed rule is published, business and other stakeholders will have 30 days to submit comments.
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Consular operations at all U.S. embassies and consulates around the world will be closed to the public Oct. 9 due to a consular systems upgrade, the State Department has confirmed.
Visa applicants with previously scheduled appointments on Oct. 9 will be contacted to reschedule. Individuals should consult their local U.S. embassy or consulate for instructions on other services, including emergency appointments. Service providers connected to certain U.S. missions may also suspend or limit services. While posts will be closed to the public, embassy and consular staff will be performing non-consular functions.
Online registration opens Thursday for the fiscal year 2017 Diversity Immigrant Visa Program. The program provides 50,000 immigrant visas 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 computer drawing.
Registration to participate in the lottery begins Thursday Oct. 1, 2015 at noon EDT (GMT-4) and ends Tuesday, Nov. 3, 2015 at noon EDT (GMT-5). Applicants must apply online by submitting the Electronic Diversity Visa Entry Form at www.dvlottery.state.gov. The State Department cautions applicants not to wait until the final week to register because heavy demand may cause website delays.
Nationals of the following countries are not eligible to apply because the number of immigrants to the U.S. from each exceeded 50,000 in the past five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Individuals born in Hong Kong SAR, Macau SAR and Taiwan are eligible to apply.
Registrants must meet two eligibility criteria: they must be born in an eligible country and meet educational or work requirements. Individuals who are not from an eligible country may qualify by claiming the country of their spouse or parents from an eligible country under certain circumstances. Applicants must also have a high school education or two years of work experience in the past five years in a qualifying occupation. To register, applicants must complete the online form and submit a digital color photo that meets precise specifications for each family member. Only one entry per person is allowed; individuals who submit more than one entry will be disqualified.
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 selection 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.
Congressional leaders avoided a government shutdown Wednesday after both the Senate and House of Representatives voted on a spending bill that will keep the government funded through Dec. 11.
President Barack Obama has said he will sign the legislation. The government faced the possibility of shutting down Oct. 1 until the interim spending bill was approved.
“The bill before us would keep the government open and allow time for cooler heads to prevail,” Senate Majority Leader Mitch McConnell, R-Ky., said in a statement before the vote.
The stopgap measure funds government at current levels through Dec. 11. While the bill averts a shutdown for now, Republicans and Democrats may find themselves facing a shutdown again in December if they cannot come to terms on spending priorities. In the event of a shutdown, many government functions would be suspended, while those deemed essential or self-supporting would continue operating.
The continuing resolution extends four immigration programs that would have sunset today at midnight: the EB-5 Immigrant Investor program, E-Verify, the Special Immigrant Religious Worker program and the Conrad 30 Waiver program for foreign doctors.
BAL Analysis: Congressional approval of the stopgap spending measure eliminates the possibility of a government shutdown for the time being. However, this short-term extension could set up a difficult budget fight at the end of the year.
Immigrants have filed a federal class action lawsuit against the State Department and the Department of Homeland Security over revisions to the October Visa Bulletin that rolled back eligible dates for several categories of employment-based and family-based immigrants to file applications for green cards.
The named plaintiffs, high-skilled immigrants from India and China, argue that they spent thousands of dollars on medical exams, document preparation, legal fees and other expenses in anticipation of eligibility to file for permanent residency Oct. 1, as published in the original October Visa Bulletin released Sept. 9. Under the revised bulletin, released Sept. 25, they were no longer eligible.
“Defendants broke their promise,” according to the complaint, filed in U.S. District Court in Seattle. The State Department “abruptly revised the Visa Bulletin, significantly altering several of the filing dates, and leaving plaintiffs and potentially thousands of others without recourse.”
The revisions affect nationals of China and India in the EB-2 preference category, nationals of the Philippines in the EB-3 category and nationals of Mexico in the first and third preference family-based categories. The plaintiffs are asking the court to strike down the revised bulletin and compel U.S. Citizenship and Immigration Services (USCIS) to accept applications according to the State Department’s original Sept. 9 Visa Bulletin.
Similar events took place in June 2007, when the State Department issued a Visa Bulletin allowing certain employment-based immigrants to file for green cards, but reversed itself days later. USCIS decided to accept the applications after protests, calls for a Congressional probe and the filing of a class action lawsuit.
BAL Analysis: BAL is continuing to monitor the situation and work with the government on this issue.
Intense activity relating to the Optional Practical Training (OPT) program continues in both the courts and at the Department of Homeland Security (DHS). The OPT program allows foreign students to work after graduating from a U.S. university.
DHS is busy drafting a new regulation in response to the August order by U.S. District Court Judge Ellen Segal Huvelle finding procedural errors in the way DHS promulgated the regulation creating the 17-month OPT extension for science, technology, math, and engineering (STEM) students. Judge Huvelle gave the agency until Feb. 12, 2016 to enact a new regulation through proper rulemaking procedures that include a public notice and comment period. The order was the result of litigation challenging the 17-month STEM extension brought by Washington Alliance of Technology Workers (WashTech), a union that opposes most high-skilled immigration programs. The judge’s determination that DHS has legal authority to allow foreign graduates of U.S. universities to work in the U.S. was seen as a significant victory for the federal government, as it paves the way for the administration to extend and expand OPT.
Meanwhile, WashTech has filed an appeal in the U.S. Court of Appeals for the District of Columbia challenging almost every aspect of the judge’s ruling. The issues on appeal include the court’s holding that DHS did not exceed its statutory authority by allowing OPT, the standard of review the court applied, and the decision to give DHS until Feb. 12, 2016 to issue a new rule. Notably, WashTech is also appealing the District Court’s earlier ruling that the union did not have standing to challenge the 12-month OPT (non-STEM) program. If the appeals court decides to hear the case on the merits, the litigation could last through next spring.
BAL Analysis: To meet the Feb. 12, 2016 deadline, DHS will have to pursue an accelerated timeframe for finalizing the STEM OPT regulation. Immigration and Customs Enforcement (ICE), the agency that administers the F-1 visa and OPT program, is working with DHS to rewrite the regulation and it is expected that the proposed regulation could be issued as early as next month. Typically, the public will be allowed a 30-day comment period, during which time companies and associations will be able to weigh in on any proposed changes to the OPT program. Companies interested in monitoring or influencing the issue should contact a BAL professional. BAL is continuing to monitor both the regulatory process and the progression of the appeal in this case.
The State Department has revised its October Visa Bulletin, moving back the “Date for Filing” cutoff dates for employment-based immigrants to be eligible to file adjustment of status applications for Chinese and Indian nationals in the EB-2 category and for Philippine nationals in the EB-3 category. Companies and employees should follow the updated Visa Bulletin (dated Sept. 25) to determine whether employees are eligible to file adjustment of status applications beginning October 1, 2015.
The Date for Filing cutoff date for EB-2 China has been revised to Jan. 10, 2013 (from May 1, 2014). For EB-2 India, the Date for Filing cutoff date has been revised to July 1, 2009 (from July 1, 2011). For EB-3 Philippines, the Date for Filing cutoff date has been moved back by nearly five years to Jan. 10, 2010 (from Jan. 1, 2015).
The revised bulletin does not change priority dates for approval of employment-based petitions (“Dates for Approval”) contained in the original October Visa Bulletin.
Below is a summary of the revised October Visa Bulletin:
“Date for Approval” priority dates for employment-based petitions:
“Date for Filing” priority dates for employment-based petitions:
BAL Analysis: The revised bulletin means that fewer employees will become eligible to file adjustment of status applications beginning in October 2015. BAL will be working with clients to notify affected employees and analyze how the latest changes to the Visa Bulletin affect individual and corporate immigration strategies. BAL is also working closely with business trade organizations and through its own relationships with government officials to monitor and influence this important issue.
All employment-based preference categories have reached their quotas for the current fiscal year. As a result, U.S. Citizenship and Immigration Services has announced that it will suspend processing of all employment-based applications for permanent residence and adjustment of status beginning today through Sept. 30, the end of the fiscal year. The agency will resume processing of these applications Oct. 1.
The one-week suspension was expected, as the government typically exhausts the annual visa allocation during the month of September. The announcement today does not change the Visa Bulletin going forward. Under the new Visa Bulletin system, a new set of cutoff dates for filing adjustment of status applications (“Dates for Filing”) will be available, allowing applicants to file for adjustment of status if their priority date is earlier than the filing cutoff date for their preference category and country of origin. The new cutoff dates will provide greater opportunity for immigrants in backlogged categories to be able to file for adjustment of status, and will be available when USCIS determines that more immigrant visa numbers are available than the number of known applicants.
BAL Analysis: Employment-based immigrants who are eligible to file on Oct. 1 should continue to prepare their applications for submission on the earliest eligible filing date.
The possibility of a government shutdown looms over Washington, as Congress continues to wrangle over the federal budget and spending priorities.
If no agreement is reached, a number of government functions would be suspended Oct. 1. As with past shutdowns, nonessential programs would be suspended, while those that are self-funding or deemed essential would continue operating.
The following is a department-by-department breakdown of the impact a shutdown would have on key immigration-related services:
Department of Labor
In the Department of Labor (DOL), Office of Foreign Labor Certification (OFLC) workers would be furloughed. This means OFLC would be unable to accept or process applications, including Labor Condition Applications (LCAs), and applications for Prevailing Wage Determinations, Temporary Employment Certification and Permanent Employment Certification.
Board of Alien Labor Certification Appeals (BALCA) judges would be unable to hear or decide cases, and previously scheduled hearings would be rescheduled.
Department of Homeland Security
Fewer operations would be affected in the Department of Homeland Security than in DOL.
Immigration and Customs Enforcement detention and enforcement operations would be unaffected, and U.S. Citizenship and Immigration Services (USCIS) would continue processing applications and petitions. USCIS applications requiring an LCA, however, could be affected because of the DOL furloughs.
E-Verify would likely be put on hold, and the CIS Ombudsman’s Office would likely close.
Department of State
The State Department would likely continue processing visas, at least while funds that do not expire Oct. 1 are available. Domestic and overseas consular operations would remain operational, so long as there are sufficient fees to support operations.
U.S. Passport offices could be more significantly affected. Passport services located in federal buildings that close could be suspended. Depending on the length of a possible government shutdown, visa and passport processing could be significantly delayed. People with serious medical or other emergencies would be prioritized.
Department of Justice
The Executive Office of Immigration Review (EOIR) detained docket would likely be considered essential and would continue operations. Criminal litigation would be excepted and would continue without interruption. Civil litigation, including removal processing, could be curtailed or suspended during a shutdown, however.
BAL Analysis: While lawmakers are down to their last week to reach a deal to avert a shutdown, it should be noted that deals are often struck at the 11th hour—and a government shutdown is by no means a certainty. Congress may opt to vote on a “continuing resolution,” which would fund the government at current levels for a short period in order to buy more time for Congress to agree on a budget resolution. Those in need of urgent services that would be affected by a shutdown should submit applications or filings before Oct. 1 if possible. BAL will continue to provide updates on the possible government shutdown and its impact on immigration-related services.
IMPACT – MEDIUM
What is the change? Immigration Rules published Sept. 17 adopt the Home Office’s proposed changes to add smaller salary bands within the points table and to allow unused Certificates of Sponsorship (CoS) to be reclaimed after three months and put back into the pot. The changes allow more effective operation of the monthly allocation cycle for Restricted Certificates of Sponsorship (RCoS).
What does the change mean? These new rules apply to decisions made on or after Oct. 12 (i.e., for RCoS requests submitted by Oct. 5) and should have a positive impact on the number of Tier 2 RCoS’s allocated in October and thereafter. The changes should allow the Home Office to maximize the allocation of Tier 2 visas every month and clear the backlog created over the last four months, while leaving in place the annual limit of 20,700.
Background: The rules were announced earlier this month as provisional, and have now been finalized. The changes introduce smaller salary ranges within the points-awarding table that is used to determine whether Tier 2 RCoS’s are granted or rejected. Points are awarded for the type of job and additional points are granted for shortage occupations, Ph.D.-level roles (as a priority) and thereafter for the salary offered (the higher the salary, the greater the likelihood of receiving an RCoS). Under current rules (set for change on Oct. 12), when the monthly cap is exceeded by more than 100 applications, large numbers of applications may be refused even if there is room within the monthly limit because U.K. Visas and Immigration must refuse applications scoring the same number of points at the relevant level in order to treat all applications equally. The greater number of salary bands will allow greater flexibility.
The rules will also allow the secretary of state to reclaim unused RCoS’s before they expire (after three months) and return them to the limit, so that all RCoS’s that are allocated are actually used.
The new salary table may be viewed here.
BAL Analysis: Tier 2 employees in the lower salary ranges should have better chances of obtaining a slot in October’s allocations. The Home Office noted earlier this month that if the rules are adopted, the UKVI may need to make changes to its computer systems, which could delay the opening of the panel by a few days. BAL will keep clients updated on a case-by-case basis.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.