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A computer glitch is affecting applications for PERM labor certification, the Department of Labor confirmed Monday.
The problem is preventing online completion of ETA Form 9089 and may cause delays in PERM processing while the agency works to correct the issue.
The technical issue occurred Sept. 1 during a software upgrade to the Department of Labor’s case management system. Employers whose forms were not able to be completed between Sept. 1 and Sept. 11 are asked to submit documentation that their ETA Form 9089 was impacted by the technical issue by Sept. 30. All other applications that are unable to be completed due to the computer problem should be submitted by mail.
BAL Analysis: BAL will assist employers with the documentation request and alternative filings for those impacted by the glitch. Meanwhile, employers should anticipate possible delays in PERM labor certification processing.
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.
IMPACT – MEDIUM
What is the change? Mexico has taken steps to make it easier for U.S. nationals and other visa-exempt travelers to cross the U.S.-Mexico border when traveling by land.
What does the change mean? U.S. nationals and other visa-exempt travelers will be able to complete a Multiple Migratory Form (FMM) and pay the required fee online prior to travel rather than at the border.
Background: Prior to the change, U.S. nationals and other visa-exempt travelers crossing into Mexico had to complete an FMM and pay the required government fee of 332 Mexican pesos (USD$20) at the border. They can now do so online prior to travel and will be able to reduce wait times at the border. Those hoping to take advantage of the new program must have a passport with at least six months of validity remaining and must also be exempt from Mexico’s visitor visa requirement. A complete list of those who are visa exempt is available here.
BAL Analysis: The change will streamline border-crossing processes and will be particularly beneficial for business travelers and tourists living near the U.S.-Mexico border.
This alert has been provided by the BAL Global Practice group and our network provider located in Mexico. For additional information, please contact your BAL attorney.
Several immigration-related priorities will be on the Congressional agenda as members return from August recess. Four important immigration programs are scheduled to expire, or “sunset,” Sept. 30 – the EB-5 Immigrant Investor program, E-Verify, the Special Immigrant Religious Worker program, and the Conrad 30 Waiver program. However, Congress is expected to reauthorize each of these programs.
EB-5 Immigrant Investor
Three bills have been introduced in Congress to reauthorize the EB-5 Immigrant Investor program, which has been the subject of controversy over the past year as allegations of improper influence by government officials prompted inquiries during congressional oversight hearings.
Commonly known as the “investor visa,” the EB-5 allows entrepreneurs to apply for green cards if they make a substantial investment in a commercial enterprise in the U.S. and demonstrate that they will create or preserve 10 permanent full-time jobs for U.S. workers.
On Jan. 28, Reps. Jared Polis (D-Colo.) and Mark Amodei (R-Nev.) introduced the “American Entrepreneurship and Investment Act of 2015” (H.R. 616), and on July 29, Reps. Zoe Lofgren (D-Calif.) and Luis Gutierrez (D-Ill.) introduced the “Entrepreneurial Business Creating Jobs Act of 2015” (“EB-JOBS Act of 2015,” H.R. 3370). While both House bills would permanently reauthorize the program, the EB-JOBS Act would create a path to a green card for start-up entrepreneurs who are backed by venture capital or self-sponsored. In the Senate, Sens. Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa) introduced the “American Job Creation and Investment Promotion Reform Act of 2015” (S. 1501) on June 3. This bill would reauthorize the program until 2020 and, among other reforms, would increase government oversight and transparency, require higher minimum investment amounts, and allow EB-5 investors with current priority dates to file green card applications concurrently with their EB-5 petitions.
E-Verify
A number of bills have been introduced to either extend the E-Verify program or permanently reauthorize it.
The EB-JOBS Act of 2015 would reauthorize the E-Verify program until Sept. 30, 2020. Other bills that would permanently reauthorize E-Verify and alter its structure include the “New Illegal Deduction Elimination Act” (“New IDEA Act,” H.R. 841) introduced by Rep. Steve King (R-Iowa) on Feb. 10, and the “Accountability Through Electronic Verification Act” (S. 1032) introduced by Grassley on April 21.
E-Verify is the electronic system that employers use to verify employees’ authorization to work in the U.S. The system compares information from an employee’s Form I-9, Employment Eligibility Verification, to U.S. Department of Homeland Security and Social Security Administration data. Certain employers who enter into contracts with the federal government are legally required to participate in E-Verify, and many states have enacted laws mandating wider participation.
Religious Workers
The Special Immigrant Religious Worker program allows ministers and non-ministers in religious vocations and occupations to obtain green cards to perform full-time, paid religious work in the U.S. Sen. Orrin Hatch (R-Utah) introduced a bill, S.1339, on May 14 that would make this program permanent. Additionally, the EB-JOBS Act of 2015 would reauthorize the program until Sept. 30, 2020.
Conrad 30 Waiver (Foreign Doctors)
The Conrad 30 Waiver program allows medical doctors present in the U.S. on the J-1 visa to apply for a waiver of the requirement that they return to their foreign residence for two years after completing the J-1 exchange visa program. On May 5, Sen. Amy Klobuchar (D-Minn.) introduced the “Conrad State 30 and Physician Access Act” (S. 1189), which would make this program permanent and expand it. On March 31, Rep. Ami Bera (D-Calif.) proposed the “Doctors Helping Heroes Act of 2015” (H.R. 1272), which would also make the program permanent. In addition, the EB-JOBS Act of 2015 introduced by Lofgren in July would permanently reauthorize the program.
BAL Analysis: BAL anticipates that the four programs will be reauthorized, but that significant changes to the programs are unlikely because of legislative scheduling and political forces.
The limited number of legislative days in September will likely hamper the ability of Congress to reach agreement on any significant changes by the Sept. 30 deadline. The Senate will be in session for 15 days before the programs expire, while the House currently has only 10 legislative days scheduled.
The programs have not been changed in recent years. They were previously set to expire on Sept. 30, 2012 and were ultimately reauthorized without any changes in a procedural bill signed into law by President Obama on Sept. 28, 2012. The previous reauthorization and the limited amount of time remaining before the Sept. 30 deadline render it unlikely that members of Congress will make significant changes to the programs.
If the political environment tolerates any changes to immigration legislation, changes are most likely to occur in the reauthorization of the EB-5 Immigrant Investor program, evidenced by the bipartisan bill that has been introduced in the Senate. Grassley, chairman of the Senate Judiciary Committee, has joined Leahy, a strong proponent of the program due to the number of EB-5 developments in the state of Vermont, in introducing the American Job Creation and Investment Promotion Reform Act of 2015 (S.1501). Staff have been working behind the scenes to explore potential changes that could both broaden eligibility and reduce potential fraud in the program. However, due to the short legislative window, any changes would likely need unanimous consent in the Senate.
The U.S. Department of State (DOS) released a new, revised October Visa Bulletin today. In coordination with U.S. Citizenship and Immigration Services (USCIS), DOS is revising existing procedures for determining visa availability for applicants waiting to file for immigrant visas. Under changes to the system, separate cut-off dates will be set for the filing of permanent residence petitions. This change will benefit a large number of applicants, particularly in the China and India EB-2 and EB-3 categories, who will now be able to file applications for permanent residence sooner than was possible under the previous system.
Beginning in October, the Visa Bulletin will include two separate cut-off dates for each backlogged preference category: (i) a cut-off date that identifies whether immigrant visas remain available for filing an application to adjust status with USCIS (“Dates for Filing Visa Applications”) or submitting paperwork to the National Visa Center for a consular application; and (ii) a cut-off date that will control whether a visa number remains available for issuance such that USCIS or DOS may approve an immigrant visa or application to adjust status (“Application Final Action Dates”).
A detailed Policy Analysis can be found here.
Workers from backlogged countries such as China and India will benefit in the interim from the new structure that will allow many workers to file adjustment of status applications. The cut-off date for filing permanent residence or adjustment of status applications for EB-2 China will be May 1, 2014 and for EB-3 China the date will be Oct. 1, 2013. The cut-off date for filing for the EB-2 India category will be July 1, 2011, and for workers in the EB-3 India category the date for filing will be July 1, 2005. The date for filing for EB-3 Philippines will move forward eight years to Jan. 1, 2015.
Under this new system, once the applications have been filed, USCIS will be able to adjudicate the applications for employment and travel documents. The applicant’s priority date for approval will need to become current under the approval chart (see top chart below) before the adjustment of status or permanent residence application may be adjudicated and DOS can issue a visa.
Below are the October priority dates.
Priority dates for approval of employment-based petitions:
Priority dates for filing employment-based adjustment of status applications:
BAL Analysis: The new, revised visa bulletin is a significant change to the green card process. The advancement of cut-off dates for filing of the adjustment of status application is an important step because it will allow workers and their dependents to apply for employment and travel benefits if their priority date is before the cut-off date. In addition, the worker may be eligible for green card “portability” once the adjustment of status application has been pending for more than six months.
However, numerous questions remain unanswered. For example, the government has not yet shared specific information about how it will calculate when it has received a sufficient number of applications such that it will cut off new adjustment of status filings. It is therefore difficult to predict how the new process will work on a long-term basis and what its impact will be on employees caught in the lengthy green card backlog.
BAL is carefully following this new development and will provide new updates as they come in.
Employment Authorization Document (EAD) cards and Lawful Permanent Resident (LPR) cards are taking longer than normal to issue, due to a production backlog at the cards’ manufacturer.
Applicants who have filed petitions for employment authorization and/or permanent residence should expect delays of two to three weeks in receiving their cards after receiving notification of approval. The manufacturer is undergoing maintenance and transferred its productions to another facility, resulting in a backlog. It is expected to be cleared by sometime next month.
BAL Analysis: Applicants with approved I-765 applications are reminded that they are required to wait to receive their EAD card before starting work, except in the case of STEM extensions.
Travelers should expect long delays at ports of entry on the U.S.-Canada border Sept. 4-7 due to the Labor Day holiday weekend, celebrated in both countries.
U.S. Customs and Border Protection advises travelers to consider entry routes that are less popular. For advisories and wait times at U.S.-Canada border crossings, travelers may use the CBP Border Wait Times tool.
Travelers enrolled in Trusted Traveler Programs, including NEXUS, SENTRI, and Global Entry, can take advantage of expedited processing at ports of entry. While enrollment in these programs takes several months and is unlikely to be obtained prior to the holiday, travelers should consider applying at the Global Online Enrollment System’s registration page in order to expedite future travel.
BAL Analysis: Travelers crossing the U.S.-Canada border on Labor Day weekend should plan accordingly and expect significant delays due to high traffic volume.
The number of E-3 visas the U.S. issues to Australian nationals has soared in recent years – and certain E-3 applications appear to be drawing more scrutiny.
E-3 visas are reserved specifically for Australian nationals filling specialty occupation roles. The number of E-3 visas the State Department issued rose by 79 percent, from 4,942 in the 2011 fiscal year to 8,834 in 2014. The number of visas denied has also gone up, with denial rates fluctuating between 9.4 and 11.4 percent since 2010.
* Includes E-3, E-3D and E-3R visas.
Though denial rates have not changed dramatically, BAL has seen anecdotal evidence of a trend toward increasing scrutiny of certain E-3 applications.
In particular, U.S. consulate officials in Australia seem to be more closely scrutinizing the question of what constitutes a “specialty occupation,” a requirement that must be met for a successful E-3 application. Applications listing general positions in the administrative, general or operations manager classification may face greater scrutiny, especially where the applicant’s role does not meet the “specialty occupation” threshold. Start-up organizations in which applicants sometimes sponsor each other in managerial level roles also appear to be drawing greater scrutiny.
With the jump in E-3 applications in recent years, it is possible that the annual E-3 cap of 10,500 visas could be reached in the not-too-distant future. It should be noted that the cap applies only to principal E-3 applications, and does not include dependent (E-3D) or renewal (E-3R) applications.
BAL Analysis: BAL will continue to track the increase in E-3 visa applications, including whether the number of annual applications approaches the 10,500 cap. Those applying for E-3 visas should ensure that they will fill a position that qualifies as a “specialty occupation,” a requirement of the E-3 visa that is seemingly facing increasing scrutiny at U.S. consulates abroad. Applicants should also prepare for the possibility that applications may be delayed or denied if officials determine that the position does not meet the appropriate threshold. Contact your BAL attorney with questions regarding job classifications, specialty occupations or any other aspect of the E-3 visa application.
On Tuesday, U.S. Citizenship and Immigration Services issued final guidance regarding L-1B adjudications policy. The L-1B visa category permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the U.S. The new policy memorandum applies to all L-1B petitions pending or filed with USCIS on or after August 31, 2015.
The agency released an earlier version of the policy in March and solicited public feedback. Though the structure of the final guidance remains unchanged, USCIS made several substantive changes that are likely to affect how USCIS adjudicators apply the policy. Below are key changes that companies should be aware of as they prepare for implementation of the new binding policy guidance:
BAL Analysis: In light of the subjective nature of the L-1B visa category, it is difficult to predict how USCIS adjudicators will interpret the nuanced and lengthy 15-page guidance. Though the final policy memorandum retained important provisions, such as affirming the preponderance-of-evidence standard, other provisions could result in sustained or elevated rates of Requests for Evidence (RFEs) or L-1B denials. BAL will continue to work with the agencies and monitor the government’s implementation of the guidance. Clients should consult with their BAL professionals to discuss how the guidance may impact their L-1B programs.
The FBI processing center is experiencing technical difficulties amid a high volume of requests, leading to delays in processing of FBI clearance certificates.
Applicants who submitted requests after May 12 should anticipate wait times of up to 11 weeks from the date of submission, a significant increase from normal processing times of four to six weeks.
BAL Analysis: Applicants should plan for longer processing times in the coming weeks and expect a backlog to develop while the technical problems are addressed.
A federal court has provided U.S. Citizenship and Immigration Services six months to correct its rulemaking procedures related to regulations allowing F-1 students in science, technology, engineering, and mathematics (STEM) fields to extend their optional practical training (OPT). Although the court found that the regulations were improperly passed as emergency rulemaking in 2008 and should have been subject to public notice and comment, the court noted that immediate action would cause a substantial disruption to U.S. businesses and its OPT employees and, therefore, the agency should be given time to re-issue the OPT-STEM regulations.
Despite invalidation of the current rule, the court did find that DHS’ interpretation of F-1 visa provisions that allow for OPT extension were reasonable in light of the agency’s broad authority to regulate the stay of nonimmigrants and Congress’ long-standing acknowledgement that foreign students may engage in practical training. The court’s finding gives deference to DHS’ authority to continue issuing regulations for OPT extension, provided it uses the proper rulemaking process.
According to DHS, approximately 70,000 F-1 students were in the OPT program in 2008 and one-third had earned degrees in STEM fields.
BAL Analysis: The court delayed the effective date of its ruling to allow the government time to issue new regulations and to avoid any disruption in the work authorization of F-1 STEM students. This is welcome news as it signals a desire by the court to avoid any adverse impact on current F-1 students who relied upon the existing regulation. Because the administration has already been working on a new regulation, it is expected that OPT options for STEM graduates will continue without interruption and may even be expanded. The contours of that new regulation will be finalized in the next few months and companies interested in monitoring or influencing the issue should get in touch with a BAL professional.
For more BAL coverage on the OPT-STEM regulations, please see:
Federal lawsuit challenges Optional Practical Training Program for foreign students
DHS releases additional details on proposed OPT program changes