Search
Contact
Login
Share this article
The priority date for Chinese nationals in the EB-2 category will retrogress by almost eight years from Dec. 15, 2013 to Jan. 1, 2006, according to the State Department’s September Visa Bulletin. For Indian nationals in the EB-2 category, the priority date will retrogress by two years and nine months, from Oct. 1, 2008 to Jan. 1, 2006. In other EB-2 categories, Mexico, the Philippines, and the Rest of World will remain current.
The retrogression in the EB-2 categories for China and India in September are in great part due to the limited number of remaining available immigrant visas for the current fiscal year, which ends on Sept. 30. Swings in priority dates are common when the end of the fiscal year approaches because the State Department makes adjustments to the priority dates based on the remaining available visa numbers to be issued for the last month of the fiscal year.
EB-3 categories, meanwhile, will all see advancements. China, India, and the Philippines will advance significantly by almost seven months from June 1, 2004 to Dec. 22, 2004. For China, the advancement follows a retrogression of more than seven years in the August Visa Bulletin. The Rest of World and Mexico will advance by one month from July 15, 2015 to Aug. 15, 2015.
All EB-1 categories will remain current.
Summary of September 2015 Visa Bulletin:
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.
An employer petitioning for permanent labor certification is not required to publish job ads in the largest newspaper in the intended area of employment, the Board of Alien Labor Certification Appeals has ruled in overturning a certifying officer’s denial of labor certification.
“Nothing in the regulations requires an employer to use the newspaper with the highest circulation in the area of intended employment, nor does anything in the regulations require an employer to use a newspaper published closest to the area of intended employment,” the Board said in an Aug. 5 written ruling.
The employer sought PERM labor certification for a director of operations to work in Pharr, Texas. To fulfill its job ad requirement, the company took out ads in the San Antonio Express-News. The certifying officer denied labor certification, finding that because San Antonio is four hours away from Pharr, and not within normal commuting distance, the employer failed to advertise “in a newspaper of general circulation in the area of intended employment,” as required by regulations.
On appeal, BALCA reversed the certifying officer’s decision. The board found that because the Express-News is a newspaper of general circulation in Pharr, the employer satisfied its mandatory print advertising requirements. The fact that the Express-News is not published in Pharr or that another newspaper may have a wider circulation in Pharr, where the work would be performed, was irrelevant, the Board said.
“When, as here, a single area of intended employment is served by more than one newspaper, regardless of where each newspaper is published, and each of those newspapers is available to and reaches substantially the same audience, the (certifying officer)’s task should not be deciding which paper reaches the most people, but rather whether the newspaper in which the required advertisements were placed reaches the intended audience and thus is ‘a newspaper of general circulation in the area of intended employment,’” the Board held.
BAL Analysis: The BALCA ruling reaffirms that an employer satisfies the mandatory print ad requirements for labor certification by taking out ads in a newspaper that circulates in the intended job location even if it is not published from that location or if other newspapers have higher circulation in that location. Employers do still need to ensure that they are placing ads in the “most appropriate” newspaper, as this ruling was limited to the issue of whether the newspaper was a “newspaper of general circulation in the area of intended employment.”
After a gun battle erupted outside the U.S. Consulate General in Istanbul on Monday, the office announced it will be closed to the public until further notice.
A notice on the U.S. Embassy’s website warns individuals to avoid the area and travel with heightened security awareness. U.S. citizens traveling to or residing in Turkey are advised to enroll in the State Department’s Smart Traveler Enrollment Program for up-to-date news and travel warnings.
Attackers reportedly opened fire in front of the consulate, and police responded with gunfire before the assailants ran away. The attack is believed to have been related to Turkey‘s recent agreement to allow U.S. aircraft to land there and to deepen cooperation on military operations against the terrorist group Daesh, or ISIS.
BAL Analysis: Individuals requiring services or appointments at the U.S. Consulate in Istanbul should contact the embassy or consulate for further information.
On Thursday, the Department of Homeland Security announced stricter rules for international travelers entering the United States on the Visa Waiver Program (VWP).
These travelers will be required to use e-passports containing a biometric chip, and passports will be screened against a list of lost and stolen passports worldwide. Most countries have begun issuing biometric passports; however, some older passports may not comply with the new rules. U.S. federal air marshals will also begin appearing more frequently on international flights originating from VWP countries.
Citing the growing threat of foreign terrorists, DHS Secretary Jeh Johnson said that the measures would enhance the security of the Visa Waiver Program without hindering trade and travel. The program currently includes 38 countries, and allows eligible business travelers and tourists to enter the U.S. without a visa for up to 90 days. Travelers undergo a mandatory electronic screening process before being registered in the program.
BAL Analysis: Travelers using the Visa Waiver Program should make sure that their passports conform to the new requirements before making travel arrangements to the U.S.
The State Department said Friday that plans to upgrade its computer systems this weekend have been postponed. The scheduled maintenance had prompted embassies and consulates around the world to cancel visa appointments scheduled for today or Monday.
“The planned upgrade has been postponed and will be rescheduled,” a U.S. State Department Bureau of Consular Affairs spokesman said in an email Friday morning.
As of late Friday afternoon, some U.S. embassies had removed notices that they would be closed or would offer limited services today through Monday. Others indicated that they would remain closed.
It is not the first time in recent months that foreign nationals have had to postpone plans to obtain U.S. visas: In June, U.S. embassies and consulates were left unable to issue visas for nearly two weeks when a computer problem crippled biometric data processing.
BAL Analysis: Anyone in need of visas or other services at U.S. diplomatic posts abroad should be sure to check with the appropriate embassy or consulate about what services will be available Monday. While the planned system maintenance has been postponed, services may still be limited. BAL will notify clients when it receives information about the State Department’s plans for rescheduling its system maintenance.
U.S. embassies and consulates around the world have said they will suspend visa appointments on Aug. 7 and 10 because of scheduled maintenance to the State Department’s systems. Normal operations are expected to resume Aug. 11.
Foreign nationals with interviews scheduled for Aug. 7 or 10 who have not had their appointments automatically rescheduled should contact the appropriate embassy or consulate about whether they need a new appointment.
American citizen services may be affected on Aug. 7 and 10, depending on the consulate. Emergency services are not expected to be affected.
News of the scheduled outage comes after U.S. embassies and consulates were left unable to issue visas for nearly two weeks in June when a computer problem crippled biometric data processing.
BAL Analysis: Foreign nationals with interviews originally scheduled for Aug. 7 or 10 should contact the appropriate embassy or consulate as soon as possible about whether they need to reschedule their appointments. Foreign nationals should also prepare for possible delays in the days immediately following the outage.
President Barack Obama announced last week that the United States will provide visas valid for five years to Kenyan business travelers and students, and that Kenya would reciprocate by providing five-year visas to U.S. travelers.
“We will extend student and business visas for up to five years for Kenyans traveling to the United States and for Americans traveling to Kenya,” Obama said during a visit to Kenya. “This will make it easier for university students to complete their studies and for businesses to make long-term plans.”
Obama’s announcement did not include an implementation date. Currently, U.S. business visas are valid for one year and student visas are based on the duration of the student’s coursework.
Obama also said the U.S. and Kenya are working establish direct flights between the two countries as soon as possible.
BAL Analysis: The arrangement announced late last week should improve visa procedures and facilitate business and other travel between the U.S. and Kenya. The elimination of the need to annually renew visas is good news for people who travel frequently between the two countries.
This alert has been provided by the BAL Global Practice group and our network provider located in Kenya. For additional information, please contact your BAL attorney.
U.S. Citizenship and Immigration Services is recalling some three-year employment authorization documents erroneously issued under the Deferred Action for Childhood Arrivals program after Feb. 16, the date a federal judge temporarily suspended an expansion of the program.
Employers and employees should be aware that the recall does not affect all DACA recipients who received employment authorization after Feb. 16, but certain individuals must take action immediately.
Individuals who have been contacted by phone, letter or in person by the agency must immediately return their three-year Employment Authorization cards to their local USCIS office. Those who do not return their cards will have their DACA and employment authorization terminated as of July 31. The recall generally does not affect DACA recipients who obtained employment authorization on or before Feb. 16.
DACA recipients who received three-year employment authorization cards after Feb. 16 but have not received notice from USCIS should contact the agency immediately. USCIS has created an online tool and a customer service line (1-800-375-5283) for individuals to verify whether they are required to return their cards.
The recall covers approximately 2,100 employment authorization cards issued after Feb.16 and an additional 500 cards originally issued before Feb. 16 but returned to USCIS as undeliverable and remailed to recipients after Feb. 16. The cards were issued in violation of a court order in an ongoing lawsuit by 26 states seeking to permanently block President Barack Obama’s immigration executive actions. The executive actions sought to expand the original DACA program and lengthened the validity of employment authorization from two years to three years. After the court temporarily blocked the expanded program, USCIS discovered that it had issued the longer three-year cards in error. The lawsuit remains pending.
BAL Analysis: Employers verifying employment status of known DACA recipients should be aware of the limited recall. Individuals who have been notified by USCIS should return their cards immediately or risk termination of their status. Individuals who received three-year employment authorization (or authorization exceeding two years but less than three years) after Feb. 16 but have not been contacted should check their status via the phone line or online tool.
Requests for evidence (RFEs) remain high for H-1B and L-1 petitioners, according to an annual review of U.S. Citizenship and Immigration Services by the CIS Ombudsman in a report to Congress. RFE rates in the H-1B and L-1 categories at both the California Service Center and Vermont Service Center remain at or near historic highs, the report said.
In many cases, the RFEs appear to be redundant, seek documentation provided previously, and request information that is irrelevant or exceeds what is needed to complete the adjudication, or are unduly burdensome in scope or intrusiveness, the report found.
In the L-1B category, nearly half of all petitions received RFEs, and denial rates reached 35 percent. Forty-one percent of extensions requests were denied.
The report also addressed specific issues and recommendations:
H-1B adjudications The Ombudsman cited ongoing misapplication of the Occupational Outlook Handbook by adjudicators deciding whether an H-1B petition is for a specialty occupation, pointing out cases where computer programmers and marketing analysts were deemed not to be categorized as “specialty occupations” based on inappropriate reliance on statements in the handbook.
Simeio decision The report addressed business concerns about USCIS’s interpretation of the precedent decision in Matter of Simeio Solutions requiring employers to file amended H-1B petitions when an H-1B employee changes workplace locations.
The Ombudsman noted that large employers have expressed concerns that “the decision could cost them millions in additional legal fees and filing costs.”
L-1A petitions In L-1A transfer petitions for managers and executives from a foreign office to a new office in the U.S., petitions face frequent RFEs and denials, based on an “undue emphasis” on whether the beneficiary is too closely connected to the hands-on production work or services offered by the petitioning entity, the Ombudsman found. The report also recommended USCIS provide guidance to L-1A adjudicators to address a new paradigm in which petitioning organizations have fewer layers of management between the beneficiary and line workers than in the past.
L-1B petitions While noting that the L-1B RFE and denial rates, especially for extension applications, were troubling, the Ombudsman acknowledged that guidance on L-1B adjudication will take effect Aug. 31 and said it will withhold further comment until after implementation.
Low success rates for appeals Less than 10 percent of appeals of business-related agency decisions to the Administrative Appeals Office are successful, causing delay and negative impacts on sponsoring employers and beneficiaries, the report said.
It noted that instead of utilizing the burdensome appeals process, employers often make calculated business decisions whether to abandon hiring a beneficiary or refile a petition, hoping that a different adjudicator will issue an approval based on the same documentation.
“Until petitioners become more confident that the agency’s administrative appeals process will afford them fair, meaningful, and timely review of the underlying decision, this course of action may remain underutilized,” the Ombudsman concluded.
Delays in Employment Authorization In response to complaints about delayed issuance of employment authorization documents, the Ombudsman said the delays are seasonal, occurring during the summer months when it is high season for students applying for OPT and cyclical renewals by other applicants.
The Ombudsman recommended that the agency shift resources during peak season, conduct uniform sweeps of its EAD caseload as the 90-day adjudication window closes, and remind EAD applicants to file 120 days before their existing work authorization expires.
Employment-based immigrant visas The Ombudsman cited ongoing backlogs for those awaiting immigrant visas in employment-based preference categories, and recommended USCIS publish data on the percentage of petitions adjudicated within the posted processing time.
“[A] more transparent methodology for calculating processing times would better inform applicants, manage expectations, and help conserve USCIS resources that currently are directed to responding to requests for case status,” the report said.
The Ombudsman also noted that the agency does not have a system to track when a petitioner chooses to upgrade or downgrade from one preference category to another, and suggested that a better tracking and communication system would benefit employers and assist the State Department in more precisely setting priority cut-off dates every month.
U.S. Citizenship and Immigration Services has released final guidance clarifying the manner in which the Administrative Appeals Office precedent decision Matter of Simeio Solutions will be implemented.
The final guidance states that as of today, July 21, if an employer’s H-1B employee moved to a new area of employment on or before April 9, 2015, the date of the decision, USCIS will generally not pursue new adverse actions (i.e., denying or revoking a petition) solely based on the employer’s failure to file a new or amended H-1B petition. However, any adverse actions taken or commenced by USCIS prior to July 21 will remain in effect. Employers may choose to file new or amended petitions for work location changes that took place on or before April 9, so long as they file by Jan. 15, 2016. USCIS will consider such petitions timely filed.
For location changes that occurred after April 9 but before Aug. 19, the guidance clarifies that employers are required to file new or amended H-1B petitions by Jan. 15, 2016. If an employer fails to file a new or amended petition by this deadline, both the employer and the H-1B employee will be out of compliance and subject to adverse action.
For changes that occur after Aug. 19, employers must file an amended or new petition before an H-1B employee may begin working at a new place of employment that is not covered by an existing, approved H-1B petition.
USCIS had previously issued draft guidance in May, stating that the decision would apply to location changes that took place prior to the Simeio Solutions decision and requiring employers to file new or amended petitions to reflect those changes by Aug. 19. USCIS invited stakeholders to comment on the draft guidance.
The final guidance released today also confirms that if an employer’s amended or new H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition if he or she is able to maintain valid nonimmigrant status there. Additionally, an employer may file another amended H-1B petition while an amended H-1B petition is pending, so long as every amended petition meets the requirements for H-1B classification and any requests for extensions of stay. If the H-1B employee’s status expires while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.
BAL Analysis: This final guidance is welcome news for companies. However, USCIS has not eliminated an adjudicator’s ability to take adverse actions based on an employer’s failure to file a new or amended petition for worksite changes that took place prior to the Simeio Solutions decision. Please consult with your BAL professionals for advice on these issues.