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The U.S. Department of Homeland Security is planning greater oversight of colleges and universities that recommend foreign students for work authorization through the Optional Practical Training (OPT) program.
Educational institutions and designated school officials (DSOs) should expect to have greater monitoring, record-keeping and reporting responsibilities in overseeing students working under OPT.
The increased scrutiny follows a U.S. Government Accountability Office investigation into the program, prompted in part by response to the Boston Marathon bombings last year, which identified a need for renewed attention on monitoring foreign students. The GAO’s report made the following recommendations to Immigration and Customs Enforcement:
Under a separate initiative, the Student and Exchange Visitor Program (SEVP), a unit of Immigration and Customs Enforcement (ICE), recently trained its first group of field representatives who began making visits last month to schools that enroll foreign students with F or M visas.
OPT allows foreign students on F-1 visas to obtain temporary authorization for work that is directly related to their major fields of study after graduating from an American college or university. Approximately 10 percent of the roughly 1 million foreign students in the U.S. have been approved for OPT.
BAL Analysis: The GAO report, the training of personnel to visit DSOs, and DHS’ promise to integrate the SEVIS database with other border-control systems are all signs that the government plans to enhance thin oversight and enforcement of foreign students’ legal status and work authorization.
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.
BAL Government Affairs has released an analysis of the administration’s regulations on high-skilled immigrants. As BAL reported on May 6, U.S. Citizenship and Immigration Services announced two proposed rules aimed at attracting and retaining high-skilled immigrants.
The first proposed rule would extend work authorization to certain H-4 spouses of H-1B nonimmigrant workers. The second would relax restrictions on employment authorization for other categories of high-skilled immigrants and expand evidentiary criteria for EB-1 outstanding professors and researchers.
Please see the attachments below for the BAL Government Affairs summary analyses of each proposal.
H-4 Spousal Authorization Regulation
Regulation to Enhance Opportunities for Highly Skilled Workers, H-1B1, E-3, and EB-1 (Professors and Researchers)
U.S. Citizenship and Immigration Services (USCIS) has clarified its new policy on the validity period of Form I-693 Medical Exams required for adjustment of status applications.
The new policy, explained in a public engagement by USCIS last week, applies to applications adjudicated on and after June 1, regardless of whether they were filed before that date. Under the new policy, Form I-693 now expires one year after the form is received by USCIS. In addition, the policy imposes a filing deadline: applicants must file Form I-693 less than one year from the date of the medical exam.
Applicants whose Form I-693 expires and must obtain a new medical exam must also get new vaccinations.
The three ways to submit Form I-693 are:
In addition, applicants may submit Form I-693 before an RFE is issued or an interview is scheduled.
Submitting Form I-693 together with the I-485 will tend to streamline the application process, but may also make it more likely that the applicant must repeat a medical exam, whereas applicants who file Form I-693 before an RFE or interview is scheduled are less likely to have to repeat a medical exam, but may face delays in USCIS matching the form to their adjustment of status application. Therefore, applicants opting to file a medical exam as a stand-alone mailing (without Form I-485 or RFE) should include their Alien Registration Number.
BAL Analysis: USCIS held the engagement to provide guidance and hear feedback. One way to alleviate the potentially thousands of costly repeat medical exams under this new policy would be for USCIS to limit the new policy to applications filed after June 1, rather than those it adjudicates after June 1. Additionally, USCIS currently does not a have a dedicated address to accept repeat medical exams that are submitted without an I-485 or RFE, so delays and confusion may occur.
The priority date for Indian nationals in the EB-2 (employment-based second preference) visa category for India will move forward significantly by approximately four years from Nov. 15, 2004 to Sept. 1, 2008, according to the July 2014 Visa Bulletin.
This past April, Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State had predicted the sharp advance of EB-2 India in addressing members of the American Immigration Lawyers Association (AILA). The category will make use of unused visa numbers for the rest of the fiscal year.
In other categories, EB-2 China will move forward less than two months, from May 22, 2009 to July 1, 2009. There is also a substantial advancement in the EB-3 category for workers from the Philippines. The priority date cut-off for Philippines will jump forward one year to Jan. 1, 2009 (from Jan. 1, 2008). The EB-3 category for India will advance approximately two weeks to Nov. 1, 2003. The EB-3 category will remain unchanged for other countries. The EB-1 category for all countries will remain current.
Summary of July 2014 Visa Bulletin priority date cut-offs:
EB-1 Current across all countries
EB-2 China: July 1, 2009 India: Sept. 1, 2008 All other countries: Current
EB-3 China: Oct. 1, 2006 India: Nov. 1, 2003 Mexico: April 1, 2011 Philippines: Jan. 1, 2009 All other countries: April 1, 2011
The U.S. Supreme Court has ruled that the Child Status Protection Act does not allow minor children who are derivative beneficiaries of an immigrant petition to retain the original priority date of the principal beneficiary.
The Court’s decision in Scialabba v. Cuellar de Osorio interprets a provision of the Act, 8 U.S.C. §1153(h), that addresses the issue of children who qualify as under the age of 21 for a green card petition but who “age out” by the time a visa becomes available. The ruling only affects certain child beneficiaries who age out; the statute still protects most children.
The case involved parents who were the principal beneficiaries of a family-based petition. After becoming lawful permanent residents, they filed for their aged-out children, arguing that the newly filed petition should receive the same priority date, or filing date, as their original petitions. They pointed out that the Act provides for “automatic conversion” of an aged-out child beneficiary’s petition to another appropriate adult category without any other changes, such as a change in the priority date.
The Board of Immigration Appeals disagreed, ruling that the Act only mitigates the aging out of children who are principal beneficiaries of the original petition, not the children in this case who are “derivative beneficiaries.”
On appeal, the en banc U.S. Court of Appeals for the Ninth Circuit held that the “automatic conversion” applied to all beneficiaries, including derivative beneficiaries, who age out while waiting for an available visa number.
But the Supreme Court reversed in a 5-4 ruling. Three justices said that the Act was ambiguous, and if the “automatic conversion” applied to derivative beneficiaries it would require finding a new qualifying sponsor and allowing aged-out derivative beneficiaries to cut in line ahead of those who have had qualifying relationships for a far longer time. Two justices concurred in the judgment, finding that the BIA’s interpretation was consistent with the unambiguous language of the statute.
BAL Analysis: The Supreme Court decision does not result in any change in practice within the agency, but represents a setback for advocates who are seeking to address the harsh consequences of long green card wait times. Please consult a BAL attorney with any questions regarding priority dates and their effect on family members.
U.S. consulates in Canada are facing an influx of visa applications by Canada-based applicants this summer and as a result are extremely limited in their ability to accept visa renewal cases submitted by third-country nationals during the high-demand months of June, July and August.
Although some appointments from third-country nationals are being accepted, the U.S. consular posts in Canada are encouraging these foreign nationals to seek visa renewal appointments elsewhere, such as in their home countries. This applies to nationals of countries other than the U.S. or Canada who are seeking to renew their visas to the U.S. from within Canada.
More appointments are available during the off-peak processing months of October and November, and January through May.
In emergency cases, applicants can request to schedule an interview in Canada by visiting http://www.embassy-worldwide.com/embassy/consulate-general-of-united-states-in-montreal-canada/
U.S. citizens will soon be eligible for Asia-Pacific Economic Cooperation (APEC) Business Travel Cards that facilitate business travel and offer expedited entry into member countries. The Department of Homeland Security (DHS) has published an interim final rule establishing American participation in the APEC Business Travel Card program.
The cards provide access to fast-track immigration lanes at participating airports in APEC countries. However, according to DHS, “it is not expected that foreign APEC members will recognize the U.S. APEC Business Travel Cards (ABTCs) in lieu of a visa.” Therefore, U.S. ABTC holders may still be required to obtain visas (where applicable) to visit foreign APEC member states.
Beginning June 12, 2014, U.S. citizens may apply online in the GOES system. Applicants must already be enrolled in one of the three enumerated U.S. Customs and Border Protection (CBP) Trusted Traveler programs and remain enrolled for the entire duration of the APEC card. The three programs are: Global Entry, NEXUS, or Secure Electronic Network for Travelers Rapid Inspection (SENTRI).
APEC cards are granted to qualifying frequent, short-term business travelers. Applicants must be bona fide business persons engaged in the trade of goods, the provision of services or the conduct of investment activities in the APEC region. Persons traveling to engage in paid employment or working holidays in an APEC country are not eligible for the cards. Professional athletes, news correspondents, musicians, artists and others engaged in similar occupations do not qualify, nor do spouses or children of the cardholder.
Applicants must also schedule an appointment with a CBP enrollment center to provide an electronic signature that will appear on the APEC card. Enrollment centers are located in the U.S., but some U.S. embassies in APEC countries will schedule events to collect signatures of U.S.-citizen applicants.
DHS has set a $70 fee for the APEC cards, which are valid for three years or until the expiration of the cardholder’s passport, whichever is sooner.
DHS will not issue any new U.S. APEC Business Travel Cards or renew any cards after Sept. 30, 2018. All U.S. APEC Business Travel Cards will expire by Sept. 29, 2021, unless the law is amended to extend the program.
President Barack Obama signed the APEC Business Travel Cards Act of 2011 on Nov. 12, 2011. APEC is made up of 21 member states, including the U.S. and Canada, who are transitional members.
BAL Comment: The availability of APEC cards to U.S. citizens will greatly ease travel and expedite entry procedures for frequent business travelers to the region. However, U.S. cardholders should check travel requirements for the APEC destination country before traveling to determine if visas are still required.
U.S. Citizenship and Immigration Service (USCIS) has imposed a one-year validity period for medical examinations and vaccination records submitted in support of certain benefit applications, including applications for lawful permanent residence or adjustment of status.
Under the previous policy, the application needed to be filed within one year of completion of Form I-693, Report of Medical Examination and Vaccination Record. However, the I-693 remained valid while the application was pending – even if more than a year had passed since filing.
As of June 1, however, USCIS has shortened the validity period of Form I-693 to only one year. The new policy applies to all applications adjudicated on or after June 1, even if they have already been filed.
Form I-693 contains results of medical examinations and vaccinations and is required to show that an applicant is not inadmissible on public health grounds.
USCIS has updated the Form I-693 information on its website and will hold a stakeholders conference on June 12, 2014 to answer questions and provide guidance.
BAL Comment: The change in policy will mean that applicants with long-pending I-485 applications for permanent residency or adjustment of status will have to update their Form I-693 by undergoing another medical exam before the Green Card application can be approved.
IMPACT – MEDIUM
What is the change? The Israeli government has signaled its readiness to offer a new B-5 investment visa for Americans investing in Israel.
What does the change mean? The new visa would create a reciprocal arrangement in which Israeli investors will be offered E-2 visas for entry into the U.S. in exchange for a similar visa opportunity for American investors in Israel.
Background: Last year, President Obama signed legislation to add Israel to the list of countries that are eligible for the E-2 non-immigrant investor visa in the U.S., allowing investors and their employees to live in the U.S. for up to two years. A reciprocal plan for American investors in Israel was formulated by an inter-ministerial committee and approved by the Israeli government March 30, but implementation has been delayed.
The American-Israel Chamber of Commerce recently sponsored a seminar at which a representative of the Ministry of the Interior stated that Israel anticipates issuance of the regulations this summer. It would be the first Israeli work visa that would allow employment authorization for dependent spouses. It would be valid for one year and may be extended upon a showing of job creation in Israel.
BAL Analysis: The new reciprocal visa arrangement should benefit American and Israeli companies making investments in each other’s countries.
This alert has been provided by the BAL Global Practice group and our network provider located in Israel. For additional information, contact your BAL attorney.
The California Department of Motor Vehicles has published proposed regulations for a new law that requires the agency to issue driver’s licenses to applicants who cannot prove lawful immigration presence but who can verify their identity and state residence and meet all other licensing requirements.
The proposed regulations set out the documentation required for applicants to verify identity and residency.
State law requires that drivers prove their identity and legal presence to obtain a driver’s license. The new law, AB 60, allows applicants who cannot prove legal presence to obtain a license by proving their identity and California residency. The proposed regulations define the category of documents the DMV will accept to verify identity and residence under AB 60.
The DMV expects that it will continually update its list of acceptable documents as it works with foreign governments to finalize electronic verification of identity documents. For example, the DMV has said it anticipates eventually allowing a Mexican Consular Card as a sole means of proving identity.
“Although these regulations are not final, we encourage future applicants to begin gathering documents now that they will use to prove identity and residency,” said DMV Director Jean Shiomoto. “We will carefully consider the public comments we receive on these proposed regulations and make revisions as necessary.”
The proposed regulations can be viewed here. A public comment period runs from May 9 to June 23, after which the DMV plans to issue final regulations. AB 60 requires the DMV to begin issuing licenses no later than Jan. 1, 2015.