A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Sunday, August 21, 2016

September 2016 Visa Bulletin: India EB2 / EB3 Advance

In the September 2016 visa bulletin, China’s employment cutoff dates stay unchanged. India’s EB-1 remains unchanged.  EB-2 and EB-3 India move forward by 3 months.  EB-3 Philippines advances 13 months. 

Family 1st China, India and Worldwide move forward by 4 months;  Family 1st Philippines advances 3 months.  Family 2A remains unchanged for all categories.  


AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
09/15/2009
09/15/2009
09/15/2009
03/22/1995
07/01/2005
FD
01/01/2010
01/01/2010
01/01/2010
04/01/1995
12/22/2005
F2A
AD
11/15/2014
11/15/2014
11/15/2014
09/01/2014
11/15/2014
FD
11/22/2015
11/22/2015
11/22/2015
11/22/2015
11/22/2015
F2B
AD
02/01/2010
02/01/2010
02/01/2010
09/15/1995
12/01/2005
FD
02/08/2011
02/08/2011
02/08/2011
05/22/1996
02/01/2006
F3
AD
12/01/2004
12/01/2004
12/01/2004
11/15/1994
06/15/1994
FD
08/22/2005
08/22/2005
08/22/2005
05/01/1995
08/01/1995
F4
AD
10/08/2003
01/01/2003
01/01/2001
04/22/1997
03/15/1993
FD
06/15/2004
06/15/2004
05/01/2004
06/01/1998
07/15/1993

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


EMPLOYMENT
Other Countries
China
El Salvador Guatemala Honduras
India
Mexico
Philippines
EB1
AD
C
01/01/2010
C
01/01/2010
C
C
FD
C
C
N/A
C
C
C
EB2
AD
02/01/2014
01/01/2010
02/01/2014
02/22/2005
02/01/2014
02/01/2014
FD
C
06/01/2013
N/A
07/01/2009
C
C
            EB3
AD
05/01/2016
01/01/2010
05/01/2016
02/15/2005
05/01/2016
07/01/2010
FD
C
05/01/2015
N/A
07/01/2005
C
01/01/2013
    Other    Workers
AD
05/01/2016
01/01/2004
05/01/2016
02/15/2005
05/01/2016
07/01/2010
FD
C
08/01/2009
N/A
07/01/2005
C
01/01/2013
EB4
AD
C
C
01/01/2010
01/01/2010
01/01/2010
C
FD
C
C
N/A
C
C
C
EB5
AD
C
02/15/2014
C
C
C
C
FD
C
05/01/2015
N/A
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

USCIS’ decision for September as below:
For Family-Sponsored Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for September 2016.

For Employment-Based Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for September 2016.


College Students Applying for Naturalization

It is not unusual for college students to study away from home in another state in the U.S. When these students become eligible to apply for naturalization, they may wonder where they should submit their N-400 application for naturalization - their home state where their family lives or the state where they study.  The USCIS recently issued instructions confirming that students in this situation may choose either option if they are 18 or older and if they are unmarried and still financially dependent on their parents. 

Visa Bulletin Predictions for FY2017

The Chief of the Visa Control and Reporting Division, Charles Oppenheim, at the Department of State regularly provides his insights and predictions to the American Immigration Lawyers Association regarding the future trends and movements in the visa bulletin. Recently Charles provided the following predictions for the coming few months and also the new fiscal year beginning October 1, 2016.

Employment-Based Immigration
EB-2/EB-3 China: The final action date for EB-2 China and EB-3 China will remain the same through the remainder of this fiscal year (2016).  When the new fiscal year begins in October, however, EB-2 China is expected to advance to a date in late 2011 or early 2012. EB-3 China’s final action date is expected to reach late 2012 or early 2013.   If this happens, EB-3 China will once again surpass EB-2 China, and as a result, Chinese applicants will have another opportunity to downgrade to the EB-3 category.  

EB-2 and EB-3 Worldwide:  Presently, the EB-2 Worldwide final action date lags behind EB-3 Worldwide, but this should not create the same EB-3 downgrade phenomenon we have witnessed in recent years in the China EB categories. Charlie expects EB-2 Worldwide to become current again in October. Despite the uncharacteristically low demand in EB-3 Worldwide, Charlie is concerned that there is demand in this category that has not yet materialized.

EB-2/EB-3 India:  In October, EB-2 India will likely move to a date in early 2007. Slow movements of a few weeks at a time are anticipated for EB-3 India, which is likely to remain at a 2005 date in October. EB-3 India is the last category in which the Visa Chief has some visibility from the summer 2007 adjustment of status filings. This means that any movement in this category will be more steady and less erratic compared to others.

EB-5 China:  Charlie is unable to make any predictions at this time as to where EB-5 China dates will fall in the next fiscal year. He expects to have better information by late September to mid-October.

EB-1 India and China:  It is expected that EB-1 India and EB-1 China, which both had final action cut-off dates imposed late this fiscal year, will become current again in October.

Charlie reports that the infusion of FY 2017 visa numbers will make EB-4 India and EB-4 Mexico current in October. The final action date for EB-4 El Salvador/Guatemala/Honduras should move to a date sometime in the summer of 2015, and possibly beyond. Given the high applicant demand in this category for El Salvador relative to the other two countries, it is possible that we will see a more advanced final action date for Guatemala and Honduras.


Family-Based Projections
There are some favorable modifications to last month’s predictions for September in the family-based categories. While Charlie thought the final action dates for F-2A and F-4 might retrogress in September, an increase in returned unused visa numbers in July, and weak demand for these categories has allowed Charlie to hold these dates unchanged for the remainder of the fiscal year.

Consistent with Charlie’s predictions last month, F-4 Worldwide advanced slightly. There were also minor advances in all of the family Worldwide categories, and all of the F-2B categories with the exception of F-2B Mexico. F-3 and F-4 Mexico and F-3 and F-4 Philippines also crept slightly ahead to close out the fiscal year.

The family-based categories tend to advance more consistently as the majority of demand in these categories occurs at overseas consular posts. While we expect movements into the next fiscal year to also remain relatively steady, Charlie will continue to comply with the Administration’s Visa Modernization Proposal by advancing the dates as aggressively as possible in the first three quarters of the fiscal year. While doing so helps to ensure that number use is maximized, it may cause retrogression in the final quarter, such as those experienced in the F-4 China and India preference categories.

As we approach the one year anniversary of the new Visa Bulletin format (addition of the filing date charts), Charlie did not have any predictions in terms of “filing dates” as he had not yet met with the CIS Ombudsman’s Office at the time of this discussion. 



Saturday, August 6, 2016

Employer Obligations Under the New 24-Month STEP OPT

On March 11, 2016, the Department of Homeland Security (DHS) published new regulations to expand the STEM OPT program from 17 months to 24 months.  The new regulations became effective on May 10, 2016 and provide for a transitional plan for certain students to apply for a 7-month OPT extension between May 10, 2016 and August 8, 2016.  

The optional practical training program (OPT) provides employment authorization for foreign students on F-1 visas upon graduation from an academic program.  The regular OPT program provides 12  months of employment authorization. For students who have earned degrees from U.S. colleges in Science, Technology, Engineering or Mathematics (STEM) fields, they are now eligible for 24 months of additional employment authorization.  

For employers who hire employees under the STEM OPT program, they should be aware of their obligations including the following: 

  1. E-Verify:  As before, the employer must be e-Verified throughout the employment period. E-Verify is an online system implemented by the federal government for employers to verify employees' eligibility to work in the U.S.
  2. Training Plan:  The employer and the student trainee must prepare and execute a formal training plan (Form I-893) that identifies learning objectives and a plan for achieving those objectives. The employer must ensure that the employment opportunity is directly related to the qualifying STEM degree or major field of study.
  3. Supervision and Training:  The employer must have sufficient resources and personnel available to supervise and train the student employee at the specified work location(s).
  4. Offsite Employment / Multiple Work Locations: The training plan requires that the student receive "on-site supervision and training by experienced and knowledgeable staff."  If an employer has multiple job sites the employer must ensure that it has sufficient resources and personnel to supervise and train the student employee at each job site.  However, for employers such as consulting firms that place employees at third-party client job sites, it will be difficult for them to meet this requirement unless they also have other experienced employees working at these job sites. 
  5. Non-replacement of U.S. Workers:  The employer must ensure that the student trainee will not replace U.S. workers(s) in any way or fashion.
  6. Equal Terms and Conditions of Employment:  The student trainee under the STEM OPT program must be treated in the same way as other similarly situated U.S. workers in terms of duties, work conditions and compensation.
  7. Evaluations:  STEM OPT students are subject to an annual self-evaluation requirement, under which the student must report to the Designated School Officer (DSO) his or her progress under the training plan. The student’s employer must sign the self-evaluation prior to its submission to the DSO. 
  8. Notification of Changes:  The employer is required to notify the DSO of early termination of a student employee's STEM OPT employment within 5 business days.  Any material changes in the training plan must be reported to the DSO by submitting an amended I-983 with the student employee. Material changes include any change in federal tax ID number, work location, reduction in hours below 20 hours per week, substantial changes in salary and job duties, etc. 
  9. Cooperate in Site Visits:  The DHS may conduct site visits to companies which employ STEM OPT students.  Unless violations have been reported, DHS will normally provide employers 48- hour notice. Additionally, employers may also be contacted by phone or email to verify employment information of the STEM OPT employee.  Employers should assign specific personnel to act as point of contact for all STEM OPT matters, and keep records of all related documents in order to facilitate government verification. 







Tuesday, August 2, 2016

Why Employers May Have to Embrace E-Verify?

E-Verify is an internet-based system created by the federal government for employers to verify employees' eligibility to work in the U.S.  It's roots can be traced back to the Immigration Reform and Control Act (IRCA) of 1986, which required employers to examine documentation from employees to prove their identity and eligibility to work in the United States. The Form I-9, Employment Eligibility Verification, was created for these purposes.  Since then, employees have been required to complete the form and present evidence to prove their work eligibility.  Employers must also certify that the documents presented, on their face, reasonably appear to be genuine.

Subsequently, a pilot program was launched in 1997 to allow employers to confirm the work eligibility of their newly hired employees, using information from the former INS and the SSA.  The pilot program evolved gradually and was renamed E-Verify in 2007.

Today a handful of states have passed laws to require mandatory use of E-Verify. Some others require the use E-Verify by employers who are federal or state contractors, or  public entities.  For the other states such as California, New York, New Jersey, E-Verify is still a voluntary program.  So, why would employers enroll with E-Verify?  For federal contractors, enrollment in E-Verify is a condition under their government contracts.   For mega employers who have a large workforce or who have to constantly hire new employees, E-Verify is a tool to reduce their potential liability.  Failure to properly verify employees' legal status can result in substantial civil fines. Employers who knowingly hire individuals without work authorization may also be subject to criminal charges.  In 2005, Wal-Mart Stores Inc., the world's largest retailer, avoided criminal charges by agreeing to pay $11 million in a civil immigration case regarding to end a federal investigation of the company's use of illegal immigrants as janitors.  

Even for smaller employers, there are still reasons to embrace E-Verify.  The most common reason is when an employer wants to hire a foreign graduate who has authorization to work under the STEM OPT program.  The STEM optional practical program allows foreign students who have completed an academic degree in a STEM (science, technology, engineering and mathematics) field to have an additional 24 months (used to be 17 months) of employment authorization in the U.S.  This is in addition to the "regular" 12-month OPT employment period.  Shortage of workers with technical skills in the U.S. drive many employers to hire foreign students with graduate degrees.  It should be noted that these degrees must be earned in the U.S.

Furthermore, as the U.S. economy continues to expand, the H-1B visa program has been under pressure. The regular visa cap of 65,000 and advanced degree cap of 20,000 are being used up quickly for the past few fiscal years.  Hence, employers who are in need of technology workers would find the expanded STEM OPT program to be particular attractive.   Currently, immigration law requires that only "e-Verified" employers may hire employees under the STEM OPT program.  As a result, some employers would have no choice but enroll in E-Verify in order to tap into this pool of workforce. 

Another reason for using E-Verify is its relatively low costs of enrollment and maintenance. It is free to enroll and use.  After all, the federal government wants to encourage more employers to sign up. The only costs involved would be administrative in nature. Employers must assign and train employees to be the program administrators and users of the program.  There would be additional steps in the hiring process.  For example, the social security number is required from the employee in order to use the E-Verify system. If an employee's information does not match the government record, the employer must also take further steps to follow up with the case.  However, since employers must collect documents and information from new hires for completing the I-9 form anyway, these additional steps do not add substantial burden to the administrative or human resources staff.  

In a way, the E-Verify program represents a shift of responsibility to the employers in curtailing unauthorized employment.  Historically, the federal government emphasized more in enforcement by conducting on-site visits.  Federal agents would arrest any unauthorized immigrants from the job sites.  Over the years, the focus has been shifted to prevention and education, resulting in programs such as the E-Verify.  The E-Verify program has been gaining traction and may become universally mandatory in the future.  From the employers' perspective, they may as well embrace the program earlier if they have such a need.