USCIS Announces New Policy on STEM Optional Practical Training (OPT) Extensions for F-1 Students

October 28th, 2013

On October 6, 2013, USCIS announced in a policy memorandum a clarification of its guidelines on eligibility requirements for a 17-month extension of Optional Practical Training (OPT) for F-1 foreign students enrolled in programs in the STEM (science, technology, engineering or math) fields.  It has decided that F-1 students engaged in OPT are eligible for a 17-month STEM extension even if they have not completed the thesis requirement or equivalent for their STEM degree.

The employment authorization afforded F-1 students through OPT is usually their only way to work legally in the US after they have graduated.  They are granted OPT for one year following their graduation so long as they are obtaining practical training that directly relates to their major area of study.  However, F-1 OPT students who completed a course of study in a bachelor’s degree or higher in one of the STEM fields are eligible for a 17-month OPT extension.  During this 17-month extension, F-1 students are eligible for the H-1B cap gap extension of their OPT but are also subject to the unemployment restrictions (allowing students only certain periods of unemployment before losing their F-1 OPT status).

My Client’s Extraordinary Ability Green Card Story Told on NBC Online

October 22nd, 2013

NBC has published an online article about my client’s obtaining legal permanent residency through an extraordinary ability petition.  Dr. Anju Singh was a medical researcher at Harvard’s School of Public Health studying novel markers to identify stem cells that make bone, which could one day lead to disease cures.  She is now a legal permanent resident and scientist at the National Institutes of Health.  We were able to show that her groundbreaking research placed her at the top echelon of her field and earned her sustained international acclaim.

US DOL Website Reopen at a Snail’s Pace

October 22nd, 2013

Now that the US government is reopen, the US Department of Labor’s (DOL) iCert website is now “functional,” although as slow as honey.  The DOL has jurisdiction over the Labor Condition Application (LCA), which is required for the H-1B petition, and also for issuing prevailing wage (PW) determinations, which are required for the PERM labor certification application, the first stage of the green card process for most employment-based foreign workers.  During the shutdown, some H-1B workers were not able to file timely extension petitions to maintain their status.  However, USCIS, which adjudicates the H-1B petitions, has stated that it will accept late-filed petitions under the extraordinary circumstances exception, since the employers and H-1B employees should not be penalized for the government’s delays.

The DOL has not yet issued its policy on how to deal with PERM labor certification applications that employers were unable to file for which the recruitment became stale during the shutdown.  Upon filing a PERM application, the recruitment must have transpired between 30 and 180 days (except for one form of recruitment, and not including the notice of posting or the job order).  To restart a PERM application is very costly because of the recruitment requirements.  Also, the employer can be greatly harmed if it needs to restart a PERM case, since qualified US workers may apply for the position the second time around, which is the death knell for the PERM case.  The employee can be harmed as well if her only way of obtaining more than six years in H-1B status is by showing that a PERM application was filed by the end of her fifth year in H-1B status.

Let’s hope that the shutdown shenanigans do not rear their ugly head this January when the budget must be renegotiated.

Government Reopen for Business and H-1Bs and PERMs Can Now Be Filed

October 16th, 2013

The US government will be reopening after the two-week October 2013 shutdown.  This is welcome news for those needing and or wanting to file H-1B, H-2B petitions and PERM labor certifications.  The Department of Labor (DOL), which was closed during the shutdown, is responsible for certifying the Form ETA 9035 Labor Condition Application (LCA), which  must be filed with an H-1B petition.  Also, the DOL is responsible for providing prevailing wage determinations for H-1B and PERM labor certification applications.  Finally, the DOL has jurisdiction over the PERM labor certification applications.  With cases frozen in the pipeline during the shutdown, let’s hope that there is not a significant delay in the processing of new LCAs and PERMs, although it is quite unfortunate to note that such backlogs and delays in processing are almost expected in the immigration law community.

Court Finds Beneficiary Has Standing to Challenge Denial of Petitioner’s Form I-140 Immigrant Visa Petition

October 16th, 2013

The Sixth Circuit for the US Court of Appeals has found that under the APA the beneficiary has procedural standing to challenge the denial of his employer petitioner’s Form I-140 immigrant visa petition on his behalf.  Patel v. USCIS,
10/11/13 (No. 12-1962).   The court provided the following reasoning for its decision.  Under the Administrative Procedure Act (APA), a party has prudential standing (ability to sue) if he is adversely affected by a US government action.  A party is adversely affected if the interest he seeks to protect is protected or regulated by a statute that the party claims was violated.  In this case,  that statute is 8USC §1153(b)(3), which states in relevant part that visas shall be made available to qualified applicants under the labor certification process under certain conditions.  Therefore it expressly provides for issuance of employment visas directly to qualified aliens and the qualified alien who wants one of these visas is within the protected zone.  In other words, it suggests that Congress gave the immigrant a stake in the visa process, since it is the immigrant and not the employer who is entitled to the immigrant visa.  The Court also referred to two other provisions to corroborate this conclusion:  (1) 8USC §1255(b) that provides for a permanent, as opposed to a temporary, visa under 8USC §1153(b)(3); and (2) the adjustment of status (I-485) portability provisions of 8 USC §1154(j) and 8 USC §1182(a)(5)(A)(iv).  Furthermore, the Court referred to other cases finding standing for the beneficiary to challenge the denial of his employer’s I-140 petition for an employment visa.

The National Visa Center’s New Electronic Processing System

October 10th, 2013

The National Visa Center (NVC) is now accepting immigrant visa documentation by e-mail through an electronic processing system.  The problem is that it is unable to retrieve documents that are submitted via links from document sharing sites.  NVC requires that documents be submitted as scanned PDF attachments and has not indicated how it will work with encrypted documents requiring a password.

This is especially problematic in Massachusetts, which has a data privacy law preventing businesses from submitting documents with a combination of certain personal and financial information (e.g. person’s name and his Social Security Number) by e-mail unless it is encrypted.  Document sharing sites that offer encrypted transfers are especially valuable and my office uses them for sending large quantities of documents to clients.  Unless the NVC starts accepting documents from such document sharing sites, and until it clarifies its policy on accessing encrypted PDFs, attorneys and individuals should NOT sign up with the NVC’s electronic processing system, to avoid security problems with documents containing important financial and personal information.

US Department of State Requires DS 160 for all K-1 Fiance Visa Cases

October 10th, 2013

The US Department of State (DOS) has announced that, effective immediately, all K fiancé visa applicants must complete the Form DS-160 online.  This form replaces forms DS-156, 156K and DS-230.  However, there are exceptions to the online DS-160 requirement, if prior to October 7, 2013, one of the following applies:

  • The K visa applicant is already scheduled for an interview;
  • The K visa applicant has already been interviewed and the case is pending;
  • The K visa applicant has already filed a signed and unexpired Form DS-156, DS-156K and/or DS-230 or received instructions to do.

Such online filing is certainly welcome for the processing of fiancé visas.  However, the DOS should still work to ameliorate the tangled web of requirements for K fiancé visa processing at US consulates worldwide.  Even though US immigration law is Federal, it is not applied uniformly at the various consulates.  Also, the processing itself differs, with the NVC taking control over some of the cases before forwarding them to the US consulate.  Therefore, it is advantageous to hire an experienced immigration attorney to assist with the cumbersome process.

House Democrats Introduce Comprehensive Immigration Reform Bill

October 7th, 2013

On October 2, 2013, the House Democrats introduced a comprehensive immigration reform bill, “The Border Security, Economic Opportunity and Immigration Modernization Act” (H.R. 15), which uses the Senate’s immigration legislation (S. 744) as its template.  According to the American Immigration Lawyers Association (AILA), there are enough Democrats and Republicans to support the bill and Speaker Boehner should bring it to the House floor for a vote.

The House legislation keeps many of the provisions of the Senate’s legislation, including the creation of the status of Registered Provisional Immigrant (RPI), for certain noncitizens who are currently unlawfully present  and who entered the US before December 31, 2011.  DACA (Deferred Action Childhood Arrivals) recipients would be eligibile for RPI status.  RPIs would be allowed to adjust their status to legal permanent residents.  Also, the Dream Act is maintained and allows certain DACA RPIs to adjust their status to legal permanent residents.

Overall, the House legislation makes very few changes to the Senate legislation.  In particular, it maintains the merit-based visa and points system, which allows replaces the Diversity visa and allows for individuals to obtain legal permanent residency based on criteria evidencing merit.

Update on Government Shutdown and USCIS and Immigration Court in Boston

October 1st, 2013

USCIS will continue to hold immigration interviews in Boston, MA during the government shutdown.  Also, the US Immigration Court in Boston will be continuing all cases except for detained cases.

Government Shutdown Freezes PERM Processing and Other Immigration Cases

October 1st, 2013

The US government shutdown will have a tremendous negative and deleterious effect on many types of immigration petitions and applications.  The most important and dire consequence is the freezing of the processing of PERM labor certification applications, prevailing wage determinations (required for PERM cases) and labor conditional applications (LCAs – required for H-1B visa processing)by the US Department of Labor (DOL).  There are many H-1B foreign workers who need to file extensions of their status to continue their employment in the US.  A certified LCA is required for filing an H-1B petition.  Hopefully, USCIS will allow for the filing of H-1B extension petitions without a certified LCA, especially where the foreign worker’s H-1B status is about to expire.

Also, many H-1B workers may only extend their H-1B status beyond the six-year limit if a PERM labor certification application is filed on their behalf by the end of their fifth year in H-1B status.  If the PERM cannot be filed for them, then they must hope that the Form I-140 immigrant visa petition is approved on their behalf before the end of their sixth year in H-1B status.  If a PERM application is audited, then this is highly unlikely, since an audit can lead to processing times of over 18 months.  Therefore, the suspension of PERM processing will lead many H-1B workers to lose their status in the US, causing grave harm to them and their employers.

US Citizenship and Immigration Services (USCIS) should be functioning at around 97 percent, but it relies on nonessential Federal workers and therefore USCIS’s processing times will most likely be negatively affected.

The US Department of State (DOS), which includes US consulates worldwide, may remain open for a few more weeks with alternative funding.  Once this funding is exhausted it is hard to imagine the impact of a freezing of the issuance of temporary visas to the US (business, student, H-1B worker, L-1A intracompany transferee, E-2 treaty investor, etc.).

The US immigration courts may only remain open for certain cases deemed important for national security, such as detained cases.