Immigration Law 2015: A Year in Review
Immigration law and immigration law reform were major topics in 2015 with many positive developments for immigrants and potential immigrants hoping to live and/or work in the United States. This article will highlight some of the major changes in immigration law, particularly those that relate to employment-based and business-oriented immigration which is the hallmark of our firm.
H1-B Related Changes
On May 26th of 2015, new rules went into effect which benefit the families of H1-B visa holders. More specifically, spouses of H1-B visa holders who have H-4 visas now have the ability to seek employment authorization to work in the U.S. The Department of Homeland Security (DHS) explained that the purpose of the new rule is to help the U.S. attract and retain highly skilled foreign workers and also to minimize the disruption to U.S. businesses.
Before the new rule came into effect, spouses who obtained H-4 visas were unable to receive work authorization in the U.S. The H1-B visa holder was therefore the sole supporter for the immigrant family. This financial burden resulted in many skilled workers being forced to leave the U.S. This was especially difficult for H1-B employees from countries like China and India, who have long waiting periods for green cards.
It should also be noted that this regulation only applies to spouses of H1-B immigrants who hold H-4 visas, not to other family members. Also, the H1-B nonimmigrants must have already started the process of seeking an employment-based green card. The H-4 visa holder is eligible for work authorization if their spouses are the principal beneficiaries of an approved Form I-140 or alternatively have been granted H1-B status in the United States under the American Competitiveness of the Twenty-first Century Act of 2000 as amended by the 21st Century of Justice Appropriations Authorization Act (AC21). AC21 enables H-1B workers seeking employment-based lawful permanent residence to work and remain in the U.S. beyond the six-year limit. The eligible H-4 spouse must file a Form I-765 in order to apply for work authorization.
EB-5 Visa Program
The EB-5 visa regional center program was set to expire on September 30, 2015. The EB-5 visa allows foreigners to obtain legal permanent residency in the U.S. by investing in a new commercial enterprise. Although set to expire, the program was given a temporary extension until September 30, 2016. Until that time, the program will remain unchanged.
When Congress examines the program again there are two changes that are most likely to be made. Firstly, there will most likely be an increase in the minimum investment amount. Most likely there will be an increase to $800,000 for targeted employment areas (TEAs) and $1,200,000 for other investments. Increased from $500,000 and $1,000,000 respectively. The second potential change would be a change in the definition of a TEA. It is still unclear how the definition will change or even if it will at all.
On May 1, 2015 there was a cut-off for the EB-5 visa category for investors from mainland China due to high demand. This means that no more visas will be available to Chinese investors for the rest of U.S. government’s fiscal year which ended on September 30. The program caps the number of visas issued each year to 10,000 and this year the quota was reached in May as opposed to August of the year before. The estimated waiting time for an EB-5 visa is now approximately two to three years.
Also this year, the U.S. government and Securities Exchange Commission (SEC) have begun a closer examination of the EB-5 program. In fact, the SEC is preparing sanctions against close to two dozen immigration lawyers for collecting fees from foreign investors who wish to access the EB-5 program. Because the lawyers were not registered as brokers they were prohibited for collecting transaction fees.
Optional Practical Training (OPT) STEM Extension
In March of 2014 a collective bargaining organization sued the U.S. Department of Homeland Security claiming that the 17-month STEM OPT extension rule that was passed by DHS in April 2008, failed to follow the standard rule making process which includes notice and a comment period and the rule was therefore invalid. The court entered a judgment on August 12th, 2015 stating that the STEM OPT extension rule will be vacated or cancelled on February 12, 2016 if DHS does not follow formal process of notice and comment period and then re-issue the rule.
A new STEM OPT Extension rule was published on October 19th which included a new 24 month OPT Extension for STEM (Science, Technology, Engineering and Mathematics) Degree Students and had a thirty-day comment period. The comment period closed on November 18, 2015, at which time there were approximately 50,000 comments submitted. As of December, 2015 USCIS was still reviewing comments due to such a high number and no decision could be made if STEM OPT Employment Authorization Documents (EADs) would be valid after February 12, 2016. This meant student would not be able to work beyond that date.
On December 23, 2015 DHS filed a motion requesting a delay for the STEM OPT termination deadline of February 12, 2016 due to the high number of comments they received. DHS requested a 90-day delay. A ruling by the court has not yet been made on whether or not the 90-day delay will be granted.
L1B Visa Clarification
On March 24, 2015, USCIS issued an L1B memorandum that explains the various elements of the L1B visa category, primarily focusing on explaining the “specialized knowledge” requirement. The memo was issued as a result of very high denial rates and lack of uniformity in adjudication standard for the last several years. This lack of uniformity was primarily caused by the definition of “specialized knowledge”.
The L1B visa category is mainly for multinational companies needing to transfer an employee with “specialized knowledge” of the company’s foreign operations to the U.S. The term “specialized knowledge” is difficult to define as it does not relate to a specific degree, job title, or level of experience. The memo explained that a foreign national may be deemed to have “specialized knowledge” by showing that the worker possesses “special knowledge” and/or “advanced knowledge”. As the terms “special” and “advance” were not defined, USCIS used the dictionary for the definitions. Special knowledge is knowledge of the employer’s product, service or techniques and its applications in international markets that is demonstrably distinct or uncommon to the generally found within the industry or the petitioning employer. Advanced knowledge is knowledge or expertise in the organization’s specific processes and procedures not commonly found in the industry and is greatly developed in understanding and complexity than that found within the petitioning employer.
USCIS notes that knowledge will not be considered specialized if can be easily imparted from one person to another. Petitioner can therefore support their argument that the specialized knowledge requirement has been met by providing evidence of the training, work experience, and education needed to gain the knowledge. The new memo does not on its face make it easier to have an L1B petition approved however, the hope is that this clarification will shift USCIS officers to become more flexible when reviewing these cases.
October 2015 Visa Bulletin
On September 25, 2015 the U.S. State Department issued a revised version of the visa bulletin. The result was that the cutoff dates for filing adjustment of status for many individuals was lost. The first version of the October 2015 Visa bulletin stated that two charts would be included each month in the employment based and family based categories. One chart indicated final action dates for cases to be approved and other indicates dates of filing.
The first version of the bulletin contained favorable cutoff dates for some employment based, second preference categories. This has many people excited that they may finally be able to file their I-485 applications in October 2015. Then on September 25, 2015 the DOS rolled back many of the cutoff dates in the charts. No clear explanation was provided by DHS as to the reason of the rollback. The initial bulletin included changes that appeared to improve the immigration system and benefit a great number of individuals. The two chart system is a great improvement yet the second, unexpected bulletin has left many very upset.
Visa Waiver Program
On December 8th, 2015 the House of Representatives passed a bill which imposes new visa waiver restrictions on individuals travelling to the U.S. The changes came in light of the recent attacks in Paris and California. These attacks put pressure on the U.S. government to make swift changes to the visa waiver program. The December 8th bill bars individuals from Iraq, Syria, Iran and the Sudan or anyone who has visited those countries in the last five years from travelling to the U.S. without obtaining a visa. It also imposes penalties on any countries who do not meet current security procedures and it authorizes DHS to terminate any country’s participation in the visa waiver program if it fails to communicate and share data adequately with the U.S.
USCIS Drafts “Same or Similar” Occupation Policy Memo
On November 20, 2015 USCIS drafted a policy memo explaining the same-or-similar occupational classification requirement for job portability under the American Competitiveness in the Twenty-First Century Act (AC21). AC21 lets an individual with an employment based application for adjustment of status pending for at least 180 days to change jobs without filing a new application for permanent residence. In order to do this, the job must be same-or-similar. The memo is meant to clarify all prior interpretations and is set to become effective on March 21, 2016
The memo describes the types of proof that an individual can submit to establish he has met the requirement of same-or-similar job classification. The Department of Labor (DOL) classification can be used as well as job duties and requirements such as education, training and skills. The memo instructs USCIS adjudicators to examine if the initial job and the new job have similar designations under the DOL Standard Occupational Classification system. If the codes are identical then generally the requirement is met. However, if the applicant has progressed in his career since the original filing and moved from a technical position to a managerial position then the analysis is different. In this case the adjudicator must decide if the applicant is managing the same-or-similar functions of the original job. If so, then the position would be considered similar under AC21 portability. If the jobs do not fit the previous examples they still may be considered same-or-similar if a preponderance of the evidence indicates that the two jobs share “essential qualities or have a marked resemblance or likeness.”
The memo also explains that wage differences between the original job and new position may be considered in determining same-or-similar. But a wage difference alone is not enough to determine that the two jobs are not similar.
Proposed DHS Changes to Employment Based Immigrant and Nonimmigrant Visa Programs
On the final day of 2015, DHS published proposed changes to regulations concerning employment-based immigrant and nonimmigrant visa programs. The changes are designed to improve processes for U.S. employers seeking to retain immigrant and nonimmigrant workers, provide greater stability and job flexibility for these workers and also provide increased transparency and consistency. The overall goals of the proposal are to improve the ability of U.S. employers to hire and retain highly skilled workers who are beneficiaries of approved employment based green card petitions and also increase the ability of workers to seek promotions, accept lateral positions with current employers, change employers or pursue other employment opportunities. For a more detailed look at the proposed changes and their effects, please see our other blog post.