National Interest Waiver category & recent court decision affecting physicians

The Administrative Appeals Office ("AAO") decided an important case last month for physicians applying for immigrant visas (commonly referred to as "green cards") in the National Interest Wavier category. In its decision in Matter of H-V-P-, the AAO rejected the Texas Service Center's ("TSC") attempt to change a longstanding agency interpretation based upon a single decision. In most categories of employment-based immigrant visas, applicants usually need a job offer from a U.S. employer. In this recent decision, however, the AAO recognized that the law requires USCIS to waive the job offer requirement for both primary and specialty care physicians who work full-time in an area with a shortage of health care professionals (and meet other requirements not at issue in this case). The AAO concluded TSC's narrow interpretation of the regulation as requiring a specific specialty care shortage certification was inconsistent with past USCIS practice and would "frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas." 

If you have questions about the National Interest Waiver category or visa options for physicians, please contact the attorneys at Iandoli Desai & Cronin P.C. at  info@iandoli.com.

More changes to Visa Waiver Program are now in effect

Last month we informed you of changes to the Visa Waiver Program, including the prohibition of certain individuals from using Visa Waiver if they had traveled to Iran, Iraq, Syria or the Sudan in the past five years, or if they are dual nationals of those countries. On February 18, 2016, DHS announced that it was adding Libya, Somalia, and Yemen as three countries of concern, and limiting the Visa Waiver Program travel for certain individuals who have traveled to these countries. DHS did not make any additional changes regarding dual nationals of Libya, Somalia and Yemen and left open the possibility of adding more countries of concern in the future.

The Visa Waiver Program is administered through the Electronic System for Travel Authorization ("ESTA"), which has made changes to its online application in response to the changes in the Visa Waiver Program. Customs and Border Patrol ("CBP") announced on February 23, 2016 the revised online application contains additional questions to address the travel eligibility requirements discussed above. CBP also noted that an updated ESTA application with additional questions on travel to Libya, Somalia and Yemen will be released in the spring and will also address exceptions for diplomatic and military-related travel.

You can read last month's update on the Visa Waiver Program here.  If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

Justice Antonin Scalia's passing and what it means for President Obama's Executive Action on Immigration

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016 impacts one of the most high-profile cases before the Court this year: whether President Obama's Executive Actions on Immigration overstepped the bounds of his authority. In November 2014, President Obama announced a bold series of Executive Actions, including expanded Deferred Action for Childhood Arrivals ("DACA") and a newly created Deferred Action for Parents of Americans ("DAPA"). His executive actions sought to expand the existing DACA program to include more individuals who were brought to the U.S. as children and who presently do not have status in the U.S., and to create a new program to allow parents of U.S. citizens and permanent residents to remain in the U.S. and work without fear of deportation.

Shortly after President Obama announced his Executive Actions, seventeen states (with Texas as lead plaintiff) filed lawsuits claiming the President's proposed actions exceeded his authority. On February 16, 2015, a federal judge in Texas issued an injunction to prevent implementation of these two programs (expanded DACA and DAPA), a decision the Obama administration appealed. On November 9, 2015, in a 2 - 1 decision, the 5th Circuit Court of Appeals in New Orleans affirmed the District Court's decision, halting President Obama's expanded DACA and DAPA programs. On January 19, 2016, the U.S. Supreme Court agreed to review in the case, known as United States v. Texas, with formal hearings set for April of this year. 

With eight justices presently serving on the Supreme Court, a 4-4 tie in the case is possible. A tie among the justices in United States v. Texas would preserve the lower court's decision, effectively placing a permanent injunction on the program. However, most legal experts agree there is clear precedence that permits a President to take executive actions related to immigration. Accordingly, immigration advocates are calling on the Supreme Court to continue hearing the case this April. We will continue to bring you news related to the hearings on United States v. Texas and any other DACA and DAPA related news on our website at www.iandoli.com/newsandupdates

DOL announces OFLC Emergency Processing Initiative for Backlogged H-2B Applications

The U.S. Department of Labor's ("DOL") Employment and Training Administration's Office of Foreign Labor Certification ("OFLC") is presently experiencing significant delays in processing employers' H-2B temporary labor applications. The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary, non-agricultural jobs. OFLC's adjudication delays are the result of several factors, including a seventeen-day pause at the Chicago National Processing Center earlier this year to enable OFLC to implement changes to the revised H-2B prevailing wage and certification standards. As a result of these delays in the certification process, employers seeking to hire foreign workers to fill temporary, non-agricultural jobs pursuant to the H-2B program are experiencing significant delays. These delays can create instability for a number of small businesses that depend on temporary and seasonal workers. To address the needs of these businesses, DOL is implementing emergency processing initiatives to assist in the alleviation of the applications backlog. For more details on these emergency processing initiatives visit DOL's website.

H-1B filing deadline and delays with iCERT

The Fiscal Year 2017 H-1B visa filing deadlines are fast approaching and employers should plan accordingly.  USCIS will accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2016 through Thursday, April 7, 2016. Therefore, we urge employers to contact us as early as possible to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other possible options for employment-based visas for professionals and recent graduates. 
 
Part of the reason behind the urgency is the Department of Labor's Office of Foreign Labor Certification ("OFLC") announcing on January 27, 2016 the agency was experiencing technical network problems supporting its iCERT visa portal system, resulting in delays in the processing of Labor Condition Applications with the Department of Labor ("DOL"). Before an employer can file an H-1B visa application with USCIS, the employer must first obtain a certified Labor Condition Application from DOL via its online iCERT system. While processing through iCERT typically takes 5 - 7 business days, the announcement from OFLC did not provide employers with a timeframe or expected delay time estimate as a result of the performance issue "significantly impacting" OFLC's ability to process applications.
 
Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.

Changes to Visa Waiver Program are now in effect

At the end of 2015 and in the wake of the recent terror attacks in Paris, Congress made significant changes to the Visa Waiver Program ("VWP"), which was created in 1986 and allows citizens of certain countries to enter the U.S. as a tourist without a visa for up to 90 days. In the U.S. this program is administered through an online portal called the Electronic System for Travel Authorization, commonly referred to as ESTA.  Previously eligible persons are now prohibited from using visa waiver if they have traveled to Iran, Iraq, Syria and Sudan since March 1, 2011, or if they are dual nationals of these countries.  There are limited exceptions (for example, travel to one of the countries on the list to carry out military service or official government business with a VWP participating country) which can be disclosed on the new ESTA application due to be released later this month.

On January 21, 2016, U.S. Customs and Border Patrol ("CBP") announced that affected individuals began receiving emails notifying them they are no longer eligible to use ESTA. Those foreign nationals will be required to seek a B-1 or B-2 visitor visa at a U.S. consulate or embassy abroad if they wish to travel to the U.S. in the future.

CBP published a new set of Frequently Asked Questions on its website concerning the changes to the VWP and ESTA.  If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

TPS update: Sudan, South Sudan, Yemen and proposal for adding several Central American countries

Secretary of Homeland Security Jeh Johnson has announced several important designations and deadlines related to Temporary Protected Status ("TPS") for nationals from Sudan, South Sudan, and Yemen: 

• On January 25, 2015, DHS announced it was extending TPS for nationals of Sudan.  Current TPS Sudan beneficiaries who wish to extend their TPS status must re-register during a 60-day period that runs from January 25, 2016 through March 25, 2016.
• On that same day, Secretary Johnson announced redesignation and extension TPS for nationals from South Sudan. Current TPS beneficiaries from South Sudan have until March 26, 2016 to re-register, and new applicants for TPS from South Sudan must apply by July 26, 2016 and prove they are either South Sudanese nationals or persons without nationality who last habitually resided in South Sudan with continuous residence in the U.S. since January 25, 2016 and continuous physical presence in the U.S. since May 3, 2016.
• Yemen was designated for TPS on September 3, 2015 and the registration period runs through March 1, 2016, so applicants from Yemen have less than a month remaining to apply. 

Also on January 25, 2016, a group of 273 civil rights, labor rights, faith-based, immigrant, human rights, humanitarian, and legal service organizations sent a letter to President Obama and Secretary Johnson requesting DHS designate El Salvador, Guatemala, and Honduras for TPS.  These three countries, known as the Northern Triangle, have experienced a period of escalating violence that has been visible in the U.S. in light of the huge numbers of refugees (particularly minor children) fleeing the Northern Triangle countries.  Iandoli Desai & Cronin P.C. will post news and updates from the White House or DHS regarding this request and any agency action on this page: www.iandoli.com/newsandupdates.

Obama's executive action on immigration headed to the Supreme Court

The U.S. Supreme Court announced on January 19, 2016 it will hear arguments related to Texas v. U.S., the lawsuit challenging President Obama's executive action on immigration.  On November 20, 2014 President Obama announced a number of actions and priorities, including expansion of the Deferred Action for Childhood Arrivals ("DACA") and the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") that would allow parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, provided they have lived in the U.S. continuously since January 1, 2010 and pass required background checks.
 
Seventeen states (with Texas as lead plaintiff) filed a lawsuit against the Obama administration in December 2014 alleging the President's proposed executive actions, including the expansion of DACA and the creation of DAPA, exceed his authority.  The case has moved through the federal district court to the Fifth Circuit Court of Appeals and now is headed to the Supreme Court.  Stay tuned for updates from Iandoli Desai & Cronin P.C. in the coming months on this page: www.iandoli.com/newsandupdates.

OPT STEM Update - Current STEM OPT rules stay in place until May 10, 2016

On Friday, January 23, 2016, the U.S District Court for the District of Columbia ordered the vacatur of the present STEM OPT rules be stayed until May 10, 2016.  This action comes as a relief to international students currently on F-1 OPT STEM extension or who are eligible for such extension, as well as their employers and their schools' international student offices.  Pursuant to this latest order, the current 17-month extension of OPT, available to students who graduated from a U.S. college or university with a STEM degree, will remain in place until at least May 10, 2016 while we await publication of the final rule on STEM OPT from the Department of Homeland Security ("DHS").

To recap, the Washington Alliance of Technology workers sued DHS last year, arguing that DHS had not engaged in proper notice and comment when it promulgated the 2008 regulations that enabled F-1 students to seek an 17-month extension of work authorization pursuant to their period of Optional Practical Training ("OPT")  after completing their studies in the U.S.  In August 2015, the U.S. District Court agreed with the Washington Alliance of Technology workers and ordered the current STEM OPT rules that allowed for a 17 month extension in work authorization be vacated as of February 12, 2016 unless DHS corrected its procedural deficiency.  In October 2015, DHS published the new proposed STEM OPT rule and received over 50,000 comments in response. On December 22, 2015, DHS filed a motion requesting the court permit the existing STEM OPT extension program to continue until May 10, 2016 to enable the agency time to address a majority of the comments received when publishing its final rule.  This most recent order, dated January 23, 2016 and available to view here, allows DHS's motion and thus extends the existing STEM OPT program rules from 2008 through the spring.  

We expect DHS will publish its final rule in the coming months with a number of important changes to the STEM OPT program.  The attorneys of Iandoli, Desai & Cronin P.C. will continue to post updates on this important news at www.iandoli.com/newsandupdates.  You can contact us at info@iandoli.com with your questions about STEM OPT, the proposed regulations, and any other immigration related questions.

DHS publishes new rule affecting H-1B1 and E-3 Nonimmigrants and EB-1 Immigrants

On January 15, 2016, the U.S. Department of Homeland Security (“DHS”) published a new rule that clarified and enhanced opportunities for highly skilled workers from Chile and Singapore who are employed in the U.S. pursuant to the H-1B1 program and for similar workers from Australia in the E-3 category.  Congress created the E-3 and H-1B1 categories after the effective date of many of the existing regulations concerning nonimmigrant work authorization.  As a result, E-3 and H-1B1 nonimmigrants were excluded from some benefits that similarly situated nonimmigrants enjoyed, and for many years there was ambiguity concerning other aspects of their employment authorization in the U.S.  Under this new rule, which goes into effect on February 16, 2016, DHS expressly provides:

• H-1B1 and principal E-3 beneficiaries will be permitted to continue their employment with their current employers for 240 days upon timely filing an extension of stay request. Previously, H-1B1 and E-3 were not among the list of enumerated nonimmigrant categories that permitted the automatic 240 extension upon timely filing; 
• H-1B1 and principal E-3 beneficiaries will be included in the classes of foreign nationals who are authorized for employment in the U.S. incident to status with a specific employer.  This clarifies that H-1B1 and principal E-3 workers are not among the classes of nonimmigrants that must separately apply for employment authorization to begin work with their petitioning employer; and,
• H-1B1 and principal E-3 beneficiaries will be permitted to file for extensions of stay and change of status requests while in the U.S.   Although it has been the case that the Form I-129 instructions permitted H-1B1 and principal E-3 workers to use the form and file for extensions and change of status requests for many years, the existing regulations were not drafted in a way to specifically permit these filings.  

In addition to the changes to the H-1B1 and E-3 categories, DHS’s new rule has also revised the EB-1 regulations for outstanding professors and researchers.  DHS acknowledged the list of evidence that applicants in the EB-1 category may submit to prove their outstanding qualifications was dated and needed to be amended to expressly permit applicants to submit “comparable evidence” to establish their eligibility.  The regulations specifically cite evidence of “important patents or prestigious peer-reviewed funding grants” as two types of comparable evidence applicants may now submit to demonstrate they are recognized internationally as outstanding in their academic areas.

To review a full copy of the new regulations, visit the Federal Register online at https://federalregister.gov/a/2016-00478.  Please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com with any questions you may have about the changes coming next month to the H-1B1, E-3, and EB-1 categories.