Table of Contents2hqyh93y2sj32lqbnw40aoj0.wpengine.netdna-cdn.com/...{00043257} • USCIS Publishes Long-Awaited Final Rule on Certain Employment -Based Visa Programs ..... 22

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1. Openers ................................................................................................................ 2

2. ABCs of Immigration: Cancellation of Removal for Non-lawful Permanent Residents........ 3

3. AskVisalaw.com ................................................................................................... 10

4. Border and Enforcement News ............................................................................... 12

• BRIDGE Act Questions and Answers ................................................................. 12

• USCIS Publishes Interim Rule on T Nonimmigrant Status .................................... 15

5. News from the Courts ........................................................................................... 16

• Matter of Dhanasar – the New NIW Standard ..................................................... 16

• BIA Vacates IJ Decision, to Give DHS Another Opportunity to Effect Proper Service 19

• BIA Says an Untimely Asylum Application Can Be Found Frivolous ........................ 19

6. News Bytes .......................................................................................................... 20

• USCIS announces fee increases ....................................................................... 20

• USCIS Policy Alert on Registration of Lawful Permanent Resident (LPR) Status ....... 21

7. Washington Watch ................................................................................................ 22

• President Obama officially ends NSEERS program .............................................. 22

8. In the News at ABIL .............................................................................................. 22

Table of Contents

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• USCIS Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs ...................................................................................................... 22

• USCIS Revises I-9 Employment Eligibility Verification Form ................................. 24

9. Updates from the Visalaw.com Blogs ....................................................................... 24

10. State Department Visa Bulletin: January 2017........................................................ 25

1. Openers Dear Readers:

I hope you have had a happy holiday season so far. As we get closer to the inauguration of the new President, we have had some questions answered regarding appointments to new positions, but there remain unanswered numerous questions about the policies President-Elect Trump will pursue on immigration.

The four major cabinet-level appointments that deal with immigration are Secretary of State, Attorney General, Secretary of Homeland Security and Secretary of Labor. Mr. Trump has chosen Rex Tillerson, the head of Exxon, for Secretary of State and Andrew Puzder, the CEO of the Carl’s Jr restaurant chain as the Secretary of Labor. Both have solid pro-immigration records. Retired Marine General John Kelley will head the Department of Homeland Security. General Kelley is largely an unknown quantity when it comes to immigration. And for Attorney General, Senator Jeff Sessions has gotten the nod. Senator Sessions has earned the reputation for being the most anti-immigration member of the Senate. So we’re left scratching our heads for a signal. It’s quite possible – indeed probable – that immigration was not a key factor in any of these appointments. Which could be viewed as a positive – that immigration is no longer a key priority and dramatic changes will not be occurring. Or it may simply be still too early to say.

With regard to specific policies, there has been little discussion of anything yet. But so far we have had hints regarding DACA, skilled workers and “extreme vetting”. Regarding DACA, the deferred action program for certain “Dreamers”, restrictionists are urging Mr. Trump to repeal the program. But Mr. Trump is suggesting that he may take a more flexible policy and could seek a compromise that allows DACA recipients to keep their status for a while until a bigger deal is made. Indeed, Senator Graham and a group of five other Democrats and Republicans have introduced a bill to extend DACA for three years, something the new President may support.

The President-Elect has sent mixed signals on skilled workers. On the one hand, in a Youtube address he suggested that cracking down on H-1B abuses would be a major priority. On the other hand, he recently met with a group of leaders of the biggest tech companies in America and suggested he was ready to help to make sure they had access to global talent.

An on “extreme vetting” of people from Muslim countries, we still have no clear answers. Mr. Trump has suggested he still intends to make it much tougher for people from Muslim

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and Middle Eastern countries to enter the US. But we have yet to see specific plans leaving a lot of people nervous about how to proceed with immigration processing.

We still have not heard about who will head the three DHS immigration agencies – Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and US Citizenship and Immigration Services (USCIS). These are key appointments that may tell us more about where Mr. Trump is headed.

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In firm news, a number of lawyers in the firm attended the Second Physician Immigration Institute in Washington. Greg Siskind, Elissa Taub and Adam Cohen were each speakers and a number of us also stayed on a day to visit House and Senate offices advocating on immigration issues.

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This issue marks the debut of our newest team member, Andrew Bagley, who is taking over from Sarah Schrag as associate editor of Siskind’s Immigration Bulletin and Siskind Susser’s webmaster. We’re very excited to have Andrew on board and look forward to great things.

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As always, we invite you to contact us if our firm can be of assistance. Please visit our web page at www.visalaw.com for information on reaching the firm or scheduling a consultation.

Regards,

Greg Siskind

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2. ABCs of Immigration: Cancellation of Removal for Non-lawful Permanent Residents

What is Cancellation of Removal?

Cancellation of removal for non-lawful permanent residents is a defense to deportation, and a pathway to a green card for people who are in removal (deportation) proceedings.

There is a separate form of relief, called “cancellation of removal for lawful permanent residents,” that is available for people in deportation proceedings who already have green cards. There are also special types of cancellation of removal for people who have

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experienced domestic violence by a spouse or parent, and those applying under the Nicaraguan Adjustment and Central American Relief Act (NACARA).

This article focuses only on non-LPR cancellation of removal. Below are answers to common questions about cancellation.

What do I have to prove to win Cancellation of Removal?

You have to prove four things, each of which are explained in further detail below:

• You have been physically present in the United States (in any status, or without status at all) for at least ten years.

• You have been a person of “good moral character” for at least ten years.

• You do not have any disqualifying criminal convictions.

• You have a US citizen or Lawful Permanent spouse, parent, and/or child under 21 who would suffer “exceptional and extremely unusual hardship” if you are deported.

How do I prove that I have been physically present in the US for ten years?

Your “ten years of physical presence” stops as soon as your “Notice to Appear” (NTA) is issued. The NTA is the charging document that starts your immigration court proceedings. This means that unfortunately, if you entered the US in 2009 and you are detained and issued an NTA in 2017, you are not eligible for Cancellation even if your final hearing isn’t until 2020.

To prove physical presence, you can use any document that shows that you were living in the US: taxes, lease agreements and mortgages, birth certificates of children, medical records, bills, bank statements, employment records, letters and affidavits from family and friends, etc. This is sometimes tough for people without status who have lived their lives in the shadows, but the more documents you can provide, the stronger the case will be. If you have left the United States and returned in the 10 years before your removal proceedings started, your lawyer will also need to analyze the exact dates. You will need to show that you were never away from the United States for more than 90 days in one trip, and no more than 180 days total.

Other problems, including certain criminal convictions, can “stop the clock” and prevent you from showing 10 years of physical presence.

How do I prove that I’ve been a “person of good moral character” for ten years?

“Good moral character” is a two-part concept. First, there are certain things that outright bar you from having “good moral character” and make you ineligible for cancellation if they happened during the 10 year period. Examples include people who have served a criminal

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sentence of at least 180 days, people who have participated in genocide or torture, and people who have two or more convictions for gambling-related offenses.

Even if you don’t have anything that absolutely disqualifies you, a judge can take into account almost anything in your life to determine whether you are a “person of good moral character.” Positive factors generally include: maintaining employment and paying taxes, participating in volunteer work or religious activities, good relationships with family members and the community, and showing “rehabilitation” for any negative factors (for example, attending Alcoholics Anonymous after having a DUI). Negative factors include: any non-disqualifying criminal record such as a DUI, failing to maintain strong relationships with children (such as failing to pay child support), failing to pay taxes, etc. You don’t have to be an absolute angel, but if there are any negative factors in your case, you will want to have lots of positive factors to help the judge justify a decision in your favor.

Strangely, the ten years for good moral character is calculated differently than for physical presence. Your ten years for “good moral character” ends on the date of your final hearing, so you keep accruing “good time” after your court proceedings start. For example, imagine that you have two gambling convictions from January 2010. If your NTA is issued in 2017, you do not yet have 10 years of “good moral character” because you have two gambling convictions within 10 years. However, if your final hearing is after January 2020, you will become eligible, because the gambling offenses are now outside your 10 year period.

What types of criminal convictions disqualify me from Cancellation of Removal?

Unfortunately, the criminal bars to cancellation of removal are extremely broad and complex. Many crimes, including some that seem relatively minor such as shoplifting, assault, or simple possession of most drugs, can make you ineligible, no matter how strong the rest of your case is.

Many people believe that if their criminal case is “closed” or “taken care of,” especially if they never served any jail time, they will not face any immigration consequences. We often hear “but I already paid my fine and completed my probation! Why does the judge care about this old case?” Unfortunately, immigration law is very unforgiving, and even if you have put a legal problem behind you, an immigration judge will take it into account.

An immigration lawyer will be able to analyze all of your court records and explain whether any particular criminal case disqualifies you, or if it will simply factor into the judge’s “good moral character” analysis. The effect of any given case will depend on what statute you were charged under, what your sentence was, how long ago it was, what other types of convictions you have, whether you have shown “rehabilitation,” and even what the police report says.

How do I show that my spouse, parent, or child will suffer “exceptional and extremely unusual hardship” if I am deported?

If you are otherwise eligible, “hardship” to your qualifying relative is the heart of your cancellation case.

A qualifying relative must be a US citizen or Lawful Permanent Resident, and must be your spouse, parent, or child (under 21 years old at the time of the final hearing). An adult child does not count, siblings do not count, and an unmarried partner does not count. Same-sex

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spouses can be qualifying relatives just like opposite spouses, as long as they are lawfully married. You can have more than one qualifying relative.

Of course, as human beings we understand that any family separation or relocation is extremely difficult and painful. However, in order to win a cancellation case, you must convince the immigration judge that the court that the hardship your relative would suffer is beyond the “normal” or “average” suffering that people experience when a relative is deported.

Common types of hardship include medical, emotional, financial, and cultural. An experienced immigration attorney analyze each case individually and creatively in order to document all types of hardship that the qualifying relative would suffer, and to prepare the relative to testify in court (if she is able) about her hardship.

Here is an example of a very strong cancellation case, which would probably win if it is well documented, and if there are no other strong negative factors:

Jose is in removal proceedings. He is a single father of a US citizen daughter. Jose’s daughter is 7 years old and has a very serious and rare type of cancer. If Jose is deported and his daughter goes with him to his home country, she would not be able to get the necessary medical care she needs, and she would die. Jose also takes care of his elderly father, who is a Lawful Permanent Resident. Jose’s father survived a civil war in Jose’s home country, and is both physically disabled and emotionally traumatized. If Jose is deported, his father will not be able to afford a home health aide to address his day-to-day needs, and he may become suicidal if he is unable to cope emotionally with being left alone.

Here is an example of a fairly weak case that probably will not win, even if there are no other strong negative factors:

Ivan has a US citizen wife who is healthy and financially independent. The couple met and married very recently, and have never lived together because they have jobs in different cities. Ivan comes from a middle-class family in a stable, English-speaking country where his wife could easily find a good job. Even though Ivan has a qualifying relative for purposes of cancellation of removal, it would be challenging to show that she would suffer “exceptional and extremely unusual hardship” if she has to relocate to Ivan’s country or remain in the US without him.

Can I get a work permit (employment authorization document) while I’m waiting for my case to be heard? Yes. As soon as you have paid the government filing fee and filed your initial application for cancellation of removal, you can apply for work authorization. Usually you will get an employment authorization document (EAD) that is valid for one year; you can keep renewing it while you’re waiting for your final hearing, and again after the final hearing while you are waiting for the judge’s decision.

How long does it take to win a Cancellation of Removal case?

Currently, approximately four years for non-detained cases. If you are detained and unable to get released on bond, you may only have a few months to prepare your case.

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There are two reasons for the very long delay. First, there are not enough immigration judges to promptly hear everyone’s case. In the Memphis Immigration Court (which serves all of Tennessee, Arkansas, and Kentucky, as well as Mississippi north of Jackson), people typically have to wait between 18 months and two years between their first preliminary hearing, and the final individual hearing where their case is heard. Some courts in other parts of the country move a bit faster or slower.

Second, there are a fixed number of green cards given every year for winning Cancellation of Removal cases. This means that there is a long waiting list. At the final hearing, the applicant usually has to wait another 12 to 18 months to find out whether she will win her case or be deported. For now, this means that even people who eventually lose their cases are able to continue to renew their work authorization and remain in the United States for another year or two after their hearing.

However, in the fall of 2016 the Department of Justice proposed a chance to this rule which would allow judges to deny cancellation cases and order people deported immediately at their final hearings. Winning cases would still have to wait a year or two to get their green cards, but at least they would have a better idea at the date of their hearing whether they would ultimately be successful.

I heard that if I’m not currently in removal proceedings, there’s a form I can file to apply for cancellation of removal and get my work permit. What’s that about?

WATCH OUT! This is a common myth and a common scam. Cancellation of removal is only available in removal proceedings, which means that if the government is not currently trying to deport you, you are not eligible to apply.

However, there are some scam artists who will promise to “get you a work permit and a green card because you have been here for 10 years.” Usually, these are “notarios” who are not authorized to practice law and who take advantage of people’s hope and ignorance.

What they do is file a form I-589, which is an application for asylum. Sometimes they don’t explain to their clients what they are signing, and sometimes they even encourage people to make up fake requests for asylum. They know that the asylum case will eventually be denied, which leads to the person being referred to immigration court. In the meantime, the client can apply for work authorization based on the pending asylum claim, and so they believe they have received a benefit when in reality the notario has increased their risk for deportation. The client believes that everything is fine, but eventually she winds up in deportation proceedings where the fake asylum claim makes her ineligible to apply for cancellation of removal.

If you are genuinely afraid to return to your country of origin, and you are also eligible for cancellation of removal, you should talk to an experienced, reputable immigration lawyer about the possibility of filing an asylum claim. A good immigration lawyer will evaluate your asylum case and give you a realistic picture of how likely you are to succeed with your initial asylum claim. She will explain that if you are not successful with your asylum claim, you will be referred to immigration court where you will have a second chance to present your asylum case, or to apply for cancellation of removal. She will also evaluate your possible cancellation of removal claim and give you an idea of how likely you are to succeed. An ethical lawyer will help you understand that coming out of the shadows to file a weak asylum claim is very risky, and that cancellation of removal is never a guaranteed “backup

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plan” because at the end of the day, the judge has a lot of discretion and you do not know what your qualifying relative’s hardship will be in two, three, four, or five years.

What should I do to prepare myself for Cancellation of Removal if I am not currently in removal proceedings?

If you are not currently in removal proceedings, you can still take action to make sure that your case is as strong as it can be, in case you ever find yourself before an immigration judge.

● Keep records. Keep a file of any paperwork that can show that you are physically present in the United States: bank statements, leases from prior apartments, W-2s and letters from prior employers, holiday cards from friends and family members addressed to you, etc. If you have qualifying relatives who have any kind of health problem, disability, learning disorder, or emotional challenges, get it evaluated and keep all records from medical, educational, and mental health professionals.

● Evaluate your criminal record. A lot of people think that their past arrests can’t hurt them if the case was dismissed, or if they completed their sentence or probation, or if they paid their fine. This is not true. If you have ever been in handcuffs, ridden in the back of a police car, got a notice in the mail to come to court, seen a judge, spent the night in jail, etc, you may have a case that will affect your eligibility for cancellation. If you don’t have records, call each court and ask for your “record of disposition,” and if possible, all other documents in the court file including police reports, complaints, docket sheets, and plea sheets. Bring these documents to an experienced immigration attorney, who can evaluate whether you are eligible for cancellation, how your criminal record will affect the strength of your case, and whether you may want to consult with a criminal attorney about getting any of your cases reopened and vacated.

● Show rehabilitation. If you’ve ever had a problem with drugs or alcohol or violence, especially if you’ve ever been arrested for a DUI or assault, take action now. Of course, reasonable people understand that a person can make a mistake and drive drunk once or twice, without being an alcoholic. We also understand that people may plead guilty to DUI even if they were totally sober and innocent, just to avoid the expense and risk of jail time. However, immigration judges take DUI very seriously. A judge will want to see that you recognize the problem and have taken action to make sure it never happens again. Attend Alcoholics Anonymous or a similar program, and keep records of your attendance. Attend individual counseling or therapy or rehab. Similarly, if you’ve ever had an arrest involving violence (including simple assault or “just a fight”), or gambling, now would be a good time to think about what happened, and enroll in an anger management program, gambling recovery program, or individual counseling to show that it won’t happen again. For extra rehabilitation “bonus points,” you can volunteer with a support organization like AA, or contact a group like Mothers Against Drunk Driving to tell your story to teens.

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● Don’t get arrested. As explained above, there’s no time like the present to get help if you’ve ever had a problem with drugs, alcohol, violence, or gambling. Understand that even though marijuana is now decriminalized under many local and state laws, possession of even a small amount is still a federal crime.

● Don’t commit fraud or pretend to be a US citizen. Lots of people work with false documents, accidentally register to vote when they apply for a driver’s license, or file taxes claiming false dependents. Now is a good time to get a Tax ID Number (TIN) so you can file under your own name, and consult a professional to make sure you’re filing everything correctly and lawfully. Don’t use fake documents or check a box on any forms claiming to be a US citizen. These actions can disqualify you from cancellation of removal, or make it harder to win.

● Ask an immigration attorney about other forms of relief. Even if you can’t apply for cancellation of removal right now, there may be other pathways to status for you. For example, there are programs to help people get green cards if they have been a victim of a serious crime and cooperated with police, if they have been a victim of domestic abuse by a US citizen or lawful permanent resident, or if they are a child who has been abused or abandoned by one or both parents. We even occasionally see people who are United States citizens and didn’t even realize it!

● Prepare for bond. If immigration agents arrest you, you may need to pay a bond in order to get out of detention. All of the actions described above to help prepare your cancellation case will also help your request for reasonable bond, because an immigration judge will evaluate whether you are a danger to your community, how likely you are to ultimately be successful in your cancellation case, and whether you are likely to return to court. Understand that if you have a DUI or drug-related arrest, your bond may be as high as $10-15,000, and if you have multiple arrests, it may be hard to get a bond at all. Unlike some state jails, you have to pay the amount in full before you are released; immigration bond companies can be difficult to access or charge extremely high fees. Start putting money aside now, if you need to, and think about which friends and family members may be able to contribute in a pinch. Even if your bond is very high, paying it is always a good idea, because it is very challenging to win a cancellation case from detention. Your case will move much more quickly, it will be harder to prepare your records and testimony, and you may be tempted to give up on your case if you are unsuccessful and need to appeal.

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3. AskVisalaw.com In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1.) Question: I have a B1/B2 visitor visa that was issued to me many years ago. My mother filed an I-130 petition for me a while ago and the priority date for it has almost been reached on the Visa Bulletin. I recently received the letter from the NVC telling me I can begin processing my immigrant visa application. Can I come to the US on my visitor visa and apply for a green card in the US based on the petition my mother filed for me?

Answer: You should not come to the US using your visitor (B-1/B-2) visa in order to apply for Adjustment of Status in the US to become a US Permanent Resident (green card holder). A visitor visa is to be obtained and used for entry into the US only by someone who has “nonimmigrant intent”, meaning they intend to stay only for the authorized period of admission and then they intend to leave the US (this also applies to certain other nonimmigrant visas, such as a F-1 student visa). Alternatively, someone who enters the US with the intention of remaining and living in the US has “immigrant intent” (also known as “preconceived intent”). A foreign national who has immigrant intent / preconceived intent at the time they apply for a visitor visa, or at the time they use the visitor visa to come into the US, is committing visa fraud and will make themselves ineligible (inadmissible) for most immigration benefits, including applying for Adjustment of Status (Form I-485), under the Immigration and Nationality Act (INA) Section 212(a)(9)(C).

INA 212(a)(9)(C)(i) states that “any alien who, by fraud or willfully misrepresenting a fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.” A waiver for this ground of inadmissibility requires that the foreign national have a US citizen or US Permanent Resident spouse or parent, and requires convincing USCIS that if the waiver is not granted that it will cause “extreme hardship” to that spouse or parent. However, even where the foreign national has a spouse or parent who is a US citizen or US Permanent Resident, I would highly recommend against coming to the US using a visitor visa with immigrant intent, both because it is illegal and because the standard for showing that the spouse or parent will suffer “extreme hardship” is high, and so there is no guarantee that USCIS will grant the waiver of the 212(a)(9)(C)(i) bar of inadmissibility.

Where someone legitimately had nonimmigrant intent at the time they entered the US (meaning that they truly intended to stay for the authorized period of stay and then leave the US), but something happened AFTER they entered the US to cause them to stay and apply for Adjustment of Status, that person should not be subject to a bar of inadmissibility under 212(a)(9)(C)(i) due to “preconceived intent”. However, when they apply for Adjustment of Status, the foreign national will have the burden to prove to USCIS that they

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did not have immigrant intent/preconceived intent when they entered the US. USCIS should look at the actions of the foreign national after they came into the US to determine whether the foreign national actually intended to leave the US, or whether they came intending to stay. USCIS should pay special attention to the actions of the foreign national that would tend to indicate that they planned to remain in the US where they occurred during the foreign nationals first 30 days in the US, and where they occurred between their first 30 days and their first 60 days in the US. This is commonly known as the “30-60 day rule”. However, USCIS is still also allowed to consider the foreign national’s action that occurred after 90 days as well, so the 30-60 day rule should be considered as more of a guidelines than a rule that the foreign national can rely on.

A potential exception to being subject to the 212(a)(9)(C)(i) bar for fraud or misrepresentation for having entered the US with immigrant intent / preconceived intent, for someone who has already entered the US, is if the foreign national is applying for Adjustment of Status (Form I-485) based upon an I-130 immigrant petition that qualifies under the “Immediate Relative” category. The Immediate Relative category includes spouses of US citizens, parents of US citizens, and children of US citizens who are under the age of 21 (If you are waiting for a visa to become available for your petition’s priority date in the DOS Visa Bulletin, then your I-130 falls under one of the “preference categories” and is not under the Immediate Relative category). Under the Board of Immigration Appeal (BIA) cases of Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980); Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1980); and Matter of Battista, 19 I&N Dec. 484 (BIA 1987) where a foreign national applying for Adjustment of Status is a) applying as an Immediate Relative; and b) is otherwise eligible to be granted permanent residence; and c) the only issue is that the foreign national had immigrant intent/preconceived intent at the time they entered the US; and d) the foreign national did not commit any actual fraud (such as lying or using a false document) when applying for the visa or when entering the US; then the USCIS adjudicating officer should use their discretion and approve the Application for Adjustment of Status despite the fact that the foreign national had immigrant intent / preconceived intent when they entered the US. However, even for someone who would qualify as an Immediate Relative, I warn against coming to the US on a visitor visa with the intention to remain and live in the US as a) the act of entering the US with immigrant intent / preconceived intent is still an illegal act; b) when you enter the US you might find yourself lying to the inspecting officer during the inspection process, even if you did not plan to; and c) despite the case law, it is not guaranteed that the USCIS adjudicating officer will use their discretion to approve the I-485 application in this situation.

2.) Question: If a green card holder living outside the US no longer wishes to pursue getting his/her American citizenship – can he/she let go of the green card and apply for a simple travel visa without being adversely affected?

Answer: I have previously posted about giving up a green card (also known as abandoning permanent residence).

Someone who abandons their permanent residence can later apply for a visitor visa. As with all applicants for a visitor visa to the US, they will need to show that their ties to their home country are stronger than their ties to the US, and that they are unlikely to remain in the US. This can sometimes be tougher for foreign nationals who have been living in the US as permanent residents. So giving up permanent residence does not guarantee that the person will be able to obtain a visitor visa soon afterwards, but it is an option.

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4. Border and Enforcement News

BRIDGE Act Questions and Answers By: Lily S. Axelrod

1.) What’s the BRIDGE Act?

The Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act, S. 3542, is a bipartisan bill which proposes to provide employment authorization and create greater protection from deportation for current Deferred Action for Childhood Arrival (DACA) beneficiaries and those who are eligible but have not yet applied for DACA. Senator Lindsey Graham (R-SC) introduced it on December 9, 2016.

2.) Does this bill help me now? Is there something I can apply for?

No. This is a legislative proposal that has not become law yet. It might never become law at all, it might become law exactly as proposed now, or it might be modified before it becomes law. There is no application or benefit now. However, DACA still exists; for my commentary on what Trump’s victory could mean for DACA please see http://www.visalaw.com/what-does-trumps-victory-mean-for-d…/.

3.) If the bill becomes law, what would it do?

The bill would create a new type of immigration status, called “provisional protected presence,” which would exist for three years starting on the date the bill passes.

This status is similar to DACA because it grants employment authorization and protection from deportation. However, it is a stronger protection against deportation because it explicitly prohibits the government from deporting people with provisional presence, and people whose applications are pending. The protection can only be rescinded if the beneficiary has a new conviction for certain offenses, poses a threat to national security or public safety, or travels outside the US without authorization.

The bill also prohibits the government from sharing information about DACA applicants and “provisional protected presence” applicants with immigration enforcement authorities, except to identify fraudulent claims, for “national security purposes,” and for investigation and prosecution of non-immigration related felonies.

Under this bill, the government is not allowed to share a big database of applications in order to help deportation officers identify and arrest people who have been in the US unlawfully, and it is not allowed to “refer” unsuccessful applicants to authorities unless there is an allegation of fraud, non-immigration related crime, or danger to the public.

4.) I already have DACA. How would this bill affect me if it becomes law?

If the bill is passed, people with DACA would automatically be granted “provisional protected presence,” which would last until the date of their current DACA expiration and would allow them to work lawfully and be protected from deportation. They can then apply to renew their “provisional protected presence” before their current DACA expires, which will

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automatically extend their work authorization and provisional protected presence while their application is pending.

This solves a common frustration among DACA beneficiaries (and many other immigration benefits such as TPS and asylum), who may find themselves temporarily unable to work lawfully if the government is slow to process their applications.

5.) Who is eligible to apply for provisional protected presence?

The requirements are nearly identical to the current DACA requirements. The applicant must meet all of the following criteria:

• Born after June 15, 1981; • Entered the US before turning 16; • Lived continuously in the US between June 15, 2007 and the date of filing the

application; • Was physically present in the US on June 15, 2012, and the date of filing the

application; • Was unlawfully present in the US on June 15, 2012; • Be currently enrolled in high school or a GED program; graduated from high school

or a GED program; or an honorably discharged veteran; • Have no convictions for a felony, a significant misdemeanor, or three or more

misdemeanors (see #6 below for more information); • Does not otherwise pose a threat to national security or public safety.

People who are prima facie eligible (who can show that they meet the basic criteria) can apply even if they are in immigration detention, even if they have been ordered deported before, even if they are currently in removal proceedings. The government cannot deport someone with a pending application, if the person is prima facie eligible.

6.) What criminal convictions disqualify me? Is this different from DACA?

The criminal bars are nearly identical to DACA, with one small difference explained below.

A single felony conviction disqualifies you. This means you cannot have a conviction for a crime that is punishable by more than a year of jail or prison time (regardless of the sentence you actually received or served – you can have a felony conviction even if you’ve never spent a night in jail). This is the same as DACA.

A single “significant misdemeanor” conviction also disqualifies you. A “significant misdemeanor” is a crime of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence. A significant misdemeanor also includes any misdemeanor where you were sentenced to more than 90 days (not including a suspended sentence).

Unlike for DACA, a “driving under the influence” offense only disqualifies you for provisional protected presence if the state law “requires, as an element of the offense, a finding of impairment or a blood alcohol content of 0.08 or higher.” This means that some state DUI laws would not disqualify you, even if you actually were impaired or your BAC was over 0.08.

For example, a state “zero tolerance” law would not disqualify a “provisional protected presence” applicant if the law prohibits people under 21 from driving after drinking any alcohol, regardless of BAC and regardless whether they are actually impaired. Similarly, a

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law which prohibits driving after smoking marijuana, but which does not actually require a finding of impairment, would not be a disqualifying misdemeanor. However, watch out, especially if you have a recent conviction or more than one: the government could still deny your application if it believes you are “a threat to public safety.”

7.) Does the bill provide a path to a green card or long-term lawful status?

No. Just like DACA, “provisional protected presence” is not a direct path to lawful permanent residence (also called a “green card”).

However, as with DACA, people with “provisional unlawful presence” can apply for residency if they are otherwise eligible (for example, through a petition by a family member or employer, or through a successful humanitarian application such as asylum or special immigrant juvenile status).

Also, as with DACA, the bill seems to contemplate that people with “provisional unlawful presence” can travel on advance parole. People who originally entered unlawfully, but traveled and returned to the US under a grant of advance parole, may become eligible to apply for residency if their only obstacle was the fact that they didn’t have a “lawful entry.”

8.) The bill says provisional protected presence lasts only three years. What happens after that?

The bill is clearly designed to pressure Congress to pass comprehensive immigration reform that would create a longer-term solution for DREAMers and their families. Unless Congress amends the bill or passes another law, “provisional protected presence” would end three years after the bill is passed and leave DREAMers once again out of luck.

The government would still be prohibited from sharing information from DACA and BRIDGE applications with enforcement agencies under most circumstances. In theory, this means that it would be difficult for ICE to do a “mass round-up” of people whose provisional protected presence is ending.

9.) If the bill passes, can’t President Trump just reverse it?

No. DACA is a presidential action, not a law passed by Congress. That means that the next president can change or destroy it as easily as Obama created it. On the other hand, the BRIDGE Act is a legislative proposal, which means that it if passes both houses of Congress, it becomes law that only Congress can change. Trump’s administration must then process applications for “provisional protected presence” whether it wants to or not, though Trump could try to obstruct the process or slow it down.

Fortunately, the bill is also designed to prevent Trump from obstructing the process by slowing down adjudications. People who already have DACA would be automatically protected until their DACA expiration date, and would continue to be automatically protected upon filing an application for “provisional protected presence” as long as they apply before their current DACA expiration date. Similarly, the government would not be able to deport people with pending applications who are prima facie eligible, no matter how long the government delays adjudicating their applications.

If the BRIDGE Act passes both houses of Congress, Trump could try to veto it. If that happens, two thirds of both houses of Congress would need to vote for the Act to override the veto.

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10.) What should I be doing now, to make sure that I’m eligible for the BRIDGE Act if it passes?

If you haven't applied for DACA yet, you should consult with an experienced immigration attorney about the risks and possible benefits of coming forward now.

If you haven’t graduated high school or attended a GED program in the US, now is a great time to enroll.

Keep records, and make sure you have documents that prove when you were present in the US. This can include things like school transcripts, vaccination records and other medical documents, employment records, bank statements, bills, mail from family, etc.

If you’ve ever had any contact with the criminal justice system, talk to an experienced immigration attorney to evaluate your record. A lot of people think that their past arrests can’t hurt them if the case was dismissed, or if they completed their sentence or probation, or if they paid their fine. This is not true. If you have ever been in handcuffs, ridden in the back of a police car, received a notice in the mail to come to court, seen a judge, spent the night in jail, etc, you may have a case that will affect your eligibility. If you don’t have records, call each court and ask for your “record of disposition,” and if possible, all other documents in the court file including police reports, complaints, docket sheets, and plea sheets. Bring these documents to an experienced immigration attorney, who can evaluate whether you are eligible for DACA and/or the BRIDGE Act, how your criminal record will affect the strength of your case, and whether you may want to consult with a criminal attorney about getting any of your cases reopened and vacated.

If you’ve ever been arrested, you’ll want to have evidence that you’re not a “threat to public safety.” If your arrests involve drugs or alcohol or violence, now is a great time to start individual counseling, anger management classes, or a recovery program like Alcoholics Anonymous. This will help you show the government that you won’t repeat your past mistakes.

View the full text of the bill

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USCIS Publishes Interim Rule on T Nonimmigrant Status

The USCIS is amending an interim rule first published in 2002 in response to both public comments and congressional legislation made during its 14-year existence. The T visa was implemented with the intentions of providing immigrational protection to victims of human trafficking, allowing victims who are eligible to stay in the country with the purpose of providing assistance in an investigation or prosecution of human trafficking. The changes are intended to make requirements more clear, and procedures more efficient. With these changes comes the need to amend the T visa application and related forms; the USCIS has given a 60-day window for those who are still filing with the now outdated forms.

Read more about the T nonimmigrant status

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5. News from the Courts

Matter of Dhanasar – the New NIW Standard By: Greg Siskind

After nearly two decades, the Administrative Appeals Office has eliminated the much-criticized NYSDOT standard for EB-2 National Interest Waiver green card cases and replaced it with a new much more realistic one for applicants. According to the AAO:

USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

The appeal was for a Mr. Dhanasar who is an aerospace engineer engaged in research and teaching and who self-petitioned for a National Interest Waiver.

Subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act (which creates the EB-2 employment-based green card category) makes National Interest Waiver-based immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Normally, EB-2 applications must be accompanied by a labor certification documenting that an employer has tested the job market and can show there are no able, willing, qualified and available applicants to fill the position. Applicants must therefore have a willing employer go through the process of advertising the position and meeting prevailing wage requirements and if someone with the minimum qualifications for the job applies, the application will be denied even if the applicant’s qualifications are much stronger.

Under INA Section 203(b)(2)(i) “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”

The AAO described the 1998 NYSDOT standard that is being vacated as follows:

The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.

In Dhanasar, the AAO notes first that the word “intrinsic” in NYSDOT is too subjective. The AAO also believes the second prong of NYSDOT requiring the benefit to be “national in scope” is construed too narrowly by focusing on the geographic impact of the benefit.

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But the AAO found the third prong of NYSDOT – that the petitioner must “demonstrate that the national interest would be adversely affected if a labor certification were required” as being the most problematic. The AAO describes four attempts in NYSDOT to explain the third prong including one stating that applicant must show “influence in the field.” In a footnote, the AAO noted that this “influence” standard looks to past success to predict future benefit, but while stating there is some merit in this, there are some talented individuals for whom past achievements are not the best predictor of future success.

The AAO also found that trying to make applicants show a national interest if they skip a process to recruit unidentified US workers doesn’t make sense – particularly for self-employed individuals such as entrepreneurs. The AAO criticized the concept of showing a harm to the national interest if a labor certification is bypassed, something that it noted is not in the statute and unnecessarily narrows the Secretary of Homeland Security’s discretionary authority under the INA.

Thus, the AAO is vacating NYSDOT and adopting a new framework that it believes “will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”

Under the new standard, an NIW may be approved if “(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO does note that USCIS still has the discretion to deny. However, it seems unlikely that one would win the third prong of Dhanasar and lose on a discretionary basis since the third prong is itself a matter of discretion.

“Substantial merit and national importance” – Prong 1

Under the new NIW first prong, the AAO notes that merit may be demonstrated in a wide range of areas including “business, entrepreneurialism, science, technology, culture, health, or education.” The AAO indicates that showing merit by quantifying economic impact is one way to meet the test, but that it is not required if other evidence of national importance is provided (and providing the examples of research, pure science and the furtherance of human knowledge as potentially enough). Another example offered of merit is where there are national or even global implications in a particular field such as those resulting from improved manufacturing processes or medical advances.

The new standard also deliberately avoids focusing on geographic terms. The AAO is instead interested in “broader implications.” In particular, this passage discussing job-creation makes the point and also points to much more robust use of the category by entrepreneurs:

Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek

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to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

“Well positioned to advance the proposed endeavor” – Prong 2

To demonstrate this second prong, AAO will look at factors including, but not limited to “the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or

individuals.” Importantly, AAO is not expecting petitioners to show that their endeavors are more likely than not to ultimately succeed. Instead, they need only show by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

“On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification” – Prong 3

The AAO is directing USCIS examiners to balance the interests of having a labor certification process to protect domestic workers against other factors deemed to be in the national interest. USCIS should consider factors such as

“whether, in light of the nature of the foreign national’s qualifications of proposed endeavor, it would be impractical either for the foreign national to secure a job offer of or from the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”

Key here is that unlike NYSDOT, the applicant need not sure a harm to the national interest if a labor certification is not conducted. In a footnote, the AAO significantly notes that

because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer thus making the labor certification problematic. This observation should greatly improve the outlook for entrepreneurs interested in using the NIW category to pursue a green card.

The AAO then went on to analyze Dhanasar’s work and his experience. The AAO found that the research work met the new standard and that was enough to order the denial remanded

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back to the Service Center. As an aside, the court declined to sign off on Dhanasar’s argument that his work teaching a STEM field was enough to qualify.

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BIA Vacates IJ Decision, to Give DHS Another Opportunity to Effect Proper Service

On March 21, 2016, an Immigration Judge decided that the Department of Homeland Security (DHS) failed to properly serve a minor in removal proceedings. The respondent, a native of El Salvador, entered the country “as an unaccompanied alien child”, without documentation one year prior, in June 2015 when he was 12 years old. DHS served the minor the same day claiming inadmissibility on the grounds of being present in the United States without being admitted or paroled.

At the removal hearing, the respondent requested and was granted dismissal. The judge made this decision on grounds that DHS failed to comply with the requirements of properly serving the notice to appear to a minor under the age of 14, “[I]n the case of a minor under 14 years of age, service [of the notice to appear] shall be made upon the person with whom the . . . minor resides.” Without any signature, respondent or otherwise, on their summoning, the question became whether they should have another opportunity to serve the summoning. The DHS posed that the Immigration Judge failed to acknowledge that it attempted to rectify the defective service by mailing a copy of the notice to appear to the respondent’s mother in February, two days after the respondent first proposed the complaint of improper service. The Immigration Judge ruled to dismiss the opportunity for DHS to reissue the notice due to its knowledge of the boy’s age, which is not a “variable condition” such as competency, at the time of service, and failure to adhere to the protocol of the circumstances.

The BIA was not persuaded by this argument. It stated that the DHS was in fact aware of a variable condition of incompetency, due to the respondent’s release to DHS custody from a psychiatric hospital. DHS was granted a continuance to properly serve the respondent, and removal proceedings were reinstated.

View the full case

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BIA Says an Untimely Asylum Application Can Be Found Frivolous

An immigration judge found a native of Guinea removable based on his own admissions because he was a nonimmigrant who resided in the United States longer than permitted. The judge also found the respondent guilty of knowingly filing a frivolous asylum application

The respondent came to the United States in November 22, 1997 as a nonimmigrant visitor. He filed for asylum in 2000, falsely stating that he arrived in 1999. The judge asserted that the respondent knowingly falsified his arrival date on his asylum request form, thus submitting a frivolous application. The respondent did not deny his active manipulation of the date on his application, but claimed that the application for asylum could not be found frivolous due to its filing out of time and lack of exceptions to the filing deadline making any fabricated elements not “material” to his claim.

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The judge disagreed and stated that he was unable to apply for any change in status due to the falsified date being “material” to his asylum case, since it effected the whether he met the one year filing deadline, directly effecting the threshold requirement for seeking asylum. Additionally, the judge found that the respondent also knowingly filed this application. He found the respondent’s testimony to be unreliable when the respondent testified that he was unaware of any false statements. The respondent was barred from relief from removal, and his appeal denied upon review by the BIA.

View the full case

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6. News Bytes

USCIS announces fee increases

United States Citizenship and Immigration Services (USCIS) has announced a final decision to raise the fees for applicants by an average of 21 percent. They have cited the reasons for the increase ranging from fraud detection to case handling to maintain waived fees for certain applicants. The increase took effect on December 23, 2016, and USCIS has announced that it will not accept applications nor petitions after this date unless the additional fee is included. Here are a few highlights of these increases:

• A fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.

• A reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.

• A fee increase from $550 or $600 to $1,170 for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.

• A new fee of $3,035 for Form I-924A, Annual Certification of Regional Center.

When these fees were announced, USCIS provided updated versions of the forms, with the increased fees, on their website. While USCIS encourages applicants to use these new forms, it has announced that it will continue to accept old versions of the forms, through February 21, 2017. All forms postdated on December 23, 2016 or later will need to include the additional fees mentioned, however, regardless if the form itself is the updated version, or they will be rejected.

Form N-400 was the only omission from this list of accepted forms, therefore only the updated Form N-400 from December 23, 2016 will be accepted.

For more information check out the USCIS announcement

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SEVIS By the Numbers

The Student and Exchange Visitor Information System (SEVIS) is a web based tool utilized by the Department of Homeland Security (DHS) and the Student and Exchange Visitors Program (SEVP) to track data on students and exchange visitors attending SEVP certified schools. Here is a brief overview of their data findings between November 2015 and November 2016:

• Asia saw the largest growth in student population when viewing growth on a continental scale.

• India (+14.1%), China (+5.2%), and Vietnam (+4.5%) saw the highest growth within Asia, while Saudi Arabia (-19.9%), South Korea (-8.3%), and Japan (-2.5%) saw the largest decrease across that span on the continent.

• India additionally showed the largest percentage (83%)of students studying in the science, technology, engineering, and math (STEM) fields

• California (211,262), New York (138,966), and Texas (88,348) accounted for the largest population of students with China (71,945 in CA, 47,238 in NY) and India (24,532 in TX) representing the highest populations by country of origin.

View the full summary of statistics

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USCIS Policy Alert on Registration of Lawful Permanent Resident (LPR) Status

USCIS has announced that it will be issuing a policy guidance in its policy manual regarding lawful permanent resident status. It will consolidate chapters 23.4 and 23.7 of the Adjudicator’s Field Manual and related appendices and USCIS policy memoranda. This guidance supersedes any prior guidance on LPR status. Here are the highlights of the policy:

• Provides guidance on eligibility and evidentiary requirements for presumption of lawful admission and creation of record, registration by children born in the United States to accredited foreign diplomats, and the registry program.

• Provides guidance on presumption of lawful admission following certain errors that occurred at the time of admission.

• Explains relevant codes of admission and effective dates of LPR status for approved applications for registration.

View the full policy here

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7. Washington Watch

President Obama officially ends NSEERS program President Obama has formally ended a program implemented to document incoming immigrants based on their country of origin. The National Security Entry-Exit Registration System (NSEERS) was created shortly after and in response to September 11, 2001. It created a separate database for immigrants’ metrics such as fingerprints, photographs, and definitively location. The basis for this informational acquisition had no informational or legal motivation, but was driven instead by the nationality of the immigrant. It was executed not only before incoming immigrants arrived in the country, but also cataloged those already living in the country by those same measures. The decision to formally end the program comes after the president essentially rendered it rudderless in 2011 when he removed the list of countries by which the program operated, but many believed that without complete elimination, the incoming administration would be able to reinvigorate it with little resistance. Now that the program has been eliminated, any attempts to incite a similar protocol from scratch will be required to go through many more phases than amending an already existing program.

To read more about the NSEERS program, click here or here

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8. In the News at ABIL Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com. The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

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USCIS Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs

In an effort to provide increased flexibility to highly skilled foreign professionals, U.S. Citizenship and Immigration Services (USCIS) issued a final rule which takes effect on January 17, 2017. Though USCIS has effectively enacted these clarifications over the previous 15 years through a succession of non-binding policy memoranda, this provides definitive rules in these areas.

USCIS stated that the final rule was produced with the intentions of modernizing and improving numerous aspects of specific employment-based nonimmigrant and immigrant visa programs.

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Among other effects, the final rule aims to better facilitate the employment and retention of high skilled workers who are beneficiaries of approved employment-based immigrant visa petitions for U.S. employers by allowing upward mobility for employees within companies, empowering employees change employers, and encouraging employees to pursue other avenues of employment.

The final rule is also intended to:

• Clarify and improve longstanding policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which USCIS said will enhance consistency in adjudication.

• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition's validity under certain circumstances despite an employer's withdrawal of the approved petition or the termination of the employer's business.

• Clarify and expand when individuals may keep their priority dates when applying for adjustment of status to lawful permanent residence.

• Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:

1) They are the principal beneficiaries of an approved I-140 petition, 2) An immigrant visa is not authorized for issuance for their priority date, and 3) They can demonstrate that compelling circumstances exist that justify the

agency's issuing an employment authorization document in its discretion. 4) Such employment authorization may only be renewed in limited

circumstances and only in one-year increments.

• Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six-year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements, and protections for whistleblowers.

• Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.

• Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.

• Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Forms I-766) for certain individuals who apply on time to renew their EADs.

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• Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day time frame.

USCIS received nearly 28,000 comments on the proposed rule from a broad range of entities and individuals.

View the USCIS announcement or the final rule

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USCIS Revises I-9 Employment Eligibility Verification Form

U.S. Citizenship and Immigration Services (USCIS) revised and published Form I-9, Employment Eligibility Verification. While employers can continue to use the version dated 03/08/2013, they must begin exclusively using the version dated 11/14/2016 by January 22, 2016. Changes made in order to reduce errors in the new version include a prompt for “other last names used” instead of “other names used” in Section 1, as well as the addition of prompts to ensure information is entered correctly. USCIS also stated that the new forms should be easier to complete on a computer, with changes such as drop down lists and calendars for filling in dates, on-screen instructions for each field, and a clear all fields option for a quick start over.

View the USCIS announcement or access form I-9

*** This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

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9. Updates from the Visalaw.com Blogs Greg Siskind’s Blog on ILW.com

• Siskind Summary: Matter of Dhanasar – the New NIW Standard • Immigrant of the Day: Laurent Duvernay-Tardif – NFL Player/Medical Student • Siskind Summary: High Skilled Worker Regulation Part 2 • Siskind Summary: The High Skilled Worker Final Rule – Part I

Bruce Buchanan's Blog on ILW.com

• Attorney Pleads Guilty To Falsifying Visa Documents for H-1B Workers • OSC Settles Immigration-Related Discrimination Claim Against Utah Company

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• OCAHO Substantially Reduces Employer’s Penalties • EOIR Announces New ALJ for OCAHO • Company Off the Hook for Over $1.4 Million in Penalties

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10. State Department Visa Bulletin: January 2017 Number 1 Volume X Washington, D.C

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during January for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.

1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by December 12th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

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3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

A. FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA-mainland born INDIA MEXICO PHILIPPINES

F1 08JAN10 08JAN10 08JAN10 22APR95 01OCT05

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F2A 22MAR15 22MAR15 22MAR15 08MAR15 22MAR15

F2B 08JUN10 08JUN10 08JUN10 15OCT95 08APR06

F3 01MAR05 01MAR05 01MAR05 15DEC94 01SEP94

F4 22JAN04 22NOV03 15MAY03 15MAY97 08JUN93

*NOTE: For January, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 08MAR15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08MAR15 and earlier than 22MAR15. All F2A numbers provided for MEXICO are exempt from the per-country limit.

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES

F1 01JAN11 01JAN11 01JAN11 01JUN95 01MAY06

F2A 22NOV15 22NOV15 22NOV15 22NOV15 22NOV15

F2B 08FEB11 08FEB11 08FEB11 01JUN96 01FEB07

F3 22AUG05 22AUG05 22AUG05 01MAY95 01JAN95

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F4 01JUL04 01JUL04 01MAY04 01DEC97 01APR94

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Employ- ment based

All Charge- ability Areas Except Those Listed

CHINA- mainland born

EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES

1st C C C C C C

2nd C 15OCT12 C 15APR08 C C

3rd 01AUG16 08SEP13 01AUG16 15MAR05 01AUG16 22JUL11

Other Workers 01AUG16 01DEC05 01AUG16 15MAR05 01AUG16 22JUL11

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4th C C 15JUL15 C 15JUL15 C

Certain Religious Workers C C 15JUL15 C 15JUL15 C

5th Non-Regional Center (C5 and T5) C 08APR14 C C C C

5th Regional Center (I5 and R5) C 08APR14 C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.

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Employment- based

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01MAR13 22APR09 C C

3rd C 01MAY14 01JUL05 C 01SEP13

Other Workers C 01AUG09 01JUL05 C 01SEP13

4th C C C C C

Certain Religious Workers C C C C C

5th Non-Regional Center (C5 and T5) C 15JUN14 C C C

5th Regional Center (I5 and R5) C 15JUN14 C C C

6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on final action dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF JANUARY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2017 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For January, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

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Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 25,800

Except: Egypt: 12,700 Ethiopia: 14,700

ASIA 4,000

Except: Iran: 3,600 Nepal: 2,750

EUROPE 15,900

NORTH AMERICA (BAHAMAS) 6

OCEANIA 650

SOUTH AMERICA, and the CARIBBEAN 775

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2017 program ends as of September 30, 2017. DV visas may not be issued to DV-2017 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2017 principals are only entitled to derivative DV status until September 30, 2017. DV visa availability through the very end of FY-2017 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN FEBRUARY

For February, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

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AFRICA 28,700

Except: Egypt: 16,000 Ethiopia: 17,500

ASIA 4,700

Except: Iran: 3,950 Nepal: 3,150

EUROPE 18,000

NORTH AMERICA (BAHAMAS) 6

OCEANIA 725

SOUTH AMERICA, and the CARIBBEAN 825

D. SPECIAL IMMIGRANT (SI) TRANSLATOR CATEGORY VISA AVAILABILITY

The Department expects to reach the FY-2017 annual limit of 50 Special Immigrant Visas in the SI category by the end of December 2016. As a result, the final action date for the SI category has become “Unavailable” effective January 2017. Further issuances in the SI category will not be possible until October 2017, under the FY-2018 annual limit. The SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan is not affected and remains current.

E. EMPLOYMENT-BASED FOURTH (E4) AND CERTAIN RELIGIOUS WORKERS (SR) PREFERENCE CATEGORY VISA AVAILABILITY

There continues to be high demand in the E4 and SR categories, primarily for Juvenile Court Dependent cases filed with U.S. Citizenship and Immigration Services for adjustment of status. Therefore, it may be necessary to retrogress the E4 and SR Final Action Dates for El Salvador, Guatemala, Honduras, and Mexico at some point in an effort to hold number use within the maximum allowed under the FY-2017 annual limits.

F. ANNUAL REPORT OF IMMIGRANT VISA APPLICANTS IN THE FAMILY-SPONSORED AND EMPLOYMENT-BASED PREFERENCES REGISTERED AT THE NATIONAL VISA CENTER AS OF NOVEMBER 1, 2016

The National Visa Center has provided the totals of applicants who are registered in the various numerically-limited immigrant categories for processing at overseas posts. This information is available on the Consular Affairs www.travel.state.gov website. The direct link to the item is:

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https://travel.state.gov/content/dam/visas/Statistics/Immigrant-Statistics/WaitingListItem.pdf

H. OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

[email protected]

and in the message body type: Subscribe Visa-Bulletin (example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

[email protected]

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa final action dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on final action dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

[email protected]

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514 CA/VO: December 12, 2016

Siskind Susser PC – Immigration Lawyers 901-682-6455 or 800-343-4890

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