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Immigration Blog

Temporary Protected Status Granted for Nepal

USCIS has announced that it would grant Temporary Protected Status (TPS) for citizens of Nepal through December 24, 2016. TPS provides relief to individuals whose countries are not safe due to civil unrest, natural disasters, or other temporary, but substantial catastrophes. The 7.8 magnitude earthquake in Nepal on April 25, 2015, devastated the country, leaving many people homeless or without proper services. The continued aftershocks further complicate efforts to rebuild and recover.

To qualify for TPS, an individual must be a citizen of Nepal and be in the U.S. on June 24, 2015, the date of the USCIS announcement. Applications will be accepted from June 24, 2015, through December 24, 2015. TPS and work authorization will be valid through December 24, 2016.

The TPS designation is great news for Nepalese living in the U.S., and for U.S. companies whose Nepalese employees’ H-1B cases were not selected in this year. TPS will provide these employees the opportunity to live and work in the U.S. a little while longer. The attorneys at Jackson Lewis are available to discuss how this can benefit you or your employees.

Delays in Visa Issuance by U.S. State Department

The U.S. State Department has announced that the Bureau of Consular Affairs is experiencing technical problems with its visa systems, causing delays in printing visas and threatening to require rescheduling some visa interviews. The issue is not country-specific and, therefore, has affected visa applicants worldwide. The State Department expects the systems to be fully operational “soon.”

The State Department said a June 9 hardware failure halted the flow of biometric clearance requests to the Consular Consolidated Database (CCD). The legal requirements necessary to screen visa applicants before visas are issued compel it to wait until the problems are resolved before individuals who submitted online applications or were interviewed for visas on or after June 9 will receive their visas, the State Department said.

Meanwhile, the State Department is working to assist visa applicants with urgent humanitarian need for travel and those awaiting overseas adoption related visas.

Guidance to Visa Applicants

Applicants who were interviewed on or after June 9, 2015, expect a delay in visa issuance and a possible delay in travel plans to the U.S. Visa applicants who have been interviewed and are awaiting visa issuance can request that their passport be returned, but they will need to return to the consulate for visa issuance once the technical issue is resolved. If you have been affected by this technical issue and have an urgent need to travel, please contact your Jackson Lewis immigration attorney for assistance.

Our Immigration team will continue to monitor this situation closely and provide additional updates.

Texas Agencies Ordered to E-Verify (state contractors are off-the-hook)

Texas Governor Greg Abbott signed a bill (S.B. 374) into law June 10, 2015, that requires state agencies in Texas to use the E-Verify system to check that new employees are authorized to work in the U.S.

E-Verify, managed by U.S. Citizenship and Immigration Services, compares information filled out by job applicants on an I-9 form with Social Security Administration and Department of Homeland Security records.

S.B. 374 authorizes the Texas Workforce Commission to monitor how the various state agencies sign-up for and implement E-Verify. Critically, the bill does not apply to private companies that contract with state agencies. The law will take effect on Sept. 1.

The bill will ensure that taxpayer-funded state paychecks are issued only to those eligible to work in the U.S., Abbott said in a statement.

“By rightfully prioritizing the needs of our own workforce and certifying employability at public agencies, Texas can — and will — keep Texans working and our economy growing for generations to come,” Abbott said.

Abbott’s predecessor, Governor Rick Perry, and Presidential hopeful, issued an executive order in December mandating the use of E-Verify by state agencies, but it did not have the enforcement mechanism that the Texas Workforce Commission will provide. That order also required state agency contractors to participate in E-Verify, and, like the Executive Order issued by President Bush amending the federal acquisition regulation, would have compelled private contractors to E-Verify their entire workforce. Some agencies in Texas were including Perry’s amended obligations in state contracts issued after January 1, 2015.

H-1B Amendment Required for Change in Place of Employment

U.S. immigration law requires that a U.S. H-1B employer must file an amended H-1B petition if there is a material change in the terms and conditions of the H-1B employment. However, prior USCIS informal opinion letter or guidance provided little guidance on the types of changes that would constitute a material change. In the event of a change of employment location, an informal USCIS opinion letter issued in 2003 in response to a letter seeking clarification stated that if the worksite was changed to a new location not covered in the original H-1B I-129 but is covered by a certified LCA which was in place prior to the employee’s move to the new location, an amended H-1B is not required “as long as the Labor Certification Application (LCA) has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligation are met.”

On April 9, 2015, the Administrative Appeals Office (AAO) published a precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), stating the rule requiring an H-1B employer to file an amended H-1B petition if there is a change in worksite not covered in the original LCA. AAO’s decision held that a change in the beneficiary’s authorized place of employment to a geographical area not covered in the original LCA is a “material change” and the petitioner was required to “immediately notify USCIS and file an amended or new H−1B petition, along with a corresponding LCA certified by DOL.”

It is not yet clear if this holding will be applied retroactively to changes in worksites that took place prior to AAO’s decision. Although retroactivity, if found applicable, may be challenged procedurally under Administrative Procedure Act (“APA”), a more specific USCIS guidance is much needed on the definition of “a material change” and the effective date for the AAO decision .

Lawsuit Filed to Challenge H-4 EAD Rule and DHS’s Authority

With the May 26, 2015 effective date of H-4 spouse work authorization rule (“H-4 EAD Rule”) approaching, a lawsuit has been filed trying to block the implementation of the Rule, which allows spouses of certain H-1B visa holders to apply for work authorization.

On April 23, 2015, Save Jobs USA, a group of former employees of Southern California Edison, brought the suit in D.C. federal district court challenging Department of Homeland Security’s authority to issue the H-4 EAD Rule. Save Jobs USA claims that the rule injures the group members by depriving them of statutory protections from foreign labor, increasing the number of economic competitors, and conferring benefits to their economic competitors on H-1B visas. In its complaint and motion for preliminary injunction, Save Jobs USA also stated that three of its members would have standing to bring the lawsuit on their own as they were all replaced by H-1B workers and remain in competition with H-1B workers, and soon H-4 visa holders, in the job market. As of today, the lawsuit has not changed H-4 EAD Rule’s scheduled effective date. It is very likely that the rule will still go into effect as planned and U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting applications on May 26, 2015. If the court grants a preliminary injunction, however, USCIS will not be able to accept H-4 EAD applications beginning May 26, 2015.

UPDATE:  As of May 22, 2015, no injunction has been issued, and the rule is expected to take effect as planned on May 26, 2015.  USCIS also has published H-4 EAD guidance on its website:

USCIS Suspends Premium Processing for H-1B Extensions

USCIS has announced that it will suspend premium processing for all H-1B extension petitions between May 26, 2015, and July 27, 2015. It will use this time to implement the Employment Authorization for Certain H-4 Spouses and ensure that these applications for work authorization will be adjudicated in a timely manner.

Premium processing allows certain petitions and applications to be expedited. A decision or Request for Evidence (“RFE”) must be issued within 15 calendar days of filing the premium processing request. For this service, USCIS requires a $1,225 filing fee to be included with the petition.

USCIS will continue to process cases filed using premium processing prior to May 26, 2015. If an H-1B extension is filed under premium processing before May 26, 2015, but a decision is not issued within the 15-day period, USCIS will refund the premium processing fee. All other petitions are still eligible for premium processing.

U.S. Immigration Relief Measures for Nepali Nationals

In the wake of the devastating 7.8 magnitude earthquake that hit Nepal on April 25, 2015, the Nepali community is receiving special consideration in the form of immigration relief measures from the United States.

The United States Citizenship and Immigration Services (USCIS) has announced several major immigration relief measures that may be available upon request to Nepali nationals impacted by the recent disaster.

Extension or change of nonimmigrant status:

USCIS recognizes that when affected by a disaster an individual may, through no fault of their own, fall out of status. As such, a Nepali national currently in the U.S. may obtain relief by filing an application for change or extension of status, even if the request is filed after his/her authorized period of admission has expired if the applicant can show how it is directly connected to the disaster.

Extension of certain grants of parole:

A Nepali national currently in the U.S. pursuant to a grant of parole may apply to extend the validity period of his/her parolee status (re-parole). Parole is used sparingly by USCIS to allow someone who is otherwise inadmissible into the U.S. for a temporary period of time due to a compelling humanitarian reason or significant public benefit. Notwithstanding exceptions like this, humanitarian paroles are granted for a period that coincides with the duration of the emergency or humanitarian situation that is the basis for the request, not to exceed one year.

Expedited processing of advance parole requests:

USCIS will expedite the processing of advance parole requests for a Nepali national who can demonstrate an emergent need to leave the U.S. as a result of the earthquake.

Expedited adjudication and approval of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship:

USCIS is cognizant that as an academic student, an individual may need to work off-campus if a disaster has affected his/her ability to support him/herself. Therefore, a Nepali national studying in the U.S. pursuant to F-1 status may request expedited adjudication and approval of his/her request for off-campus employment authorization, where possible. An applicant must demonstrate that he/she is experiencing severe economic hardship as a result of the disaster.

Expedited adjudication of employment authorization applications:

A Nepali national may request expedited processing by USCIS of a pending employment authorization application, where appropriate.

Consideration for waivers of fees:

A Nepali national applying for an immigration relief measure through USCIS who is able to demonstrate his/her inability to pay the relevant application fee may request that the application fee be waived.

Replacement of lost or damaged immigration or travel documents:

A Nepali national whose USCIS-issued immigration or travel documents were lost or destroyed as a result of the earthquake may request assistance by USCIS in replacing the documents (e.g. Permanent Residence Cards).

As a reminder, in order to possibly receive any of these relief measures, the applicant must request them and must be able to demonstrate that his/her need is connected to the earthquake.

For more information on how to request relief or more about how USCIS assists customers affected by unforeseen circumstances in their home country, visit uscis.gov/humanitarian/special-situations or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833).

 

H-1B Visa Lottery Completed – USCIS Will Start Returning Rejected Filings

On May 4, 2015, USCIS announced that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions. USCIS had previously announced on April 13, 2015 that it had received 233,000 petitions submitted by petitioners seeking H-1B employment status for employees to commence employment on October 1, 2015. That number represented an increase of more than 60,000 petitions received for the fiscal year 2015 H-1B cap. While the cap remained the same from last fiscal year to this fiscal year, the number of petitions submitted rose by a robust 35%. This means that more than 60% of all cases filed were rejected.

USCIS will now start the process of returning submitted H-1B cap-subject petitions that were not selected for H-1B processing. It is unclear how long the process will take, but based on precedent from previous years and the high volume of petitions submitted, it could be ongoing throughout the month of May. As of this week, USCIS continues to issue Receipt Notices for those petitions which have been randomly selected for review and processing, and remaining Receipt Notices for selected petitions will likely continue for another week to two weeks from this writing.

USCIS will issue a further announcement once all of the submitted but unselected H-1B petitions have been returned to petitioning employers. Employers who have not yet received Receipt Notices may want to consider other possible options and strategies for employment of the beneficiaries of their submitted petitions. Although the H-1B nonimmigrant visa classification is the most popular for employees possessing a minimum of a bachelor’s degree and performing jobs that require that degree, it is conceivable that other classifications may also be a fit for employees who are beneficiaries of unselected petitions, depending on the facts and circumstances of a given case.

Jackson Lewis P.C. assisted with the filing of several hundred H-1B cases this year. Join us Thursday, June 11 for a free client webinar that will provide information for possible options available to employers whose case(s) were not chosen in the H-1B Visa Lottery: “So You Didn’t Win the H-1B Visa Lottery – What’s Next?”

Board Orders Conditional Reinstatement of Undocumented Workers

The National Labor Relations Board has held on remand from a federal appeals court that “conditional reinstatement is an appropriate remedy where an employer knowingly employed individuals who lack authorization to work in the United States and then discharged them in violation of the N[ational] L[abor] R[elations] A[ct].”  Mezonos Maven Bakery, Inc., 362 NLRB No. 41 (Mar. 27, 2015).

Relying on the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Board originally held that back pay to undocumented workers was not an appropriate remedy for the employees’ unlawful termination for engaging in protected concerted activity.  However, the Board did not address the possibility of ordering the workers’conditional reinstatement.  Several of the former Mezonos undocumented workers appealed. While the U.S. Court of Appeals for the Second Circuit in New York affirmed the Board’s conclusion on back pay, it “remanded the case to the Board for consideration of issues relating to petitioners’ request for conditional reinstatement.”  Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013). (Palma was one of five former Mezonos employees who petitioned the court for review.)

In Sure-Tan, Inc. v. NLRB, 467 U.S. 884 (1984), the Supreme Court held that the NLRB could grant a conditional reinstatement remedy for undocumented workers discharged unlawfully under the NLRA, without running afoul of the Immigration and Nationality Act (INA). [INA was later superseded by the Immigration Reform and Control Act of 1986 (IRCA), but the Board subsequently reaffirmed the propriety of conditional reinstatement in cases involving undocumented workers under IRCA. See A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995)].

On remand, the Board granted conditional reinstatement to Palma and his co-petitioners, relying on Sure-Tan. The Board concluded “conditional reinstatement is the only means available to the Board to provide relief to the discriminatees and the principal means of deterring future unfair labor practices,” because a later Supreme Court decision barred it from awarding back pay to undocumented employees. Hoffman Plastics. 

The Board ordered full reinstatement of the discriminatees to their former positions or “substantially equivalent positions, without prejudice to seniority or other rights and privileges,” provided they were able to complete I-9 forms and present the required documentation to the company “within a reasonable time.”  While the Board inferred from an earlier case that holding a position open for a period as long as four (4) years might be a reasonable, it refused to define that phrase.

The Board also refused to provide guidance on whether an employee who presented fraudulent documents in violation of IRCA is eligible for conditional reinstatement.  The answers to these questions will have to await future cases.

For related information, please also visit www.laborandcollectivebargaining.com.

Regulation Requiring Special Immigrant Religious Workers to Maintain Lawful Status is Invalid, Federal Court Holds

Carrying on religious work without work authorization does not present a bar to receiving a special immigrant visa, the U.S. Court of Appeals for the Third Circuit, in Philadelphia, has concluded Shalom Pentecostal Church v. Acting Secretary U.S. Department of Homeland Security, et al., No. 13-4434 (3d Cir. Apr. 7, 2015).

Carlos Alencar came to the United States on a tourist visa in 1995, and although   his status expired after six months, he remained in the country and worked as a religious worker without work authorization. Two years later, Alencar filed a special immigrant religious worker petition, which was rejected by U.S. Citizenship and Immigration Services (“USCIS”). In 1998, Alencar became a senior pastor at Shalom Pentecostal Church and in 2001 the Church filed another immigrant visa petition on Alencar’s behalf. This petition was also rejected by USCIS.

In 2009, the Church filed a third immigrant visa petition on Alencar’s behalf. It was denied by USCIS because Alencar did not have proper work authorization under immigration regulations, providing that an eligible applicant must have worked in a religious occupation for at least two years “in lawful immigration status” before the petition is filed.” 8 C.F.R. §204.5(m). The Church and Alencar filed an appeal with the Administrative Appeals Office, but the denial was affirmed.

In 2011, Alencar and the Church brought a suit against USCIS claiming, among other things, that the regulation used to deny the immigrant visa petition was ultra vires, or “beyond the powers” of the agency to promulgate. The district court ruled in Alencar’s favor, invalidating 8 C.F.R. § 204.5(m)(4) and (11) and ordering USCIS to approve the petition.

The USCIS appealed but the Court of Appeals affirmed. It noted that the controlling statute at gave no indication that the qualifying two years of religious employment must be carried out in a lawful status. 8 U.S.C. § 1101(a)(27)(C)(i)-(iii). The Court also concluded that by omitting the word “lawfully,” the Congress intended to create an exception for special immigrant religious workers.

Despite this victory, Alencar’s path to becoming a permanent resident is far from over. Being unlawfully present in the United States for more than one year and working without authorization for more than 180 days make Alencar ineligible for permanent residence without first being out of the country for at least 10 years.