Government to Delete E-Verify Records after 10 Years

Employers using E-Verify may mistakenly believe that once a record is created, it will be stored forever in the E-Verify system. Effective January 1, 2016, E-Verify transaction records more than 10 years old will automatically be deleted from the E-Verify system. That means that employers will no longer have access in E-Verify to cases created prior to December 31, 2005. This action is being taken to comply with the National Archives and Records Administration’s retention and disposal schedule.

E-Verify records for active employees and terminated employees within the retention timeframe must be retained; therefore, if employers have not printed out the records, they could be lost once they fall outside the 10 year window.

If an employer wants a record of its cases that outside the 10 year- old window, it must download the new Historic Records Report before December 31, 2015. The report will include all transaction records for cases more than 10 years old. Instructions to download the report are available when the employer logs into E-Verify. The report is only available until December 31, 2015.

It is a best practice to record the E-Verify case verification number on the related Form I-9. Employers are encouraged to retain the Historic Records Report with the I-9s also.

USCIS to Issue Monthly Determination on Individuals’ Eligibility to Submit Adjustment of Status Applications

USCIS has announced that beginning with the November 2015 Department of State (DOS) Visa Bulletin it will issue a determination within approximately one week following the publication of the Visa Bulletin whether individuals may use the Dates for Filing Visa Applications chart. If USCIS does not post such a determination, individuals should continue to refer exclusively to the Application Final Action Date chart on the USCIS website. This monthly announcement from USCIS can be found at

The Visa Bulletin is published on a monthly basis by DOS and indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date. In the employment-based Adjustment of Status context, the priority date is generally the date when the labor certification (PERM) was accepted for processing by the Department of Labor, or, if no labor certification was required, then the date of filing of the Form I-140, Immigrant Petition for Alien Worker. When an immigrant visa is available, eligible individuals may submit their Form I-485, Adjustment of Status application.

Jackson Lewis will provide updates on any new policies from the Department of State and USCIS on the Visa Bulletin.

Proposed New OPT Rules: Up to 3 Years OPT for STEM + Cap-Gap Relief

The U.S. Department of Homeland Security’s has proposed amending its regulations on the optional practical training (“OPT”) program to allow international F-1 students with U.S. degrees in the sciences, technology, engineering, or mathematics (“STEM”) – attained from accredited institutions – to extend by 24 months the standard 12-month OPT period available to them to remain in the U.S. to pursue degree-related work experience. This proposal would supersede the 17-month extension currently available to STEM degree holders. In addition, F-1 students may qualify for the extension based on a previously attained U.S. STEM degree from an accredited institution of higher education.

The new proposal responds to a court decision vacating a similar 2008 DHS regulation based on procedural grounds. See “2008 STEM Extension Dealt a Setback”.

The extension comes with some conditions, including increased oversight over the employment of STEM OPT beneficiaries. Employers must be enrolled in the E-Verify employment eligibility verification program. Employers also must implement formal mentoring and training plans, and make certain attestations, similar to those required of other employment-eligible visa categories. An employer must attest that: (1) the duties, hours, and compensation are commensurate with those applicable to similarly situated U.S. workers; (2) there are sufficient resources and equipped personnel available to provide appropriate mentoring and training; (3) there will be no lay-offs or furloughs of any U.S. workers arising from the STEM student’s training; (4) the opportunity advances the student in attaining his or her training objectives; and (5) ongoing reporting requirements will be observed.

Additionally, the proposal provides continued Cap-Gap relief. Where an F-1 student is named the beneficiary in a timely filed H-1B cap petition, his or her duration of status (“D/S”) and any current employment authorization/OPT would be extended until October 1st of the fiscal year for which the H-1B visa is being requested.

DHS’s proposed regulations improve the integrity of the STEM OPT program by encouraging students to gain valuable, practical STEM experience, while preventing adverse effects to U.S. workers. By enhancing their functional understanding of how to apply academic knowledge in a work setting, students will be better qualified to embark on careers in their respective fields of study. These on-the-job experiences would be obtainable only with employers committed to developing students’ knowledge and skills through practical application. Moreover, the proposed rules aim to maintain our competitive edge in attracting international STEM students to study and lawfully remain in the United States.

The proposal is available at Public comments are being accepted through November 18, 2015. We will continue to keep you updated on these proposals as they proceed through the rulemaking process.

USCIS and DOS Announce Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

On September 9, 2015, US Citizenship and Immigration Services (“USCIS”) and the Department of State (“DOS”), announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. These revisions are intended to implement executive actions by President Obama.

Prior to this change, DOS had published a single chart in its visa bulletin each month indicating “Final Action Dates For Employment-Based Preference Cases.” This chart determined both when an application could be filed as well as when pending applications could be adjudicated. Commencing with the October 1, 2015 visa bulletin, there will be a second chart published each month, which relates to existing DOS procedures for processing immigrant visas abroad. This second chart will now govern which cases are eligible to file for adjustment of status in the US.

These new procedures will allow individuals to apply for adjustment of status much earlier than would normally be the case, and with those applications, obtain ancillary benefits for themselves and their families such as work authorization and travel permission. The second preference category for India and the third preference category for the Philippines highlight the significance of this change, with the dates for each of those advancing by several years.   Excerpts from both bulletins follow:

Application final action dates for employment-based preference cases (normal chart):

Employment- Based All Chargeability Areas Except Those Listed CHINA – mainland born INDIA MEXICO PHILIPPINES
2nd C 01JAN12 01MAY05 C C
3rd 15AUG15 15OCT11 08MAR04 15AUG15 01JAN07

Dates for filing of employment-based visa applications (new chart):

All Chargeability
Areas Except
Those Listed
2nd C 01MAY14 01JUL11 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN15

As with prior visa bulletins, dates may change on a monthly basis as DOS calculates visa demand. Individuals whose priority dates are close are advised to monitor the bulletin each month and be prepared to file when their dates become current on the new chart.

DHS Improperly Delegated H-2B-Related Regulatory Authority to DOL, Circuit Court Rules

The U.S. Court of Appeals, in Denver, has issued an opinion putting the entire H-2B labor certification and visa process in jeopardy.

The Tenth Circuit found that the U.S. Department of Labor is not a subordinate agency of the U.S. Department of Homeland Security, and, therefore, could not promulgate H-2B regulations. Only DHS, as administrator of the Immigration and Nationality Act, has the authority to propose and implement regulations that govern the issuance of H-2B visas. Because DOL is not a sub-delegate of DHS, it did not have the power to issue H-2B-related regulations.

The Court’s decision puts the agency’s April 2015 H-2B regulations at jeopardy. The agency has not made any statements about the decision. Industries that rely upon temporary foreign labor (e.g., commercial landscaping, oil-and-gas craft services, and sea farming) should expect stop-gap, then long-term rule-making that will result from the Court’s decision. Labor certifications that either have been issued or are in process for the October 1, 2015 visa allotment may be invalid.

We will report on the agency reaction to the Court’s opinion.

Cautionary Tale for EB-5 Investors

The SEC has sued Seattle developer Lobsang Dargey, alleging that he misappropriated $17 million from investors in his EB-5 program, and announcing a freeze of Dargey’s assets at the same time.

The EB-5 program allows foreign nationals who invest $1,000,000 ($500,000, in certain high unemployment or rural areas) in qualifying businesses in the U.S. and create 10 jobs for U.S. workers to obtain permanent residence in the U.S.

A “qualifying business” means:

  • The creation of an original business;
  • The purchase of an existing business with simultaneous restructuring or    reorganization such that a new commercial organization results; or
  • Expansion of an existing business created after November 1990 through the investment of the required amount such that the net worth is increased by at least 40%.

The EB-5 program has drawn much interest from Chinese investors over the last several years looking for business opportunities. Unfortunately, it also has drawn interest from individuals, who seek to take advantage of EB-5 investors, as Dargey is alleged to have done.

According to the SEC, Dargey raised at least $125 million from 250 Chinese nationals seeking permanent residence through the EB-5 program. The money was to be used in two of Dargey’s Seattle-area real-estate projects, but he misappropriated millions for his own use. Whether or not the investors will be able to process their permanent residence or recoup their investment is yet to be determined. The SEC’s civil suit was filed August 25 in federal court in Seattle.

Dargey’s case is similar to a 2013 case in which the SEC alleged that Anshoo Sethi, a Chicago area real estate developer, “fraudulently sold more than $145 million in securities and collected $11 million in administrative fees from more than 250 investors primarily from China.” As with the Dargey case, the investors were seeking permanent residence in the U.S. through the EB-5 program. Fortunately, the SEC was able to facilitate the return of the invested funds.

While the SEC investigates such cases and is working diligently to prevent the type of fraud alleged, potential EB-5 investors should exercise proper due diligence and engage knowledgeable counsel to ensure that they do not fall victim to these schemes.

Jackson Lewis attorneys are available to provide counsel to anyone interested in the EB-5 program.

Ever Evolving L-1B Adjudication Standards

Immigration law practitioners have been receiving Requests for Evidence (RFEs) on most L-1B (Intracompany Transferee-Specialized Knowledge) petitions for new issuance as well as L-1B renewals. These RFEs, requiring burdensome responses, in fact may misinterpret the term “specialized knowledge.”

  • In March, 2015 USCIS, in an effort to clarify adjudication standards, issued a draft L-1B Adjudication Policy Memorandum (PM-602-0111), soliciting comments from the public as well as stakeholders.
  • On July 17, 2015, USCIS issued a Request for Comments on Draft RFE Template for Form I-129 involving L-1B Intracompany Transferees-Specialized Knowledge.
  • On August 17, 2015, the final policy memorandum was published.

So how could an RFE template be proposed when an interpretive memorandum on which it is based has not been published in its final form? Moreover, has USCIS even considered the comments it solicited on the Draft Memorandum and Draft RFE Template in these proceedings?

The Draft RFE Template appears to be based upon language in the draft (now final) memorandum which was still the subject of considerable comment from stakeholders when the Draft RFE Template was issued. All of this leads to more confusion, ambiguity, and uncertainty in the application process. This also gives rise to a need for burdensome and generally unnecessary documentation at the initial filing in response to an RFE, or both.

The L-1 saga will continue.

2008 STEM Extension Dealt a Setback

The 2008 Department of Homeland Security (DHS) rule allowing certain F-1 visa students with Science, Technology, Engineering or Math (STEM) degrees to extend their stay for an additional 17 months of training related to their degrees in the U.S. is deficient, a federal judge for the U.S. District Court for the District of Columbia has held. The judge concluded the DHS rule was not properly subjected to public notice and comment. However, the judge permitted the rule to remain temporarily in effect. Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 1:14-cv-00529 (D. D.C. Aug. 12, 2015).

F-1 student visa holders are eligible to extend their visa status to work in the U.S. for up to 12 months following their graduation. Their employment during that time, known as optional practical training (OPT), must be related to their field of study. Prior to 2008, after the expiration of their OPT, such visa holders, regardless of their academic field, had to change to some other nonimmigrant visa status to work and remain in the U.S. If not, they would have to depart the U.S. after the expiration of their post-F-1 grace period.

The DHS STEM extension in this case allowed F-1 student visa holders who had earned STEM degrees to extend their OPT in their STEM field for an additional 17 months. The STEM extension has been useful and popular both for F-1 student visa holders and their employers, and employers have utilized the extension to further train and hire such foreign nationals and to evaluate these trainees and plan for possible sponsorship of nonimmigrant visa status and permanent employment.

Under the Administrative Procedure Act (APA), federal agencies must provide notice to the public of any proposed rulemaking and give them the opportunity for comment prior to the rule becoming effective. An agency is exempt from the notice-and-comment period only if it can establish that an emergency excused it \ from complying with the procedural requirements. In concluding the rule was procedurally deficient, the judge found the emergency exemption did not apply to the STEM extension rule.

The judge did not immediately vacate the rule, however, acknowledging that this would be “seriously disruptive” to those taking advantage of the extension. She stayed the vacatur until February 12, 2016, giving DHS time to submit the STEM extension rule to the notice-and-comment period as required by the APA.

Individuals currently employed pursuant to a STEM extension still maintain valid employment authorization. Assuming DHS initiates the notice-and-comment period for the STEM extension rule, as the judge concluded it should have done, there should be no long-term impact on STEM employees or their employers.

Jackson Lewis will provide comment, guidance, and updates as events warrant. Employers of STEM employees should contact their Jackson Lewis immigration attorneys with any questions regarding these developments.

BALCA Clarifies Regulatory Requirements for Newspaper Selection in PERM Cases

Finding that a DOL certifying officer (CO) had erred in finding the employer failed to advertise a job opportunity in a newspaper in the area of intended employment, as required by regulation, and denied a permanent labor certification, the Board of Alien Labor Certification Appeals (BALCA) has reversed the denial. Matter of Hoffman Enclosures In., d/b/a Pentair Technical Products, BALCA No. 2011-PER-01754 (Aug. 5, 2015).

The Employer advertised using the San Antonio Express (“Express-News”) for its Sunday newspaper advertisement requirement, 20 CFR 656.17(e)(1)(i)(B)(1). The job was located in Pharr, Texas, a town about four hours away from San Antonio. After the DOL’s denial, the employer requested review or reconsideration and submitted information confirming that the Express-News was circulated in Pharr, Texas. The employer maintained that it chose the Express-News because it was the largest metropolitan area newspaper with general circulation. The CO found that those reasons were not sufficient because, despite the wide circulation, San Antonio is four hours away from Pharr and outside a normal commuting distance.

The Board stated that “the CO improperly conflated the issues of where a newspaper is published and where it is circulated.” Since the Express-News is a newspaper of general circulation in the area of intended employment, the fact that it was published in San Antonio is irrelevant. The regulatory requirement is satisfied if the employer advertises the job opportunity in “a newspaper of general circulation in the area of intended employment.” The newspaper does not have to be the newspaper with the highest circulation nor does it have to be the newspaper published with the closest geographical proximity to the job offered.

The Board noted that the CO did not raise the issue of whether the newspaper was the “most appropriate” newspaper and the Board also did not reach that issue. Instead, its decision was based on whether the employer had placed a newspaper advertisement in the area of intended employment – the CO found it did not and the Board reversed.

This decision means that employers may choose among newspapers that have circulation in the area of intended employment. The Board left open the question of the “appropriateness” of the selection. Employers are required to place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified and available U.S. workers.” Thus, while it appears the newspaper with the largest circulation does not have to be selected, this decision should not be read to mean that just any newspaper with a Sunday edition with circulation in the area of intended employment would comply with the requirement.

USCIS Accepting Premium Processing Requests for H-1B Extension of Stay Petitions

USCIS has resumed acceptance of Form I-907, Request for Premium Processing Service, for all H-1B extension of stay petitions. Premium Processing Service had been suspended by USCIS for this type of filing as of May 26, 2015, in anticipation of a large number of applications for employment authorization by H-4 nonimmigrants under new regulation allowing for employment authorization for H-4 dependent spouses of certain H-1B employees. USCIS later announced that current workloads permitted earlier-than-anticipated resumption of the premium processing service.

In addition to H-1B extension of stay filings submitted after July 13, 2015, being eligible for premium processing service, pending H-1B extension requests filed prior to July 13, 2015, may be upgraded to premium processing by filing Form I-907 and submitting the USCIS filing fee of $1,225.00 to the USCIS Service Center where the H-1B petition is pending.

Premium processing service is offered by USCIS for certain types of filings. When a request for premium processing service is submitted by the petitioning company or by the beneficiary, USCIS must issue a decision or a Request for Evidence (“RFE”) within 15 calendar days. USCIS also noted that only the new version of Form I-907, with edition date of January 29, 2015, will be accepted. All previous editions of the form will be rejected.