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USCIS issues draft policy memo regarding job portability provisions of Immigration and Nationality Act

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The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) addressed the problem of delays and backlogs in the employment-based immigrant visa process by permitting certain applicants for adjustment of status to change jobs or employers. (See our post on the subject here.) Employers of these individuals do not need to retest the labor market for the new position, or obtain new, approved petitions on their behalf, if the following criteria are satisfied:

  1. An immigrant visa petition (Form I-140) on behalf of the applicant has been approved, or was approvable when filed.
  2. A filed application to adjust status to permanent resident, filed on the basis of the I-140, remains unadjudicated after 180 days or more.
  3. The applicant’s new job is in the same or a similar occupational classification as the job for which the petition was filed.

Invalidation of STEM extensions for F-1 OPT work authorization: Further information

We recently posted about the U.S. District Court for the District of Columbia's invalidation of STEM extensions for F-1 OPT work authorization. The Department of Homeland Security has not yet indicated that it will reintroduce the STEM extension  rule in compliance with proper regulatory procedure. In the meantime, the American Immigration Lawyers Association (AILA)'s Leadership Blog has a new post from AILA President-Elect William Stock, which provides useful information and insight into likely developments. The blog post can be accessed here.

We will report further details as they become available.

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Instructions for the 2017 Diversity Visa Lottery Program now available

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News Release from Jewell & Associates, PC

The U.S. Department of State’s instructions for the 2017 Diversity Immigrant Visa Program (DV-2017) are now available. Entries for the DV-2017 program must be submitted electronically between October 1 and November 3, 2015.

There are no changes in eligibility this year. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.

The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2017, 50,000 diversity visas will be available.

© Jewell & Associates, PC 2015

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UPDATE: Government reissues October Visa Bulletin, rolls back 'Dates for Filing' for some visa application categories

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We posted here about recent changes to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas. The Department's Visa Bulletin now provides two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed ('Dates for Filing Applications') and one governing when a pending I-485 may be approved.

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UPDATE: State Department changes the way it determines immigrant visa availability

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News Release from Jewell & Associates, PC We previously posted here about unconfirmed reports of a possible change to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas. These changes have now been confirmed in a post on the U.S. Citizenship & Immigration Services website.

Instead of a single cut-off date for each country of chargeability in each preference category, the monthly State Department Visa Bulletin now provides two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed (“Dates for Filing Applications”) and one governing when a pending I-485 may be approved (“Application Final Action Dates”). This new system has been implemented in time for the October 2015 visa bulletin.

The net effect of this change is to make the benefits of a pending I-485 application – including portability of the permanent residence process under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) – available to prospective immigrants sooner than under the prior system.

© Jewell & Associates, PC 2015

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State Department may change the way it determines immigrant visa availability

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News Release from Jewell & Associates, PC According to a news item posted online on September 3, 2015 by the National Law Review, there may soon be a change to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas.  Instead of a single cut-off date for each country of chargeability in each preference category, the monthly State Department Visa Bulletin may begin providing two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed, and one governing when a pending I-485 may be approved.

The net effect would be to make the benefits of a pending I-485 application available sooner to prospective immigrants than under the current system.  We note that no official confirmation of this potential change has yet been provided.  We will report on further details as they become available.

© Jewell & Associates, PC 2015

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STEM” extensions of F-1 OPT work authorization invalidated by D.C. federal court

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News Release from Jewell & Associates, PC On August 12, 2015 the U.S. District Court for the District of Columbia invalidated the 2008 interim final rule of the U.S. Department of Homeland Security that created eligibility for a 17-month extension of F-1 OPT work authorization for graduates whose F-1 OPT work authorization was based on a degree in a “STEM” field. The court found that DHS failed to provide the legally required notice and comment period that must accompany any significant new rule, and failed to show sufficient justification to bypass the normal notice and comment requirement and issue the rule via emergency rulemaking.

Although the court invalidated the 2008 rule and its amendments, it placed an immediate six-month stay on the vacatur, until February 12, 2016. Practically, this means that existing F-1 OPT STEM extensions remain valid through February 12, 2016. It is not yet clear what the court ruling means for USCIS’s action on pending or new applications for STEM extensions. If DHS reintroduces the 2008 rule with a proper notice and comment period, and it takes effect before February 12, 2016, there should be no disruption to STEM OPT processes or employment.

© Jewell & Associates, PC 2015

Jewell & Associates attorneys selected for inclusion in Super Lawyers ®

News Release from Jewell & Associates, PC Jewell & Associates is pleased to announce that three of its lawyers have been selected for selected for inclusion in Northern California Super Lawyers ® in 2015. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. Phyllis Jewell, the firm’s Principal and Managing Attorney, has been selected from 2004 to 2013, and now again for 2015. Only 5 percent of lawyers in a state are selected for inclusion in Super Lawyers. Lawyers Christopher Beckerson and Claire Pratt have been selected for the first time as Rising Stars in 2015. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in a state are named to Rising Stars. Congratulations to Phyllis, Chris, and Claire!

© Jewell & Associates, PC 2015

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USCIS suspends premium processing for H-1B petitions where extension of stay is requested

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News Release from Jewell & Associates, PC As of May 26, 2015 USCIS has temporarily suspended premium processing for all H-1B petitions where a request for extension of stay is requested. This is to allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule, and to adjudicate the first applications under that rule, in a timely manner. Premium processing for H-1B extension of stay petitions is scheduled to resume on July 27, 2015.

Premium processing remains available for certain H-1B petitions, including:

  • Petitions subject to the H-1B cap, and cap-exempt petitions, as long as the petition requests a change of nonimmigrant status, or consular notification.
  • Petitions filed on behalf of individuals who already have H-1B status, as long as the petition requests consular notification, or an amendment of a previously approved petition that does not include a request for an extension of stay.
  • All H-1B1 petitions.

USCIS will continue to premium process H-1B extension of stay petitions filed prior to May 26, 2015.

The full text of USCIS’s announcement is available here.

© Jewell & Associates, PC 2015

UPDATE: USCIS publishes information regarding H-4 EAD procedure

News Release from Jewell & Associates, PC We previously posted here about USCIS's announcement that, starting May 26, 2015, it would begin accepting applications for employment authorization from certain H-4 spouses of H-1B nonimmigrants who are in the employment-based lawful permanent residence (green card) process. USCIS has now published the following information to help prospective applicants:

Under the rule, eligible applicants will be required to file Form I-765, Application for Employment Authorization, with the required $380 fee and the documents establishing their eligibility. USCIS usually adjudicates Form I-765 within 90 days; if employment authorization is approved, the applicant will receive an EAD. Once the H-4 spouse receives an EAD, he or she may begin working in the United States.

Applications will not be accepted by USCIS before Tuesday, May 26, 2015.

© Jewell & Associates, PC 2015