Is USCIS going to request your Social Media IDs?

social media.jpgUSCIS published a proposed regulation that would allow them to ask for social media ids (Facebook, Twitter, etc.) for certain nonimmigrants seeking entry into the US.  It would affect those filing the online application for a visa waiver entry.  The “optional” question would be placed in the application so that USCIS could look at people’s social media pages to determine if there is a ground’s of inadmissibility that they did not report – most importantly, if they are involved in terrorist activities or in supporting terrorist groups.

This is an attempt by USCIS to ensure that those coming in through the visa waiver program, who are not required to go through the sometimes lengthy background checks that other non-immigrants are required to go through, are vetted in someway prior to entry.  In this way, USCIS is attempting to show that it is trying to secure our borders from undesirable foreigners.

While I certainly applaud USCIS for trying, I think that this is not really the way to go.  Why do I say this?  First, this is optional.  While many people may give the information as they feel that it could prejudice them if they did not, it is still not required and USCIS, therefore, cannot deny an application simply because someone failed to give the information.  In addition, at this point, terrorist organizations can simply make sure that those that will be entering the US do not put anything on their social media feeds.  Lastly, it also opens the door for USCIS to start requiring such information.  If they require this, maybe next they will want to “require” access to your cell phone, or access to private messages, etc.  Where will it stop in terms of what they can and cannot request from you whether or not you are accused of doing something or even suspected of doing something illegal?  It is a slippery slope and it would seem to only make sense to open up this Pandora’s box if the benefit outweighed the risks.  As I do not think that this is the case, I would not be in favor of this measure.

Apparently most of the 800 people who sent in comments on the proposed rule were of the same mind and castigated USCIS for even thinking of such a rule.  What do you think?  Leave a comment with your views below.

Checkin With Charlie Oppenheim on Visa Numbers

Charlie Oppenheim, the officer at the Department of State in charge of visa numbers and the Visa Bulletin, recently released an update to his predictions for the upcoming months. Below is a summary of some of that update.

Family Based Visa Numbers

According to Charlie, in September most of the family-based categories will likely hold or retrogress from where they are in August. Only F-4 Worldwide has the potential to advance in September. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2015, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.

It should be noted that when we state that there will be a “full recovery” Charlie is not saying that the categories will become current, but that they will go back to their pre-August 2015 dates.

Employment Based Visa Numbers

CHINA:

The Final Action date of January 1, 2010 that was imposed in June for both EB-2 and EB-3 China remains the same in August with no forward movement in either of these categories expected this fiscal year (which ends on September 30, 2016).

EB-2 should recover partly in October, 2016 and should fully recover to its previous dates by the end of this calendar year.

INDIA:

EB-3 India should advance modestly into a 2005 Final Action date in September. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.

EB-2 will advance in October 1, 2016 with the new fiscal year, and should fully recover by December of this year.

WORLDWIDE:

EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.

Eb-2 was retrogressed in August to February 1, 2014 with the hope of holding number use to within the EB-2 annual limit. That date should hold in September and is expected to fully recover to “current” in October.

August Visa Bulletin: EB-1 backlogs for India and China, EB-2 Backlogged for Everyone

UnknownThe August 2016 visa bulletin was released by the Department of State yesterday.   It features backlogs for ALL countries in the EB-2 category and other changed.  However, readers should understand, that while certain countries (India and China) have regular backlogs in the EB-2 category, those for other countries in the EB-2 category and those in the EB-1 category are  temporary.  I will discuss this more in depth below as we  look at the specifics of the Visa Bulletin:

Family Based Applications

F2A (spouses and children of permanent residents):  No movement

F4 (siblings of US citizens): No movement

F1 (unmarried sons and daughters of US Citizens):  The priority date for most countries moved forward about 2 months to May 22, 2009.  The exceptions are Mexico (no change) and the Philippines (moved forward 1 month to March 22, 2005)

F2B (unmarried sons and daughters of permanent residents):Not much movement.  Most countries moved forward about 1 month to January 8, 2010.  The exceptions are Mexico (no movement) and the Philippines (moved forward 2 months to Sep. 15, 2005)

F3 (married sons and daughters of US Citizens):  Almost no movement, except the Philippines moved forward about 2 weeks to March 15, 1994

Work Based Applications

EB1:  As discussed in previous blog posts, there was always a change of a backlog, and it has occurred.  India and China are backlogged to January 1, 2010.  This will be a TEMPORARY backlog, however.  These dates will become current again on October 1, 2016. The beginning of the new fiscal year.  Every other country remains current.

EB2:  Worldwide is backlogged to February 1, 2014.  Again, this is temporary and will become current again on October 1, 2016 the beginning of the new fiscal year.  China remained unchanged at January 1, 2010 and India moved forward very slightly to November 15, 2004

EB3: Worldwide numbers moved forward about 2 weeks to March 15, 2016.  China, again, remained unchanged at Jan. 1, 2010 and India, again, moved forward slightly to November 8. 2004.  The Philippines also moved forward in this category about two months to May 15, 2009.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

The New STEM OPT Training Plan: What Do I need to know?

Screen Shot 2016-07-08 at 10.05.15 AM.pngUnder the new rules that went in effect on May 10, 2016, all students seeking STEM extensions for additional OPT time must have a training plan that is developed by them and their employer.  Below are some important points to keep in mind about the new training plan requirement

1.    Plan is Collaborative in Nature

Unknown.jpegFirst, employers and students must develop the plan together.  It is a collaborative process that, as stated below, must take into account the students education, and how the employer can help enhance that education through training and working.

However, that being said, there are certain parts that just the employer needs to complete and certain parts that just the student needs to complete.

2.     Intent of the Plan

 

Unknown-1.jpegThe intent of the plan is to show how the program the employer has developed for the student will help he student “achieve” their objectives for work-based learning.  Basically showing how the work is related to the STEM major of the student and how it will help them get real world experience in that area.  Each plan will be different as it is based on the Student’s major and future plans as well as by the employer’s business and the position that the student will be placed in.

It is important to also note that one of the attestations made by the employer and student is that the training opportunity is directly related to the STEM degree that qualifies the student for the OPT extension.

3.    Progress Evaluations

Unknown-2.jpegThere must be a mechanism in place to evaluate the progress of the student in meeting the goals of the training plan.  The student prepares a self-assessment and the employer must sign off on this assessment.  The assessment must then be given to the DSO within the applicable timelines (10 days of the deadline).  An evaluation must be done at the 12 month mark in the training and the 24 month mark of the training.

Part of the training plan (and the attestations made by the employer) includes having a person designated as supervisor/trainer for the student.  Most likely it would be this person who would sign off on the plan as they can best testify to the fact that the student has been meeting the goals of the plan.

4.  Changes to the Training Program

Unknown-3.jpegPart of the application process requires the employer and student to affirm under oath that they will alert the DSO to any material change in the training plan or material deviation from the training plan as soon as possible.  What would this include?  Changing the position or duties of the trainee most likely would fall within this definition as would changes to compensation, and changes in the employer or employer structure.  There are certainly other changes that would be considered material (as well as deviations) in general this may be an area in which it is better to inform the DSO of a chance rather than trying to explain after the fact why you feel it was not a material change.

5.  Conclusion

The training plan is an important piece of the OPT extension.  While there has been no announcement as of yet I am sure that USCIS will start enforcement actions around this requirement.  Perhaps they will send out officers to review the plan, visit the work site and ensure the student is doing what is required and the correct resources have been allocated.  It behoves employers and students to ensure that the training plans they develop meet the requirements of the law and regulations.  Please let us know if we can provide any assistance in that regard.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS and Workload Transfers: What you Need to Know

images.jpegUSCIS frequently is juggling around case types between various service centers to try and assure that all case types are adjudicated as quickly as possible.  Fairly recently they started transferring EB-1A Extraordinary Ability cases to Nebraska from the Texas Service Center.    Even more recent certain H-1Bs were sent from Vermont to California and Nebraska.

Recently, USCIS started a new webpage on their site devoted to such transfers.  This webpage lists all recent transfers and gives some information on what the transfer means to your case and how you can check the status of your case online.  In reality, once USCIS transfers files to a new service center, that service center usually slows down slightly for a little while before they are able to catch up on all the new cases they have received.  In some cases, the new service center slows down so much, that it actually takes longer than it appeared to be taking at the old service center.  This is an unfortunate consequence, however there is no way to request that your file be sent back to the old center.  Following the timelines where your case is and filing requests for information once your date has been reached is the best bet to ensure smooth processing in your case.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Etsy? Ebay? Am I violating my Immigration Status by using these sites?

Unknown.jpegWe get this, and similar questions, from our clients frequently.  This is a very complex issue and every situation is different.  However, there are some key considerations you should think about.  The key questions are:

  • Are you carrying out the activity for profit?
  • Are you just trying to get rid of excess goods you have in your possession?
  • Are you deriving an income from the activity?
  • Looking at your activities “objectively” would you say you are conducting business or not?

I think that the last point is the most important to keep in mind.  If it feels like you are starting a business, and you are intending to make a profit from your activities and you are consistently selling goods then the chances are USCIS will see it as a business.  As the saying goes – “if it walks like a duck and talks like a duck, it most likely is a duck.”  It is also important to remember that USCIS takes a very liberal view in terms of what constitutes doing business.  This means that they would be more likely to find something is a business than not.  Going back to the saying, all USCIS would need is to see that it walks like a duck, and they would say “it is most likely a duck, unless you can prove to us it is not.”  That being said, selling some goods on eBay – just once or twice probably is not going to run afoul of any of these rules.  A good resource to look at for some of these issues is the IRS website and publications where they define for tax purposes (and I emphasize, this is NOT necessarily how USCIS will rule) what is a business and what is a hobby.

Why should you be concerned about whether what you are doing is considered a “business” or not?  If USICS feels that you have started a business and you do not have the appropriate visa to work for that particular business, then you could be found to have worked without permission and this could jeopardize your immigration status and your ability to get permanent residence in the United States.  Therefore, this issue is extremely important and something you should look into BEFORE beginning any such activity.  Remember, USCIS can look into may business activities  – anything that is your tax returns or reported to the IRS, they could decide to review.  They can, and do, troll through the internet in some cases as well to see what they can find about a person – and if they see an Etsy store or something similar, this could raise questions in their mind.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

BREAKING NEWS: Supreme Court 4-4 on DAPA/DACA ruling

The Supreme Court issues its ruling today on DAPA/DACA case that was before it, and was split 4-4 on whether to uphold the temporary injunction issued by the lower court or to overturn it.  Since it is an even split, the lower court decision to implement the temporary injunction blocking the implementation of these programs remains in effect.

In case you forgot, or did not know, the Obama was sued over the expansion of DACA and the implementation of DAPA.  DAPA, or Deferred Action for Parents of Americans and Permanent Residents, was an exercise of prosecutorial discretion in providing a temporary relief from deportation to the Parents of certain US citizens and permanent residents, who were in the US legally, to remain in the US with a work authorization card.  DACA, or Deferred Action for Childhood Arrivals was an exercise of prosecutorial discretion in providing a temporary relief from deportation from certain person who arrived in the US as children.  When originally implemented, this applied only to those who were currently under the age of 31.  Obama “expanded” this to everyone who met the other conditions, regardless of their current age, and it is this expansion that was brought to court.  The lower court, while not issuing a final opinion as of yet, did issue a temporary injunction against DAPA and the extension of DACA.  The Federal Government appealed the issuance of that temporary injunction to the Supreme Court.

It is important to remember, that this ruling was ONLY about the temporary injunction, not about the underlying case itself (i.e. they were not ruling on whether the President can issue such policies or not) but just about the issuance of a preliminary injunction by the lower court.  It is still a clear blow to those awaiting relief under these presidential policies, but there is still the possibility that the lower court finds that the policies are constitutional and they are allowed to go forward.  We will have to see.  We will certainly update you as things progress.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

What Type of Questions Can an Employer Ask At A Job Interview?

For immigrants, it can sometimes be tough looking for a job, as there are employers who are simply not interested in hiring people on temporary visas.  For employer, it can be difficult to know what you can and cannot ask about someones immigration status without running afoul of discrimination laws.   Recently the Office of Special Council for Immigration Related Unfair Employment Practices (OSC), which is part of the Office of Civil Rights at the Department of Justice, was asked about several different types of questions that an employer might ask, and if those types of questions were allowable under the anti-discrimination laws.  Here are the exact employer questions that were posed:

 A. Do you now, or will you in the future, require sponsorship (e.g., H-lB visa status, etc.) to work legally for THE COMPANY in the United States?

B. If you will require sponsorship, do you currently hold Optical Practical Training (OPT)?

C. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying US institution in Science, Technology, Engineering, or . Mathematics (STEM), as defined by Immigration & Customs Enforcement (and as outlined in the following government website: https://www.ice.gov/sites/default/files/ documents/Document/2016/ stem-list.pdf?

As can be seen, these were fairly specific questions aimed at either determining if the person would require sponsorship, and/or if they had their own source of employment authorization for a good period of time.  Here is the response from the OSC:

As you know, the statute prohibits denying protected individuals employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination in hiring under the INA. Accordingly, an employer that asks all of its job applicants whether they will require sponsorship now or in the future and refuses to hire those who require sponsorship would likely not violate 8 U.S.C. 1324b. Similarly, an employer that asks questions designed to prefer certain classes of nonimmigrant visa holders (e.g., STEM OPT students) over other classes of nonimmigrant visa holders is unlikely to violate the INA’s prohibition against citizenship status discrimination.

So, interestingly, as long as you ask ALL job applicants these questions, there should be little danger of running afoul of the discrimination laws.  However, the OSC went on to say:

However, asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position. Therefore, we caution employers against asking detailed questions pertaining to status that may lead to such confusion.

The above should give some pause to employers who want to go beyond simple questions made to ALL applicants.  Even if you follow the above, that is no guarantee that you will not be referred to the OSC, as an applicant can still allege that they felt discriminated against, or that the questions made them feel as though they were not welcome to apply (for those in a protected class).    It is also important to remember that the above is ONLY in relation to discrimination based upon immigration status.

There are other forms of discrimination including national origin discrimination that does extend to those with work authorization cards.  Here is what the OSC says about this type of discrimination:

In addition, all work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, individuals who believe that they were not hired based on national origin-for example, their country of origin, accent or appearance-may allege discrimination on this basis.

So  even though not hiring someone based upon their need for sponsorship would not violate one provision, it may violate this provision if the applicant can show that they were discriminated upon because of their national origin, accent or appearance.  This is something else to keep in mind, especially for the HR personal carrying out the interviews.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

July 2016 Visa Bulletin and Check-In with DOS

Unknown.jpegThe Department of State (DOS) released the July visa bulletin recently and Charlie Oppenheim, the person at the DOS who is in charge of the visa bulletin also updated the American Immigration Lawyer’s Association on what further movement or backlogs can be expected in the near future.

For family based cases, there was not much movement at all.  Below is a table showing the movement.

Family Based All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
F1 2 Months 2 Months 2 Months 2 Weeks 1 month
F2A 1 Week ! Week ! Week None 1 Week
F2B 2 Weeks 2 Weeks 2 Weeks None 1 Month
F3 None None None None 1 Month
F4 1 Month None None None 1 Month

For employment based, there was also not a lot of movement.  Again, the movement and new dates are listed below:

 

Employ.

Based

All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
1st C C C C C
2nd C None (Jan 1, 2010) 1 Month (Nov 1, 2004) C C
3rd 2 Weeks (Mar 1, 2016) None (Jan 1, 2010) I Month (Oct 22, 2004) 1 Month (Oct 22, 2004) 3.5 Months (Feb 15, 2009)

In terms of future movements, we will look at family based categories first.

FB4- China: For China, the FB-4 category just recently retrogressed and will remain at its current date through July, and perhaps through the rest of the fiscal year (it will depend on usage for FB-1 through FB-3).  However it will return to the prior cut off date by November of this year.

FB-4 India:  Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June. However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Mr. Oppenheim predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Mr. Oppenheim anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

Moving on to employment based categories:

EB-2 and EB-3 China:   There will be no forward movement in these categories for the rest of this fiscal year (the fiscal year ends on September 30, 2016).  We will have to see what the new fiscal year brings, but hopefully there will be forward movement shortly after the new fiscal year.

EB-2 and EB-3 India:  There may be some moderate movement forward in September, but it depends (see next category)

EB-2 Worldwide:  It is looking increasingly likely that this category will become unavailable in September.  However, since the new fiscal year begins October 1, they will, again, become current on that date.

EB-1 for India and China:  Similar to EB-2 Worldwide, these categories will most likely become unavailable in September but go back to current in October.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Changing Filing Location for Some H-1Bs

UnknownUSCIS just yesterday issued the following press release relating to where to file certain H-1Bs:

On July 1, 2016, the Nebraska Service Center (NSC) will begin accepting Form I-129 for H-1B and H-1B1 (Chile/Singapore Free Trade) petitions if the petitioner requests a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a requested action in Question 4 to:

  • Notify the office in Part 4 so the beneficiary can obtain a visa or be admitted. (Box a. on Part 2, Question 4, Page 2 of the current Form I-129);
  • Extend the stay of the beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129); or
  • Extend the status of a nonimmigrant classification based on a free trade agreement. (Box e. on Part 2, Question 4, Page 2 of the current Form I-129)

The NSC will also accept any:

If you are filing a standalone Form I-539 and/or Form I-765 for H-4 nonimmigrants, please refer to the Filing Addresses for Form I-539 page or the Direct Filing Addresses for Form I-765 page for proper filing addresses.

The California Service Center (CSC) and the Vermont Service Center (VSC) may continue to accept these petitions during the transition period, which ends Aug. 31, 2016.

These petitions should be mailed to:

USPS Mail: Courier (FedEx, UPS, etc.) Mail:
USCIS

Nebraska Service Center
PO Box 87129
Lincoln, NE 68501-7129

USCIS

Nebraska Service Center
850 ‘S’ Street
Lincoln, NE 68508

Petitioners should continue to file all other H-1B/H-1B1 petitions with the CSC and the VSC based on the instructions on the Direct Filing Addresses for Form I-129 page.

Additionally, petitioners who are statutorily exempt from the H-1B numerical limitation, or are filing a cap-exempt petition to employ the beneficiary at an institution of higher education, nonprofit entity related to or affiliated with an institution of higher education, a nonprofit research organization, and/or a governmental research organization should continue to file their H-1B cap-exempt petitions with the CSC.

To summarize, just H-1B’s in which the petitioner is asking for “Continuation of previously approved employment without change with the same employer” will be sent to Nebraska.  All other H-1Bs will be filed as normal.  This goes into effect on July 1, 2016, but the Vermont and California service centers will also accept these applications through August 31, 2016.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.