Latest On IMMIGRATION TOPICS

By: Robert Gard

 

President Obama’s Executive Actions — Status of Implementation & Political Infighting — Part 4

Two key pieces (expanded “DACA” without age limits and “DAPA”) of President Obama’s Executive Actions Program, announced on November 20, 2014, were or are scheduled to go into effect on February 18th and May 26th of this year, respectively; but legal and political hurdles to implementation remain. On November 20, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system.

The series of executive actions presented by the administration range from new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions. The USCIS website has a DACA page/link, where the public can sign up for emailed instructions, updates and further developments: http://www.uscis.gov/immigrationact ion

Status of Implementation and Political Infighting:

Republicans have vowed to fight Obama’s immigration plan, charging the president overstepped his constitutional powers in taking the executive action. More than half of the States have sued the President, and they strategically “forum shopped” for a Federal District Court and a Federal District Judge who would be most likely to favor their position; settling on the Southern District of Texas, Brownsville Division, and Judge Andrew S. Hanen (appointed to the Federal Bench in 2002 by President George W. Bush). As of the date of my last article, Judge Hanen issued a 123 page decision on February 16th, putting in place a preliminary injunction temporarily blocking implementation of President Obama’s new deferred action initiatives (expanded DACA and DAPA), while pointedly leaving the original 2012 version of DACA untouched and undisturbed. Judge Hanen indicated that his preliminary injunction was for the purpose of providing time for a coalition of 26 states to pursue a lawsuit seeking a permanent injunction against the President’s new deferred action initiatives.

The Obama Administration has filed an emergency Motion to remove the injunction ordered by Judge Hanen on February 16th, and the Department of Justice (“DOJ”) has also appealed Judge Hanen’s decision. The 5th Circuit Court of Appeals granted the Obama administration’s request for an expedited appeal, which could ultimately cut down the number of months before the court reaches a final decision.

The 5th Circuit Court of Appeals held oral arguments on the Emergency Motion for a Stay of Judge Hanen’s decision on April 17th, with a decision on the Motion expected shortly thereafter, but no decision has been issued as of April 29th on the request for an emergency stay pending a full appeal. This April 17th oral argument was not a hearing on the underlying full appeal, which would happen later. The Court also set an expedited briefing schedule on the full appeal:

· May 4—brief by suing states is due

· May 11—any amicus briefs on the state of the suing states are due

· May 18—reply brief by DOJ is due

· The court has set an oral argument date for the full appeal during the week of July 6th. Unless the Court of Appeals lifts Judge Hanen’s stay of President Obama’s executive actions (a decision on this lifting of the stay could come at any time), implementation of DAPA and expanded DACA may have to wait until at least late summer.

As expected, H-1B “Cap” for new H-1B Numbers for FY 2016 was Reached Within Days of the Beginning of the Filing Period on April 1st — Now What?

Within a week of beginning to accept new H-1B petitions on April 1, 2015 for “cap subject” H-1B positions for fiscal year 2016, U.S. Citizenship and Immigration Services (USCIS) announced that USCIS reached the “H-1B cap” for fiscal year 2016—meaning that in seven days, U.S. employers filed more petitions for an H1-B visa to hire a skilled foreign worker than the entire year’s allocation of visas available under current law. The statutory limit for H-1Bs stands at 65,000 for new hires, plus an additional 20,000 for foreign professionals who earn a graduate (Masters) degree from a U.S. university. This numerical cap, which dates back to 1990, falls far short of demand— which is unfortunate given the contributions that H-1B workers make to the U.S. economy. Immigration attorneys say they have handled a larger number of H-1B applications for skilled foreign workers this year due to a more robust economy, foreshadowing disappointment for many visa hopefuls later this month and signaling the need for immigration reform to boost the current 85,000 cap.

USCIS announced that they received about nearly 233,000 H-1B petitions during the filing period, which began April 1st, including petitions filed for the advanced degree exemption. On April 13th, USCIS used a computergenerated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. This is the largest number of H-1B cap-subject petitions ever received. About 36% of the H-1Bs will be accepted and 64% will be returned.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2016 H-1B cap. It is expected that it will take until mid- May before the H-1B lottery winners and losers are notified. USCIS will begin premium processing for H-1B cap cases no later than May 11, 2015.

USCIS will continue to accept and process petitions filed to: • Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in a second H-1B position.

It is expected that it will take until mid-May before the H-1B lottery winners and losers are notified. USCIS will begin premium processing for H-1B cap cases no later than May 11, 2015. When faced with this issue before, Congress has temporarily raised the “cap” number of visas to be made available during time of economic growth, and there have been bipartisan bills introduced in Congress to do just that, but politics and power shifts in Congress have made passage of remedial legislation doubtful. Many foreign graduates from U.S. universities may, if not selected in the FY 2016 H-1B cap lottery, need to return home or accept positions in other “more welcoming” countries.

Employment-Based Third Preference (“EB-3”) Philippines Cut-Off Date Retrogression from 10/1/2014 to 7/1/2007 in the May 2015 Visa Bulletin

Each month, the American Immigration Lawyers Association (AILA) check in with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, to obtain his analysis of current trends and future projections for the various immigrant preference categories. This is what Mr. Oppenheim had to say about the dramatic seven year retrogression of EB-3 for the Philippines:

EB-3 Philippines Retrogression. As noted in the May 2015 Visa Bulletin, EB-3 Philippines will retrogress to July 1, 2007. In prior “Check-in with Charlie” columns, Charlie noted that EB-3 Philippines continued to advance as a result of demand not materializing as expected. Charlie also noted in the November 2014 and February 2015 Visa Bulletins that “corrective” action for EB-3 Philippines might be required later in the fiscal year. In determining the monthly cut-off dates, Charlie relies on comprehensive data from the National Visa Center regarding the number of applicants registered for overseas processing in each preference category, as well as the number of “documentarily qualified” individuals (i.e., applicants who have responded to the Agent of Choice letter, paid the fee, and provided all required documents). Similar advance data from USCIS regarding EB-3 Philippines was not available.

While Charlie had expected, and as mentioned above, previously announced that corrective action for EB-3 Philippines would be required, he assumed that a gradual increase in demand would provide some advance warning. Unfortunately, in the six week period leading up to the determination of the May cut-off dates, USCIS demand suddenly increased to just over 2,000, as compared to the approximately 3,275 that were used during the entire previous fiscal year. In fact, during the first ten days of April alone, USCIS requested approximately 900 visa numbers for EB-3 Philippines. That pace, coupled with an increase in demand in the EB-1/EB-2 categories severely limited the EB-3 numbers available for future use.

What can we expect for EB-3 Philippines through the remainder of the fiscal year?

Charlie will establish allocation targets each month and compare them with the amount of demand with early priority dates which has been received. He hopes to advance the cut-off date throughout the summer, but at this time cannot speculate as to the amount of movement. The other variable is whether demand in the other Philippines EB categories will also continue to increase, which would mean fewer unused numbers “falling down” to the EB-3 category. The fall-down was a key factor in enabling EB-3 Philippines to reach the worldwide cut-off date last September.

The US Embassy in Manila indicated that they would try to expedite interview-ready EB-3 cases to get visas issued before the retrogression in May, but that effort was short lived as the Embassy announced that they had run out of visa numbers by around the third week of April, and that’s pretty much the same response we have received from USCIS for adjustment of status processing, though USCIS will still continue to accept new adjustment cases for filing under the April 2015 Visa Bulletin cut-offdates until April 30th, even if those cases will then be put on hold for a few years until the cut-off-dates advance to where they are for April of 2015, so accepted applications can still benefit from unrestricted employment authorization and Advance Parole.

QUICK NOTES:

Changes in PERM Audit Response Processing Times

The U.S. Department of Labor now appears to be issuing Audit Notice on about 40% of PERM Applications filed, and the processing times for adjudication from the time of submitting the PERM Audit Response have crept from about 12 months to between 18 and 24 months.

On a more positive note, processing times for PERM cases that are not selected for Audit appear to have decreased a bit to about 6 to 9 months. When USDOL first proposed the PERM program to replace the old Labor Certification Program in 2005, the public was assured by USDOL that we would really appreciate this new program because USDOL could issue decisions on PERM applications in 45 days. USDOL has further advised that they do not foresee allocating additional manpower or resources to PERM adjudications or audits in the near future.

COPYRIGHT BY AUTHOR — 2015 TFC will join Piyesta Pinoy Bolingbrook !