Department of Homeland Security

Nationals or habitual residents of Liberia, Guinea, and Sierra Leone may now apply for temporary protected status due to Ebola outbreak

Due to the Ebola outbreak in West Africa, qualified nationals or habitual residents of Liberia, Guinea, and Sierra Leone living in the United States may apply to remain in the United States for at least 18 months under the Department of Homeland Security (DHS) Temporary Protected Status (TPS) program. The designations of Liberia, Guinea, and Sierra Leone are effective as of 21 November 2014, and the initial registration period for TPS runs from 21 November through 20 May 2015. Once granted TPS, an individual is not removable from the United States, can obtain an employment authorization document (EAD), may be granted travel authorization, and cannot be detained by DHS on the basis of his or her immigration status in the United States.

TPS is offered by DHS to protect nationals of countries facing certain temporary conditions such as ongoing armed conflict, environmental disasters, epidemics, and other extraordinary conditions. Additional countries that are currently designated for TPS include El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.

TPS applications are reviewed by the U.S. Citizenship and Immigration Services (USCIS). For residents from these countries to be eligible for TPS, an individual must undergo a thorough security check, be “continuously residing” in the United States since 20 November 2014, and have been “continuously physically present” in the United States since 21 November 2014. There are mandatory filing fees ranging from US$50-US$515 depending on an applicant’s age and whether the applicant is requesting an EAD; however, applicants may request that USCIS waive fees based on demonstrated inability to pay through submission of supporting documentation. Applicants that are not eligible for TPS include those who have certain criminal records, are subject to any of the mandatory bars to asylum, are deemed a threat to national security, or fail to meet the registration requirements and timeline.

Liberians living in the United States may currently be covered under the two-year extension of Deferred Enforcement Departure (DED) of 26 September 2014. Although DED provides many of the same benefits as TPS, Liberians covered by DED may also wish to apply for TPS prior to the 20 May 2015 deadline.

TPS is not a permanent immigration benefit and will not lead directly to U.S. citizenship or lawful permanent residence in the United States. Registration for TPS, however, does not prevent an individual from applying for any immigration benefit or status.

CBP considers change to policy on blanket L-1 visa rolling admissions

U.S. Customs and Border Protection (CBP) may change its current practice relating to admitting foreign nationals entering the U.S. under a blanket L-1 visa. Under current CBP practice, CBP officers at ports of entry are authorized to admit foreign nationals entering the United States under blanket L-1 visas for a full three-year period at each entry, so long as the individual has not exceeded the five- or seven-year maximum period of stay. According to statements made in a recent meeting with the American Immigration Lawyers Association, CBP plans to begin limiting the period of stay in L-1 status of foreign nationals entering the U.S. pursuant to a blanket L petition to the expiration date of their endorsed Form I-129S (Nonimmigrant Petition Based on Blanket L Petition).

The L-1 visa facilitates the temporary transfer of foreign workers in managerial, executive, or specialized knowledge capacities to the United States to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate. Certain employers, especially large multinational companies, are eligible to file a blanket L-1 petition, provided they meet certain criteria. L-1 blanket petitions considerably reduce the processing times as the employer does not have to file individual petitions with USCIS for every employee that is transferring under an approved blanket petition. Instead, after approval of the company's blanket petition that covers eligible U.S. and non-U.S. entities in the organization, an individual employee would submit company-specific (e.g. I-129S form and support letter) and personal visa materials directly to the U.S. embassy or consulate abroad when applying for an L-1 visa.

In light of this policy change, employers should be aware that admission of foreign nationals into the U.S. in L-1 status may be limited to the expiration date on the endorsed Form I-129S, and should advise foreign national employees of the importance of carrying their endorsed I-129S when traveling on blanket-based L-1 visas. In addition, the policy change may impact practices relating to extensions of L-1 status and may require filing extension petitions with USCIS or having the foreign national travel abroad so that a new I-129S may be adjudicated at a U.S. Embassy or Consulate. CBP has not indicated whether it plans to issue a formal announcement regarding the change in policy.

Department of State

China EB-5 quote reached for first time

According to the U.S. Department of State, the Employment-Based Fifth Preference (EB-5) Investor Visa Program quota category for individuals born in mainland China was reached for Fiscal Year 2014. This marks the first time the quota was reached by any country in the EB-5 category.

Under the EB-5 program, foreign nationals who make investments in the United States meeting certain thresholds -- US$1 million or US$500,000 in targeted economic areas – and create 10 jobs within two years are eligible to apply for lawful permanent resident status (i.e. a “green card”). The program imposes caps for a number of EB-5s globally as well as on a number of petitioners from each country.

The cap for Fiscal Year 2014 for China was met as of 23 August 2014 because of high demand by Chinese nationals pursuing immigrant visas via the EB-5 program. The quota for Fiscal Year 2015 reopened on 1 October 2014. The State Department predicts continued high demand under this category and a quota backlog in the future.

The triggering of the quota does not affect USCIS’s qualitative adjudication of Form I-526 Immigration Petitions of Alien Entrepreneurs or Form I-829 Petitions by Entrepreneurs to Remove Conditions, nor does it affect the processing or availability of immigrant visas for individuals not born in China.

The U.S. and China extend the validity of short-term business, visitor, and student visas

The United States and the People’s Republic of China reached a reciprocal agreement to extend the validity of non-immigrant business (B-1) and visitor (B-2) visas. Under the new rules, which took effect on 12 November 2014, Chinese applicants who qualify for a B-1 or B-2 nonimmigrant visa may now be issued multiple-entry visas for up to 10 years to business and tourist travel during that period of time. Chinese students and exchange visitors and their dependents who qualify for F (student visa to attend academic institution), M (student visa to attend vocational school), or J (approved foreign exchange programs) visas are now also eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short-term business and tourist visas should also receive multiple-entry Chinese visas valid for up to 10 years, while qualified U.S. students may receive Chinese student residency permits valid for up to five years, depending on the length of their educational program.  The Department of State predicts that, as a result of new rules, U.S. and Chinese citizens who regularly travel back and forth between the United States and China will benefit from the longer validity by not having to apply for a new visa and pay the application fee every year. In addition, businesses in both countries, including the tourism industry, will benefit from increased travel, investment, and business development opportunities between the two countries. Longer visa validity will also allow students and exchange visitors to return to their home countries during school and work holidays more easily. Please note that the extension of the validity of the B-1/B-2 visas does not mean that Chinese nationals are authorized to stay longer in the United States; the same limitation on stay (i.e., six months) continues to apply to the B-1 and B-2 categories. For more information, please consult the State Department’s FAQs.

Department of Labor Department of Labor adds new requirements for employers filing PERM applications who have had a reduction in force

Earlier this year the U.S. Department of Labor (DOL) issued guidance in the form of a Frequently Asked Question regarding employer notifications to potentially qualified and recently laid off workers in connection with the permanent labor certification process (PERM). Before filing a PERM application to sponsor a foreign national for a permanent position, DOL regulations require the employer to notify and consider for the job opening any potentially-qualified U.S. workers who were laid off from the same or a related occupation in the same area of intended employment in the six-month period before the PERM filing.  The guidance specifies that only “potentially-qualified laid-off U.S. workers” must be notified and considered. In light of this guidance, companies may need to reevaluate their procedures relating to filing PERM applications. While it is likely unnecessary for companies to notify and consider all laid-off U.S. workers for the PERM position, if a laid-off worker is identified as potentially qualified for the PERM position, companies may consider not filing the PERM application.  This guidance also adds a new requirement that employers “make a reasonable, good-faith effort” to provide notification to the potentially qualified laid-off workers. Specifically, the guidance requires employers to

  1. at the time of the workforce reduction, gather contact information and preferred method of communication (mail, fax, or email) from laid-off U.S. workers;
  2. advise workers of their responsibility to inform the employer of any change in contact details and of the option to decline or discontinue receiving notifications;
  3. provide notification of the PERM position-including job title, description, and requirements-to potentially qualified laid-off U.S. workers who were in the same or related occupation within the area of intended employment; and
  4. maintain documentation of efforts to notify and documentation of any workers who declined to receive notification, requested discontinuation of notification, or refused to provide or update their contact information.

Under this new guidance, it is insufficient for an employer to simply direct laid-off workers to monitor a website for future open positions. DOL has indicated that PERM applications will be denied where the employer takes this approach. DOL now requires the employer to take affirmative steps to notify laid-off workers of open positions before proceeding to file a PERM application. If you have had a reduction in force and need further guidance related to possible PERM sponsorship, please let us know.

PERM audit triggers

The Atlanta National Processing Center has identified the following eight criteria used to identify cases that will be targeted for an audit review and tagged for possible Supervised Recruitment as part of the agency’s review of electronically filed PERM applications:

  1. The primary requirements for the position are less than a bachelor’s degree (primary education field lists “high school”, “associates degree” or “none”) and the position is for something other than a dairy worker.
  2. The six-digit SOC Code in Section F. 2 of the ETA 9089 matches one or more of the trade related occupations on the DOL trade-related occupations list (this includes codes for roofers, painters, plumbers, electricians, carpenters, stonemasons, etc.).
  3. The employer EIN number matches one or more of the EINs on the DOL list of public schools to audit.
  4. The PERM position requires a Bachelor’s of Master’s degree but no experience - 50% of these cases will be audited.
  5. The PERM application indicates that the employer has had a layoff in the past six months (in Section I, field 26 indicates Yes) – 50% of these cases will be audited.
  6. Resubmitted PERM applications after denial within the calendar year.
  7. Resubmitted PERM applications after withdrawal of an audit case within a calendar year.
  8. The PERM application was not electronically filed and the application was manually data entered.

Other Canadian Expedited Visa Processing Program

The Canadian Expedited Visa Processing Program (CAN+), which was initially opened for qualifying Mexican nationals earlier this year, has now been expanded to be available for Chinese and Indian nationals. As such, qualifying Chinese and Indian nationals are now eligible for expedited processing of their applications for Canadian visas. To be eligible for CAN+, Chinese and Indian nationals must demonstrate that they have traveled to Canada or the United States within the previous 10 years. Visa applicants do not need to request processing under the CAN+ program. Instead, visa applications are automatically screened for CAN+ eligibility, and those applications meeting program requirements receive expedited processing. Canada has announced that it intends to make the CAN+ pilot program permanent.

Supreme Court to revisit the Doctrine of Consular Nonreviewability

The U.S. Supreme Court has agreed to hear Kerry v. Din, a case that requires the Supreme Court to revisit the doctrine of consular nonreviewability. At issue in the case is whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a citizen’s constitutionally protected right. The case also raises the issue of whether the U.S. citizen is entitled to challenge in court the refusal of a visa to his or her spouse and thereby require the government to both identify a specific statutory provision that renders him inadmissible and allege the conduct that the government views as rendering him or her ineligible for a visa. The applicant whose visa was denied was Mr. Berashk, an Afghan citizen who was married to Ms. Din, a U.S. citizen. Mr. Berashk had previously worked for the Afghan Ministry of Social Welfare and the Afghan Ministry of Education and the Taliban-ruled Afghanistan for some of the period of his employment with the Afghan government. Mr. Berashk’s visa was initially denied under section 212(a) of the Immigration and Nationality Act (INA), which lists security and related grounds of inadmissibility, without any further information. Mr. Berashk contacted the consulate for clarification and was told that his visa was denied under the terrorism-related inadmissibility grounds in INA section 212(a)(3)(B). However, no factual basis was provided to support the denial. The Ninth Circuit held that the government had not offered a facially legitimate and bona fide reason for the visa denial, stating that the government must cite to a ground narrow enough to allow us to determine that it has been “properly construed”. The U.S. government then appealed the Ninth Circuit’s decision to the Supreme Court. The Supreme Court agreed to hear the case on 2 October 2014, but no decision has been reached at this time.  Many immigrant visa applications denied by U.S. embassies and consulates cite the statutory basis for ineligibility without providing a factual basis underlying the U.S. government’s determination of ineligibility. Without such factual information, it is very difficult to contest the visa denial. The Supreme Court’s decision on this case may affect the ability for visa applicants to obtain information from the consulate regarding the specific reasons for the denial of their visa so that applicants may more effectively challenge visa denials.

Special thanks to Cathleen Velke for her contribution to this alert.