On June 15, 2015, the U.S. Supreme Court issued a 5-4 ruling in Kerry v. Din that upheld the U.S. government’s denial of an immigrant visa to the husband of a U.S. citizen on the basis of terrorism concerns, notwithstanding the government’s failure to provide a detailed basis for its terrorism concerns in the denial decision. The court ruled that the federal government does not owe Fauzia Din, a naturalized citizen, a detailed explanation when it refused to give her foreign husband an immigrant visa. Din had claimed that she had a fundamental right, under the Constitution or otherwise, for a detailed or legitimate reason for denying her husband’s visa.
In a separate opinion by Justice Kennedy, joined by Justice Alito, he concluded that there is no need to decide whether Din has a protected liberty interest, because even assuming she does, the notice she received from the U.S. government denying her husband’s visa application satisfied due process.
In writing for the dissent, Justice Breyer, joint by Justices Ginsburg, Sotomayor, and Kagan, stated that Din possesses the kind of “liberty” interest in which the Due Process Clause grants procedural protection. The dissent also concluded that the Due Process Clause requires the U.S. government to provide an adequate reason for denial of the visa. Justice Breyer concluded that it has failed to do so.
This case is consistent with the government's practice, citing national security and foreign policy concerns, of not providing more detail in these kinds of decisions. Such lack of transparency can be very frustrating in immigration cases, and also makes them almost impossible to overturn.
USCIS Issues Guidance on When to File an Amended H-1B Petition Following a Change in Worksite Location
On April 9, 2015, the U.S. Citizenship and Immigrations Service’s (USCIS) Administrative Appeal Office issued a precedent decision inMatter of Simeio Solutions, LLC, holding that:
- Employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location, since such a change may affect eligibility for H-1B status and is therefore a material change
- A material change to the terms and conditions of employment requires the petitioner to file a new or amended H-1B with the corresponding LCA.
On July 21, 2015, the USCIS issued final guidance on when an amended H-1B petition must be filed. Once an amended petition has been filed, the H-1B employee may immediately begin work at the new worksite, and the petitioner need not wait for a final decision. An amended petition does not need to be filed for a move within the same metropolitan statistical area, though the previously obtained LCA would still need to be posted at the new worksite. Likewise, certain short-term placements (generally up to 30 days, or 60 days if the employee is still based at the original worksite), and non-worksite location travel (e.g. employee training or conferences) do not require filing an amended petition.
The timing of an employee’s change in worksite in relation to the Simeio decision determines whether and when the petitioner must file an amended H-1B petition:
- If the employee moved to a new worksite on or before April 9, 2015, the petitioner may choose to file an amended H-1B petition by January 15, 2016. Even if the petitioner does not file a new or amended petition by this date, the USCIS will generally not pursue new revocations or denials based upon failure to file a new or amended petition. However, any adverse actions initiated or completed by USCIS prior to July 21, 2015, remain in effect.
- If the employee moved to a new worksite after April 9, 2015, but before August 19, 2015, the petitioner must file a new or amended H-1B petition by January 15, 2016. The USCIS will consider filings prior to this deadline for the safe harbor period to be timely for purposes of the regulation. Failure to adhere to this deadline will put the petitioner and employee out of compliance with U.S. Department of Homeland Security (DHS) regulations.
- If the employee moves to a new worksite after August 19, 2015, a new or amended H-1B petition must be filed before the employee begins work at a new worksite.
USCIS Allows Employment Authorization for Certain H-4 Spouses
The USCIS issued a final rule on February 25, 2015, allowing employment authorization for H-4 dependent spouses of H-1B nonimmigrants who have reached a certain stage in seeking employment-based lawful permanent resident (LPR) status. Such H-1B nonimmigrants must be the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140), or have been granted an extension of H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act. The USCIS hopes this will reduce personal and economic burdens faced by H-1B nonimmigrants and eligible H-4 dependent spouses during the transition from nonimmigrant to LPR status, as well as attract and retain highly skilled foreign workers and minimize disruption to U.S. businesses resulting from H-1B nonimmigrants who choose not to pursue LPR status in the United States. The rule, which became effective on May 26, 2015, is expected to bring U.S. immigration policies for highly skilled workers more in line with those of other countries that are also competing to attract and retain similar highly skilled workers.
USCIS Temporarily Suspends and Then Resumes Premium Processing for H-1B Extensions
On May 26, 2015, the USCIS temporarily suspended premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time, petitioners were not able to file Requests for Premium Processing Service (Form I-907), for a Petition for a Nonimmigrant Worker (Form I-907), requesting an extension of the stay for an H-1B nonimmigrant. The temporary suspension was enforced to allow the USCIS to implement the final rule allowing employment authorization for certain H-4 spouses and adjudicate the high volume of applications for employment authorization filed by H-4 nonimmigrants under the new regulations. On July 13, 2015, the USCIS announced it was resuming premium processing for H-1B extensions as it had been successful in clearing the H-4 backlog.
New Regulations Lift Limits on DSOs and Permit Part-Time Study for F-2 or M-2 Spouses and Children
On April 29 2015, the DHS published a new rule amending its regulations under the Student and Exchange Visitor Program (SEVP) to facilitate study in the U.S. and allow more opportunities for study by spouses and children of nonimmigrant students. The new regulations permit SEVP-certified schools to nominate as many designated school officials (DSOs) as necessary to support enrolled F or M students and permits F-2 and M-2 spouses and children to enroll in less than a full course of study at an SEVP-certified school without violating their F or M status. Prior to amendment, the regulations limited SEVP-certified schools to a maximum of 10 DSOs and stated that F-2 and M-2 spouses and children would violate their nonimmigrant status by engaging in any study. F-2 and M-2 spouses and children can now enroll in less than a full course of study even if the part-time study leads to a degree or certificate. However, full-time study will still constitute a violation of F-2 or M-2 status, and F-2 or M-2 dependents are still prohibited from engaging in employment. The rule became effective on May 29, 2015.
U.S. State Department Suspends Issuance of U.S. Visas Worldwide
The U.S. Department of State experienced system-wide technical problems with its overseas computer visa system during the month of June, preventing the embassies/consulates from issuing or printing U.S. visas in passports (with limited exceptions for certain seasonal workers and urgent humanitarian travel). As a result of these technical problems, all U.S. embassies and consulates worldwide temporarily suspended the issuance of all U.S. visas. This system-wide failure impacted the ability of individuals with expired visas to re-enter the United States after travelling outside the country, and prevented individuals with approved employer-sponsored petitions from receiving U.S. visas in their passports if they were currently abroad and needed to enter the United States.
According the U.S. State Department website, most of the technical issues have been resolved, and all visa-issuing embassies and consulates are now operational and scheduling visa interviews and issuing nonimmigrant and immigrant visas. The State Department is working to eliminate the backlog of pending visas cases resulting from the technical issues.
DHS Announces Temporary Protected Status Designation for Nepal
As a result of the devastating earthquake that struck Nepal on April 25, 2015, the Secretary of Homeland Security has designated Nepal for an 18 month period of Temporary Protected Status (TPS) from June 24, 2015 through December 21, 2016. Eligible nationals from Nepal (and people without nationality who last habitually resided in Nepal) residing in the United States, will not be removed from the United States and may receive an Employment Authorization Document card. The 180-day registration period is from June 24, 2015 to December 21, 2015. To be eligible for TPS, applicants must demonstrate that they have been “continuously physically present” and “continuously residing” in the United States since June 24, 2015. Applicants must also undergo security checks.
Initial Registration Extended for Guinea, Liberia, and Sierra Leone Temporary Protected Status
On June 25, 2015, the DHS extended the period for individuals to register for TPS under the Guinea, Liberia, or Sierra Leone designation by 90 days, from May 20, 2015, to August 18, 2015. The extension aims to give eligible individuals additional time to register. Eligible individuals must be able to demonstrate that they have continuously resided in the United States since November 20, 2014, and been continuously present since November 21, 2014. The extension of the initial registration period, however, does not extend the TPS designation for the three countries, which remains valid through May 21, 2016.
Canada Expands Biometric Screening Program
The Canadian government recently announced that foreign nationals from non-visa exempt countries such as China and India between the ages of 14 and 80 will be required to submit biometric information within 30 days of applying for a visa to visit, study, or work in Canada. Canadian Citizenship and Immigration will send letters to visa applicants instructing them to visit a local Visa Application Center where they will be photographed and have their fingerprints taken. The program is expected to be implemented by 2018; however, at this time, visa application processing remains unchanged. This change will impact foreign nationals who plan to travel to Canada to apply to have a U.S. visa issued into their passport at a U.S. Consulate in Canada rather than in their home country.