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In the December 2016 issue of our newsletter, we summarized the new 366-page DHS regulation regarding employment-based immigration which will become effective on January 17, 2017.
In this article, we focus on the portion of the regulation which allows certain persons to obtain temporary automatic extensions of their Employment Authorization Documents (EADs).
Under the new regulations, the USCIS will no longer be required to adjudicate requests for EADs within 90 days. However, persons with existing EADs will be able to apply for extensions of their work permits 180 days (up from 120 days) before they expire.
The regulation designates the following 15 categories where people will be eligible for automatic 180-day extensions of their EADs as long as they submit timely requests to extend their EADs:
1 Aliens admitted as refugees;
2 Aliens granted asylum;
3 Aliens admitted as parents or dependent children of aliens granted permanent residence under section 101(a)(27)(I) of the INA;
4 Aliens admitted as citizens of the Federated States of Micronesia, the Marshall Islands, or Palau;
5 Aliens granted withholding of deportation or removal;
6 Aliens granted Temporary Protected Status (TPS);
7 Aliens who have properly filed applications for TPS and who have been deemed prima facie eligible for TPS and have received an EAD as a “temporary treatment benefit”;
8 Aliens who have properly filed applications for asylum or withholding of deportation or removal;
9 Aliens who have filed applications for adjustment of status under section 245(a) of the INA;
10 Aliens who have filed applications for suspension of deportation under Section 244 of the INA, cancellation of removal under section 240A of the INA, or special rule cancellation of removal under section 309(f)(1) IIRAIRA;
11 Aliens who have filed applications for creation of a record of lawful admission for permanent residence;
12 Aliens who have properly filed legalization applications pursuant to section 210 of the INA;
13 Aliens who have properly filed legalization applications pursuant to section 245A of the INA;
14 Aliens who have filed applications for adjustment of status pursuant to section 1104 of the LIFE Act; and
15 Aliens who are the principal beneficiaries or qualified children of approved VAWA self-petitioners.
The rule does nothing to assist first-time applicants for EADs, nor does it permit automatic extensions of Advance Parole.
Many persons, such as spouses of nonimmigrants (L-2s, H-4s, etc.) are ineligible for automatic extensions of their EADs.
The automatic EAD extension portion of the regulation is more complicated than this summary of the rule would indicate. Small employers without the resources to regularly check the USCIS website or consult with immigration lawyers may find it burdensome to comply with the I-9 requirements that this rule will entail.
It is recommended that persons with EADs should submit applications for extensions of their EADs and Advance Paroles 180 days before the expiration date to protect their ability to work and travel without interruption. Doing so will also aid their employers.
Updated 12-29-2016 at 12:27 PM by CShusterman
On December 9, 2016, a bipartisan group of Senators introduced the Bridge Act which would protect 740,000 DACA recipients from deportation and allow them to continue working and studying in the United States for the next 3 years.
Like DACA, the bill does not provide a path to green cards for Dreamers. Instead, the bill would grant them “provisional protected presence” in the US. They would be allowed to remain in the US, renew their EAD work permits and, in some circumstances, qualify for Advance Parole international travel permits.
Since President-Elect Trump has vowed to repeal President Obama’s executive orders, the bill, if enacted, would protect Dreamers from deportation for another 3 years unless they commit a deportable offense.
The bill would also tighten the confidentiality provisions in the law. DACA requires applicants to reveal their addresses and other personal information. The bill would prohibit the government from using this information to try to deport DACA recipients or their parents.
Although the bill is sponsored by a bipartisan group of Democratic and Republican Senators, it is unclear whether it has enough support to pass the Republican-controlled Senate and the House of Representatives.
The introduction of the Bridge Act is expected to put pressure on President-Elect Trump to work out a solution to the immigration status of the Dreamers.
Trump has been equivocal about how he intends to treat the Dreamers.
On one hand, he has pledged to repeal DACA. However, in a recent interview with Time magazine, he stated:
“We’re going to work something out that’s going to make people happy and proud. But that’s a very tough situation. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”
Need a good reason to file your application for an immigration benefit sooner rather than later?
The USCIS will significantly raise filing fees for over 3 dozen types of applications and petitions beginning on December 23, 2016, some by over 100%.
While the steepest increases will be for EB-5 investors and regional centers, filing fees for commonly-used applications and petitions will also be raised.
• US Citizenship
Want to become a US citizen through naturalization? The price for filing an N-400 form (which used to be $15 when I was an INS Citizenship Attorney) is slated to rise from $595 to $640.
However, there will be a new partial fee waiver for N-400s filed by qualified low-income individuals.
Do you have foreign-born children who either acquired US citizenship through you at birth or derived citizenship as minors? I hope you are sitting down while you are reading this. The filing fees for forms N-600 and N-600K will almost double, from $600 to $1,170!
Suggestion: Save your money and apply for a US passport instead.
• Family-Based Immigration
Applying for a green card for your spouse? Time to pool your money together.
The filing fees for forms I-130, I-131, I-765 and I-485 are all rising: (1) by $115 for form I-130; (2) by $215 for form I-131; by $155 for form I-485 and by $30 for form I-765.
However, if the I-131 and the I-765 are filed together with the I-485, you will be able to continue to pay only the I-485 fee.
The filing fee for a form I-751 petition to remove conditions for a spouse of a US citizen will be increased to $595.
The fee for filing a petition for a fiancée of a US citizen will rise from $340 to $535.
• Employment-Based Immigration
The filing fee for form I-129 which is used to petition a nonimmigrant worker will increase from $325 to $460 while the fee for an I-140 will rise from $580 to $700.
• Fees That Will Stay The Same
1. Biometric Services Fee
2. Premium Processing
3. Refugee Travel Documents
4. Forms I-821 and I-821F
• What You Should Do
To the extent possible, make sure that your petitions and applications for immigration benefits are filed with the USCIS before December 23.
Folks with low incomes will still be able to request fee waivers using form I-912.
The government’s new fiscal year will begin on October 1st, and as usual, there will be some significant advances in priority dates for green cards, particularly in the employment-based categories.
The EB-1 category for persons born in India and China will again be current (no backlogs).
The worldwide EB-2 category will again be current and will advance an average of 2 years for India and China.
The worldwide EB-3 category will advance 1 month. China EB-3 will jump forward over 3 years, Philippines by 5 months and India by only 2 weeks.
The worldwide EB-4 category will remain current, with a huge leap forward for various Central American countries.
Worldwide EB-5 also will remain current, but China EB-5 will inch forward by only 1 week. The EB-5 regional center program is due to expire on September 30 and will need to be reauthorized by Congress.
The forward movement in the family-based categories will remain slow. The worldwide categories will advance between 1 and 6 weeks.
However, there are a few notable exceptions.
Mexico 2A will advance by 3 months, China F4 by 4 months and India F4 by almost 2 years.
Predictions for the Near Future
The State Department predicts that India EB-2 will continue to advance up to 4 months each Visa Bulletin and that China EB-2 will move forward by 3 months.
The demand for EB-3 numbers could slow down the forward worldwide movement in the coming fiscal year. India will continue to inch forward by only one week per month (Time to get rid of per-country quotas!). However, China will advance by 3 months at a time and EB-3 Philippines could also see significant advances.
The family-based categories are all severely backlogged and any forward movement will be incremental.
Updated 09-12-2016 at 01:35 PM by CShusterman
On March 9, 2016, the USCIS designated Matter of H-V-P, I.D. 16270 (AAO) as a precedent decision. It provides that the physicians who are specialists who practice in a medically-underserved area for a minimum of 5 years are entitled to permanent residence in the US through a National Interest Waiver (NIW).
Is this really news? No, but the Director of USCIS’s Texas Service Center had denied that the physician’s NIW, holding that only primary care physicians are entitled to such waivers, this despite the fact that the USCIS has approved thousands of such NIWs for specialists over the past decade.
This requires a little recounting of history.
The Law (1999)
On November 12, 1999, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (“Nursing Relief Act”), was enacted to encourage foreign-born physicians to practice in medically underserved areas of the US.
The law allows “all alien physicians” who practice for at least 5 years in a medically-underserved area to qualify a green card.
The Regulation (2000)
On September 6, 2000, to implement the statute, the Immigration and Naturalization Service (“INS”) published a regulation which restricted the applicability of the law to primary care physicians. The regulation also contained a number of other restrictive provisions not found in the law.
The Lawsuit (2002-2006)
On December 9, 2002, one Grumpy Immigration Attorney (Yours Truly) filed a lawsuit in Federal District Court challenging the various restrictive clauses contained in the regulation which contradicted the generous terms of the law.
On my birthday in 2004, the Federal Judge dismissed our lawsuit. Happy Birthday, Carl!
We appealed this decision to the US Court of Appeals for the 9th Circuit, and on June 7, 2006, in Schneider v. Chertoff, the Appeals Court unanimously ruled in our favor.
However, the Court declined to rule on one of most important restrictions, that prohibiting specialist from qualifying for NIWs. Among the many physicians across the US who volunteered to be plaintiffs in our lawsuit, only one was a specialist. We made sure that his attorney filed an I-140 NIW on his behalf. The USCIS sent him a Request for Evidence (RFE) asking why he, as a specialist, was applying for an NIW since the regulations specifically prohibited this. Rather than respond to the RFE, the attorney simply failed to take action, and the I-140 was denied because of his failure to submit a timely response.
Hence, the Appeals Court declined to decide this important issue.
The Memo (2007)
Although I was thrilled to win the lawsuit, I was disappointed that the Court had not ruled on this important issue.
A couple of weeks later, I spoke at the Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.
It was there that I had a conversation with a top official of the USCIS. He was concerned that I was requesting attorney’s fees from the government for my 4 years of work in Schneider v. Chertoff under the Equal Access to Justice Act (EAJA). In turn, I expressed my concern about having to sue the government once again to resolve the issue of whether a specialist physician could qualify for an NIW.
We agreed that if I would drop my request for EAJA fees, he would include a clause in the upcoming USCIS memo stating that physicians who were specialists could qualify for green cards through NIWs.
On January 23, 2007, the USCIS issued a policy memo which declared that “though not mandated by the Schneider decision, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide specialty care.”
NIWs for Physician Specialists
Since 2007, our law firm has obtained green cards for thousands of physicians, many of them specialists, through the NIW process as well as through PERM, but apparently not all attorneys have been so fortunate. See below.
Matter of H-V-P (2016)
In Matter of H-V-P, the Director of the Texas Service Center denied the NIW petition on behalf of a Hematologist/Oncologist on the ground that he practiced in a HPSA/MUA, not in a Physician Shortage Area (PSA), and that only specialists who practiced in PSAs should be able to apply for NIWs.
The USCIS’s Administrative Appeals Office (AAO) rejected this argument citing the 2007 memo.
One month later, the USCIS designated Matter of H-V-P as a precedent decision, meaning that USCIS officers cannot deny NIWs to physicians simply because they are specialists.
Although this battle took almost 2 decades to resolve, I am very pleased to have fought the good fight, and forced the agency to follow the law.
Updated 05-09-2016 at 04:06 PM by CShusterman