Posted On: January 31, 2013

Immigration Innovation Act of 2013

Immigration Innovation Act of 2013

A bi-partisan bill has been introduced the Senate titled the “Immigration Innovation Act of 2013.” The new bill would increase the annual H-1B cap to 115,000 H-1B visas and make available more green cards for the highly skilled and highly educated. Here is a summary of the proposals.

Employment-Based Nonimmigrant H-1B Visas

The new bill would increase the H-1B cap from 65,000 to 115,000. It would also “uncap” the existing U.S. advanced degree exemption (currently limited to 20,000 per year). It would also authorize employment for dependent spouses of H-1B visa holders as does the current law for L and E dependents.

It would also establish an H-1B escalator, so that the cap can adjust — up or down — to the demands of the economy (includes a 300,000 ceiling on the ability of the escalator to move)

• If the cap is hit in the first 45 days when petitions may be filed, an additional 20,000 H-1B visas will be made available immediately.
• If the cap is hit in the first 60 days when petitions may be filed, an additional 15,000 H-1B visas will be made available immediately.
• If the cap is hit in the first 90 days when petitions may be filed, an additional 10,000 H-1B visas will be made available immediately.
• If the cap is hit during the 185-day period ending on the 275th day on which petitions may be filed, an additional 5,000 H-1B will be made available immediately.

Green Cards

Enable the recapture of green card numbers that were approved by Congress in previous years but were not used. And, provide for the roll-over of unused employment-based immigrant visa numbers to the following fiscal year so future visas are not lost due to bureaucratic delays.

Exempt certain categories of persons from the employment-based green card cap:

• Dependents of employment-based immigrant visa recipients
• U.S. STEM advance degree holders
• Persons with extraordinary ability
• Outstanding professors and researchers

Eliminate annual per-country limits for employment based visa petitioners and adjust per-country caps for family-based immigrant visas.

Posted On: January 31, 2013

White House Fact Sheet on Comprehensive Immigration Reform

White House fact sheet on 2013 immigration plan that will strengthen our borders, crack down on companies that hire undocumented workers, hold undocumented people accountable before earning citizenship and streamline immigration system for families, workers, and employers.

FACT SHEET: Fixing our Broken Immigration System so Everyone Plays by the Rules

America’s immigration system is broken. Too many employers game the system by hiring undocumented workers and there are 11 million people living in the shadows. Neither is good for the economy or the country.

It is time to act to fix the broken immigration system in a way that requires responsibility from everyone —both from the workers here illegally and those who hire them—and guarantees that everyone is playing by the same rules.

President Obama’s common sense immigration reform proposal has four parts. First, continue to strengthen our borders. Second, crack down on companies that hire undocumented workers. Third, hold undocumented immigrants accountable before they can earn their citizenship; this means requiring undocumented workers to pay their taxes and a penalty, move to the back of the line, learn English, and pass background checks. Fourth, streamline the legal immigration system for families, workers, and employers.

Together we can build a fair, effective and commonsense immigration system that lives up to our heritage as a nation of laws and a nation of immigrants.

The key principles the President believes should be included in commonsense immigration reform are:

Continuing to Strengthen Border Security: President Obama has doubled the number of Border Patrol agents since 2004 and today border security is stronger than it has ever been. But there is more work to do. The President’s proposal gives law enforcement the tools they need to make our communities safer from crime. And by enhancing our infrastructure and technology, the President’s proposal continues to strengthen our ability to remove criminals and apprehend and prosecute national security threats.

Cracking Down on Employers Hiring Undocumented Workers: Our businesses should only employ people legally authorized to work in the United States. Businesses that knowingly employ undocumented workers are exploiting the system to gain an advantage over businesses that play by the rules. The President’s proposal is designed to stop these unfair hiring practices and hold these companies accountable. At the same time, this proposal gives employers who want to play by the rules a reliable way to verify that their employees are here legally.

Earned Citizenship: It is just not practical to deport 11 million undocumented immigrants living within our borders. The President’s proposal provides undocumented immigrants a legal way to earn citizenship that will encourage them to come out of the shadows so they can pay their taxes and play by the same rules as everyone else. Immigrants living here illegally must be held responsible for their actions by passing national security and criminal background checks, paying taxes and a penalty, going to the back of the line, and learning English before they can earn their citizenship. There will be no uncertainty about their ability to become U.S. citizens if they meet these eligibility criteria. The proposal will also stop punishing innocent young people brought to the country through no fault of their own by their parents and give them a chance to earn their citizenship more quickly if they serve in the military or pursue higher education.

Streamlining Legal Immigration: Our immigration system should reward anyone who is willing to work hard and play by the rules. For the sake of our economy and our security, legal immigration should be simple and efficient. The President’s proposal attracts the best minds to America by providing visas to foreign entrepreneurs looking to start businesses here and helping the most promising foreign graduate students in science and math stay in this country after graduation, rather than take their skills to other countries. The President’s proposal will also reunify families in a timely and humane manner.

Continuing to Strengthen Border Security

Strengthen border security and infrastructure. The President’s proposal strengthens and improves infrastructure at ports of entry, facilitates public-private partnerships aimed at increasing investment in foreign visitor processing, and continues supporting the use of technologies that help to secure the land and maritime borders of the United States.

Combat transnational crime. The President’s proposal creates new criminal penalties dedicated to combating transnational criminal organizations that traffic in drugs, weapons, and money, and that smuggle people across the borders. It also expands the scope of current law to allow for the forfeiture of these organizations’ criminal tools and proceeds. Through this approach, we will bolster our efforts to deprive criminal enterprises, including those operating along the Southwest border, of their infrastructure and profits.

Improve partnerships with border communities and law enforcement. The President’s proposal expands our ability to work with our cross-border law enforcement partners. Community trust and cooperation are keys to effective law enforcement. To this end, the U.S. Department of Homeland Security (DHS) will establish border community liaisons along the Southern and Northern borders to improve communication and collaboration with border communities, boost funding to tribal government partners to reduce illegal activity on tribal lands, and strengthen training on civil rights and civil liberties for DHS immigration officers.

Crack down on criminal networks engaging in passport and visa fraud and human smuggling. The President’s proposal creates tough criminal penalties for trafficking in passports and immigration documents and schemes to defraud, including those who prey on vulnerable immigrants through notario fraud. It also strengthens penalties to combat human smuggling rings.

Deporting Criminals. The President’s proposal expands smart enforcement efforts that target convicted criminals in federal or state correctional facilities, allowing us to remove them from the United States at the end of their sentences without re-entering our communities. At the same time, it protects those with a credible fear of returning to their home countries.

Streamline removal of nonimmigrant national security and public safety threats. The President’s proposal creates a streamlined administrative removal process for people who overstay their visas and have been determined to be threats to national security and public safety.

Improve our nation’s immigration courts. The President’s proposal invests in our immigration courts. By increasing the number of immigration judges and their staff, investing in training for court personnel, and improving access to legal information for immigrants, these reforms will improve court efficiency. It allows DHS to better focus its detention resources on public safety and national security threats by expanding alternatives to detention and reducing overall detention costs. It also provides greater protections for those least able to represent themselves.

Cracking Down on Employers Who Hire Undocumented Workers

Mandatory, phased-in electronic employment verification. The President’s proposal provides tools for employers to ensure a legal workforce by using federal government databases to verify that the people they hire are eligible to work in the United States. Penalties for hiring undocumented workers are significantly increased, and new penalties are established for committing fraud and identity theft. The new mandatory program ensures the privacy and confidentiality of all workers’ personal information and includes important procedural protections. Mandatory electronic employment verification would be phased in over five years with exemptions for certain small businesses.

Combat fraud and identity theft. The proposal also mandates a fraud‐resistant, tamper‐resistant Social Security card and requires workers to use fraud‐and tamper‐resistant documents to prove authorization to work in the United States. The proposal also seeks to establish a voluntary pilot program to evaluate new methods to authenticate identity and combat identity theft.

Protections for all workers. The President’s proposal protects workers against retaliation for exercising their labor rights. It increases the penalties for employers who hire undocumented workers to skirt the workplace standards that protect all workers. And it creates a “labor law enforcement fund” to help ensure that industries that employ significant numbers of immigrant workers comply with labor laws.

Pathway to Earned Citizenship

Create a provisional legal status. Undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Agricultural workers and those who entered the United States as children would be eligible for the same program. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits, including subsidies or tax credits under the new health care law.

Create strict requirements to qualify for lawful permanent resident status. Those applying for green cards must pay their taxes, pass additional criminal background and national security checks, register for Selective Service (where applicable), pay additional fees and penalties, and learn English and U.S. civics. As under current law, five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident.

Earned citizenship for DREAMers. Children brought here illegally through no fault of their own by their parents will be eligible for earned citizenship. By going to college or serving honorably in the Armed Forces for at least two years, these children should be given an expedited opportunity to earn their citizenship. The President’s proposal brings these undocumented immigrants out of the shadows.

Create administrative and judicial review. An individual whose provisional lawful status has been revoked or denied, or whose application for adjustment has been denied, will have the opportunity to seek administrative and judicial review of those decisions.

Provide new resources to combat fraud. The President’s proposal authorizes funding to enable DHS, the Department of State, and other relevant federal agencies to establish fraud prevention programs that will provide training for adjudicators, allow regular audits of applications to identify patterns of fraud and abuse, and incorporate other proven fraud prevention measures.

Streamlining Legal Immigration

Keep Families Together. The proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers. The proposal also raises existing annual country caps from 7 percent to 15 percent for the family-sponsored immigration system. It also treats same-sex families as families by giving U.S. citizens and lawful permanent residents the ability to seek a visa on the basis of a permanent relationship with a same-sex partner. The proposal also revises current unlawful presence bars and provides broader discretion to waive bars in cases of hardship.

Cut Red Tape for Employers. The proposal also eliminates the backlog for employment-sponsored immigration by eliminating annual country caps and adding additional visas to the system. Outdated legal immigration programs are reformed to meet current and future demands by exempting certain categories from annual visa limitations.

Enhance travel and tourism. The Administration is committed to increasing U.S. travel and tourism by facilitating legitimate travel while maintaining our nation’s security. Consistent with the President’s Executive Order on travel and tourism, the President’s proposal securely streamlines visa and foreign visitor processing. It also strengthens law enforcement cooperation while maintaining the program’s robust counterterrorism and criminal information sharing initiatives. It facilitates more efficient travel by allowing greater flexibility to designate countries for participation in the Visa Waiver Program, which allows citizens of designated countries to visit the United States without obtaining a visa. And finally it permits the State Department to waive interview requirements for certain very low-risk visa applicants, permitting resources to be focused on higher risk applicants and creates a pilot for premium visa processing.

“Staple” green cards to advanced STEM diplomas. The proposal encourages foreign graduate students educated in the United States to stay here and contribute to our economy by “stapling” a green card to the diplomas of science, technology, engineering and mathematics (STEM) PhD and Master’s Degree graduates from qualified U.S. universities who have found employment in the United States. It also requires employers to pay a fee that will support education and training to grow the next generation of American workers in STEM careers.

Create a “startup visa” for job-creating entrepreneurs. The proposal allows foreign entrepreneurs who attract financing from U.S. investors or revenue from U.S. customers to start and grow their businesses in the United States, and to remain permanently if their companies grow further, create jobs for American workers, and strengthen our economy.

Expand opportunities for investor visas and U.S. economic development. The proposal permanently authorizes immigrant visa opportunities for regional center (pooled investment) programs; provides incentives for visa requestors to invest in programs that support national priorities, including economic development in rural and economically depressed regions ; adds new measures to combat fraud and national security threats; includes data collection on economic impact; and creates a pilot program for state and local government officials to promote economic development.

Create a new visa category for employees of federal national security science and technology laboratories. The proposal creates a new visa category for a limited number of highly-skilled and specialized immigrants to work in federal science and technology laboratories on critical national security needs after being in the United States. for two years and passing rigorous national security and criminal background checks.

Better addresses humanitarian concerns. The proposal streamlines immigration law to better protect vulnerable immigrants, including those who are victims of crime and domestic violence. It also better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.

Encourage integration. The proposal promotes earned citizenship and efforts to integrate immigrants into their new American communities linguistically, civically, and economically.

Posted On: January 25, 2013

Operational Guidance for EB-5 Cases Involving Tenant-Occupancy

The USCIS recently issued a guidance memorandum to facilitate adjudication of cases involving issues related to the “tenant-occupancy” methodology for establishing job creation in EB-5 cases. Among the issues raised in the February 2012 RFEs, USCIS sought evidence that the projected jobs attributable to prospective tenants (which would occupy the commercial space created by the EB-5 capital) would represent newly created jobs, and not jobs that the tenant had merely relocated from another location. This determination assesses whether there is a reasonable causal link between the EB-5 enterprise and the job creation that would allow for the attribution of the tenant jobs to the EB-5 enterprise. The memo sets forth the principles to be used in adjudicating cases involving tenant-occupancy models.

The complete memo may be found here: Operational Guidance for EB-5 Cases Involving Tenant-Occupancy Memo

Posted On: January 11, 2013

February 2013 Department of State Visa Bulletin

The new visa bulletin is out at this link: February 2013 Visa Bulletin

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries, except for India (Sept. 1, 2004) and China (Jan. 15, 2008); EB-3 is at March 15, 2007 for all countries, except for India (Nov. 15, 2002), China (Nov. 15, 2006), and Philippines (Aug. 22, 2006); EB-3 other workers is at March 15, 2007 for all countries, except India (Nov. 15, 2002), China (July 1, 2003), and Philippines (Aug. 22, 2006); EB-4, religious workers, EB-5 targeted employment areas and regional centers, and EB-5 Pilot Programs are all current. Family based petitions are backlogged, with the most recent date at Oct. 22, 2010 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of June 1, 1989.

Posted On: January 10, 2013

USCIS Customer Service Improvements

USCIS has expanded the capabilities of two online tools, My Case Status and e-Request, to provide these more flexible options:

• My Case Status now allows customers to view the current status of applications they submit, no matter which USCIS form they used. My Case Status now lets them track, through our Secure Mail Initiative (SMI), the mailing and delivery of USCIS-produced cards and documents. SMI permits customers to use our website to access the U.S. Postal Service tracking numbers of their documents.
• e-Request now allows customers to inquire electronically about applications and petitions they submit to USCIS. They can use this tool to request a follow-up on their case status if they do not receive documents related to three of our most-used forms: Form I-485, Application to Adjust Permanent Residence or Adjust Status; Form I-765, Application for Employment Authorization; and Form I-130, Petition for Alien Relative.

In addition, USCIS is expanding operating hours at their National Customer Service Center to include Saturdays. Beginning Jan. 12, customers nationwide can call the toll-free number (800-375-5283) from 9 a.m. to 5 p.m. on Saturdays to receive nationwide assistance for immigration services and benefits offered by USCIS. USCIS customer service representatives can answer routine questions on a wide variety of topics related to immigration services and benefits, including ordering forms, processing times, and information on local offices and civil surgeons. For individuals seeking answers to more complex issues regarding their case, we recommend calling the NCSC Monday through Friday for access to case adjudication officers.

For more details about contacting USCIS for information and assistance, please visit our website at www.uscis.gov.

Posted On: January 9, 2013

State Department Introduces Online Visa Status Check

US Department of State has introduced the online "Visa Status Check", which allows both immigrant and nonimmigrant applicants to check the status of their cases at the Consular Electronic Application Center (CEAC).

Link to the Visa Status Check system: Online Visa Status Check

Posted On: January 8, 2013

DHS Announces Final Rule to Support Family Unity During Waiver Process

The Department of Homeland Security recently announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at www.uscis.gov.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.