1. Openers ................................................................................................................ 2

2. ABCs of Immigration: Physician National Interest Waivers ........................................... 3

3. AskVisalaw.com ..................................................................................................... 9

4. Border and Enforcement News ............................................................................... 10

• The End of an Era: More Mexicans Leaving than Arriving ..................................... 10

• Donald Trump Calls for a Ban on all Muslim Travel to the U.S. ............................. 11

5. News from the Courts ........................................................................................... 11

• Supreme Court Denies Request for 30 Day Extension on Deferred Action Case ...... 11

• Texas Lawyer Accused of Committing Barratry ................................................... 12

6. News Bytes .......................................................................................................... 13

• Mark Zuckerberg Launches 10 Million Dollar Campaign for Immigration Reform ..... 13

• U.S. Army Changes Enlistment Rules for Dual Citizens ........................................ 13

• An Additional 16 Countries are Eligible to Participate in the H-2A and H-2B Visa Programs ...................................................................................................... 13

• White House Announces Enhancements to the Visa Waiver Program ..................... 14

• State Department Updates its Policy on Personal/Domestic Employees of U.S. Citizens on Temporary Assignment in the U.S. ................................................... 14

Table of Contents

7. Featured Post: From the Desk of Greg Siskind ......................................................... 15

• Important Immigration Provisions Included in Omnibus Appropriations Bill ............ 15

8. In the News at ABIL .............................................................................................. 19

• Credit Cards Now Accepted for Naturalization Fees ............................................. 19

• USCIS Updates Application for Employment Authorization ................................... 20

• USCIS Releases Controversial Draft Policy Memo on Job Portability ...................... 20

• DHS Provides Post-Earthquake Relief to Nepali F-1 Students ............................... 21

9. Updates from the Visalaw.com Blogs ....................................................................... 22

10. State Department Visa Bulletin: January 2016........................................................ 22

1. Openers Dear Readers:

2015 has been a year of frustration after it began with so much promise. We started the year anticipating the implementation of a series of executive actions that we hoped would dramatically improve many aspects of the immigration system. We were ready for the DAPA program for parents of US citizens and permanent residents. But that program has been blocked by litigation. We were told that a memorandum on L-1B announced by the President would make filing L-1B petitions more predictable. The memorandum only added to the confusion and has been panned by the business community. The H-4 employment authorization document regulation was written extremely narrowly and in a way that is forcing many people to have to face months of unemployment because USCIS will not allow change of status approvals to be timed to coincide with EAD approvals. The Visa Bulletin Modernization system was a fiasco with USCIS and DOS pulling the Visa Bulletin days before the much anticipated program was intended to take effect. And the “same or similar” occupation memorandum – intended to make it easier for people to use the AC21 portability statute – actually makes it less likely people will take advantage of that law.

Here's hoping 2016 brings better news. Hopefully, Congress will try and pass positive immigration bills. And executive actions are implemented in the spirit they were announced. And when the executive and legislative branches fail to deliver, let’s all work to hold them accountable and force them to do the right thing.

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This month also saw the passage of a major spending bill in Congress that included a number of important changes to immigration law. The H-2B, Visa Waiver, L-1 and H-1B programs are all affected and a detailed summary of those changes is included in my featured article in this issue.

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Next month, my latest book will be released and it’s entitled The Physician Immigration Handbook. The book will be offered in both an ebook and print version. Look for more details soon.

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As always, we invite you to contact our firm if you would like to schedule a consultation with one of our lawyers. Just go to www.visalaw.com/consultation. Thanks.

Regards,

Greg Siskind

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2. ABCs of Immigration: Physician National Interest Waivers [This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, The Physician Immigration Handbook.]

What is the PNIW?

The PNIW provides a path to permanent residency for physicians who work five years in a federally designated shortage area or a veteran’s hospital. Like the J-1 waiver for physicians going to shortage areas, a federal agency or department of public health in any state must find the physician’s employment to be in the public interest. Permanent residency applications may not be approved in the PNIW category until the physician has finished the five-year service commitment.

U.S. Congress created the PNIW category in 1999.1 For the first few years after the law was passed, no cases were approved because U.S. Citizenship and Immigration Services (USCIS) had not issued regulations. A lawsuit forced the agency to issue regulations permitting filings. However, a number of restrictions were placed in the regulations that were never mentioned in the law passed by Congress, so the category remained largely under-utilized. Following a second lawsuit in 2006, the U.S. Court of Appeals for the Ninth Circuit ruled in Schneider v. Chertoff2 that several sections of the PNIW regulations were illegal. USCIS then issued new regulations in 2007 that largely addressed the issues in the lawsuit. The category has been much more widely used in the years since. 1 Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. No. 106-95 (Nov. 12, 1999), available at https://www.govtrack.us/congress/bills/106/s455. 2 Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006).

What types of shortage areas qualify for the PNIW?

USCIS regulations state that PNIW work must be in a Department of Health and Human Services (HHS)–designated Medically Underserved Area or with a Medically Underserved Population (MUA/MUP), a Primary Medical Health Professional Shortage Area (HPSA), a Mental Health Professional Shortage Area (MHPSA), or a Department of Veterans Affairs (VA) facility. The regulations also permit filings in a “medical specialty that is within the scope of the [HHS] Secretary’s designation for the geographical area or areas.” This language refers to Physician Scarcity Areas, a designation that no longer exists.

Does the position need to be full-time?

Yes. The PNIW statute requires a physician’s work be full-time if it is the basis for the application. “Full-time” is defined in USCIS regulations as 40 hours per week. This raises the practical question for physicians in positions that are not necessarily 40 hours per week, but average 40 hours or more. For example, a physician working in a hospital may work seven days on and seven days off. USCIS has, as a general matter, approved petitions in such cases if a physician’s contract states that the position will average at least 40 hours per week (or 160 hours per month). However, the agency has never issued any guidance on what full-time actually means.

Does the work need to be clinical or will other types of physician positions qualify?

USCIS regulations require that the work be full-time in a “clinical medical practice.” Neither the regulations nor the statute speaks to time devoted to non-clinical duties (such as a mixed research and clinical position or a position that involves administrative duties), but a safe assumption would be that the physician will need to actually be treating patients an average of 40 hours per week.

Are there “flex” slots in the PNIW category?

No. Unlike J-1 waivers where up to 10 of a state’s Conrad 30 waiver slots can be used by physicians working outside of designated shortage areas (if treating patients traveling from shortage areas), there is no such exception in the PNIW rules.

Are there limits on the number of PNIWs a state can file each year?

No. Unlike the Conrad 30 J-1 program, there are no limits on the number of PNIWs a qualified sponsoring agency can file each year.

What types of government agencies can sponsor a physician for a PNIW?

USCIS rules largely mirror the J-1 program. State and territory health departments and federal agencies can sponsor PNIWs. The actual language of the 1999 PNIW statute only speaks to sponsorship by a federal agency or a department of public health in any state. Individuals involved in the drafting of the law have complained that the law was intended to include local health departments in the states, but USCIS has ignored such complaints and the matter has never been challenged in the courts. Until that happens, letters must come from state-level health departments or federal agencies.

When does the five-year service requirement start?

In order for the PNIW to provide a path to permanent residency, the physician must work five years in a federally designated shortage area or a veteran’s hospital. The five-year requirement starts:

1. Upon approval of the Form I-140, Immigrant Petition for Alien Worker, for the PNIW;

2. Upon issuance of an employment authorization document if a physician needs one to begin working; or

3. Upon the date a physician changed from J-1 nonimmigrant status to H-1B status if the physician received a waiver of the J-1 home-residency requirement based on a shortage-area waiver.

Can a physician get credit for work done in a shortage area before the application is filed?

Yes, as long as the work was not performed in J-1 status and as long as the sponsoring government agency credits the time in its PNIW support letter.

Does the five years of service need to be continuous?

Prior to the Schneider lawsuit mentioned above, USCIS required the five years of PNIW service be completed within a six-year period. The Schneider court ruled that the statute did not require this explicitly and USCIS revised its regulations to simply require that the physician document that he or she is making progress toward completion of the five-year service requirement. USCIS now requires that the physician submit evidence of progress toward completing the service requirement within 120 days of the second and sixth anniversaries of the I-140 approval. USCIS will issue a request for evidence as part of a Form I-485, Application to Register Permanent Residence or Adjust Status, to collect documentation on this requirement. However, physicians from EB-2 backlogged countries cannot apply to adjust status, so these physicians will need to submit such documentation on their own during the time-frames noted above. USCIS noted in a guidance memorandum issued after the Schneider decision that while there is no longer a requirement to complete the service requirement within six years:

“USCIS adjudicators … may deny an application for adjustment of status as a matter of discretion if the physician appears to be using the pending adjustment of status application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.”

So physicians still face a risk of denial if they are not working in shortage areas at least at the times when USCIS sends out its requests for demonstrating progress toward meeting the five-year service requirement.

Can a physician file for adjustment of status before the five-year service requirement is completed?

Yes, assuming the rest of the adjustment-of-status requirements can be met. This is an important benefit for many physicians who can file for adjustment of status and its related benefits (such as travel and work authorization) at the time the PNIW-based I-140 is filed. One important exception to this rule is for physicians who are ineligible to adjust because an immigrant visa is not immediately available. Since the EB-2 category was created in 1990, only Indian and Chinese nationals have faced backlogs in the category; as of the time of writing this book, both nationalities continue to face EB-2 backlogs.

Can a physician change employers during the five-year period?

Yes. Physicians may change to a new employer or location and get credit toward the five-year period if the new employment is also in a qualifying shortage area and the physician files an I-140 (with fee) notifying USCIS of the change. The application must include proof that the work is full-time in a shortage area; there is a new contract (or statement in the case of self-employed physicians) binding the physician to work the required period left to satisfy the five-year requirement; and there is a new letter from a sponsoring government agency attesting that the new work is in the public interest. The physician will retain the priority date from the earlier filing.

Can physicians satisfying a three-year J-1 waiver service requirement file adjustment applications in PNIW cases?

For those satisfying a J-1 three-year service requirement, an adjustment application normally cannot be submitted until the service obligation is completed. PERM applications and I-140 petitions for these physicians can be submitted during the three-year period, but the adjustment application must wait. An exception is made for PNIW applicants as long as a visa is available to the physician in the EB-2 category (i.e., the doctor is not from a country with a backlog in the EB-2 category and is not lacking a current priority date).

Can specialists file for PNIWs?

Yes. Prior to the Schneider case, USCIS only approved cases for primary-care physicians. The actual 1999 law creating the PNIW category contained no such limitation, and after USCIS’s loss in the Schneider case, the agency began accepting petitions from specialists as well as primary-care physicians. However, sponsoring federal and state health agencies are free to impose their own rules limiting applications to primary care.

What does an employment contract need to contain in order to satisfy PNIW requirements?

There are only a few requirements in USCIS’s immigration regulations regarding the PNIW:

• The agreement must be for full-time employment in a qualified shortage area. • The agreement must be for five years. The five-year requirement for the contract

has been the subject of controversy over the years. USCIS requires a five-year

contract dated within six months of filing the I-140 application; however, the statute clearly contemplates physicians getting credit for time spent in an underserved area (with the exception of time spent on a J-1 visa). USCIS is generally satisfied if the contract has a five-year term even if the start date of the contract is a date in the past (and the date of execution of the agreement is less than six months in the past). A five-year term from the current date is another option and the employer and physician can choose to allow either party to terminate the contract at will in order to provide flexibility.

• The contract also needs to commit the physician to work in an underserved area (so it should list the specific work location) and that the time spent working at a location or locations will be no less than 40 hours per week.

• As a matter of good practice, however, the location should list the HPSA or MUA/MUP identification number.

Can a physician self-petition in the PNIW category?

Yes. Either an employer or physician may be the signatory on an I-140 PNIW petition.

Can a physician be self-employed in the PNIW category?

Yes. For physicians establishing their own practices, USCIS will permit the physician to substitute a sworn statement for an employment contract. The statement must commit the physician to the full-time practice of clinical medicine for the required period and describe the steps the physician has taken or intends to take to establish the practice.

Can a physician use the same government agency letter for both the J-1 waiver and a PNIW?

Yes, as long as the letter is dated within 180 days of the filing of the I-140 petition and as long as the letter notes the sponsoring agency is supporting both the J-1 waiver and the PNIW.

What does the letter from the government agency need to say?

The letter must attest that the physician’s work is or will be in the public interest. For federal agencies, the letter must reflect the agency’s knowledge of the doctor’s qualifications and the agency’s background in making determinations on matters involving medical affairs in order to substantiate the finding that the doctor’s work is in the public interest. For state health departments (including U.S territories and the District of Columbia), the letter must show that the sponsoring agency has jurisdiction over the place where the doctor intends to practice clinical medicine. If the doctor intends to practice in locations in more than one state, separate attestation from each state must be included.

Can a state impose restrictions in addition to the federal PNIW requirements?

Yes, similar to J-1 waivers, sponsoring agencies can impose a range of additional requirements on PNIW applications. Examples include—

• Limiting waivers to doctors who received J-1 waivers;

• Liquidated damages contract requirements;

• Additional support letters;

• Additional restrictions on the types of qualifying shortage areas;

• Minimum service requirements in a shortage area before the filing of the NIW; and

• Limitations on the types of specialties permitted to apply.

Can an I-140 PNIW petition be premium processed?

As of the date of publication of this book, premium processing is NOT available in PNIW cases.

How does the physician notify USCIS that he or she has completed the service requirement and is eligible to adjust status?

USCIS regulations require a physician to prove final compliance no later than 120 days after completing the five-year service requirement. The physician must notify the USCIS service center with jurisdiction over the place of employment and provide evidence that the requirements are complete. These may include the following:

• Tax returns for the entire service period.

• Attestations from the employer or employers regarding the full-time medical service requirement being met and explanations for any breaks in employment other than routine breaks, such as paid vacations.

• For doctors who established their own practices, documentation that the practice was established, including incorporation documents, the business license, and tax documents.

• For physicians who moved locations and did not previously submit a public interest letter from a government agency signing off on the location, that letter must be included as well.

What are the advantages and disadvantages of applying for a PNIW versus a PERM petition?

For physicians not subject to EB-2 backlogs, the ability to file an adjustment-of-status application (and the accompanying employment and travel authorization application) at the time of submitting the PNIW I-140 petition can be helpful for spouses and children needing work authorization, and it may make travel easier for physicians who might face nonimmigrant visa consular delays because of administrative processing.

• PNIWs can be self-petitioned by physicians, whereas PERM petitions require an employment relationship without the physician holding an ownership interest in the practice.

• The PNIW physician may take longer to get to permanent residency because the physician cannot adjust until the five-year service requirement is met.

• The PNIW application does not require additional recruiting (unless a sponsoring agency adds such requirements).

• The PNIW can be transferred between employers.

• The physician can cover the costs of a PNIW petition, while the employer must cover PERM-related costs.

• For physicians facing the H-1B cap or the six-year time limit on the H-1B and who are not subject to EB-2 backlogs, the PNIW may allow a physician to work at an employer despite the H-1B limitations.

• PERM petitions can be submitted for any type of location and not just shortage areas.

• PERM petitions do not require the consent of a sponsoring government agency.

• PERM petitions do not actually require a physician to sign an employment agreement.

• PERM petitions have a very high success rate as well as PNIWs because of the national physician shortage.

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3. AskVisalaw.com In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1) QUESTION: I signed an I-864 Affidavit of Support when my wife became a Permanent Resident. She has since signed up for Obamacare. I was told that if she gets government assistance, the government can sue me. Should I be worried about this?

ANSWER: You do not have to worry. The I-864 only allows the government to seek repayment for means-tested public benefits that the sponsored permanent resident receives. Means-tested public benefits are those public benefits that are available based upon the applicant’s financial means. Some examples are food stamps, supplemental security income (SSI), Medicaid, Temporary Assistance for Needy Families (TANF), and State Child Health Insurance Program (CHIP). Emergency medical assistance, such as emergency Medicaid, is not considered a means-tested public benefit. Most pay-in insurance programs, including Obamacare, or the Affordable Care Act (ACA), are not considered means-tested public benefits. Lawful Permanent Residents (LPRs, or green card holders) are eligible to enroll in the ACA program.

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2) QUESTION: I have been working in the US in H-1B status for three years. Shortly after I came to the U.S. my company transferred me to a different location, but never filed an amendment to my H-1B. Last year my company filed an extension of my H-1B petition, but due to the fact that I had been working in a different location, my Extension of Status was denied. My company has filed an appeal of the denial to the Administrative Appeals Office, but I am not hopeful about the chances of the denial being overturned. My company has filed an I-140 petition for me, but I have not filed an I-485 application for adjustment of status as a visa is not yet available for my petition. What are my options?

ANSWER: Your biggest concern is that you have begun to accrue unlawful presence [INA Section 212(a) (9)(B)] as of the date that your extension of status was denied. The fact that the denial has been appealed does not stop unlawful presence from accruing. If you remain in the U.S. more than 180 days from the date of your denial you will be limiting your options. However, if you leave the U.S. before then, you can have your company file a new H-1B petition for you and you can apply for a new H-1B visa. Your past violation should not bar you from being able to receive a new H-1B visa, since there was no fraud, but only an oversight on the part of your company. For an additional premium processing fee of $1,225 in addition to the standard filing fee, your company can premium process the petition, so that it will only take a few weeks to have the new petition approved. Of course this is all based on the small amount of information provided. So you should consult with an experienced immigration lawyer as soon as possible. *****

4. Border and Enforcement News

The End of an Era: More Mexicans Leaving than Arriving

According to new data released by the Pew Research Center, there are now more Mexicans leaving the U.S. to return home than there are immigrating to the U.S. This is the first time we have seen these statistics since the 1940s and they seem to signify an end to what some have called, “the largest immigration wave in modern American history.”

Over the last number of decades, Mexican immigration to the U.S. has been fueled by numerous factors including, U.S. economic expansion and the subsequent creation of jobs, high birthrates in Mexico and the increased number of mouths to feed, and a poor Mexican economy.

In recent years, however, Mexico’s birthrate has declined tremendously, relieving the economic pressure of feeding large families. Mexico’s economy has also improved, making it less necessary for Mexicans to seek higher-paying jobs in North America. Moreover, many

Mexican immigrants still have families in Mexico. Now that living conditions have improved and economic pressures have decreased, the prospect of family reunification seems to be the number one factor motivating Mexicans to return home.

http://www.wsj.com/articles/mexican-immigration-to-u-s-reverses-1447954334

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Donald Trump Calls for a Ban on all Muslim Travel to the U.S.

The Republican presidential front-runner, Donald Trump, has called for a blanket ban on all Muslim travel to the U.S. His proposed policy would apply to both tourists and people looking to emigrate from Muslim countries. Trump has previously called for the widespread surveillance of mosques and for the registration of all Muslims living in the U.S.

To support his controversial policies, Trump has cited a poll taken by the Center for Security Policy, which claimed that, “a quarter of Muslims living in the U.S. believe violence against Americans is justified as part of a global jihadist campaign.” Many have questioned the reliability and validity of this information. Trump’s campaign has also pointed to a Pew Research poll, one that they have declined to identify, which the campaign claims points to “great hatred of Americans by large segments of the Muslim population.”

The proposal has been widely condemned by the Obama administration, by Democrats, and by Republicans, including all of the other Republican presidential candidates. Many have said that the policy goes against fundamental American values and that it is a counter-productive measure that would only alienate Muslim communities and make it more difficult to prevent the spread of radicalization. It has also been said that the policy would play into the hands of ISIS and other fundamentalist groups by framing this as a war against Islam. Still others have pointed out that this policy could seriously endanger our troops and diplomats in Muslim countries.

Despite the widespread criticism, Trump’s controversial comments have done little to hurt his popularity. Many Trump supporters have publicly embraced the proposed ban, believing that it would increase our security by ensuring that potential terrorists can’t enter the country.

http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/

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5. News from the Courts

Supreme Court Denies Request for 30 Day Extension on Deferred Action Case

The Supreme Court has not yet decided whether or not it will rule on President Obama’s deferred action immigration policy this term. The policy would allow millions of

undocumented immigrants to live and work in the U.S. for three years without fear of deportation.

But the court did grant the Obama administration a small victory when it rejected a request for a 30 day extension from Texas and other states seeking to block Obama’s immigration plans. Had the court granted the request, it would have been very unlikely that the justices could hear the case during this presidential term.

Instead, the court accepted a request from the Justice Department for a shortened eight-day extension. This means that if the court does decide to hear the case, a decision is likely to come in late June.

The court is expected to decide whether or not to take the case in January.

http://www.wsj.com/articles/supreme-court-moves-closer-to-ruling-on-obamas-immigration-plan-1449015924

https://www.washingtonpost.com/politics/supreme-court-denies-states-requests-for-filing-extension-in-immigration-suit/2015/12/01/34f5e116-987c-11e5-b499-76cbec161973_story.html

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Texas Lawyer Accused of Committing Barratry

San Antonio lawyer, Vanessa Alonso has been accused of committing barratry by allegedly hiring an employee to solicit clients in immigration detention centers. There has been a separate lawsuit filed against her supervising partner, Raul Garcia, claiming that he knowingly permitted the conduct.

Both Alonso and Garcia have denied any professional misconduct. But the petitions against them allege that the firm paid the solicitor a base salary and a referral fee for every $25,000 she generated in business. The petitions claim that Alonso allegedly told the solicitor to deposit the payments she received into her husband’s bank account. Furthermore, Alonso allegedly told the solicitor that if clients left the firm, she should refund the firm from her own account or in cash in order to hide the firm’s improper payment for referrals. Finally, when the solicitor’s clearance at the detention facility was revoked, the petitions allege that the firm’s partners, Raul and Carlos Garcia, allowed another employee to go to the detention center to solicit clients wrongfully.

Alonso and Garcia have allegedly violated seven rules in the Texas Disciplinary Rules of Professional Conduct including the prohibition of barratry, and the requirement of lawyers to ensure that the individuals under their supervision are acting in accordance with the law.

http://www.texaslawyer.com/id=1202743732327/Lawyers-Battling-Disciplinary-Suits-Alleging-Barratry?slreturn=20151102155625

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6. News Bytes

Mark Zuckerberg Launches 10 Million Dollar Campaign for Immigration Reform

In the spring of 2013, Facebook founder and CEO, Mark Zuckerberg founded an advocacy group called FWD.us with the goal of supporting policies that help keep the American Dream achievable. They have focused heavily on immigration reform and a few weeks ago, the organization announced the launch of a $10 million campaign to make reform happen in 2017, after the inauguration of a new President. The campaign is expected to include digital and televised advertisements as well as research and polling.

In anticipation of the coming election, FWD.us has decided to expand their reach to 12 more states, aiming specifically for districts governed by Republicans. They hope that with a loud enough presence informing voters of the stakes, they can combat the hard line immigration rhetoric that the GOP candidates have put forth so far.

Zuckerberg has been an increasingly vocal advocate for immigration reform, driven at first by the technology industry’s interest in visas for high-skill workers, and more recently, by the Dreamer community, with whom he has closely allied himself.

FWD.us has predicted that the election in 2016 is going to have a high turnout of Latino and Asian American voters. They hope that politicians will recognize the increasing importance of these demographics and that this recognition will influence candidates to promote immigration reform policies.

http://latino.foxnews.com/latino/politics/2015/12/02/mark-zuckerberg-announces-10-million-campaign-to-promote-immigration-reform/

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U.S. Army Changes Enlistment Rules for Dual Citizens

The Department of the Army has announced a new exception to its policy on the enlistment of dual citizens. Under the new policy, applicants who hold dual citizenship with the U.S. and another country, and who wish to enlist in the Regular Army, the Army Reserve, or the Army National Guard can now enlist into a Military Occupational Specialty that requires a security clearance. They do not need to have this security clearance before they enlist, but they must obtain one before performing any duties in their Military Occupational Specialty of choice. This change went into effect on June 22, 2015 and it will expire on June 30, 2016 or sooner if superseding guidance is published.

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An Additional 16 Countries are Eligible to Participate in the H-2A and H-2B Visa Programs

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the U.S. to fill temporary agricultural and nonagricultural jobs.

USCIS has announced that the following countries may now participate in the H-2A and H-2B visa programs: Andorra, Belgium, Brunei, Colombia, Finland, France, Germany, Greece, Lichtenstein, Luxemburg, Malta, Monaco, San Marino, Singapore, Taiwan, and Timor-Leste.

Moldova will no longer be eligible to participate in the H-2B program because it is not meeting the required standards. Moldova can still participate in the H-2A program.

The notice does not affect individuals who currently live in the U.S. and already have H-2A or H-2B status unless they apply to change their status. Each country's designation is valid for one year from January 18, 2016.

For a complete list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs click here.

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White House Announces Enhancements to the Visa Waiver Program

The Visa Waiver Program (VWP) permits visa free travel to the U.S. for citizens of 38 partner countries around the world. It uses a multifaceted security system to prevent terrorists, felons, and other potentially dangerous individuals from entering the U.S.

Over the last year, and particularly in the wake of the attacks in Paris, the government has taken steps to enhance the security measures of the VWP and to ensure that those enhancements can be enacted quickly and enforced to the maximum degree.

For a complete list of the enhanced security measures click here.

See this month’s Featured Post about the new Omnibus spending bill which contains provisions relating to the security of the VWP.

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State Department Updates its Policy on Personal/Domestic Employees of U.S. Citizens on Temporary Assignment in the U.S.

The State Department has updated its policy on personal/domestic employees of U.S. citizens on temporary assignment in the U.S. Under the new policy, individuals who fall into this category can now stay in the U.S. for up to six years, where previously the maximum stay was four years. To read the full policy click here. *****

7. Featured Post: From the Desk of Greg Siskind

Important Immigration Provisions Included in Omnibus Appropriations Bill

Within the 2000+ page Omnibus appropriations bill passed by Congress last Friday, a number of immigration provisions have been included. The bill is also notable for what it did not include. This summary discusses the provisions included and also comments on measures that were not and what the fate is of some of the deleted proposals.

Employment and Investor-based Immigration

1. EB-5, Conrad 30, Religious Workers and E-Verify

The major news was the failure to include a number of EB-5 investor immigration provisions that had been negotiated for months. Those provisions would have included hikes in the investment thresholds beyond the $500,000/$1,000,000 amounts, anti-fraud provisions, and restrictions on the percent of regional center applications that could come from urban areas. Instead, Congress simply chose to extend the EB-5 program with no changes until September 30, 2016. The program was set to expire this month. The President is considering an executive action, however, that could raise the $500,000 investment threshold. Under the statute, the lower investment threshold can be no less than half of the higher amount. That means it can be raised up to $1,000,000 without Congress taking action.

Senator Grassley, the Republican Chair of the Senate Immigration Subcommittee, was livid that the proposed changes were not included. He had threatened to block the extension of the program unless changes were made. Don’t look for him to sit on the sideline on this issue.

It is still very likely that changes are coming to the EB-5 program.

The other program expiring in December that Congress was considering changing is the Conrad 30 J-1 waiver program for physicians working in medically underserved communities. This is a highly popular program and the changes considered were considered uncontroversial.

They would have made physician transfers between underserved areas easier and also clarified the timing requirements for physicians moving from J-1 status to H-1B status. Perhaps because the program’s extension is tied to the EB-5 program extension, Speaker Ryan chose to exclude the Conrad changes as well and simply extended the program without change until September 30th. There is speculation that the proponents of the bill language will seek to get the changes passed by unanimous consent early in 2016.

Along with EB-5 and Conrad, the special immigrant religious worker program and the E-Verify electronic verification system were also extended until September 30, 2016. Look for E-Verify to come under the spotlight again in 2016 as some Republicans will push to make the program mandatory for employers.

2. H-1B and L-1 Visas

Changes were also made to the H-1B and L-1 visa programs. Companies with 50 or more employees seeking to higher L-1 employees and who have more than 50% of their employees working on an H-1B or L-1 visa, will be subject to a tax of $4500 on each L-1 employee. Companies with 50 or more employees seeking to higher H-1B employees and who have more than 50% of their employees working on an H-1B or L-1 visa, will be subject to a tax of $4000 on each H-1B employee. The measure is clearly aimed at large Indian-owned IT staffing companies. The new taxes are applicable to both extension and initial petitions and will be in place until September 30, 2025. The revenue from the tax will be split between 9-11 programs and the biometric entry-exit program.

3. H-2B visas

Changes are also coming to the H-2B program. In 2014, Congress passed a temporary measure allowing for the staggered entry of seafood workers during a 120 period following approval of the H-2B petition (though if workers enter between day 90 and 120, a new assessment of labor needs will be required. The Omnibus bill makes that temporary measure permanent.

The bill also modifies prevailing wage requirements for H-2B applications. The Department of Labor will now be required to accept private wage surveys complying with Labor Department regulations in all cases and it will not matter if Occupational Employment Statistics survey data is available.

Finally, Congress revived an expired law that exempts H-2B returning workers from the annual 66,000 cap. Some H-2B opponents believe this will lead to a four-fold increase in the number of H-2B workers in the US. However, many experts believe the number will be considerably smaller than that.

Congress has killed a new H-2B regulation regarding “corresponding employment” in the H-2B program. Under a recently enacted Department of Labor H-2B regulation (20 CFR 655.5), corresponding American workers are defined as non-H-2B workers who perform substantially the same work in the H-2B job order or substantially the same work performed by H-2B employees. The regulations require corresponding employees to receive the same rights and benefits as H-2B workers. The statute requires H-2B workers to be paid at least as well as US workers, but the regulation would require US workers to be paid more when H-2B workers are actually paid better.

Another 2015 DOL regulation killed by the bill is the H-2B three-quarters guarantee listed in 20 CFR 655.20(f). According to a DOL fact sheet:

All H-2B employers must fulfill a three-quarters guarantee. The employer must guarantee to offer the worker employment for a total number of work hours equal to at least three-fourths of the workdays in each 12-week period (or 6-week period for job orders lasting less than 120 days). This obligation begins with the first workday after the arrival of the worker at the place of employment or the advertised first date

of need, whichever is later, and ends on the end date indicated in the job order (or its extensions, if any). A workday means the number of hours in a workday as stated in the job order.

Congress has also nullified a new DOL regulation on H-2B seasonal employment. Under the April 2015 regulations, “seasonal” employment is defined as being less than nine months. A contradicting USCIS regulation defines “seasonal” as ten months or less and Congress has sided with USCIS.

Additionally, Congress has killed the new DOL audit regulation. Under the 2015 H-2B Interim Final Rule, the DOL has the ability to audit any adjudicated application, including those applications that are certified, denied or withdrawn.

Finally, the DOL’s new assisted recruitment process included in the April 2015 interim final regulation has been killed by Congress. The Assisted Recruitment rule allows Certifying Officers (Cos) to monitor an employer’s advertising and recruiting. The DOL envisioned this process applying after it conducted an audit as described above and employers notified in writing that they are subject to assisted recruiting would have to comply with those extra requirements for two years. Under assisted recruiting, the employer would need to meet the normal H-2B recruiting rules plus any additional instructions from the CO. According to the DOL, the additional requirements might include the following:

• Provide the CO with a draft of its newspaper advertisement for review and approval before it places the advertisement;

• Use specific sources to recruit for U.S. workers (e.g., newspapers or other publications);

• Keep advertisements and/or the job order posted longer than the normal minimum timeframe.

Moreover, the CO may require the employer to submit evidence of the recruitment and results, such as proof of publication (e.g., tearsheets) for all advertisements, poof of the posting of the job order, and /or proof of contact with all SWA referrals

Refugees

After much debate on Capitol Hill regarding refugees, very little was included in the Omnibus bill on that subject. Efforts to end all resettlement from Syria or Iraq failed and funding for refugee resettlement has been retained in the budget. Furthermore, the onerous changes to the refugee program included in various bills circulated in the House or Senate were not included in the Omnibus.

Visa Waiver Program

The media has widely reported changes to the Visa Waiver Program included in the Omnibus. Much of HR 158, a previously passed House bill on the Visa Waiver was incorporated in to the appropriations bill. All VWP applicants must be in possession of machine-readable passports and beginning on April 1st, 2016, all passports must be

electronic and fraud resistant. They must contain relevant biographic and biometric information and otherwise meet internationally accepted standards for electronic passports. The government of participating VWP countries must certify that it meets these requirements by April 1. 2016 and must also certify by October 1st, 2016 that it requires these passports for entry into their countries at key ports of entry.

The VWP program now contains a new requirement that any individual seeking to enter under the VWP may not have been present at any time after March 1, 2011 in Syria or Iraq, any country designated as a state sponsor of terrorism or any other country that is an “area of concern” designated by DHS (the list of these countries must be submitted to Congress within 60 days). The rule applies as well to dual nationals of those countries even if they have not traveled to the country. This requirement is potentially broader than one might think because some countries consider a person a national of their country even if they have not taken any steps to retain such nationality. An exception to the rule is included for soldiers of VWP countries who are performing military service in one of the excluded countries. And waivers of this new restriction may be requested from DHS. The White House has also said it may use its executive authority to exclude Iran from the list since the country is an enemy of ISIL and the application of this new law may run contrary to the easing of sanctions negotiated last summer.

There are additional changes affecting the Visa Waiver program including the following:

• Participating countries must report lost or stolen passports to Interpol within 24 hours (the law previously said “within a strict time limit”

• Within 270 days, each country with an international airport must certify that it to the maximum extent allowed under the laws of the country, it is screening for unlawful activity each person who is not a citizen of that country (with the exception of EU nationals moving between EU countries) who is admitted or departs using the relevant databases maintained by Interpol; countries not complying can be terminated by determination of DHS and DOS until they are deemed to be complying

• Participating countries must fully implement the Passenger Information Exchange Agreement

• Countries that are deemed by DHS to not be sharing information can be terminated from the VWP and not reinstated until they are deemed to be sharing such information

• DHS, in consultation with the State Department and the Director of National Intelligence shall identify any participating countries that are determined to present a “high risk to the national security” and may have their VWP participation suspended; factors included in determining “high risk” include the number of nationals determined to be ineligible to travel to the US under the VWP, the number of known or suspected terrorists with the country’s nationality, the number of individuals who have traveled to Iraq or Syria, the level of cooperation with the US in counter-terrorism efforts and the adequacy of border and immigration control in the country.

• DHS will provide assistance to non-VWP countries in submitting to Interpol information about theft or loss of passports and in implementing electronic passport systems.

Also, aside from the changes to the rules for participating in the Visa Waiver Program, the Director of National Intelligence will also be required to submit a report every 60 days to congressional intelligence committees that includes the total number of foreign fighters who have traveled to Syria or Iraq whose countries of origin is a Visa Waiver country.

DAPA/DACA, Sanctuary Cities and Detention

In previous budget battles, funding for the President’s deferred action programs became a flash point and even led to a government shutdown. No language was included in the Omnibus this time that affected the ability of the President to implement the DAPA and expanded DACA program should the Supreme Court rule those programs can proceed.

Furthermore, despite heated rhetoric this past summer regarding so-called “Sanctuary Cities”, no language was included that would have withheld fund from jurisdictions unwilling to comply with certain federal enforcement mandates. And a push to compel the President to detain more individuals also did not make it in to the bill.

*****

8. In the News at ABIL Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com. The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

***

Credit Cards Now Accepted for Naturalization Fees

U.S. Citizenship and Immigration Services (USCIS) is now accepting credit cards to pay the processing fee for Form N-400, Application for Naturalization. Most applicants pay $680, which includes the $595 naturalization application fee and a biometrics fee of $85.

To pay with a credit card, an applicant must file Form G-1450, Authorization for Credit Card Transaction. USCIS explained that this change "is one of the recommendations made by the White House Task Force on New Americans." Acceptable cards include Visa, MasterCard, American Express, and Discover, along with gift cards with Visa, MasterCard, American

Express, or Discover logos. The entire fee must be paid using a single card. USCIS will reject the application if the card is declined.

Details on how to pay with a credit card are at http://www.uscis.gov/forms/fingerprints/pay-your-n-400-application-fee-your-credit-card.

***

USCIS Updates Application for Employment Authorization U.S. Citizenship and Immigration Services (USCIS) has published an update to Form I-765, Application for Employment Authorization. The new edition is dated 11/04/15. Previous editions dated 02/13/15, 05/27/08, or later are also being accepted.

The latest I-765 edition is at http://www.uscis.gov/i-765.

The related Federal Register notice is at https://www.federalregister.gov/articles/2015/11/24/2015-29909/agency-information-collection-activities-employment-eligibility-verification-form-i-9-revision-of-a.

Other recent forms updates are listed at http://www.uscis.gov/forms-updates, including the Immigrant Petition for Alien Worker (http://www.uscis.gov/i-140) and the Application to Register Permanent Residence or Adjust Status (http://www.uscis.gov/i-485).

***

USCIS Releases Controversial Draft Policy Memo on Job Portability

U.S. Citizenship and Immigration Services (USCIS) recently released a draft policy memorandum, "Determining Whether a New Job is in "the Same or a Similar Occupational Classification" for Purposes of Section 204(j) Job Portability." The memo was posted on November 20, 2015, and the comment period ends January 4, 2016.

The memo instructs Immigration Services Officers (ISOs) on how they may use the Department of Labor's (DOL’s) Standard Occupational Classification (SOC) codes and other evidence to determine whether a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140 petition) submitted to USCIS. USCIS said the purpose of the memo is "to promote consistency and efficiency in section 204(j) portability adjudications in accordance with the policy objectives described herein. Such adjudications require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented."

The memo notes that despite the statutory flexibility provided in INA § 204(j), "stakeholders have raised concerns that the job portability provision is underutilized due to significant uncertainty concerning USCIS determinations in this area." The memo "is intended to address that uncertainty by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s)."

In making these determinations, the memo explains, USCIS may refer to DOL's labor market expertise as reflected in its SOC system, which is used to organize occupational data and classify workers into distinct occupational categories. Occupations are generally categorized based on the type of work performed and, in some cases, on the skills, education, and training required to perform the job. The memo notes that the SOC organizes all occupations into 23 "major groups," which are then broken down in descending order into: 97 "minor groups," 461 "broad occupations," and 840 "detailed occupations." All workers are classified into one of these 840 detailed occupations. Detailed occupations with similar job duties and, in some cases, skills, education, and/or training are generally grouped together in the same broad occupation. The SOC system is organized using numeric codes that generally consist of six digits. Each digit or group of digits represents the level of similarity of positions. No occupation is assigned to more than one category at the lowest level of the classification (sixth digit).

Some attorneys complain that USCIS misses the mark with this memo and ignores the legislative history, which was, as the title of the provisions suggest, for "job flexibility," so that workers are not treated as indentured servants and may improve their prospects by switching jobs and employers. These commenters note that the agency interprets "similar" to mean having a "marked resemblance," rather than a mere "resemblance," although it cites two dictionaries, only one of which says the resemblance must be "marked." They also expressed concerns that USCIS mechanistically applies the SOC codes, which were never intended to be used for this purpose, and instead were a bureaucratic fix for DOL to stop publishing the 40,000+ job listing in the Dictionary of Occupational Titles.

The memo is at http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/PED-Draft_Same_or_Similar_Policy_Memorandum_-_11.20.15.pdf

***

DHS Provides Post-Earthquake Relief to Nepali F-1 Students

Effective November 9, 2015, the Department of Homeland Security (DHS) suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is the Federal Democratic Republic of Nepal and who are experiencing severe economic hardship as a direct result of the earthquake there on April 25, 2015.

DHS said this action is intended to provide relief to Nepali citizens who are F-1 students so they may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 student status. DHS will deem an F-1 student who receives employment authorization by means of this notice to be engaged in a "full course of study'' for the duration of the employment authorization, if the student satisfies the minimum course load requirement described in the notice.

The Federal Register notice is at http://www.gpo.gov/fdsys/pkg/FR-2015-11-09/html/2015-28360.htm.

*** This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

*****

9. Updates from the Visalaw.com Blogs Greg Siskind’s Blog on ILW.com

• USCIS “Same or Similar” Memo – An Example of Being Careful What You Wish For? • Immigrant of the Day: Zhen Gu – Cancer Researcher • Leading Republican Candidates Drop Enforcement Fig Leaf • Government Files Response on Mehta Complaint • Immigrant of the Day: Ambassador José Andrés – Chef • Siskind Summary: Important Immigration Provisions Included in Omnibus

Appropriations Bill • Immigrant of the Day: Pablo Ruiz – Engineer • Details Starting to Emerge Regarding I-140 Employment Cards

Bruce Buchanan's Blog on ILW.com

• Federal Jury Convicts 2 Brothers of Visa Fraud • OSC Settles Discrimination Claim against Sunny Grove Landscaping • OSC & ICE Publish Guidance to Employers on Internal I-9 audits • Company’s Failure to File an Answer Leads to Finding of 4964 Form I-9 Violations • ICE and OSC’s Guidance on Internal I-9 Audits • OSC Provides More Guidance on Anti-Discrimination

*****

10. State Department Visa Bulletin: January 2016 Number 88 Volume IX Washington, D.C A. STATUTORY NUMBERS This bulletin summarizes the availability of immigrant numbers during January for: “Application Final Action Dates” (consistent with prior Visa Bulletins) and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the USCIS website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security must use the “Application Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the "Dates for Filing Visa Applications" charts in this Bulletin. Applicants for adjustment of status may refer to USCIS for additional information by visiting www.uscis.gov/visabulletininfo. 1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by December 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-Sponsored

All Chargeability Areas Except Those Listed

CHINA-mainland born INDIA MEXICO PHILIPPINES

F1 15MAY08 15MAY08 15MAY08 22DEC94 01JUN03

F2A 01AUG14 01AUG14 01AUG14 01JUN14 01AUG14

F2B 01APR09 01APR09 01APR09 08SEP95 01JAN05

F3 01AUG04 01AUG04 01AUG04 01AUG94 01NOV93

F4 22APR03 22APR03 22APR03 01APR97 22JUL92

*NOTE: For January, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 01JUN14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUN14 and earlier than 01AUG14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date. The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application. Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES

F1 01OCT09 01OCT09 01OCT09 01APR95 01SEP05

F2A 15JUN15 15JUN15 15JUN15 15JUN15 15JUN15

F2B 15DEC10 15DEC10 15DEC10 01APR96 01MAY05

F3 01AUG05 01AUG05 01AUG05 01MAY95 01AUG95

F4 01MAY04 01MAY04 01MAY04 01JUN98 01JAN93

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based

All Chargeability Areas Except Those Listed

CHINA - mainland born INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01FEB12 01FEB08 C C

3rd 01OCT15 01JUL12 15MAY04 01OCT15 01NOV07

Other Workers 01OCT15 01DEC06 15MAY04 01OCT15 01NOV07

4th C C C C C

Certain Religious Workers U U U U U

5th Non-Regional

C 08JAN14 C C C

Center (C5 and T5)

5th Regional Center (I5 and R5)

U U U U U

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date. The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application. Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01JAN13 01JUL09 C C

3rd 01JAN16 01OCT13 01JUL05 01JAN16 01JAN10

Other Workers 01JAN16 01JAN07 01JUL05 01JAN16 01JAN10

4th C C C C C

Certain Religious Workers C C C C C

5th Non-Regional Center (C5 and T5) C 01MAY15 C C C

5th Regional Center (I5 and R5) C 01MAY15 C C C

6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF JANUARY Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2016 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For January, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 15,500 Except: Ethiopia: 13,800

ASIA 4,150 Except: Nepal: 2,925

EUROPE 16,425

NORTH AMERICA (BAHAMAS) 3

OCEANIA 615

SOUTH AMERICA, and the CARIBBEAN 650

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2016 program ends as of September 30, 2016. DV visas may not be issued to DV-2016 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2016 principals are only entitled to derivative DV status until September 30, 2016. DV visa availability through the very end of FY-2016 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN FEBRUARY For February, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 17,200 Except: Ethiopia: 16,100

ASIA 4,500 Except: Nepal: 3,700

EUROPE 19,100

NORTH AMERICA (BAHAMAS) 5

OCEANIA 750

SOUTH AMERICA, and the CARIBBEAN 750

D. SCHEDULED EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES Employment Fourth Preference Certain Religious Workers (SR): Pursuant to Section 132 of Public Law 114-53, the non-minister special immigrant program expires on December 11, 2015. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 10, 2015. Visas issued prior to this date will only be issued with a validity date of December 10, 2015, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight December 10, 2015.

Employment Fifth Preference Categories (I5 and R5): Section 133 of Public Law 114-53 extended this immigrant investor pilot program through December 11, 2015. The I5 and R5 visas may be issued until close of business on December 11, 2015, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 11, 2015.

The cut-off dates for the categories mentioned above have been listed as "Unavailable" for January. Congress is currently considering an extension of the SR, I5 and R5 visa categories, but there is no certainty when such legislative action may occur. If there is legislative action extending one or both of these categories for FY-2016, those cut-off dates would immediately become "Current" for January for all countries except China-mainland born I5 and R5 categories which would be subject to a January 8, 2014 cut-off date.

E. OBTAINING THE MONTHLY VISA BULLETIN To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov and in the message body type:

Subscribe Visa-Bulletin (example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month. Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV (This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514 CA/VO: December 9, 2015

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