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Government Agency Actions - USCIS, ICE, etc. Immigration Compliance US Immigration Policy

Changes to I-9 Rules

Lawsuits against the USCIS do work and spur change. As a result of a class action lawsuit filed by AILA member Rob Cohen, which challenged the post-approval delays in EAD issuance, USCIS will now allow people to show the I-797 approval notice as proof of authorization to work:
See this update on I-9 Central

The USCIS stated:

Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed.  As a result, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization.  Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020.

Categories
Visas - H-1b, L-1, E, O, TN

Update on Save Jobs USA’s Lawsuit regarding H4 EAD’s

The group of information technology workers know as Save Jobs USA, who claim that they were replaced by H-1B visa holders is now appealing a decision upholding a new U.S. Department of Homeland Security rule that would allow spouses of certain H-1B workers to apply for employment authorization, the H4 EAD rule.

On Wednesday, September 28, Save Jobs filed notice that it’s appealing to the D.C. Circuit, a day after U.S. District Judge Tanya S. Chutkan of the District of Columbia found that Save Jobs lacks standing to proceed with its case. Save Jobs has argued that there isn’t “statutory authorization” for DHS to allow an H-4 visa holder to work, but Judge Chutkan said that despite the group’s lack of standing in the case, the court would likely conclude that the DHS’ interpretation of its authority under the Immigration and Nationality Act is not unreasonable and that the H-4 rule is valid.

Save Jobs basis for their appeal is the Fifth Circuit’s holding regarding the blocking of the expansion of Deferred Action for Childhood Arrivals (DACA). The Court had ruled that immigration law specifically defines the categories of immigrants allowed to work in the U.S. and that an Immigration and Nationality Act provision didn’t give the DHS the power to grant work authorization. This interpretation has been rebutted by DHS, pointing out that the cases address different questions. There appears to be no immediate danger of losing the H4 EAD Rule and those working under this authorization should continue to do so without hesitation.

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Government Agency Actions - USCIS, ICE, etc.

Final Rule Increasing OPT For STEM Students Released

The final rule was release today, March 9, 2016, this document is unpublished on the Federal Register, but on 03/11/2016 it is scheduled to be published and available. Until then, you can see the pre-publication PDF version here: Final OPT STEM rule. The rule will go into effect in May. The highlight of the new rule will be that certain foreign students in F-1 status with degrees in science, technology engineering or math (STEM) will be able to extend their initial 12-month OPT period by an extra 24 months, for a total of 36 months.

DHS has stated that 17-month STEM OPT work permit issued before May 10 will remain valid until it expires, but that beginning on May 10, certain students will have a chance to apply for an additional seven months of OPT.

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Government Agency Actions - USCIS, ICE, etc.

Update on STEM OPT Extension Lawsuit

The Washington Alliance of Technology Workers (WashTech) continues its lawsuit in an attempt to end STEM OPT. On Feb. 4 WashTech sought review of the Aug. 12 order from U.S. District Judge Ellen Segal Huvelle, which vacated the 2008 rule extending the OPT period for foreign students with science- and math-related (STEM) degrees by 17 months, but allowed the U.S. Department of Homeland Security to reissue the regulation through the notice and comment process.

DHS last month said the district court shouldn’t have even reached the merits of the dispute, contending that WashTech doesn’t have legal standing because it hasn’t shown its members were harmed by the rule. WashTech counters that its standing is based on a group of American computer professionals are challenging regulations designed to create a “significant expansion” of foreign workers in their field of employment.

In its current appeal, Judge Huvelle found the group didn’t have standing to challenge that aspect of the program, as its members hadn’t alleged injuries earlier than 2008. She also found the claims were barred by the statute of limitations. WashTech “has not identified a single member demonstrating ongoing or imminent competitive injury caused by the existence of the pre-or-post 2008 version of the OPT rule,” it wrote. “The absence of such evidence means no Washtech member is ‘a direct and current competitor whose bottom line may be adversely affected by the challenged government action.’”

WashTech is grasping at straws as its one argument of merit, that the original 2008 rule was procedurally deficient, will be overcome once the new proposed STEM rule completes its notice and comment period. The new rule is expected to be published in the federal register on or before May 10, 2016.

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Government Agency Actions - USCIS, ICE, etc.

8th Circuit Weighs in on I-140 Revocations

On December 1, 2015, the 8th Circuit decided Rajasekaran v. Hazuda, 2015 BL 393183, 8th Cir., No. 14-3623, 12/1/15, and found that Courts can’t review USCIS failure to provide reasons for I-140 revocation, and an I-140 that wasn’t valid to begin with isn’t made valid by an immigrant changing jobs pursuant to the AC21 portability rules. In this case, the beneficiary was a native and citizen of India. In 2006 his then employer, Pacific West Corporation filed an I-140 on his behalf which was approved. Subsequently, the beneficiary and his family filed their I-485 and after waiting the appropriate 180 days he ported jobs, twice. Neither new employer filed an I-140 on his behalf. In 2012, Pacific West closed and the USCIS issued a Notice of Intent to Revoke (NOIR) the I-140 alleging fraud. The employer did not respond to this NOIR and the I-140 was revoked. The beneficiary’s I-485’s based on it were subsequently denied. The beneficiary attempted to argue that he was entitled to challenge the revocation of the I-140 and argued that the USCIS must disclose the specific reasons for the revocation but the Court did not agree.

This decision, coming on the heels of USCIS releasing its memo on Same or Similar job occupational classifications, which was intended to clarify and streamline a beneficiary’s ability to port jobs, may give employees pause when deciding to switch jobs. Notwithstanding this decision, beneficiaries should only be concerned when there may be grounds for a revocation based upon fraud or misrepresentation. The circumstances where these allegations would be present would be pretty rare. This decision is a reminder of the importance of having a properly filed I-140 when seeking all the future benefits based thereon.

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Government Agency Actions - USCIS, ICE, etc. Green Cards US Immigration Policy

Same or Similar Memo

On November 20, 2015, the USCIS released its draft memo on Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability for comment. A copy can be found here. The memo details how Officers should evaluate two different sets of job duties as they relate to Standard Occupational Classification (SOC) codes. Of note, is that the same or similarity of the two position can be shown if the jobs are found within the same broad occupational group code, the first 2 digits. Officers are also instructed to take an individual’s career progression into consideration and they may also consider the difference in the individual’s wages. The comment period end January 4, 2016.

Categories
Green Cards Green Cards

Card Production Delays

There has been reported delays in the production of I-765 and I-485 cards. This is due to the USCIS card production facility in Corbin, KY undergoing maintenance. All card production has been switch to another facility and of course that facility is now backlogged. If you are expecting an I-765 or I-485 card from a recently approved petition expect an additional 2-3 week delay in receiving your card in the mail. USCIS expects to resolve this issue sometime in September.

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Government Agency Actions - USCIS, ICE, etc. Visas - H-1b, L-1, E, O, TN

Update on Save Jobs USA v. Department of Homeland Security

A few weeks ago the United States District Court denied Save Jobs USA’s motion for a temporary injunction of the H4 EAD program. Save Jobs USA has now moved for judgment on all counts in its complaint. Save Jobs USA continues to argue that the new rule creates more competition for U.S. employees from H-1B workers and potential competition from H-4 visa holders with the new EAD. Save Jobs USA also alleges that the rule goes beyond DHS’s authority because the regulatory definition of the H-4 status doesn’t provide any permission to work. We will provide more updates as they become available.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance Visas - H-1b, L-1, E, O, TN

USCIS issues FAQ on “cap-gap” rules

With the H-1b cap season in full swing, the USCIS has issued a new set of FAQ on the subject of “cap-gap”.  A “cap-gap” occurs when a foreign student’s EAD card, issued pursuant to the OPT rules, expires prior to October 1, 2011. The USCIS has adopted rules that provides for an automatic extension that allows students to continue to be employed under the OPT provisions as long as their sponsoring employer has timely filed an H-1b cap subject petition that is properly receipted. An employer should be careful that the employee’s I-9 form is properly completed in this situation. We applaud the USCIS for its “cap-gap” policy.

Categories
Government Agency Actions - USCIS, ICE, etc. Green Cards

Thanks USCIS ! Why didn’t we think of that ?

The USCIS has announced that it will now begin  issuing employment authorization documents and advance parole documents on a single card for certain I-485 applicants.  The card looks similar to the current employment authorization document (EAD) but includes a text that reads, “Serves as I-512 Advance Parole”.  Employers may accept the new card as a List A document when completing the Form I-9, Employment Eligibility Verification.

To receive the single card, an applicant must file for EAD and Advance Parole at the same time. An applicant, who already has an EAD and AP, can apply for the single card only if: (1) the current EAD has less than 120 days validity left; and (2) the Advance Parole has less than 120 days validity date or is for a single entry.  Generally the single card will be valid for one or two years, depending upon the availability of an immigrant visa although USCIS retains the discretion to issue it for a shorter period or a longer period depending upon the circumstances of the particular case.