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October 2016 Newsletter

USCIS Increases Fees Effective December 23, 2016

USCIS announced this week substantial and across the board filing fee increases to take effect December 23, 2016. The new filing fees are, on average, 21% higher than those in place now, and  are, according to USCIS memorandum published in the Federal Register, necessary "to fully recover costs and maintain adequate service". USCIS is funded entirely by filing fees. With average processing times for many types of business cases now approaching 12 months, one hopes they will put the new revenue to good use.

Here are some examples of the increase affecting commonly used benefit requests:


A complete list of the fee increase is available here.

DOL's PERM Processing Times are Great -
Prevailing Wage Determination Times, Not So Much

The Labor Department's processing time for issuing Permanent Labor Certifications is now down to about 4 months, the best its been in years. Processing times for audited cases, where DOL reviews the entire recruitment record, is down to 8 months, after several years of the process taking twice as long. This good news is tempered by the fact that Prevailing Wage Determinations - the necessary first step where DOL imposes the required wage for the permanent position - are now taking close to 4 months to process. That's an increase of close to 400% increase over the processing interval in recent years, 
 
The effect is to shift the waiting time to the beginning of the PERM process, delaying the ability of employers to start the recruitment process and file PERM applications on behalf of their employees. Because timing of the PERM application can be critical to the availability of H-1b extensions for long-time employees, the lengthy delays early in the process are troubling. The prevailing wage determination must be issued before the PERM application can be filed.

DOL has provided no explanation for dramatic increase in its processing of prevailing applications, which are far less complex to adjudicate than a PERM application. The agency divested the states from authority to issued prevailing wage applications in 2008, and apparently is now unable to handle the load. What took state workforce agency a few days or a week to do now takes DOL almost sixteen weeks, and with a significant reduction in quality of outcomes. DOL has given no indication that  it would return prevailing wage authority to the states in light of the backlog, though.

Outlook for Employment-Based Visa Availability

With release of the FY2017 allotment of immigrant visas, the State Department has advanced availability dates for some long backlogged India and China employment-based categories, in some cases significantly.
 
India Employment-Based Categories. The EB-2 India (Advanced Degree Professionals) category advanced over 9 months between the October and November Visa Bulletins to November 1, 2007. That’s still 3 months off the December 2015 availability date, but close to 3 years ahead of where it was in September 2016. By the March 2017, the State Department projects EB-2 India will reach November 1, 2008 - where the category stood in early Spring 2016. The volatility reflects the difficulty the State Department has in predicting visa demand.
 
The EB-3 India (Professionals and non-degree workers) category continues to languish, with availability moving ahead only one or two weeks with each month’s Visa Bulletin. For November 2016, EB-3 visas are available for priority dates earlier than March 8, 2005. Nevertheless, the category has advanced 11 months since November 2015. Advancement seems to have slowed significantly though, at least for the present.
 
The EB-1 India category (Extraordinary Ability, Professors/Researchers, and multinational managers/executives) remains current (available for all dates) for November 2016. The category had been cutoff at January 1, 2010, in the September 2016 bulletin, and became current again in October 2016 with the availability of the FY 2017 visa numbers.

China Employment-Based Categories. The EB-2 China and EB-3 China categories remain “backward” in November 2016 – EB-3 available is at April 15, 2013, while the more selective EB-2 category is only at July 15, 2012. Significantly (and counter intuitively), EB-2 beneficiaries are eligible to apply for and receive EB-3 category visas.
 
The EB-1 China category, like India, remains current after again becoming generally available in October 2016.
 
Worldwide Employment-Based Categories. The State Department anticipates the EB-2 Worldwide category will remain current for a while. It had become unavailable in September 2016 when State exhausted the FY2016 allotment for the category.
 
The EB-3 Worldwide category is at July 1, 2016, which for Labor Certification-based visas is effectively current. The priority date reflects the filing date of the Labor Certification application, and the Labor Department is taking roughly 4 months to act on them. By then, the priority dates have been current. The State Department has warned in recent months that EB-3 visa demand may require pushing back the availability dates, but made no such comment after issuance of the November Visa Bulletin. Hopefully recent EB-3 Worldwide trends will continue.
 
Philippines EB-3. In November, the EB-3 Philippines category advanced 5 months from the prior bulletin to April 1, 2011, farther than State had anticipated, in light of fewer visa petitions being filed in this category than projected. If demand stays low, State anticipates moving the category several months with each monthly Visa Bulletin update.

 


The full Visa Bulletin is updated each month and is available on the State Department's website.

Global Entry Expands to New Airports

CBP has announced the expansion of the “Global Entry” system for expedited entry to the U.S. to nine additional airports in the next six months. On or before April 3, 2017, Global Entry kiosks will be operational at international airports in Houston, Kansas City, New Orleans, Oakland, Sacramento, San Jose, St. Louis, Burlington (Vermont), and Fairbanks (Alaska).
 
Benefits of Global Entry – The Global Entry program is intended to expedite immigration inspection upon arrival in the United States for certain pre-approved, low-risk travelers, principally US citizens and permanent residents, but also citizens of several countries with reciprocal agreements. Global Entry immigration inspection is conducted electronically at a kiosk rather than by a CBP officer. At the Global Entry kiosk, the user scans their passport, is electronically fingerprinted, and complete a customs declaration. On clearance the traveler can proceed to baggage claim. CBP does not report how much time Global Entry processing takes upon entry, but anecdotal evidence suggests that there are rarely lines and that time at the computer kiosk is generally less than 5 minutes. In comparison, in September 2016, travelers passing through JFK had to wait an average of 20 minutes just to speak to a CBP officer.
 
Global Entry enrollment requires an online application, payment of a $100 registration fee, and an in-person interview conducted at a Global Entry enrollment center. Enrollment is generally good for five years.
 
While some Global Entry travelers may be selected for further immigration examination before being allowed to enter the U.S., in general, the program does speed entry for those enrolled. It also helps on outbound and even domestic trips for some enrollees, as Global Entry enrollment includes enrollment in TSA PreCheck for U.S. citizens and LPRs (although citizens of other countries who are not LPRs are not eligible for TSA Precheck even if they are enrolled in Global Entry). At airports where the TSA Precheck program is in place, when flying on participating airlines, enrollees go through security in dedicated lanes and don’t have to remove shoes, belts, jackets, or electronics and liquids from their bag.
 
There are some parts of the traveling process where Global Entry does not help. For example, if you are traveling in a group with others who do not have Global Entry, you would still have to wait for them, and Global Entry does not speed the process for picking up checked baggage. Overall, according to articles in the New York Times, Washington Post, and USA Today, the Global Entry system is most beneficial for those who frequently travel alone with only a carry on. For those travelers, Global Entry can save a lot of time.
 
Eligibility for Global Entry – Eligibility for Global entry is limited to individuals who are U.S. Citizens, U.S. lawful permanent residents, or citizens of the following countries: Canada (through the NEXUS program), Colombia, Germany, Mexico, the Netherlands, Panama, Singapore, South Korea, and the United Kingdom. Other additional requirements, which vary by country of citizenship, must also be met. In general, individuals may be found ineligible for Global Entry if they provide false or incomplete information on the application, are inadmissible to the U.S., have a criminal record, have been found in violation of customs, immigration, or agricultural regulations anywhere in the world, or on other security and/or immigration grounds. Additional information about eligibility is available on the CBP website.
 
Current Locations – Global Entry, is already in place in thirty-nine U.S. airports, including Kennedy International (JFK), Newark (EWR), Dulles (IAD), and Baltimore/Washington (BWI). Global Entry is also available at several overseas airports with CBP Preclearance facilities including Dublin (DUB), Shannon (SNN), Abu Dhabi (AUH), and Toronto (YYZ).
 
Additional information about Global Entry, including eligibility requirements, benefits, and participating airports is available here: www.globalentry.gov/.

 

New Procedure for Permanent Residents
Requiring Replacement Travel Documents Abroad

USCIS and the State Department have adopted a new procedure for permanent residents who are outside the U.S. and require travel documents in order to return because they are no longer in possession of their green cards. The new process applies to permanent residents whose green cards have been lost or stolen abroad while they have been abroad for less than one full year. This new procedure can also be used by permanent residents to replace re-entry permits that have been lost, stolen, or destroyed abroad, so long as the permanent resident has been abroad for less than two years when they pay the I-131A fee.

The new procedure requires returning residents to pay online a $360 filing fee ($575 starting December 23), complete a new form (Form I-131A), and then schedule a consular visa appointment to present the form. In some cases applicants may apply at a overseas USCIS office or Customs and Border Protection (CBP) post.
 
On approval of the Form I-131A (which presumably may be on the spot) the consulate,  Homeland Security office, or CBP post will issue a Boarding Foil, valid for 30 days, permitting return to the U.S. Once in the U.S., the returning resident must apply for a replacement green card.
 
The Form I-131A replaces a less formal State Department process which permitted issuance of Boarding Foils by a consular officer after completing an online confirmation of identity and permanent resident status. That service was free.

Note, returning permanent residents whose green cards expired less than a year before return travel do not have to go through this process as they may generally return using the expired card.

U.S. Citizens who lose their U.S. Passport while abroad should contact the nearest U.S. Embassy or Consulate to report the loss of their passport and request a new one. Specific procedures for replacing passports vary by embassy, but usually require the citizen provide a passport photo, identification, evidence of U.S. citizenship (such as a copy of the missing passport), travel itinerary, and a police report (if applicable). Answers to some frequently asked questions about what to do to replace a passport lost or stolen abroad is available on the Department of State’s website.

CBP Settles FOIA Delay Litigation

Customs and Border Protection (CBP) has agreed to settle a class action law suit concerning the agency's lengthy delays in responding to Freedom of Information Act (FOIA) requests. Although agencies must respond to FOIA requests within 20 business days by law (a routinely ignored processing interval), CBP has in the recent past been notoriously slow, sometimes taking as long as two years (or longer) to produce records. Often the requested documents in CBP possession contain critical, time sensitive information necessary to establish lawful presence or benefit eligibility in USCIS or immigration court proceedings.

The settlement requires CBP to post on its website the internal report on its FOIA backlog, documenting the number and age of FOIA requests received, pending, and completed. The settlement does not compel CBP to act on requests in a more timely or accurate fashion, but the heightened exposure from the litigation seems to have helped pick up the pace of responses.

New Preflight Screening Requirements for
Chinese Citizens Traveling on Visitor Visas

For the first time, the U.S. is imposing a preflight screening requirement on travelers already in possession of a valid and unexpired visa. Effective November 29, 2016, all citizens of China travelling to the U.S. on a Chinese passport who are in possession of a 10-year B-1, B-2, or B-1/B-2 visitor visa must enroll in the new “Electronic Visa Update System” (EVUS) at least three days before traveling to the United States.

The preflight screening process is completed online at www.evus.gov, and can be completed by the traveler, their relative, a travel agent, or another third party. EVUS collects basic information on the individual, their travel plans, and their eligibility to enter the U.S. The information collected is similar to ESTA (required for individuals coming to the U.S. on the visa waiver program), and is also similar to the non-immigrant visa application (Form DS-160), albeit shorter.

According to the Department of Homeland Security (DHS), the rationale for this new program is that it will “provide for greater efficiencies in the screening of international travelers by allowing DHS to identify subjects of potential interest before they depart for the United States, thereby increasing security and reducing traveler delays upon arrival at U.S. ports of entry.” It's not entirely clear why DHS has decided to start with citizens of China as the first EVUS-covered group. 

Although EVUS is currently limited to citizens of China travelling to the U.S. on a Chinese passport who are in possession of a 10-year B-1, B-2, or B-1/B-2 visitor visa, EVUS may expand in coming months and years. According to U.S. Customs and Border Protection, “The U.S. Government expects that this requirement may be applied to additional countries in the future,” although no plans for expansion beyond Chinese B-1/B-2 visa holders have been announced yet.

Additional information is available on the following websites:

School and Exchange Visitor Program Developments

The most recent newsletter issued by the School and Exchange Visitor Program (SEVP), SEVP Spotlight – September 2016, contained a few notable items.

Adding DSOs – Adding DSOs to an I-17 is now a two-step process. Schools updating their list of DSOs must submit the request in SEVIS and follow up the request with an email containing all supporting documents sent to FormI17SupportingEvidence@ice.dhs.gov.

New SEVP Portal for OPT Reporting – Starting in December 2016, F-1 students on OPT will be able to update their own contact and employer information through a new “SEVP Portal” that interfaces with SEVIS. Although DSOs will still have to verify training plans for STEM OPT employment, all students on OPT will be able to update their own phone numbers, physical and mailing addresses, and employer information.

Reminder for STEM OPT – SEVP also used the newsletter to remind DSOs that students on STEM OPT extensions cannot be self-employed. They can work for small companies, such a start-ups, but they cannot be their own employers.

The next SEVP Spotlight is expected to come out in January 2017. It will be posted on the Study in the States publications site.

Who We Are

Charles A. Tievsky – Member and Managing Attorney

Chuck's clients include well-known multinational corporations, entrepreneurs, software and technology companies, retail businesses, and individuals, providing representation in regard to the full range of employment and family-based matters. He has limited his practice to business and family immigration law since 2003, and has practiced federal administrative and regulatory law since 1984.


Lieselot Whitbeck – Associate Attorney

Lieselot ("Lisa-lot") has a broad range of experience in immigration law, including business, family, and student-related issues. She joined Tievsky Immigration Law as an Associate Attorney in May 2016.



Brittany Lucas – Case Manager

Brittany joined the firm in 2010, and is a key member of our team. 

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