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

2. ABCs of Immigration: H-1B Overview ....................................................................................................... 4 

3. AskVisalaw.com ................................................................................................................................................ 12 

4. Border and Enforcement News ................................................................................................................... 14 

Undocumented Mexican Immigrant Becomes U.S. Citizen After Serving in the Military ....................................................................................................................................................................... 14 

Undocumented Immigrant Students Blocked from School Registration and Denied Access to Educational Services ......................................................................................................... 15 

5. News from the Courts .................................................................................................................................... 15 

Court Rules Immigrants with Chronic Alcoholism Cannot Be Deported Solely on the Basis of Their Condition ....................................................................................................................... 15 

Operators of Ski Resort Accused of Misusing EB-5 Investor Funds .................................... 16 

Former ICE Attorney Sentenced to Prison for Falsifying Document in Immigration Case ............................................................................................................................................................. 17 

6. News Bytes ........................................................................................................................................................ 17 

USCIS Launches Search Tool for Non-Precedent Decisions ................................................... 17 

USCIS Reaches H-1B Cap and Completes the Lottery Process for FY 2017 .................... 17 

Table of Contents

Current Version of Form I-9 Will Remain Valid Until New Version is Released .............. 18 

Guidance for Students on 24-Month F-1 STEM OPT Extension ............................................. 18 

Guidance for Employers on 24-Month F-1 STEM OPT Regulation ........................................ 21 

7. In the News at ABIL ....................................................................................................................................... 23 

Labor Dept. Extends Emergency Procedures for Backlogged H-2B Applications Through April 29 ..................................................................................................................................... 23 

E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary Announces ............................................................................................................................ 24 

May Visa Bulletin Sets Final Action Date for EB-4 Visas for El Salvador, Guatemala, Honduras Special Immigrants ........................................................................................................... 24 

ICE Nabs 21 With Fake 'Pay-to-Stay' New Jersey Sham College Sting ............................. 25 

8. Updates from the Visalaw.com Blogs ...................................................................................................... 27 

9. State Department Visa Bulletin: May 2016 ........................................................................................... 28 

1. Openers Dear Readers:

The major immigration news of the last month is the Supreme Court’s hearing of oral arguments in Texas v. US, the challenge to the President’s deferred action programs. President Obama announced in November 2014 that he was expanding the Deferred Action for Childhood Arrivals (DACA) program which was created in 2012 and launching the new Deferred Action for Parents of Americans program (DAPA). The expanded DACA would eliminate the upper age cap and move forward to 2010 the date applicants must have arrived in the US. The expansion would add hundreds of thousands of people to that program. DAPA would allow certain parents of citizens and green card holders to avoid deportation and get a temporary work document. More than four million people could benefit.

The case was filed by the governor of Texas and was joined by more than 20 other Republican governors. It was deliberately filed in a district court in Texas with the goal of getting Judge Andrew Hanen who previously had made harshly critical statements about the President’s immigration record. Judge Hanen issued a nationwide order enjoining the White House from implementing the new programs. That order was upheld by the 5th Circuit Court of Appeals and was then appealed to the Supreme Court.

The arguments mainly focused on the issue of standing – whether the states even had the right to sue – as opposed to whether the actions were themselves legal. The court’s four liberals seemed to ask friendlier questions on the subject leaving many to wonder whether Justices Kennedy and Roberts – the two conservatives who many think may be open to supporting the White House – were actually showing their hands when they asked much

more challenging questions. But many experience court watchers pointed out that the questions Justices ask often aren’t a good indicator of how they intend to rule.

Still, may were wondering what happens if, in the absence of Justice Scalia who died in January, the court reaches a 4-4 tie. The 5th Circuit decision would remain in place. What is not clear is whether the nationwide injunction would survive in the absence of a Supreme Court ruling upholding it. Some believe the White House will attempt to roll out the program everywhere outside the 5th Circuit which would likely mean suits across the country. But the 5th Circuit is considered the most conservative of the court regions so large sections of the country would be able to launch the programs. We could also see mass migrations of people to sections of the US where DAPA and DACA actually launch.

I’m still holding the belief that the White House will win the case outright when the decision is handed down in June. If I’m right, expect the expanded DACA program to launch first – probably as soon as a month after the decision is announced and then the DAPA program would start in September or October. If Hillary Clinton or Bernie Sanders wins the election, the programs would very likely continue and perhaps be expanded further. If a Republican wins, the programs would probably be shut down.

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Lots of firm news in the last month.

First, we welcome attorney James Hollis who is currently in our Memphis office and will be moving to our Nashville office this summer. James is a graduate of the Law School at the Washington University of St. Louis. He’s particularly experienced with helping entrepreneurs facing immigration challenges.

Lynn Susser is back from Mexico City where she represented our firm at the Alliance of Business Immigration Lawyers (ABIL) global meeting.

I’ve been doing quite of bit of speaking. Last month I spoke to Yale University’s Medical School about immigration issues. I also spoke about the Supreme Court case in a panel presented by ImmigrationWorksUSA. And I spoke to the Leather Industries of America in Washington about immigration law and policy.

Adam Cohen and Spencer Glaser presented a program on immigration law for Christian Brothers University in Memphis.

Siskind Susser was honored by being included on Who’s Who Legal’s list of the top 20 immigration practices in the world. We were one of six immigration specialty practices in the US to make the prestigious list.

I was also included on a separate list from Who’s Who Legal of the top 10 immigration lawyers in the United States. Several other Siskind Susser Lawyers made the global list of top practitioners as well.

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As always, we invite you to contact us if our firm can be of assistance. Please visit our web page at www.visalaw.com for information on reaching the firm or scheduling a consultation.

Regards,

Greg Siskind

*****

2. ABCs of Immigration: H-1B Overview For thousands of American employers, the H-1B visa program is the primary method for bringing in professional level foreign employees. The visa has been the subject of considerable media attention in recent years because Congress has set limits on the numbers of workers allowed in on H-1B visas.

What is an H-1B visa?

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

What is a specialty occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Is there a limit on the number of H-1B aliens?

Yes. Under current law, there is an annual limit of 65,000 aliens who may be issued a visa or otherwise provided H-1B status. Up to 20,000 additional H-1B slots are available to graduates of US master’s degree (or higher) programs. The visas are available every federal fiscal year (10/1-9/30). There are some types of jobs that are exempt from the H-1B cap and these are discussed below.

The H-1B quota tends to get used extremely quickly every year. Even during the terrible economic crisis of the last decade, the cap was hit for each fiscal year. That has led USCIS to hold a lottery in the first week of April each year where all of the H-1Bs for the following fiscal year beginning in October are allocated in a random drawing.

Who is actually subject to the cap?

Not every H-1B applicant is subject to the cap. Visas will still be available for applicants filing for amendments, extensions, and transfers. The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organizations, and government research organizations. Physicians taking jobs under Conrad 30 or federal government agency J-1 waivers based on serving underserved communities are exempt from the H-1B cap.

What are the advantages to applying for an H-1B?

One of the things that makes this visa so desirable is that, unlike many other nonimmigrant visa categories, it is a “dual intent” visa. This means that a visa will not be denied simply because an individual has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home. Thus, assuming the applicant meets all of the statutory requirements for the H-1B visa, the main reason it would be denied is if the consular officer feels there is good reason to believe the applicant will not comply with the terms of the visa (such as having a history of failing to comply with the terms of a visa).

Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified US workers and, consequently, a labor certification process can be avoided. Aside from documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer need only verify that the H-1B worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.

How does one apply?

All H-1B petitions must be submitted to and approved by USCIS. In an H-1B visa petition, the US employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins. The first step is for the petitioner to ensure that the worker will be paid at least the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications. The prevailing wage can be determined through a private wage survey or consulting The Department of Labor’s Online Wage Library. The benefit of relying on an official Department of Labor prevailing state wage determination is that it cannot be challenged later by the US Department of Labor. On the other hand, they can take 60-75 days to be issued and aren’t always practical.

Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the US Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. The form is submitted online and the Department of Labor typically approves the LCA within 7 business days.

(For more information, see the Department of Labor’s Foreign Labor Certification web page at https://www.foreignlaborcert.doleta.gov/h-1b.cfm.)

The certified LCA petition is submitted to USCIS as part of the H-1B petition package. Other information that should be included in the USCIS petition include documentation of the beneficiary’s qualifications, the petitioner’s type of business, and the type of work the beneficiary will be performing, and the required filing fees. Each of these will be further detailed below.

For more information on the application process, see our H-1B flow chart at http://visalaw.wpengine.com/02dec1/H1B.pdf.

What is the purpose of the LCA?

The LCA serves two related purposes: (1) ensuring that US wages are not depressed by the hiring of foreign labor and (2) that foreign workers are not exploited. On this document, the employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations are as follows:

The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position

The employment of H-1B workers will not adversely affect the working conditions of US workers

When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute

The H-1B worker will be given a copy of the LCA, and the employer has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed.

Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.

In addition, the employer must keep other information that need not be made available to the public. This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, and evidence that the H-1B worker has been given a copy of the LCA. Once approved, an LCA is valid for three years.

Whether an employer is H-1B dependent depends on the following guidelines:

If the employer has over 50 employees, the employer is H-1B dependent if at least 15% of the workforce is comprised of H-1B visa holders

If the employer has 26-50 employees, the employer is H-1B dependent if it employs more than 12 H-1B workers

If the employer has 25 or fewer employees, the employer is H-1B dependent if it employs more than seven H-1B workers

If the employer is H-1B dependent, it must comply with these requirements:

The employer must attest (swear under oath) that it has not and will not “displace” a US worker during the period from 90 days before the H-1B petition is filed until 90 days after it has been filed.

The employer must attest that it has taken “good faith steps” to recruit US workers for the job, and that they have offered it to any US worker who applied that was at least as qualified as the H-1B nonimmigrant.)

These requirements also apply to willful violation of the LCA rules.

What is the next action after filing the LCA?

Obtaining an LCA is only the first step in the H-1B process. The petition for an H-1B visa must present evidence that will convince USCIS of three basic elements:

The employer has a legitimate need for a “specialty occupation worker” The position offered is in a “specialty occupation” The prospective employee is qualified for the position.

1. The employer’s need

This is often the easiest aspect of an H-1B petition to demonstrate. As a general rule large and well-known businesses do not have much difficulty in showing they have a need for an H-1B worker. Problems can be encountered if the employer is small, or if the business was recently started. In such cases USCIS has requested evidence relating to the stability of the business, such as tax returns and payroll records. Court decisions have, in the past, said USCIS is not supposed to examine the financial background of a company. However, USCIS routinely asks for such documentation even for many large employers.

Independent contractors are not eligible for H-1B visas.

To qualify as self-employed, the employer’s company must be structured according to strict criteria.

The employer must demonstrate an employer-employee relationship.

2. The nature of the position

Demonstrating that a position is in a specialty occupation is quite easy with some jobs, such as lawyers, accountants, engineers and professors. With many positions, however, it is not so simple. In these situations, the application must carefully define and describe the job. Two volumes published by the Department of Labor are helpful in this area. They are the Dictionary of Occupational Titles and the Occupational Outlook Handbook. The Dictionary of

Occupational Titles contains a list of job titles and lists job duties that are associated with each. The Occupational Outlook Handbook lists general educational requirements for entry into certain areas of employment, but often it deals with such broad fields that it is of limited usefulness. While the books are helpful in documenting a case, neither is binding on USCIS and the use of the publication should always be used with caution. Also, the O*Net database provided by the Department of Labor provides helpful information in documenting a position is a specialty occupation.

In cases where the specialty nature of the position is not evident, many types of evidence may be used. Trade and association publications may be presented. Petitioners may also procure affidavits from authorities in the field. Such an affidavit would be especially useful if written by someone who has personally observed the workplace and the position’s role in it. One of the best types of evidence is the employer’s own hiring practice in hiring for the position. Evidence of the minimum qualifications required for positions below that for which an H-1B worker is sought can also be helpful, especially if such people are required to have a university degree.

If the occupation is little known or is relatively new, extensive documentation will be required to convince USCIS of the need for an H-1B worker. In these cases appropriate evidence would include affidavits from other employers in the field and professional organizations in the field.

3. The alien’s qualifications

To qualify as a specialty occupation, the position must require at least a bachelor’s degree or its equivalent. Therefore, one of the most important parts of an H-1B case is documenting the alien’s education and/or experience. A diploma may be submitted if it indicates the alien’s field of study and that field is relevant to the position sought. If this is not the case, transcripts should also be submitted. If the relevance of the subjects studied is not apparent, course descriptions from the school catalog may be included. If the alien did not attend school in the US, their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a US bachelor’s degree. Note that if the alien attended college abroad, and then obtained an advanced degree in the US, no evaluation of their undergraduate degree is required because it is presumed that the US graduate institution would not have admitted the student without at least possessing the equivalent of a bachelor’s degree.

While possession of a degree is the most common way of establishing a person’s ability to work in a specialty occupation, a degree is not required to obtain an H-1B visa. The applicant can demonstrate through work experience or a combination of education and experience that they have the equivalent of a bachelor’s degree. If work experience will be used, USCIS requires affidavits from former employers outlining the alien’s responsibilities and skills learned while there. Under USCIS rules, three years of work experience is equal to one year in college.

If there are any additional requirements that the alien must meet to take the position offered, documentation that these requirements are met must be submitted. An example would be when a license is required by the state in which the alien will be working.

How long can someone be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After this time, an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. Additionally, certain aliens may extend their status beyond the 6-year period in one year increments if:

365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an employment-based immigrant, or

365 days or more have passed since the filing of an employment-based immigrant petition.

Certain immigrants also can extend for 3 years at a time if an immigrant petition has been approved and their employment based category is backlogged.

For whom can an H-1B non-immigrant work?

H-1B aliens may only work for the petitioning US employer and only in the H-1B activities described in the petition. The petitioning US employer may place the H-1B worker on the worksite of another employer if all applicable rules are followed and if an employer-employee relationship still exists between the H-1B sponsor and the employee. H-1B aliens may work for more than one US employer, but must have a Form I-129 petition approved by each employer. Note that USCIS closely examines the employment relationship to ensure that the petitioning employer is actually controlling the employment of the H-1B employee. If a staffing company or other entity is the employer of record and the H-1B worker’s services are being provided on a contract basis, the petitioner can expect extra scrutiny.

H-1B employees may apply for a change of status from one employer to another. The application process is fairly similar to applying for a brand new H-1B except that the process can be completed in the US without a trip abroad to a US consulate.

How does an H-1B non-immigrant change or add an employer?

One of the easiest ways for an H-1B visa holder to run into trouble with his or her visa status is to fail to comply with immigration regulations when switching employers or changing the terms of his or her employment.

The most difficult problems are often created when someone changes jobs without taking care of immigration issues. In fields like computer programming or physical therapy, it is not unusual for an individual to move frequently from employer to employer. But for an H-1B visa holder, each change can present challenges.

The first basic rule to note is that an H-1B is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by USCIS. That means that each time a worker moves to a new employer, a new H-1B approval is required. It is possible to apply for a change of status to switch employers from the US without having to leave and get a new visa stamp, however. But it is important

to remember that the process involved will be pretty similar to getting an H-1B visa from scratch.

At one time, it was thought that changing H-1B employers meant that a new visa stamp would be needed the next time someone leaves and reenters after a change of status in the US. USCIS and the State Department now make it clear that as long as the visa remains unexpired the applicant remains in H-1B classification. Note that someone who changed from another visa to H-1B status in the US (such as from F-1 to H-1B) and never has had a visa stamp will still need to get an H-1B visa at a consulate.

What is ‘H-1B Portability’?

Under the H-1B portability rules, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker. The worker need not wait for approval of the petition to start working for the new employer. The receipt for the filing of the new petition is sufficient to prove work authorization for I-9 purposes.

The primary limitation on this portability provision is that the new employer must have filed a “non-frivolous” petition, which is one with some basis in law and fact. To take advantage of the portability provision, the worker must be in the US pursuant to a lawful admission, and must not have engaged in unauthorized employment since that admission.

How does the H-1B cap affect an immigrant who requests a change in employers?

The H-1B cap does not apply to changes between cap-subject employers or between cap-exempt employers. However, if one works for a cap-exempt employer and then switches to an employer that is not exempt from the cap, the cap will apply.

In the case of a concurrent filing of an H-1B application where a person is working for an exempt employer and then seeks additional employment with a non-exempt employer, the cap will not apply to the second position.

What if you change employers and then decide to go back to the first employer?

The news here used to be good for H-1B workers. The H-1B petition continued to remain valid until it expired or until the employer had revoked it and USCIS took the position that if neither of the above has occurred, one could resume work for the first employer without filing a new petition or an amendment.

The Department of Labor now considers an employer liable for back wages if it does not withdraw an H-1B petition when an employee leaves. So this effectively means that a new H-1B petition must be filed for any returning workers.

What if several employers file H-1Bs for the same worker?

Let’s say that two employers successfully file an H-1B and the worker enters to work for Company 1. After coming here, the worker decides to go work for Company 2 instead. Even if the worker never worked before for Company 2, the worker can switch to Company 2 without the need for a new petition. As noted above, a revocation of the petition by

Company 2 or the expiration of the visa approval period for Company 2 would mean a new petition is required.

What about the case where an employee accepts a job with a second employer without giving up the first position?

Concurrent employment where one is simultaneously working for more than one H-1B employer is possible and not at all unusual. However, as noted above, if an H-1B begins work with an employer and leaves, the employer is liable for back wages unless the employer revokes the H-1B petition. So this means that movement between several employers is possible, but will require a new petition each time a worker leaves and then returns to a petitioning employer. Also, USCIS does not recognize “co-employer” arrangements, so if this is the case either one employer must designate itself as the petitioner, or each employer must file a separate petition.

There are many times when a change in the nature of one’s employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition. USCIS position is that if the change in employment is “material” then an amendment must be filed. So, for example, if there is a significant change in job duties, then a new petition will probably be necessary. Also, being transferred to a different legal entity within the same corporation would trigger an amendment. Also, in certain cases, changing job locations could require an amendment.

Mere changes in job titles without a serious change in job duties will probably not require an amendment. The same holds true for raises in salary unless the change is so great that USCIS presumes that the position is really a new one.

Note that changes in the corporate structure of a company could mean that a new H-1B petition must be filed. The general rule is that if a new legal entity is created, a new petition is required. This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities. A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is what in corporate law is called a “successor in interest” then a new petition is normally not necessary. Changes in a company’s name will not trigger the need for an amendment or to refile, but an amendment is useful in order to avoid confusion when the worker reenters the country later on.

Must an H-1B alien be working at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H-1B alien travel outside the US?

Yes. An immigrant with H-1B status may reenter the US during the validity period of the visa and approved petition.

What are the filing fees associated with an H-1B visa?

There are four government filing fees that come up in H-1B cases. First, the base filing fee for an H-1B case is applicable in every case. As of publication of this article, that fee is $325. There also is a fraud prevention and detection fee of $500 that must accompany all initial H-1B petitions. There also is a worker retraining fee of $1500 ($750 for employers with fewer than 25 employers).

The following categories of employers and employees are exempt from the H-1B retraining fee:

The employer is an institution of higher education as defined in the Higher Education Act of 1965; or

The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education; or

The employer is a nonprofit research organization or governmental research organization, that is primarily engaged in basic research and/or applied research; or

This petition is the second or subsequent request for an extension of stay filed by the employer regardless of when the first extension of stay was filed or whether the $1,000 filing fee was paid on the initial petition or the first extension of stay; This petition is an amended petition that does not contain any requests for extension of stay filed by the employer; or

This petition is to correct an Immigration and Naturalization Service error; or The employer is a primary or secondary education institute; or The employer is a nonprofit entity which engages in an established curriculum-

related clinical training or students register at the institution.

Applicants seeking faster processing can pay a $1225 premium processing fee to be guaranteed that USCIS will act in the case within 15 days.

Finally, there is a fee of $4000 per H-1B petition for employers of more than 50 employees if 50% of those employees are on H-1B or L-1 visas.

*****

3. AskVisalaw.com In our AskVisalaw.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: My dad applied for an I-130 relative petition for me in 2013. After following up with USCIS, we just learned that it was approved in February of 2015. But we never received the approval notice. How can I get a copy of the approval notice for this I-130 petition?

Answer: You can request a duplicate Notice of Approval for your petition, as long as the petition is approved and it has not since been revoked, using immigration Form I-824, which is available on the USCIS website. I will warn you that USCIS is currently taking a long time to adjudicate Forms I-824 requests. The form must be filed by the Petitioner for the petition, which is usually the sponsoring relative or the sponsoring employer (in your case, your father is the Petitioner). If the Form I-824 is filed by the foreign national beneficiary, USCIS probably will not issue the duplicate Approval Notice.

There is a filing fee for this application, so it might be best to have a consultation appointment with me or another experienced immigration attorney first, so that you can determine whether you actually need the duplicate approval notice or not.

When the I-130 approval notice is lost, it often happens because the petitioner (in this case your father), moved and did not update their address with USCIS. So it is important for Petitioners to remember to update their address with USCIS each time they move, throughout the entire process, even after the petition is approved. Updating your address is currently done by submitting an immigration Form AR-11, which can be completed and submitted online, on the USCIS website.

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2) Question: If a green card holder living outside the US no longer wishes to pursue getting his/her American citizenship – can he/she let go of the green card and apply for a simple travel visa without being adversely affected?

Answer: I have previously posted about giving up a green card (also known as abandoning permanent residence).

Someone who abandons their permanent residence can later apply for a visitor visa. As with all applicants for a visitor visa to the US, they will need to show that their ties to their home country are stronger than their ties to the US, and that they are unlikely to remain in the US. This can sometimes be tougher for foreign nationals who have been living in the US as permanent residents. So giving up permanent residence does not guarantee that the person will be able to obtain a visitor visa soon afterwards, but it is an option.

*****

4. Border and Enforcement News

Undocumented Mexican Immigrant Becomes U.S. Citizen After Serving in the Military

Despite his status as an illegal immigrant, Daniel Torres knew he wanted to serve in the Marine Corps. After obtaining a false birth certificate, Torres successfully joined the Marines in 2007 and served in the Iraq War.

Three years into his military service, Torres lost his wallet and had to replace his identification. It was at this time that the DMV discovered his illegal status and informed his superior officers.

Torres was honorably discharged from the army. With no employment options and faced with a very difficult life in America, Torres applied for citizenship. Then he left the country in search of opportunity.

After being denied from the French Legion because of hearing damage incurred during his service in Iraq, Torres decided to return to Tijuana, Mexico, the city of his birth. Many deported veterans settle in Tijuana and in other regions of northern Mexico, usually with the help of the Deported Veterans Support House, an organization that offers resources to veterans and helps them acclimate to life in Mexico.

Although Torres wasn’t deported, his case has revived a debate about whether deported immigrants who have served in the military, many in the wars in Iraq and Afghanistan, deserve to stay in the U.S.

But Torres’s case is particularly unusual. Most deported veterans are legal residents who get deported because of criminal convictions. Torres, however, had no criminal record, nor was he ever a legal resident.

This past week, Daniel Torres became a U.S. citizen. He was eligible under special provisions of the Immigrant and Nationality Act that allow people who serve in the military during a period of hostility to become citizens. The special provisions waive other usual requirements for citizenship, such as lawful permanent residence and physical presence in the U.S.

Many are saying that Torres’s case is the first instance they have ever of where an immigrant who served illegally in the military is granted citizenship.

Currently, Torres is finishing up his last year of law school in Tijuana, where he has lived for the past five years. After he graduates in December, he hopes to return to the U.S., this time as a citizen, and enroll in law school here.

http://www.latimes.com/local/lanow/la-me-ln-immigrant-military-service-20160423-story.html   

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Undocumented Immigrant Students Blocked from School Registration and Denied Access to Educational Services

A recently released report conducted by Georgetown University Law Center has found that undocumented immigrant children often face long enrollment delays and have been turned away from schools because of arbitrary interpretation of residency rules and state laws.

The report focused on school districts in Florida, New York, North Carolina, and Texas.

Legally speaking, all children living in the U.S., even those who are here illegally, must attend school through at least 8th grade or until they turn 16. This law applies to all 50 states, with many states allowing students to enroll beyond that age.

But the report found that some school districts require elaborate paperwork that has kept immigrant children out of school, while lacking translation services to keep their families informed about the process.

Moreover, the Obama Administration’s deportation raids, aimed at deported tens of thousands of Central American families who arrived in 2014 due to a surge of violence in that region, have prompted some students to avoid school altogether for fear that they will be picked up by authorities.

But the law in the U.S. clearly states that no child may be excluded from public education. Public schools may request paperwork to establish a student’s residency, but they may not deny a student enrollment because of immigration status. The Department of Education says it is working to make sure that the right to education is protected and they have distributed resources in communities to try an address the issue.

https://www.bostonglobe.com/news/nation/2016/04/10/immigrant-students-blocked-from-enrolling-school/HS1nOTaYcYOQQXE8FKivDJ/story.html

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5. News from the Courts

Court Rules Immigrants with Chronic Alcoholism Cannot Be Deported Solely on the Basis of Their Condition

A 3 judge panel in the U.S. 9th Circuit Court of Appeals recently overturned a 50-year-old immigration law that made it difficult for chronic alcoholics to fight deportation. The 2-1 decision was made on the basis that the law assumes that chronic alcoholism is indicative of poor moral character.

Those in favor of overturning the law reasoned that as alcoholism is considered to be a medical disability, targeting people who frequently and excessively drink alcohol violates the protection guarantees of the U.S. Constitution.

Moreover, they argued that the perception of alcoholics as blameworthy for not trying hard enough to recover is an outdated theory and is not supported by medical research. Rather, habitual drinking should be viewed as a symptom of an underlying ailment.

The one dissenting opinion on the panel came from Judge Richard Clifton, who argued that even though alcoholism is considered to be a medical condition, alcoholics still possess free will and can therefore be morally evaluated. He supported his claim by bringing examples of alcoholics who have successfully stopped drinking, stating that chronic alcoholism and habitual drunkenness do not necessarily go hand-in-hand.

http://www.latimes.com/local/lanow/la-me-ln-drunk-immigrant-20160324-story.html

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Operators of Ski Resort Accused of Misusing EB-5 Investor Funds

On April 14, the Security and Exchange Commission announced fraud charges and an asset freeze against a ski resort in Vermont that allegedly misused millions of dollars raised through investments solicited under the EB-5 Immigrant Investor Program.

The SEC alleges that Ariel Quiros of Miami, William Stenger of Newport, VT., and their associated companies, raised more than $350 million from EB-5 investors under the false claim that they planned to construct ski resort facilities and a biomedical research facility in Vermont. Investors were told they were investing in one of several projects connected to Jay Peak Inc. and their money would only be used to finance that specific project. Instead, money from investors in later projects was misappropriated to fund deficits in earlier projects. More than $200 million was allegedly used for other-than-stated purposes, including $50 million spent on Quiros’s personal expenses.

According to the SEC’s complaint, Quiros improperly used EB-5 investor funds to purchase a luxury condominium, to pay his income taxes, to pay other taxes unrelated to the investments, and to acquire an unrelated ski resort.

With millions of EB-5 investor dollars diverted into the pockets of the defendants, there is now little money left for the construction of the research facility investors thought they were helping to build. As a result, the immigration petitions of each of those investors is now in jeopardy.

In the ensuing court case, the SEC will seek preliminary and permanent injunctions, financial penalties, and discouragement of ill-gotten gains plus interest. They will also seek conduct-based injunctive relief against Quiros and Stenger along with an officer-and-director bar against Quiros.

http://www.sec.gov/news/pressrelease/2016-69.html

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Former ICE Attorney Sentenced to Prison for Falsifying Document in Immigration Case

A few months ago, we wrote about an ex-ICE attorney, named Jonathan Love, who pleaded guilty in January 2016 to a charge that he had falsified a document in an immigration case. The falsified evidence resulted in a deportation order for the client. It was only when irregularities were noted that the case was reopened.

Here is a link to the previous article: http://www.columbian.com/news/2016/jan/16/immigration-lawyer-pleads-guilty/

In federal court on April 20, 2016 Jonathan Love was sentenced to 30 days in prison, 100 hours of community service, one year of supervised release, and a 10-year ban on practicing law.

https://www.ice.gov/news/releases/ex-ice-attorney-sentenced-prison-falsifying-document-immigration-case

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6. News Bytes

USCIS Launches Search Tool for Non-Precedent Decisions

USCIS’s Administrative Appeals Office (AAO), recently launched a new search tool for non-precedent decisions since 2005.

Non-precedent decisions are those that apply existing law and policy to the facts of an individual case. The decisions are binding on the parties to the case, but do not apply new or alternative interpretations of law or policy.

To read more, please click here.

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USCIS Reaches H-1B Cap and Completes the Lottery Process for FY 2017

On April 7, USCIS announced that it reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. It also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.

On April 9, USCIS used a computer-generated process to randomly select enough petitions to meet the 65,000 general category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2017 H-1B cap.

For more information, please click here.

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Current Version of Form I-9 Will Remain Valid Until New Version is Released

USCIS has extended the public comment period on proposed changes to Form I-9. Comments will now be accepted through April 27, 2016.

Employers should note that the current version of Form I-9 will continue to be valid until USCIS posts a new version on its website. This is the case even though the current version displays March 31, 2016 as its expiration date.

At this time, USCIS has not stated when they plan to release the new version but it is expected that it will be sometime in 2016.

While it cannot yet be confirmed, it is expected that employers will have a grace period to transition to the new form upon its release. The last time the form was updated, USCIS allowed employers to use the older version of Form I-9 for at least 60 days after releasing the new version.

http://everifyandi9news.com/2016/03/employers-should-continue-to-use-current-version-of-form-i-9-as-uscis-reopens-comment-period/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+E-verifyI-9News+%28E-Verify+%26+I-9+News%29

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Guidance for Students on 24-Month F-1 STEM OPT Extension Key Facts

A new 24-month STEM OPT Extension rule goes into effect on May 10, 2016. The STEM OPT extension may be an effective tactic to a student not being selected in

the FY-2017 H-1B Visa Lottery. Eligible students working on 17-month STEM OPT extensions may apply for an

additional seven months of employment authorization between May 10, 2016 to August 8, 2016 (the “transition period”).

To qualify for a 7-month extension, students must apply during the transition period, within 60 days of the DSO entering the student’s eligibility for the extension into SEVIS and have at least 150 days of employment authorization remaining at the time the I-765 “Application for Employment Authorization” is filed with USCIS.

Students on 17-month STEM OPT with EADs expiring between October 7, 2016 and January 5, 2017 could lose eligibility for the 7-month extension if the I-765 is not filed with at least 150 days of employment authorization remaining.

Background

On May 10, 2016, a new Department of Homeland Security regulation goes into effect creating a 24-month extension for F-1 STEM OPT to replace the 17-month extension that was previously available. As of May 10, 2016, students applying for a STEM OPT extension will have their applications adjudicated using the new 24-month STEM OPT standard. Students whose STEM OPT extension request is pending on May 10, 2016 will be issued a Request for Evidence (or RFE) to provide the additional information required by the new 24-month STEM OPT standard. Students who are currently working on a 17-month STEM OPT extension may be eligible for an additional seven months of STEM OPT. To be eligible, they must have the training opportunity approved by their DSO (using Form I-983) and have at least 150 days of employment authorization remaining at the time their I-765 “Application for Employment Authorization” is received by USCIS. They also must apply for the 7-month extension during the “transition period” between May 10, 2016 and August 8, 2016.

General Eligibility Requirements

In order to qualify for the 24-month STEM OPT extension, a student must be currently working

in a period of post-completion OPT and must hold a bachelor’s degree or higher degree in an eligible STEM field (Science, Technology, Engineering, and Math) from an accredited SEVP-certified school. The student must be seeking to engage in practical training for a minimum of 20 hours per week through an employer that participates in USCIS’s E-Verify program. Also, the student and the employer must create and submit a formal training plan on Form I-983 to the student’s DSO for approval prior to applying for an F-1 STEM OPT extension with USCIS.

The training plan must explain how the practical training opportunity is directly related to the student’s qualifying STEM degree. It must identify goals for the practical training opportunity, including specific knowledge, skills or techniques that will be imparted to the student and explain how those goals will be achieved through the work-based learning opportunity with the employer. The training plan must also describe a performance evaluation process and the methods of oversight and supervision of the student. Note that the training plan will be evaluated by the student’s DSO for completeness, meaning that the DSO will ensure that the Form I-983 is signed and addresses the regulatory requirements of the training program. An ICE tutorial on drafting Form I-983 is available here.

Additional Information on the 24-month STEM OPT Extension

Allows for two lifetime STEM OPT Extensions. The second STEM OPT extension must be based upon a degree completed at a higher educational level than the first STEM extension.

Students participating in an initial 12-months of post-completion OPT based on a non-STEM degree can use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, as long as both degrees were received from currently accredited educational institutions and the practical training opportunity is directly related to the previously obtained STEM degree.

Students must complete annual self-evaluations and obtain the employer’s signature. The new rule retains the 90 days of unemployment (during the initial OPT

authorization) and adds an additional 60 days of unemployment for students authorized for a 24-month STEM OPT extension (for a total of 150 days of unemployment allowed during the 36 months of OPT).

The rule requires STEM OPT students to report to their DSOs any name or address changes, as well as any changes to their employers’ names or addresses. Students also must verify the accuracy of this reporting information periodically.

Action Steps for Students

Students are responsible for getting the process with their employer started. If you don’t know where to start, contact your DSO for information and advice on having a conversation with your employer. While students are unable to complete Form I-983 on their own, they must fill out the student portion which includes information about their identity and academic history. Students must work with their employer to effectively convey details of the training opportunity and how that training opportunity meets the requirements of the regulations. Once the details are worked out, the student and employer must sign the Form I-983 and submit it to their DSO for approval. Once the DSO approves the I-983, the student must file the STEM OPT extension package themselves unless their school files STEM OPT extensions for their international students.

A 24-month F-1 STEM OPT extension package should contain the following:

Completed and signed Form I-765 Check or money order for $380, payable to “Dept. of Homeland Security” 2 color, U.S. passport-style, photographs (see “Guidelines” below) – write name and

SEVIS ID on back Copy of the front and back of your current OPT card Copy of new I-20, with recommendation for OPT extension (keep the original I-20) Copy of all previous I-20s Evidence that your degree meets the STEM degree/major requirements - ONE of the

following must be submitted with your application: o Official transcript (Request from Registrar’s Office) o Copy of the diploma that shows your degree level and program of study

Copy of your current I-94 printout Copy of your passport biographic information page (and any renewal pages)

If you will submit directly to USCIS, please be sure to do the following:

Be sure to sign your STEM OPT I-20 form when you receive it from the DSO.

Make a copy of the entire application before you submit it to the USCIS. Submit the application to the USCIS Lockbox with jurisdiction over the address you

list on the I-765 form. Filing jurisdiction information can be found at: https://www.uscis.gov/i-765

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Guidance for Employers on 24-Month F-1 STEM OPT Regulation Key Facts

A new 24-month STEM OPT Extension rule goes into effect on May 10, 2016. The STEM OPT extension may be an effective tactic to respond to an employee not

being selected in the FY-2017 H-1B Visa Lottery. Eligible employees working on 17-month STEM OPT extensions may apply for an

additional seven months of employment authorization between May 10, 2016 to August 8, 2016 (the “transition period”).

To qualify for a 7-month extension, employees must apply during the transition period, within 60 days of the DSO entering the employee’s eligibility for the extension into SEVIS and have at least 150 days of employment authorization remaining at the time the I-765 “Application for Employment Authorization” is filed with USCIS.

Employees on 17-month STEM OPT with EADs expiring between October 7, 2016 and January 5, 2017 could lose eligibility for the 7-month extension if the I-765 is not filed with at least 150 days of employment authorization remaining.

Background

On May 10, 2016, a new Department of Homeland Security regulation goes into effect creating a 24-month extension for F-1 STEM OPT to replace the 17-month extension that was previously available. As of May 10, 2016, employees applying for a STEM OPT extension will have their applications adjudicated using the new 24-month STEM OPT standard. Employees or new hires whose STEM OPT extension request is pending on May 10, 2016 will be issued a Request for Evidence (or RFE) to provide the additional information required by the new 24-month STEM OPT standard. Employees who are currently working on a 17-month STEM OPT extension may be eligible for an additional seven months of STEM OPT. To be eligible, they must have the training opportunity approved by their DSO (using Form I-983) and have at least 150 days of employment authorization remaining at the time their I-765 “Application for Employment Authorization” is filed with USCIS. They also must apply for the 7-month extension during the “transition period” between May 10, 2016 and August 8, 2016.

General Eligibility Requirements

In order to qualify for the 24-month STEM OPT extension, an employee must be currently working

in a period of post-completion OPT and must hold a bachelor’s degree or higher degree in an eligible STEM field (Science, Technology, Engineering, and Math) from an accredited SEVP-certified school. The employee must be seeking to engage in practical training for a minimum of 20 hours per week through an employer that participates in USCIS’s E-Verify program. Also, the employee and the employer must create and submit a formal training plan on Form I-983 to the employee’s DSO for approval prior to applying for an F-1 STEM OPT extension with USCIS.

The training plan must explain how the practical training opportunity is directly related to the employee’s qualifying STEM degree. It must identify goals for the practical training opportunity, including specific knowledge, skills or techniques that will be imparted to the employee and explain how those goals will be achieved through the work-based learning opportunity with the employer. The training plan must also describe a performance evaluation process and the methods of oversight and supervision of the employee. Note that the training plan will be evaluated by the employee’s DSO for completeness, meaning that the DSO will ensure that the Form I-983 is signed and addresses the regulatory requirements of the training program. An ICE tutorial on drafting Form I-983 is available here.

Additional Requirements for Employers

The new 24-month STEM OPT regulation contains several notable requirements for employers:

Employers with employees on 24-month STEM OPT must be enrolled in E-Verify. The terms and conditions (including duties, hours, and compensation) of the STEM

practical training opportunity be equal with the terms and conditions applicable to the employer’s similarly situated U.S. workers in the area of employment.

Employers must have sufficient resources and personnel available and be prepared to provide appropriate training in connection with the opportunity at the location(s) specified on Form I-983.

Employers must notify the employee’s DSO if there is a material change to the training opportunity, including the termination or resignation of the employee, within five business days

The employer must not use the F-1 STEM OPT employee to replace full or part time U.S. workers.

The regulation also indicates that DHS may perform site visits in order to determine if an employer is providing the training opportunity stated in the I-983 and to ensure that the employer is not abusing the program. It notes that employers will receive 48-hours notice of any site visits that do not result from a complaint or other evidence of noncompliance with the program. The number of employer site visits that ICE is planning is not clear at present but, as with other site visit programs, visits are not likely to be a widespread issue in the absence of complaints against an employer.

Action Steps for Employers

Identify current employees holding 17-month STEM OPT work authorization who are eligible for the 7-month extension

o Employees with STEM OPT work authorization that is valid on or after October 7, 2016 are eligible to file for an extension

o The seven-month STEM OPT extension application must be filed with USCIS between May 10, 2016 and August 8, 2016

o At the time of filing, the employee’s current 17-month STEM OPT work authorization must be valid for at least 150 days

Identify current employees who can benefit from a STEM OPT extension o These employees must file for 24-month OPT STEM extension before the

expiration of their current OPT work authorization Work with eligible employees to complete Form I-983 Develop a system to identify F-1 initial OPT employees eligible for the 24-month

STEM OPT and STEM OPT employees when they are hired and work with them to create and submit training plans to their DSO for approval

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7. 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.

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Labor Dept. Extends Emergency Procedures for Backlogged H-2B Applications Through April 29

The Department of Labor's Office of Foreign Labor Certification (OFLC) continues to experience significant delays in processing employers' H-2B applications for certification and is therefore extending the availability of emergency procedures through April 29, 2016. OFLC explained that the delays have been generated by several factors, the most significant of which was a 17-day certification processing pause at the Chicago National Processing Center (CNPC) needed for OFLC to implement changes to comply with revisions to the H-2B prevailing wage and certification standards under an appropriations law Congress passed in late 2015.

OFLC said the delays in the certification process that applicants are continuing to experience "impair the ability of employers to hire foreign workers when needed, and create instability for small businesses that depend on temporary and seasonal workers." OFLC has concluded

that the delays still preventing the timely processing of H-2B applications "constitute good and substantial cause under 20 CFR § 655.17 for employers to request emergency procedures of their currently pending applications."

Therefore, OFLC said, employers with pending H-2B applications will be able to continue to request the emergency procedures under 20 CFR § 655.17 through April 29, 2016, so that CNPC can address the current application processing backlog.

The announcement is at https://www.foreignlaborcert.doleta.gov/ (scroll to March 28). The full announcement of the emergency procedures initiative and details on how employers can continue to participate is at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_EmergencyProcessing_Initiative.pdf.

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E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary Announces

Department of Homeland Security (DHS) Secretary Jeh Johnson recently announced that effective April 1, 2016, Visa Waiver Program (VWP) participants must have an e-Passport to travel to the United States. Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, VWP travelers who do not have an e-Passport from a participating VWP country must obtain a visa to come to the United States.

Secretary Johnson's statement is at https://www.dhs.gov/news/2016/04/01/statement-secretaryjeh-c-johnson-strengthening-travel-security-e-passports.

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May Visa Bulletin Sets Final Action Date for EB-4 Visas for El Salvador, Guatemala, Honduras Special Immigrants

The Department of State's Visa Bulletin for May 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from El Salvador, Guatemala, and Honduras. This means that starting in May, an applicant from any of these countries who filed a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visas become available. The final action date became effective upon publication of the May Visa Bulletin on April 12.

The Visa Bulletin explains that these three countries have already reached their EB-4 visa limits as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 for El Salvador, Guatemala, and Honduras will appear in the October Visa Bulletin (to be published in mid-September).

Petitioners from any country, including El Salvador, Guatemala, and Honduras, may continue to file Forms I-360. There is no annual limit on the number of I-360 petitions that USCIS may approve.

The Department said it will accept all properly filed submissions of Form I-485, Application to Register Permanent Residence or Adjust Status, under the EB-4 classification until April 30, 2016. USCIS noted:

• We will process and make a decision on your Form I-485 application only if you have a Form I-360 filed before January 1, 2010, that is ultimately approved.

• If you have a pending Form I-360 filed on or after January 1, 2010, we will process and make a decision on your Form I-360 but withhold a decision to approve your Form I-485 application pending availability of an EB-4 visa.

The Department also stated:

If you file Form I-485 under the EB-4 classification after April 30, 2016:

• We will process and make a decision on your Form I-485 only if you filed your Form I-360 petition before January 1, 2010, and your Form I-360 is ultimately approved.

• We will reject and return other Form I-485 applications but will continue to process Form I-360 petitions (even if submitted together with a Form I-485 that gets rejected). The May 2016 Visa Bulletin is at https://travel.state.gov/content/visas/en/law-andpolicy/bulletin/2016/visa-bulletin-for-may-2016.html. Information on final action dates is at https://www.uscis.gov/visabulletininfo.

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ICE Nabs 21 With Fake 'Pay-to-Stay' New Jersey Sham College Sting

Twenty-one brokers, recruiters, and employers were arrested on April 5, 2016, who allegedly conspired with more than a thousand foreign nationals to fraudulently maintain student and foreign worker visas through a "pay-to-stay" New Jersey sham college set up as a sting operation. The arrests resulted from an extensive probe led by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI).

According to ICE, the defendants, many of whom operated recruiting companies for purported international students, were arrested for their involvement in an alleged scheme to enroll foreign nationals as students in the University of Northern New Jersey (UNNJ), a purported for-profit college located in Cranford, New Jersey. HSI special agents created UNNJ in September 2013.

Through UNNJ, undercover HSI agents investigated criminal activities associated with ICE's Student and Exchange Visitor Program (SEVP), including but not limited to student visa fraud and the harboring of aliens for profit. The UNNJ was not staffed with instructors or educators, had no curriculum, and conducted no actual classes or education activities. The UNNJ operated solely as a storefront location with small offices staffed by special agents posing as school administrators.

UNNJ represented itself as a school that, among other things, was authorized to issue a Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students. During the investigation, HSI special agents identified hundreds of foreign nationals, primarily from China and India, who previously entered the U.S. on F-1 nonimmigrant student visas to attend other SEVP-authorized schools. Through various recruiting companies and business entities located in New Jersey, California, Illinois, New York, and Virginia, the defendants then enabled approximately 1,076 of these foreign individuals—all of whom were willing participants in the scheme—to fraudulently maintain their nonimmigrant status in the U.S. on the false pretense that they continued to participate in full courses of study at UNNJ.

Acting as recruiters, the defendants solicited the involvement of UNNJ administrators to participate in the scheme, ICE said. During the course of their dealings with undercover agents, the defendants fully acknowledged that none of their foreign national clients would attend any courses, earn credits, or make academic progress toward an actual degree in a particular field of study. Rather, the defendants facilitated the enrollment of their foreign national clients in UNNJ to fraudulently maintain student visa status in exchange for kickbacks, or "commissions." The defendants also facilitated the creation of hundreds of false student records, including transcripts, attendance records, and diplomas, which ICE said were purchased by their foreign national conspirators for the purpose of deceiving immigration authorities.

In other instances, ICE noted, the defendants used UNNJ to fraudulently obtain work authorization and work visas for hundreds of their clients. By obtaining this authorization, a number of defendants were able to outsource their foreign national clients as full-time employees with numerous U.S.-based corporations, also in exchange for commission fees. Other defendants devised phony IT projects that were purportedly to occur at the school. These defendants then created and caused to be created false contracts, employment verification letters, transcripts, and other documents. The defendants then paid the undercover agents thousands of dollars to put the school's letterhead on the sham documents, to sign the documents as school administrators, and to otherwise go along with the scheme, ICE said.

"All of these bogus documents created the illusion that prospective foreign workers would be working at the school in some IT capacity or project," ICE said. The defendants then used these fictitious documents fraudulently to obtain labor certifications issued by the Department of Labor and then ultimately to petition the U.S. government to obtain H1-B visas for nonimmigrants. These fictitious documents were then submitted to U.S. Citizenship and Immigration Services (USCIS). In the vast majority of circumstances, the foreign worker visas were not issued because USCIS was advised of the ongoing undercover operation, ICE said.

In addition, ICE said that HSI Newark is coordinating with the ICE Counterterrorism and Criminal Exploitation Unit (CTCEU) and the SEVP to terminate the nonimmigrant student status of the 1,076 foreign nationals associated with UNNJ and, if applicable, administratively arrest and place them into removal proceedings.

A chart at the link below outlines the charges for each defendant. The charges of conspiracy to commit visa fraud and making a false statement each carry a maximum potential penalty of five years in prison and a $250,000 fine. The charges of conspiracy to harbor aliens for profit and H-1B visa fraud each carry a maximum penalty of 10 years in prison and a $250,000 fine.

Meanwhile, SEVP announced on April 5, 2016, that it terminated initial and active student records of any nonimmigrant student enrolled at UNNJ, as well as many active nonimmigrant students who have since transferred from UNNJ.

The announcement is at https://www.ice.gov/news/releases/21-charged-fraudulently-enablinghundreds-foreign-nationals-remain-us-through-fake-. A related announcement from the Department of Justice's U.S. Attorney's Office for the District of New Jersey is at https://www.justice.gov/usao-nj/pr/21-defendants-charged-fraudulently-enabling-hundredsforeign-nationals-remain-united.

*** 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.

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

Immigrant of the Day: Roberta Capp, MD – Physician Immigrant of the Day: Milana Vayntrub – Actress SEC Charges Leading EB-5 Regional Center Refuge Denied – Tying the US Response to the Holocaust to Today

Bruce Buchanan's Blog on ILW.com

OSC Settlement Bars Company from H-2B Program for 3 Years Important I-9 Form Announcements President of Company Charged with H-1B Visa Fraud USCIS Reaches FY 2017 H-1B Cap Federal Jury Convicts Company Managers of Unlawfully Employing Undocumented

Workers OSC Issues TAL related to Export Control Laws I Was Not Hired So I Must Have Been Discriminated Against

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9. State Department Visa Bulletin: May 2016 Number 92 Volume IX Washington, D.C A. STATUTORY NUMBERS This bulletin summarizes the availability of immigrant numbers during May for: “Application Final Action Dates” 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 atwww.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 visitingwww.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 April 12th. 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 22NOV08 22NOV08 22NOV08 08FEB95 01OCT04

F2A 01NOV14 01NOV14 01NOV14 15AUG14 01NOV14

F2B 01SEP09 01SEP09 01SEP09 08SEP95 01MAY05

F3 01DEC04 01DEC04 01DEC04 08OCT94 22JAN94

F4 22JUL03 22JUL03 22JUL03 08APR97 01OCT92

*NOTE: For May, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 15AUG14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15AUG14 and earlier than 01NOV14. (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.)

Employ- ment based

All Charge- ability Areas Except Those Listed

CHINA- mainland born

EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES

1st C C C C C C

2nd C 01SEP12 C 22NOV08 C C

3rd 15FEB16 15AUG13 15FEB16 01SEP04 15FEB16 08AUG08

Other Workers 15FEB16 22APR07 15FEB16 01SEP04 15FEB16 08AUG08

4th C C 01JAN10 C C C

Certain Religious Workers C C 01JAN10 C C C

5th Non-Regional Center (C5 and T5) C 08FEB14 C C C C

5th Regional Center (I5 and R5) C 08FEB14 C C C C

*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 01JUN13 01JUL09 C C

3rd C 01MAY15 01JUL05 C 01JAN10

Other Workers C 01APR08 01JUL05 C 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 MAY 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 May, 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 28,300

ASIA 6,850 Except: Nepal: 5,525

EUROPE 28,000

NORTH AMERICA

6

(BAHAMAS)

OCEANIA 1,050

SOUTH AMERICA, and the CARIBBEAN 1,020

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 JUNE For June, 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 34,400

ASIA 8,000 Except: Nepal: 6,200

EUROPE 34,000

NORTH AMERICA

10

(BAHAMAS)

OCEANIA 1,100

SOUTH AMERICA, and the CARIBBEAN 1,175

D. VISA AVAILABILITY DURING THE COMING MONTHS FAMILY-SPONSORED: CHINA F4: The level of applicant demand being received has begun to increase. Should this pattern continue, it will be necessary to either hold or retrogress this final action date in late summer. That action would be necessary to hold number use within the overall China Family-sponsored annual limit.

INDIA F4: The amount of demand being reported for applicants with priority dates which are significantly earlier than the established cut-off date has increased dramatically in recent months. As a result, it is likely that this final action date will be retrogressed, possibly as early as June. This action would be necessary to hold number use within the overall India Family-sponsored annual limit.

EMPLOYMENT-BASED: CHINA E3: There has been an extremely large increase in Employment Third preference applicant demand in recent weeks. This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference. This has resulted in the Third preference final action date being held for the month of May. Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.

During the past month, there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status. If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.

E. OVERSUBSCRIPTION OF THE EL SALVADOR, GUATEMALA, AND HONDURAS EMPLOYMENT-BASED FOURTH (E4) AND CERTAIN RELIGIOUS WORKERS (SR) PREFERENCE CATEGORIES There is currently extremely high demand in the E4 and SR categories for applicants from El Salvador, Guatemala, and Honduras. This demand is primarily for Juvenile Court Dependent cases filed with U.S. Citizenship and Immigration Services for adjustment of status. Pursuant to the Immigration and Nationality Act, this requires implementing E4 and

SR Application Final Action Dates for these countries, which will allow the Department to hold worldwide number use within the maximum allowed under the FY-2016 annual limits. Any forward movement during the remainder of FY-2016 is unlikely although no specific prediction is possible. A determination as to whether these countries will remain subject to E4 and SR final application dates under the FY-2017 annual numerical limitation will be made in early September. Future visa availability will depend on a combination of demand for numbers being reported each month, and the extent to which otherwise unused numbers become available.

It is extremely likely that the India and Mexico Employment Fourth Preference categories will also become oversubscribed at some point during the summer months.

F. 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 final action 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: April 12, 2016

Siskind Susser PC – Immigration Lawyers 901-682-6455 or 800-343-4890