In order to make some sense of these disparate laws, our team has updated and reorganized our informational State-by-State Legislation Survey which can be found on our Worksite Compliance web site. We have summarized employer E-Verify obligations when conducting business in, or contracting with entities of, the 50 states and D.C.

E-Verify laws are in a near-constant state of change and the question of whether your organization is required to enroll depends upon federal, state, and local laws. For more information on how E-Verify might impact your business, contact your Klasko Law attorney.

In response to questions from the immigration law community last week, Department of State Chief of Immigrant Visa Control and Reporting Charlie Oppenheim provided an updated forecast of employment-based visa date movements for the months of May through July:

Mr. Oppenheim has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007 or later. Mr. Oppenheim stated that visa applicants processing in April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established.

We have recommended that any EB-2 adjustment applicant with a priority date before March 2010 file immediately, so that his or her application is received at USCIS on or before April 30, 2012. USCIS will continue to accept for processing those applications for adjustment of status for individuals with priority dates prior to the date established in the April 2012 Visa Bulletin until the end of this month. Those cases with priority dates of August 15, 2007 or later will be forwarded to and held by Visa Control at the Department of State in a “pending” file until new visas are available on October 1, 2012, the beginning of the 2013 fiscal year. Applicants will still be eligible for employment authorization and advance parole travel authorization. The May Visa Bulletin is expected to address the EB-2 movement.

Contact your Klasko Law attorney if you have specific questions regarding eligibility for filing of adjustment of status and other benefits.

TPS is a temporary form of permission to remain in the United States for humanitarian reasons.  TPS prevents the removal of nationals of countries undergoing civil strife, natural disasters, and similar country conditions.  It provides work authorization during the period of TPS, but does not provide for any long-term status or permanent residence after the government decides TPS is no longer warranted.

Nationals of Syria eligible for TPS should consult an attorney about the advantages and disadvantages of applying before seeking TPS, particularly if they currently hold a lawful nonimmigrant status.  In addition, Syrian nationals who fear to return to Syria should consult an attorney to discuss other possible forms of relief from removal.

The first impression is that there are far more interested EB-5 investors than there are investment projects that are considered to be low risk for immigration purposes (particularly condition removal) and high probability for the investor getting his money back in a definable period of time.

Second, and related, is the difficulty that agents who promote the projects to investors have in performing both the immigration due diligence and the financial due diligence that is necessary to advise investors.

The lack of good projects is, in part, a function of the USCIS long hold on I-924 adjudications pending resolution of its new position on the economic methodology to be used in tenant occupancy projects. Perhaps with RFEs being issued on all of those projects, some of the RFE responses will result in approved projects that can be made available to investors.

It is difficult to understand how overseas migration agents can be expected to perform the required immigration due diligence necessary to properly advise investors.  Immigration due diligence of projects is both complex and ever-changing.  Complicating matters is the fact that the Service steadfastly sticks to its position that it is not bound by an approval of an exemplar I-526 petition.  Migration agents should certainly seek the counsel of experienced EB-5 immigration lawyers to perform immigration due diligence prior to making a decision to promote a particular project to investors.  Failure to do so has resulted in some significant losses by investors and by their agents.

Applicants for adjustment of status must have a priority date earlier than the priority date listed as “available” in the Visa Bulletin each month in order for their application to be filed, or for a pending application to be approved.  As of March 1, 2012, that priority date has been set at cases with a labor certification (or EB-2 I-140 not requiring a labor certification) filed prior to May 1, 2010 for natives of India and China.  The Visa Control Office rapidly advanced the priority dates in order to build an “inventory” of cases ready to be approved at the USCIS offices, and those cases will now be processed by USCIS between now and the end of the government’s fiscal year, September 30.

For the month of April, the Visa Bulletin holds the priority date for India and China EB-2 steady at May 1, 2010.  For May, the Visa Control Office recently announced that they expect the priority date will “retrogress” or be set earlier, possibly as early as August of 2007.  This retrogression will mean that new applications for adjustment of status will not be able to be filed after April 30, 2012 for cases with priority dates in 2008, 2009 and early 2010.  Priority dates are not expected to advance again until October 1, 2012, at least, when the government’s new fiscal year begins.

It is very important to note that if an I-485 Application for Adjustment of Status is filed while the person’s priority date is current, it will remain pending until the priority date is current again.  Since the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, during the time the priority date is retrogressed.

Due to this recent announcement, we recommend that anyone with a priority date before March 2010 who is eligible to apply for adjustment of status do so by late April, as their opportunity to file the application will likely end as of May 1, 2012, and will not return until at least October 1, 2012 (and likely much later).

This change would significantly reduce the time that U.S. citizens are separated from their immediate relatives, as foreign nationals are currently required to remain outside the U.S. while their immigrant visa application and their waiver application are adjudicated. This USCIS proposal clarified that only foreign nationals who are immediate relatives of U.S. citizen spouses or parents would be able to take advantage of this change. This proposal is not expected to be implemented until the end of this year. We will continue to monitor and report on the progress of this important development.

Background

Immigration law bars certain foreign nationals from being admitted into the U.S. (receiving permanent residence or any other visa)  if they have previously accrued unlawful presence in the U.S. – whether by entering the U.S. without being inspected by an immigration officer or by overstaying the time allotted to them by a nonimmigrant visa obtained in the past. Those who have accrued between 181 days and 1 year of unlawful presence are subject to a 3-year bar before becoming admissible into the U.S. Those who have accrued more than 1 year of unlawful presence are subject to a 10-year bar before becoming admissible into the U.S. Immediate relatives of U.S. citizens who entered the U.S. on a nonimmigrant visa and later overstayed their time, or were admitted and inspected by an immigration officer on some other basis, are able to adjust their status without leaving the U.S. and without needing to obtain a waiver for the unlawful presence they accrued in the U.S. – immigration law forgives them for the unlawful presence. However, those immediate relatives of U.S. citizens who have accrued unlawful presence and who cannot demonstrate having been admitted and inspected by an immigration officer upon entry are unable to apply for adjustment of status from within the U.S. Immigration law requires that they depart the U.S. and apply for an immigrant visa at a consulate post abroad.

Unfortunately, this departure is what triggers the 3- and 10- year bars and subjects them to the requirement of the filing of the application for waiver of this ground of inadmissibility.  To obtain a waiver of unlawful presence, foreign nationals in this predicament are required to demonstrate that, if this application for a waiver is not granted, their U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship. Because this waiver is discretionary, the individuals must also warrant a favorable exercise of discretion.  While the term “extreme hardship” has not been exactly defined, this term has been interpreted very narrowly and involves the balancing of various factors.

Current Practice

The current practice of the filing and adjudication of these waivers has required that the foreign national depart the U.S. and file the waiver with the consular post processing his or her immigrant visa. This has caused significant delays during which the foreign nationals remain separated from their immediate U.S. citizen- or lawful permanent resident-relatives while the waiver is adjudicated. Moreover, the foreign national has no guarantee when he or she leaves the U.S. that the waiver will be granted, and thus, he or she faces the prospect of leaving the U.S. without the ability to return for either three or ten years.

The waivers are adjudicated by USCIS offices having jurisdiction over the particular consular post where the foreign nationals applied for their immigrant visas, by a newly-created International Operations Support Branch of USCIS located in Anaheim, California, or –at times – the USCIS Nebraska Service Center. If USCIS denies the application for waiver, their decision may be appealed to the Administrative Appeals Office (“AAO”). Because the processing times for these waiver applications at the USCIS level are currently several months, and at the AAO level are over 2 years, this delay causes significant additional hardship to the families of the foreign nationals, from whom they are currently required to be separated for the duration of the adjudication of the application, without the grant of which their immigrant visa cannot be processed.

USCIS Proposal

The contemplated change in processing is intended to reduce this burden of separation. It is, however, limited only to foreign nationals whose spouses and/or parents are U.S. citizens, and not lawful permanent residents. This change would allow the qualifying foreign nationals to file their applications for waiver of grounds of inadmissibility prior to departing the U.S. and remaining in the U.S. while the USCIS adjudicates their application. If successful, USCIS would grant a provisional waiver prior to, and dependent upon, their departure to attend their immigrant visa interview at a consular post. While the procedural details were left out of the USCIS announcement, it is anticipated in the immigration legal community that the unlawful presence waiver applications would be adjudicated by the International Operations Support Branch of USCIS in Anaheim, CA, as well as the USCIS Nebraska Service Center.

In addition to significantly reducing the time foreign nationals who have accrued unlawful presence would be forced to spend separated from their U.S. citizen immediate relatives, USCIS expects that this change would streamline the process of waiver adjudication and visa processing for the foreign nationals in question, reducing the processing time even further due to the lessened amount of time the case would have to be moved back and forth between the U.S. Department of State, the various consular posts and USCIS. USCIS also expects this to produce a welcome cost reduction associated with the processing of such cases, as the adjudicators would be located in the United States, rather in international USCIS offices.

This change is not expected to be implemented until the end of this year, and its details are still largely unclear. USCIS is expected to issue a proposed rulemaking that will address this change, along with all of its fine points and new processes. Of course, as always, with such proposals, questions linger as to whether this change will cause a further backlog in the adjudication, as well as an overall reduction in approval rates, for unlawful presence waivers. All of this remains to be seen once- and if- the rulemaking for this change is implemented and it takes place. However, one thing is clear – it seems to be the current administration’s step toward alleviating some of the painful delays caused by the backlogged and often inefficient processes within immigration law.

Yesterday, Senator Grassley, R-IA, informed the Senate that he was placing a “hold” on the Senate’s consideration of HR-3012.  Such a hold greatly complicates the ability of the Senate to pass the bill, as it is a warning that the Senator would filibuster the bill if it came to the floor.

You can read my thoughts on the bigger picture at AILA’s Leadership Blog, but it’s enough to note that for now, the bill is effectively dead unless other Senators can convince Senator Grassley to remove his hold.

In reaching its decision, BALCA first reviewed prior regulations, DOL memoranda, and caselaw, and found that to date, DOL consistently approved labor certifications for positions in medical residency programs. However, BALCA went on to note the absence of a definition of “permanent employment” in the regulations or prior caselaw – including caselaw specifically approving medical resident labor certification — and chose to fashion a new test for whether any position may be considered “permanent employment” and thus eligible for labor certification.  BALCA announced a three part test for a position to be considered “permanent:”

• There must be an agreement – not necessarily a written contract, but at least an intention on the part of the employer to offer, and of the employee to accept, employment of indefinite duration;
• The position need not be guaranteed to last forever – that is, a position may be “permanent” even if it can be ended by the employer and the employee at some point in the future; and
• To be “of indefinite duration,” the position must have two characteristics.  First, it must be “of lasting duration,” meaning that the person will fill the position for an indefinite period of time – certainly expected to last more than a year, but with no specific ending date, even one that is three or more years away.  Second, there must be an “assurance of continuation of employment,” meaning that the employer must have the capability and intention of providing lasting and continuous employment.

In BALCA’s own words, “[T]he regulatory requirement of an offer of permanent employment is focused on a snapshot of the good faith intention of the employer at the time the labor certification is filed to make an offer of permanent employment – that is, indefinite employment of a lasting and continuous nature – within the expectations of any typical job offer.  An employer that has no intention to continue the employment of the immigrant beyond a set term of years cannot have the requisite intent.” (Opinion at page 72, footnote omitted).

Applying this definition to  medical residencies generally, BALCA found that the employers of medical residents do not generally have the intent to offer permanent employment, but instead only employment for the duration of the residency term. BALCA explained that its newly-adopted definition of “permanent” contemplated the expectation of indefinite employment at the time of the filing of the labor certification.  BALCA then concluded that resident positions do not fit the newly adopted definition of “permanent employment” because medical residency positions are not of “lasting duration” and do not offer an “assurance of continuation.”

Though BALCA ruled that medical residency programs in general may not qualify for foreign labor certifications, it did note that the specifics of the residency programs at Albert Einstein Medical Center and Abington Memorial Hospital were not in the appellate record.  BALCA remanded the labor certification denials back to the Certifying Officer for review of the evidence submitted by the Hospitals that related specifically to these two medical residency programs and for new decisions consistent with the Board’s general findings.

Though the full impact of BALCA’s decision is unknown at this point, it will likely limit medical facilities’ ability to sponsor their International Medical Graduates for permanent residence during their residency.  Abington Memorial Hospital and Albert Einstein Medical Center asserted to BALCA that their intention in recruiting resident physicians was to obtain the services of physicians who would continue on an indefinite basis with the Hospitals after their residencies; BALCA left that issue for the Certifying Officer to address on remand, but in doing so, asserted (with no basis in the record) that post-residency positions were “distinct positions” from the upper year resident positions offered in these applications.

Even prior to this decision, many hospitals were rethinking their strategies for retaining International Medical Graduates in light of the Department of Labor’s reluctance to approve labor certifications during the residency period.  This BALCA decision will cause foreign born physicians to have to rethink their career paths and plans, and hospitals their recruiting and retention strategies.  For further information or consultations on the effect of this decision, please contact your attorney at the Firm.

What Problem is HR 3012 Addressing?

Under current law, no more than 7% of the visas issued per year in any one immigrant visa category can go to natives of any one country.  On the employment-based immigrant visa side, natives of India and China face longer waits than natives of other countries, because natives of those countries send more high-skilled immigrants to the US than any other country.  On the family-based immigrant visa side, natives of Mexico and the Philippines face longer waits than natives of other countries, because there are more immigrants and US citizens with family ties to those countries than there are to other countries.

Quota backlogs in the employment-based system range from “immediately available” for the highest skilled immigrants (persons of “extraordinary ability,” “outstanding researchers” and “multinational managers and executives”) to an estimated 6-10 years for skilled workers and professionals from most  countries.  Because of the per-country limits, however, natives of India and China only have “immediately available” immigrant visas if they are in those highest skilled classes.  If they are advanced degree professionals (such as doctors, or more senior managers, or mid-career professionals), natives of India and China face quota delays of at least 4-7 years.  If they are other professionals or skilled workers, however, their waits could be 30, 40 or even 70 years (based on the current quota available per year per country divided by the number of pending cases for natives of those countries).  This bill aims to even out the disparity between India and China, on the one hand, and the rest of the world, on the other, when it comes to allocation of these visas per year.

Quota backlogs on the family side are similarly backlogged, with natives of Mexico and the Philippines taking quite a bit longer than natives of other countries for their relatives to be able to enter.

What would HR 3012 do?

HR 3012, as passed by the House, would not raise the number of legal immigrants allowed to enter the United States, which is a significant reason it was able to garner such broad support in the House.  It would, however, adjust the number of legal immigrants within the employment-based and family-based caps from each country.

HR 3012 would not add any new visas to address the quota backlogs for approved legal immigrants awaiting the availability of immigrant visas each year.  Rather, it would eliminate, over a three year period, the per-country limit in the employment-based system.  The elimination of the per-country limit would gradually make more visas available to natives of India and China, where backlogs in the employment based second preference (advanced degree professionals) would likely fall significantly from 4-7 years (and might even become “immediately available”) and backlogs in the employment based third preference (skilled workers and professionals) would likely fall to 10-12 years.

Because HR 3012 does not add any new visas per year, however, the reductions in quota delays for Indian and Chinese nationals may come at the expense of increased delays for natives of all other countries.  It is even possible that backlogs in the employment-based second preference will slowly develop for natives of all countries as the law takes effect over its three year implementation.

On the family side, the changes made by HR 3012 are not as dramatic – they only raise the per-country limit from 7% to 15%.  Therefore, natives of Mexico and the Philippines will have somewhat shorter waits, while natives of other countries will not be too adversely affected.

Will HR 3012 Become Law?

HR 3012, or a similar bill, still has to pass the US Senate.  Early indications are that quick passage may not be possible due to the objections of some Senators, meaning that HR 3012 may never become law.  Likewise, if the Senate passes a bill similar to HR 3012, but not identical, a committee made up of House and Senate members would have to meet and agree on a common version, which would again have to pass both houses.  At this point, therefore, it is still rather speculative as to whether HR 3012 will become law.

How Will HR 3012 Affect My Pending Case?

Both because HR 3012 may not pass the Senate, and because it will gradually be phased in over three years, our current estimation is that even if it became law, it would not affect most employment based second preference (EB-2) pending at the moment.  For EB-3 cases currently in process, if HR 3012 passes, it would likely drop the total delay for Indian and Chinese dramatically, while raising the delay for natives of other countries by a relatively smaller amount.  Unfortunately, even the State Department office responsible for allocation of the visas cannot provide any more detailed prediction than that.

We will continue to monitor developments and update our clients as further details become available.