HOW AMERICA ENACTS LAWS

Funny stuff from Saturday Night Live, which attempts to explain how the President's Executive Order works.

PRESIDENT OBAMA TAKES EXECUTIVE ACTION

Last night President Obama announced the Immigration Accountability Executive Actions (IAEA), which is a series of wide-ranging changes to immigration policy.  Most of the major changes are centered on the undocumented community.  However, some changes will impact the business community.  At this point, only summary policies have been released by the administration.  Over the next few days and weeks, more details will emerge.  None of the changes are expected to take effect until after the New Year

MU Law will be holding a client teleconference on Tuesday December 2, 2014 at 2PM ET / 11AM PT for all clients and friends of the firm.  If you or anyone in your organization would like to dial-in to the teleconference, please contact Annalisa Smith (Annalisa@muimmigration.com) to register.

Here are the key components of the IAEA, with a focus on the policies that will impact clients and friends of MU Law:

1. Allowing earlier filing of the I-485, Adjustment of Status: Green card applicants will no longer have to wait until their priority date is current in order to file their I-485, Adjustment of Status. This is especially helpful for India and China EB-2 applicants and all EB-3 applicants in the US.

a. By allowing green card applicants to file their I-485, Adjustment of Status much earlier in the green card process than under the current process, applicant’s spouses will be able to obtain work authorization (EAD cards) many years earlier than under the current policy. 

b.  Once an I-485 is pending for 180 days, applicants are able to leave their green card employer-sponsor provided that they have found a “same or similar” position.  The President has also announced that the USCIS will be providing guidance on the definition of “same or similar”.  The forthcoming guidance is expected to be more liberal than the current interpretation.

2.  H-4 Work Authorization.  This long-proposed rule will allow spouses of H-1B workers to obtain work authorization.  Earlier this summer, the USCIS floated a proposal that limited the EAD to H-4 spouses whose H-1B workers have been in the green card process for at least one year.  A final regulation is expected in December or January.

3. PERM.  The Department of Labor is expected to “modernize” the PERM process, including a potential “harmless error” provision.

4. Entrepreneurs.  The administration will be “clarifying” rules regarding using the national interest waiver and parole processes for entrepreneurs.  It is expected that these rules will be liberalized to encourage investment and entrepreneurs.

5. L-1B Guidance.  The L-1B visa system is riddled with inconsistent decision-making.  The USCIS will be offering guidance to help on this issue.

6. OPT.  Optional Practical Training will be expanded.

7. Deferred Action expansion.  This provision is the focus of much of the media attention.  Some undocumented and illegal people in the US will be able to gain temporary three year work authorization and no longer be under the threat of deportation/removal. 

a. Deferred Action for Parents (DAP): Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010, and who pass background checks and pay back taxes; and

b.  DACA Expansion: The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010. 

CGFNS TO OPERATE THE ALLIANCE FOR ETHICAL RECRUITMENT

The Alliance for Ethical Recruitment was formed in 2009 as a result of a funding grant from the MacArthur Foundation.  There always are perceived recruitment abuses in the international arena.  Some of these perceptions are borne out of very real abusive behavior.  Some of these perceptions are borne out of hysteria and junk statistics. 

The Alliance has tried for several years to root out the former.  It has struggled to gain traction.  Despite the Alliance’s efforts, only four employers have endorsed the Alliance Code of Ethical Recruitment, only one of which has joined since the pilot phase ended in 2010.  The AAIHR (of which MU Law is a member) also has a Code of Ethics, which has been more accepted by the industry. 

The Alliance is now about to shift gears.  CGFNS, who have long been involved in international nurse matters, will be operating the Alliance.  The Alliance will now be managed by Mukul Bakhshi, JD. 

The official launch of this new phase of the Alliance will take place at a reception in January at a location in Washington, D.C.

NVC NO LONGER COLLECTING ORIGINAL CIVIL DOCUMENTS

The Consular Process route to a green card consists of three steps: (1) Filing and approval of the I-140; (2) National Visa Center; and (3) Consular interview.  The middle stage, the NVC stage, consist of collection of fees for the processing of the Beneficiary and his or her family (often called “Fee Bills”) and the collection of a variety of civil documentation, such as birth, marriage, and police certificates.  In a break from the past, the NVC will now only collect photocopies of these civil documents.  The original civil documents should be brought to the Consular Interview in the home country.   Applicants at designated electronic processing posts will continue to submit their documents via email.  This new policy is effective as of November 12, 2014.

When the Consular Interview is scheduled, NVC will instruct applicants to bring their original documents to the interview for evaluation and final case processing.  Beneficiaries should note that Original Affidavit of Support forms will still be submitted to NVC for initial evaluation.  Affidavits of support are typically not used in employment-based immigration cases.  Affidavits of support are usually only used in family-based immigration.

By making this change, NVC hopes that it will maintain the integrity of the immigrant visa process, reduce customer wait times, and improve the customer experience overall.

DECEMBER 2014 VISA BULLETIN

The Department of State has just released the December 2014 Visa Bulletin.  This is the third Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at November 2012, which is more than a five year jump since March 2014.  It remains consistent with the All Other (ROW) EB-3 date and the Mexican EB-3 date.

India EB-2 remained stuck at February 2005.  The India EB-2 date retrogressed by four years recently and it does not appear  that any meaningful progression is imminent.  India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN10	15FEB05	C	C
3rd	01NOV12	01JUN10	01DEC03	01NOV12	01NOV12

EXECUTIVE ACTION OR ALL TALK AND NO ACTION?

President Obama showed no indication that he would back down from a pledge to take Executive Action on immigration despite the Republican party’s big wins in Tuesday’s elections.  He promised that he would take whatever lawful action he could if the Congress does not pass meaningful immigration legislation during the November-December lame duck period.  

However, he gave no details about whether the Executive Action would be limited to legalization of the undocumented or a broader action that might liberalize employment-based visa classes such as H-1Bs and employment-based green cards.  A list of Executive Action options includes both options.

Meanwhile the Tea Party republicans threatened to take legal action if the President does anything on immigration.  Republicans attempts at filing a law suit against President Obama seems to be riddled with problems.  Politico has reported that two different law firms have started and then declined to work on the Republican’s law suit in the last two months.

The longer that the President dawdles on the Executive Action pledge, the more he feeds the meme that his Presidency is one of all talk and no action.  

FEDERAL COURT CONFIRMS GREATER MISSOURI H-1B DECISION

The Greater Missouri Medical Pro-Care Providers H-1B case has been winding its way through the court system since 2006.  The key facts are that an aggrieved H-1B holder filed a Complaint with the Department of Labor alleging a multitude of H-1B violations.  The Department of Labor’s Administrative Review Board ultimately issued a Decision in January 2014.  The ARB decision is one of the best written and comprehensive legal discussions of an H-1B employer’s salary obligations that a practitioner will ever find. 

One of the key holdings concerns the statute of limitations for an employer’s H-1B violations.  The ARB found that the DOL does not need to limit its investigation to the single complaining H-1B employee.  The DOL may expand its investigation to all H-1B employees; however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.”  (Page 16, in the above-linked decision). 

The ARB’s decision contained a dissent by Deputy Chief Administrate Appeals Judge E. Cooper Brown.  Judge Brown opined that the DOL’s investigative authority should be limited to the complaining H-1B employee.  If Judge Brown's opinion had held court it would have significantly changed long-standing DOL investigative practice. 

The plaintiff, Greater Missouri, sought federal review of the ARB decision hoping to convince the federal court that Judge Brown’s dissent was the proper reading of law.  Last week, the federal court denied the Greater Missouri petition, probably ending the eight and a half year saga.