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EIG Week in Review (Nov 21, 2014)

November 21, 2014

Highlights

  • UPDATE: President Obama Announces Executive Action on U.S. Immigration
  • U.S. Department of Homeland Security Announces Temporary Protected Status Designations for Countries Affected by Ebola
  • U.S. Embassies Report Technical Difficulties and Expect Delays in Visa Processing During Holiday Season
  • Australia Increases Length of Stay for Temporary Work Visas with Strong Business Justification
  • Canada Simplifies the Visa Application Process for Saudi Nationals
  • Costa Rica Implements New Immigration Regulations

UPDATE: President Obama Announces Executive Action on U.S. Immigration

The Department of Homeland Security has issued a memorandum directing USCIS to propose rules or issue guidance for future action, however, there is no definitive timeline for USCIS and Department of State action.  USCIS will produce detailed explanations and guidance regarding any proposed changes to U.S. immigration regulations and EIG will closely monitor any changes that will affect our clients. Please see below an outline of President’s Obama’s proposed changes to the U.S. immigration system:On November 20, 2014, President Obama made several important proposals regarding future immigration actions his administration is planning to take. As of now, no definitive changes to U.S. immigration law have gone into effect and the initiatives announced in President Obama’s address have not been implemented. The following information, provided by U.S. governmental agencies, does not change or affect any individual’s immigration status at this time, with the exception of certain undocumented individuals (i.e. individuals present in the U.S. without valid immigration status), who will be eligible to apply for certain immigration benefits 90 or 180 days from the date of this announcement. USCIS provided a statement on its website confirming that the initiatives have not yet been implemented and USCIS is not accepting any requests or applications at this time regarding any proposed changes.

Measures Potentially Affecting the Green Card Process

  • Ensure that all visas allotted are issued to eligible individuals for immigrant visas and green cards (legal permanent residence).
  • Modify and Streamline the visa bulletin process.

EIG Analysis: Please be advised that such measures could result in possible advances in priority dates. However, at this time, there are no changes to the current visa bulletin. EIG will notify individuals with approved I-140s when their priority date is current.

  • Provide clarity regarding AC-21 flexibility for adjustment of status applicants facing extended adjustment of status delays.

EIG Analysis: Though no further guidance has been issued, this clarification may allow for employees to accept promotions as part of a natural career progression without jeopardizing their previously filed applications.

  • Clarify the national interest waiver standard and guidelines as it applies to foreign inventors, researchers, and start-up founders.

EIG Analysis: Though no further guidance has been issued, clarification of the national interest waiver standard could result in more use of this category. The national interest waiver is a second preference employment-based immigration category that allows certain individuals to waive the job offer and permanent labor certification (PERM) requirements.

Measures Potentially Affecting Entrepreneurs
Authorize parole to certain eligible inventors, researchers, and start-up founders who may not yet qualify for national interest waiver but have received substantial U.S. financing or investment or can demonstrate cutting-edge research and the promise of job creation.

EIG Analysis: To date, no further guidance has been provided on the above measures affecting entrepreneurs. EIG will closely monitor and report on all relevant updates, should USCIS provide further information.

Measures Potentially Affecting Non-Immigrant Visas and Students

  • Finalize a rule providing work authorization to spouses of eligible H-1B visa holders who will be applying for lawful permanent resident status.
  • Develop regulations to expand and extend Optional Practical Training (“OPT”) for foreign students.
  • Clearly define the L-1B requirement of “specialized knowledge” for intracompany transferees.

EIG Analysis:  While a rule has been proposed to allow certain spouses in H-4 status to obtain work authorization, that rule has not been finalized and currently H-4 spouses are still unable to apply for employment authorization in the U.S. No further guidance has been provided on the above measures affecting non-immigrant visas and students. EIG will closely monitor and report on all relevant updates, should USCIS provide further information.

Measures Potentially Affecting Undocumented Immigrants
President Obama also announced plans to expand the eligibility for the Deferred Action for Childhood Arrivals (“DACA”) program to undocumented immigrants who came to the U.S. prior to turning 16 and who have been present since January 1, 2010.  President Obama’s proposal would extend work authorization under the DACA program from 2 to 3 years.  In addition, the President proposed a new Deferred Action for Parental Accountability program that would allow parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for 3 years if they meet certain eligibility requirements and have been in the U.S. since January 1, 2010.

Again, as of now, no definitive changes to U.S. immigration law have gone into effect, and the initiatives announced in President Obama’s November 20, 2014 address have not been implemented.

U.S. Department of Homeland Security Announces Temporary Protected Status Designations for Countries Affected by Ebola

Effective today, November 21, 2014, eligible nationals of certain countries affected by Ebola (Liberia, Guinea, and Sierra Leone) can apply for Temporary Protected Status (TPS) with USCIS. In order to qualify, applicants must:

1.  Be a national of one of the designated countries or, if the applicant has no nationality, last habitually resided in one of the designated countries;

2.  File during the open initial registration or re-registration period (November 21, 2014 through May 20, 2015), or meet the requirements for late filing;

3.  Have been continuously physically present in the U.S. since the effective date of these countries receiving TPS designation (November 21, 2014); and

4.  Have been continuously residing in the U.S. since the effective date (November 21, 2014).

Individuals satisfying the above requirements will not be removed from the U.S. and will be able to obtain Employment Authorization Documents to work.  THe TPS designations for Liberia, Guinea, and Sierra Leone will remain in effect for 18 months.

Liberians currently covered under the two-year extension of Deferred Enforced Departure (DED) may also apply for TPS.  It is not necessary for Liberians falling under the DED category who already possess work authorization to also apply for work authorization related to this TPS designation.

U.S. Embassies Report Technical Difficulties and Delays in Visa Processing Expected During the Holiday Season

Technical communication problems have been plaguing U.S. Embassies and Consulates worldwide, causing potential visa processing delays. The Indonesian and Russian Embassies are unable to accept credit card payments. Mexico has posted a notice that visa applicants who sent emails to a U.S. Embassy or Consulate between Friday, November 14, 2014 at 8 pm and Tuesday, November 18, 2014 at 8 am should resend the email to ensure its delivery. SEVIS student and exchange visitors should bring proof of online payment for visa fees to interviews. Other Embassies reporting technical problems include the Philippines, Ireland, Germany, Australia, France, Italy, Japan, and South Africa.

The U.S. State Department has announced that its email system is fully operational after the service was down over the weekend, but visa applicants and Americans abroad should re-send emails sent during the outage if they have not received a response.

Foreign nationals traveling abroad during the 2014 holiday season should plan for delays caused by technical difficulties. Travelers should also plan for delays in visa issuance due to the high volume of international traffic and reduced hours of operation at U.S. Embassies and Consulates around the world.  Please try to schedule your consular interview well in advance to minimize the risk of delays.

Australia Increases Length of Stay for Temporary Work Visas with Strong Business Justification 

The maximum length of stay for Australia’s temporary work visa (Subclass 400) has been increased from 3 to 6 months, effective November 23, 2014.  In order to be eligible for this extended stay, employers must demonstrate a strong business justification and show the following:

1.  The Subclass 400 category is not being used to circumvent the Subclass 457 category. Australian immigration officials will consider factors to determine the appropriateness of the Subclass 400 visa, including the effect of the work project on the local community; the necessity of foreign consultation in the work project; and efforts made to hire from the Australian workforce.

2.  The offered employment satisfies workplace standards and meets minimum wage requirements.

3.  The offered employment will not adversely affect local Australian workers. This can usually be demonstrated with evidence that the work is specialized and temporary, but immigration officials may require additional evidence.

The extended stay of the Subclass 400 visa offers greater flexibility for employers seeking to hire foreign nationals for temporary work in Australia. Employers should be prepared to present additional evidence in order to satisfy the requirements and show a strong business need for the 6 month visa validity.

Canada Simplifies Visa Application Process for Saudi Nationals

The Canadian government announced on Monday that it has taken steps to simplify the visa application process for Saudi Arabian nationals who wish to visit Canada. Some of the new processes include: a maximum of 10 business days processing time for visit visas; three week processing time for student visas; introduction of online applications; and the opening of three Canadian visa application centers in Riyadh, Jeddah and Alkhobar. The Saudi government has not made an announcement about the reciprocity of this reform.

As it stands, obtaining a visa to enter Saudi Arabia can be a challenge, and visitors are recommended to start the process early. Temporary visas are available for brief business visits, visits to relatives or for religious purposes, however employment is strictly prohibited under business/visitor visas. Employers wishing to have foreign workers in Saudi Arabia should consider the iqama requirement (residency card requirement), which demands that the application be sponsored by a Saudi citizen, company or organization; that a medical exam be completed by the foreign national within 90 days of arrival at an approved center; and that the foreign national surrender his or her passport to the sponsor in order to obtain a residency card.

Costa Rica Implements New Immigration Regulations

An amendment to immigration regulations in Costa Rica now provides a simpler option for foreign employees of companies accredited by the General Directorate to apply for temporary residence. In addition to traveling to Costa Rica to execute an attorney-authenticated work contract, foreign employees may now submit authenticated offer letters in support of their Temporary Residence Permit applications from abroad. The letters sent from abroad will be accepted by the General Directorate so long as it can be verified that the foreign employee is not in Costa Rica at the time of filling the residency application.  Before receiving their residency card foreign workers will still have to present an executed and authenticated work contract upon approval of the Temporary Residence Application.

In addition, a recently adopted regulation in Costa Rica warrants the issuance of a fine of USD 100 for every month a foreign national is out of status. Failure to pay the fine will result in a ban from entering Costa Rica for a period equal to three times the period of the overstay. This regulation has been in effect since August, however, it has not yet been enforced because a payment method has not yet been approved. To ensure compliance with this new regulation, employers should verify that all foreign employees remain in lawful immigration status.