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EIG Dispatch | August 14, 2015

August 14, 2015

HIGHLIGHTS

  • 17 Month STEM Extensions Invalidated by a Federal Judge
  • White House Issues Report on Improving the U.S. Immigration System
  • Reaching the Area of Intended Employment for PERM Certification

17 Month STEM Extensions Invalidated by a Federal Judge

On August 12, 2015, U.S. District Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia invalidated DHS’ 2008 17-month Optional Practical Training (OPT) extension rule.  In her opinion in the case of Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security, Judge Huvelle held that DHS failed to prove that an emergency situation existed in 2008 to warrant DHS’ exemption from the notice and comment requirement.  The ruling essentially invalidates the 2008 rule and the benefits to F-1 visa holders and their employers.

The 2008 rule allows for F-1 student visa holders who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, and who are employed by employers enrolled in E-Verify, to apply for OPT work authorization for up to 29 months, instead of the usual 12 months.

Judge Huvelle stayed the decision until February 12, 2016, meaning that as of that date all of the benefits of the 2008 rule will be invalid and eliminated unless DHS issues a new OPT STEM extension rule.

If DHS does not pass a new extension rule, the following changes will occur:

  1. On February 12, 2016, F-1 STEM OPT work authorizations will become invalid.  No further STEM extensions will be issued.
  2. The H-1B, F-1 “Cap Gap” will not be automatic.  DHS will have to take affirmative action to allow for the Cap Gap each year.
  3. F-1 visa holders must apply for OPT work authorization while still enrolled in school, not after graduation.

DHS has until February 12, 2016 to follow proper rule making procedures, including a comment period, to properly implement the rule again.  DHS is expected to act quickly to avoid negative repercussions of this decision. EIG will closely monitor the events that unfold from this decision and provide updates as they become available.


White House Issues Report on Improving the U.S. Immigration System

The Obama Administration, in conjunction with several Federal Departments, recently issued a report detailing several regulatory changes that the Administration proposes to our nation’s immigration system.  The Report, Modernizing & Streamlining Our Legal Immigration System for the 21st Century, provides various recommendations to improve family-based, humanitarian-based, and employment-based immigration.  Most of the recommendations apply to regulatory changes which with proper adherence to administrative rule making procedures can be implemented relatively quickly and without the need of legislation from Congress.

We have summarized several of the recommendations and developments that are related to employment-based immigration and are relevant to our readers.  Among them are the following:

  • The Department of Homeland Security (DHS) is actively creating a new program to parole in individuals who are able to provide a “significant public benefit” through investment or research.  DHS is also seeking to streamline the National Interest Waiver process.
  • The Department of State (DOS) and DHS are trying to modify the Visa Bulletin to provide green card applicants a more accurate estimate as to when they can expect to receive them.  DOS is also going to increase the monthly allocation of green card based visas during the first three quarters of each fiscal year while staying within the annual fiscal year limit.  Additionally, the National Visa Center will modify how visa appointments are made in September to ensure there are no unused visas each fiscal year.  Although the White House Report recognizes that the statutory caps currently in place in the Visa Bulletin are from 1990 and no longer meet the needs of the U.S. economy, it also recognizes that changing the statutory cap requires legislation from Congress.
  • DHS is going to publish recommendations to clarify the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21).  Specifically, DHS will offer guidelines as to what is the “same or similar” job for the purpose of porting a pending green card application to a new employer as well as provide guidance on when the Beneficiary of an approved I-140 can maintain their path to permanent residency if the Petitioner is no longer in business or withdraws the I-140 Approval.   DHS is also expected to offer guidance on how someone in H-1B status whose employment has been terminated can remain in lawful status.
  • The Department of Labor (DOL) will soon be offering guidance to streamline the adjudications of PERM Labor Certifications.  Specifically, DOL will offer guidance on how to correct minor errors in pending PERM applications and will also seek a faster turnaround on cases that were selected for audits.
  • DHS will soon offer greater guidance as to which nonimmigrant visa classifications allow for dual intent, thereby allowing the class of nonimmigrants to more easily apply for lawful permanent residency.  DHS is going to specifically focus on F-1 visas.

The EIG Dispatch will closely monitor developments and the recommendations from the report and inform readers of any updates as they are made available.


Reaching the Area of Intended Employment for PERM Certifications

On August 5, 2015, the Board of Alien Labor Certification Appeals (“BALCA”) rendered its decision in the Matter of Hoffman Enclosures Inc., d/b/a Pentair Technical Products, clarifying the PERM Certification job posting requirement. Per the regulations, an employer satisfies the mandatory print advertisements for a professional position, if the employer prints the job posting for the position on two different Sundays in a newspaper of general circulation in the area of intended employment. It should be available to the workers most likely to apply for the job opportunity in an effort to generate responses from able, willing, qualified, and available U.S. workers.

In the case at hand, the Certifying Officer denied the underlying PERM Certification on the grounds that the newspaper used was from a city outside normal commuting time and not in the area of intended employment. BALCA reversed the denial of the PERM certification, stating that in cases where the area of intended employment is serviced by multiple newspapers, regardless of where they are published, if the newspaper is available to and reaches substantially the same audience, the Certifying Officer should not be concerned with which paper reaches the most people, but rather whether the newspaper in which the required advertisements were placed reaches the intended audience and thus is “a newspaper of general circulation in the area of intended employment.”

Based on the current decision, an employer satisfies the posting requirement for permanent alien employment certification when the newspaper running the ad is:

  1. The “most appropriate newspaper” for this type of posting; and
  2. In a newspaper of general circulation in the area of intended employment – regardless of where it is published or whether a newspaper with great circulation is available.