Saturday, December 29, 2012

In Depth Study of STEM Foreign Nationals in the U.S. and Their Immigration

A CRS report shows that the number of full-time STEM graduate students increased from 91,150 in 1990 to 148,923 in 2009, taking approximately 32.7% of StEM graduate students. The statistics reflect, according to the report, that graduate enrollments in engineering fields have exhibited the most growth of the STEM fields in recent years. 

About 40,000 graduate degrees were awarded to foreign STEM students in 2009, with 10,000 of those going to Ph.D. recipients. In FY2010, almost 91,000 H-1B workers were employed in computer-related occupations, taking up 47% of all H-1B beneficiaries. 


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USCIS Memorandum 12/20/2012 on Operational Guidance for EB-5 Cases Involving Tenant-Occupancy

In this type of Regional Center cases, the USCIS required evidence that the projected jobs attributable to prospective tenants (which would occupy the commercial space created by the EB-5 capital) would represent newly created jobs, and not jobs that the tenant had merely relocated from another location. This determination is necessary to assess whether there is a reasonable causal link between the EB-5 enterprise and the job creation that would allow for the attribution of the tenant jobs to the EB-5 enterprise. 

In regional center cases that rely on tenant occupancy models, as in any other regional center cases, USCIS requires evidence that the claimed jobs result, directly or indirectly, from the economic activity of the EB-5 commercial enterprise. Jobs that are merely re-located rather than created do not count

The foregoing policies will be implemented as follows: Where applications for regional centers are approved based on their use of tenant-occupancy projections, the approval notices should contain appropriate language regarding the assumptions underlying the approval, which if not borne out may impact related adjudications at the I-526 or I-829 stages.


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Russian Adoption Ban Brings Uncertainty and Outrage

President Vladimir V. Putin on Friday signed into law a ban on adoptions of Russian children by American citizens, apparently blocking the departure from Russia of hundreds of orphans who had already been told that they would soon go home with new parents.

The adoption ban, which was included in a broader law retaliating against the United States for an effort to punish Russian human rights violators, has opened a deep and emotional schism at the highest levels of the government and more broadly throughout Russian society. It has also dealt a severe blow to the country’s already strained diplomatic relationship with the United States.


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USCIS Response to Ombudsman's Recommendations of 2011

  • The Omudsman issued a variety of recommendations to the USCIS covering employment-based, family-based issues, RFE practices, transformation program, etc. This response report gives some clues as to where the USCIS stands on the issues. For instance, this report indicates that while RFE templates for H nonimmigrants have not yet been posted, USCIS Headquarters has worked with the Service Centers on the RFEs for this classification.

    For example, when the January 2010 H-lB employer-employee relationship policy memorandum was issued, USCIS Headquarters personnel conducted related training at the Service Centers. SCOPS worked with the Service Centers to create RFE templates that addressed the issues covered in the memorandum and required provisional 100-percent supervisory review of RFEs. SCOPS regularly conducts roundtables with the Service Centers to discuss issues within these classifications to ensure consistency and to determine where USCIS may need additional training and materials.
    Read on.


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USCIS EB-I-485 & I-140 Processing Statistics at the End of October 2012

USCIS I-140: Processing Statistics at the End of October 2012:

 TSC NSC National
Pending 10,495 9,041 19,581
Customer action waiting 1,684 2,429 4,113
Completed 4,088 2,778 6,866
New receipts 4,991 3,987 8,978

Note: Backlog and new receipts have been steadily rising in NSC for the last six months, while the same for TSC remains more or less steady. This might have been caused by redistrbution of I-140 work loads between the NSC and TSC for more effective use of the resources



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ICE Under Consideration of a Proposal to Expand STEM 17-Month OPT Eligibility

ICE is considering a proposal to enable F-1 nonimmigrant students on post-completion optional practical training (OPT) to qualify for the 17-month extension based on either (1) a prior STEM (science, technology, engineering, or mathematics) degree or (2) the most recent degree granted if in a STEM field. This change can be proposed as early as early next year.

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Background of H-4 EAD Limiting to Permanent Residence Seeking H-1B Alien Spouses in the Proposed Rule

Background is explained as follows: An alternative considered by DHS was to permit employer authorization for all H-4 dependent spouses. In enacting AC21, Congress was especially concerned with avoiding the disruption to U.S. businesses caused by the required departure of H-1B workers (for whom the businesses intended to file employment-based immigrant visa petitions) upon the expiration of workers' maximum six-year period of authorized stay. 

Although the inability of an H-4 spouse to work may cause an H-1B worker to consider departing from the United States prior to his or her eligibility for an H-1B extension. This alternative was rejected in favor of the proposed process to limit employment authorization to the smaller sub-class of H-4 nonimmigrants who

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USCIS Under Consideration a Plan to Enhance Opportunities for High-Skilled H-1B1 and E-3 Nonimmigrants and EB-1 Immigrants

USCIS is under consideration to propose certain benefits affecting high-skilled workers within the nonimmigrant classifications for specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3), and the immigration classification for employment-based first preference (EB-1) outstanding professors or researchers, to harmonize the regulations for E-3 and H-1B1 nonimmigrant classifications with existing regulations for other, similarly situated nonimmigrant classifications and to encourage and facilitate the employment and retention of these high-skilled workers.

For EB-1, it is considering to address that the evidentary requirements for the EB-1 outstanding professor and researcher employment-based immigrant classification would allow for the submission of comparable evidence (achievements not listed in the criteria such as important patents or prestigious, peer-reviewed funding grants) for that listed in 8 CFR 204.5(i)(3)(i)(A)–(F) to establish that the EB-1 professor or researcher is recognized internationally as outstanding in his or her academic field. 

This proposal is likely to harmonize the evidentary requirements for EB-1 outstanding professors and researchers with other comparable employment-based immigrant classifications and ease petitioners' recruitment of these highly skilled individuals by expanding the range of evidence that may be adduced to support their petitions.

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USCIS Announces New Immigrant Fee

On February 1, 2013, the U.S. Citizenship and Immigration Services (USCIS) will begin collecting a new USCIS Immigrant Fee of $165 from most immigrant visa recipients who receive their visas on or after February 1, 2013.

According to the U.S. Department of State, the new fees are exempt for the following:
  • IR-3
  • IH-3
  • IR-4
  • IH-4
  • K-1
  • K-2
  • K-3
  • K-4


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Friday, December 21, 2012

USCIS Announcement on Further Expansion of Case Status Services via e-Request

USCIS has just announced that it has further expanded the services offered by its Case Status Online and e-Request systems as part of an ongoing effort to enhance these services for its customers. Case Status Online allows the customers to view the most current status of their applications for all USCIS Forms. e-Request allows the customers to inquire electronically about applications and petitions submitted to USCIS. Effective 12/19/2012, customers can see the following enhancements:
  • Within Case Status Online, customers will be able to track the mailing and/or delivery of a card or document produced by USCIS through its Secure Mail Initiative.
  • Within e-Request, customers will be able to create a Service Request if they do not receive documents related to Forms I-485, Application to Adjust Permanent Residence or Adjust Status; I-765, Application for Employment Authorization; and I-130, Petition for Alien Relative.

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USCIS Proposes to Revise N-400 Form Adding Additional Questions

USCIS proposes to revise the current N-400 adding more questions to consider the information that occurred before an eligibility determination for naturalization is made. Even if the applicant for naturalization has received a previous immigration benefit from USCIS, the length of time that may have transpired between the initial interaction that the respondent had with USCIS on another immigration benefit request and the filing of the N-400 requires USCIS to verify that actions taken by the respondent during the intervening years do not affect his or her eligibility for naturalization. 

The form is also updated to examine the inadmissibility grounds that were added by the Intelligence Reform and Terrorism Prevention Act of 2004. USCIS added these questions as required by the agreement reached through a working group comprised of representatives of affected agencies, including the Departments of Justice and State, and U.S. Immigration and Customs Enforcement of DHS. These additional questions are necessary for USCIS to meet the statutory requirements and the President’s directive to make a determination that a person is ineligible to naturalize because of his or her past involvement with terrorism, persecution, torture, or genocide. This proposal will be published in the federal register tomorrow seeking comments within 60 days.

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National Visa Center FB and EB Immigrant Visa Waiting List as of 11/01/2012

National Visa Center FB and EB Immigrant Visa Waiting List as of 11/01/2012

Link: http://www.travel.state.gov/pdf/WaitingListItem.pdf

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Visa Classifications Exempt from USCIS New Immigrant Visa Fees That Takes Effect on 02/01/2013

  • According to the U.S. Department of State, the new fees are exempt for the following:
    • IR-3
    • IH-3
    • IR-4
    • IH-4
    • K-1
    • K-2
    • K-3
    • K-4
  • Please review the USCIS new release and DOS news.

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Monday, December 17, 2012

Home Based Businesses For Visa Holders (H1, L1, etc)

There are some individuals present in the United States in lawful, nonimmigrant status who wish to earn extra money. These foreign nationals are often enticed by the prospect of home-based businesses, sometimes involving multi-level marketing. Others consider social media and technology to be avenues toward earning extra money. As there is no direct employer-employee relationship, it is often incorrectly believed that this does not engage them in any form of unauthorized employment. This presumption is incorrect and can lead to a series of immigration problems.

What is Unauthorized Employment?

 

It is not necessary that one work for an existing business as an employee in order to be engaged in unauthorized employment. When an individual establishes a business, even on a part-time basis from home, s/he is considered to be working in the United States. Thus, if s/he is present in a status that does not allow employment or that only permits employment with a specific sponsoring

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Republicans Struggling with Approach To Immigration Reform

Report indicates that because of their need for accomodating their ultra right wing conservatives within the party and the reality of their post-election mandate to resolve the immigration reform which has been created by the November 2012 election, the party could not even determine the basic "starting" point and direction of immigration reform for being stuck with choice of peacemeal vs. comprehensive approaches. One then wonders whether the Republican leaders in the so-called 'gang of 8 Senators group' for immigration reform are outcasts of the Republican party politics. 

When the new 113th Congress opens, the situation will corner them to a very difficult "defensive" position which they witnessed during the election, as the Democrats are anticipated to come forward with a comprehensive immigration reform proposal "very aggressively!" At this point, some of the Republicans' piecemeal immigration reform proposals have been perceived and taken negatively for being unrealistic under the given political reality and rather a road block to the workable immigration reform within the year 2013.


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USCIS Update of DACA Processing Statistics as of 12/14/2012

  • The following show total receipts and approvals as of 12/14/2012. This update also shows the applicants by country.
    • Total Received: 367,903
    • Approvals: 102,915
  • The following is the trend.
 As Of  Receipts Total  Bio Scheduled  Review Ready  Approvals
12/14/2012 367,903 336,464 157,151 102,965
11/15/2012 308,935 273,203 124,572 53,273
10/10/2012 179,794 158,408 6,416 4,591
09/13/2012  82,361 63,717 1,660 29


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More Details For H4 Visa Holder To Get EAD

This post has been updated with more details on following topics:
  • Purpose 
  • Eligibility 
  • Timeline 
Please click here to see updated post: http://topimmigrationnews.blogspot.com/2013/01/updated-ead-for-h4-visa-holders-part-1.html

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USCIS Updates DACA Q&A

The DACA Q and A site was updated on 11/30/2012 (and again on 01/18/2013) providing additional information and answers. Those who are involved in DACA processing may want to go through the site again to the end.

Link: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

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January 2013 Visa bulletin has been released

This post has been updated. Please click below for February 2013 Visa Bulletin: http://topimmigrationnews.blogspot.com/2013/01/february-2013-visa-bulletin.html

January 2013 Visa bulletin has been released (valid from Jan 1 to Jan 31). Please see below for more details.

Family Based:

Family-Sponsored All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 22DEC05 22DEC05 22DEC05 08JUL93 22DEC97
F2A 22SEP10 22SEP10 22SEP10 01SEP10 22SEP10
F2B 08DEC04 08DEC04 08DEC04 22NOV92 15APR02
F3 22JUN02 22JUN02 22JUN02 08MAR93 08AUG92
F4 08APR01 08APR01 08APR01 22JUL96 15APR89

Employment Based:

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USCIS Has Just Commenced a Process Seeking White House Approval for H-4 Employment Authorization Proposed Rule

  • What a wonderful news for the H-1B professional families! USCIS has just initiated the rule making process for proposed H-4 employment authorization rule. Hats off to the USCIS leaders!!
  • As we published last year, this rule proposes extending the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies.

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Monday, December 10, 2012

Some H1B and L-1 Applicants Eligible for Visa Interview Waiver in India

The U.S. Embassy, New Delhi, India recently announced the expansion of the Interview Waiver Program (IWP) for certain visa applicants in India. The expanded program now includes H1B and L-1 visa applicants as well as certain students, provided that they meet specific requirements.

Background: IWP Initiated in March 2012

 

The U.S. Department of State (DOS) initiated the visa IWP in early 2012. The intention of the pilot program was to facilitate travel to the United States for business and tourism. For Indian applicants, eligibility is based upon either age or visa category. Initially, the program applied to applicants under seven or over 80 years of age, regardless of visa category. For all others, eligibility was limited to the following visa categories: B-1, B-2, J-2, H-4, L-2, C, and D. These applicants continue to be eligible for the IWP.

Expansions and Limitations of IWP

 

Under the expansion of the IWP announced in late November 2012, qualification has been expanded to:
  • Children under 14 years of age, applying in any visa category
  • Students, provided they are returning to the same school and program
  • H1B workers
  • L1A and L1B workers with individual (not blanket) petitions


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USCIS Initial Estimate of DACA Applications by DREAMers

  • DACA started from 08/15/2012 and within three months (11/15/2012), the USCIS received 308,935 applications. This record is a little less than one thirds of total DACA application estimates when the USCIS launched the program. According to the I-765WS estimate, the work sheet for employment authorization application by Deterred Action applicants were estimated as follows. This form is required for all the deferred action applicants including non-DACA deferred action applicants:
    • Total Deferred Action Applicants (Judging from I-765WS estimate): 1,047,357
      • DACA applicants: 1,041,300
      • Non-DACA applicants: 6,057
    • Total DACA applications actually received within the first three months (08/15/2012 - 11/15/2012)
      • 308,935
  • It appears that the USCIS has been releasing the monthly statistics to satisfy the

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Reported New 'Gang of Eight (8)' on Comprehensive Immigration Reform in the Senate

A report indicates that the fledgling group’s members for FY 2013 CIR include: Democratic Sens. Chuck Schumer of New York, Dick Durbin of Illinois, Michael Bennet of Colorado, Bob Menendez of New Jersey, and Republican Sens. John McCain of Arizona, Lindsey Graham of South Carolina, Mike Lee of Utah and Sen.-elect Jeff Flake of Arizona. Where is Sen. Marco Rubio? Probably he is not a member of the group because his stance on immigration reform has been ambivalent between piecemeal and comprehensive reforms. Read on.

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STEM Legislation Confrontations Between Two Powerful Republican and Democrat Senators on the Senate Floor

  • There was an interesting see-saw game on the Senate floor. Republican Senator Cornyn asked Unanimous Consent that the House passed H.R. 6429 (STEM Jobs Act of 2012) be agreed to. It was objected to by Democratic Senator Chuck Schumer. Later, Senator Schumer asked Unanimous Consent that his version of pending STEM bill, S. 3553 (Benefits to Research and American Innovation through Nationality Statutes Act of 2012), also known as BRAINS Act of 2012, be agreed to. It was this time objected to by Senator Cornyn. Thus two STEM bills will continuously remain in the filibuster bin!
  • BRAINS Act proposes to make up to 55,000 visas available to qualified immigrants who: (1) possess a graduate degree at the level of master's or higher in a field of

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New Chief Counsel of the USCIS: Stephen Legomsky

  • There had been a long period of vacuum for this position in the USCIS leadership before the new counsel was appointed and assumed the position, without much publicity, on 10/24/2012. Information indicates that Mr. Legomsky has a doctorate in philosophy from the University of Oxford and a law degree from the University of San Diego, where he graduated first in his class and was Notes and Comments Editor of the San Diego Law Review. He also has a Bachelors of Science in mathematics from the Worcester Polytechnic Institute. He reportedly has over 30 years of experience in U.S., comparative, and international immigration, as well as in refugee and citizenship law and policy. Before serving in his current role, he was the Jogn S. Lehmann University

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Temporary Immigration Relief for Victims of Hurricane Sandy

  • Whenever there were disasters, there were always some immigrants who had suffered from the disaster. One most typical illustration was the 9/11 World Trade Center Twin Tower terrist attack. It produced a fairly number of immigrants who survived and lost everything. The Hurrican Sandy was not as big as the 9/11 incident nor the natural disaster in Luisiana, which are more or less forgotten by now. However, the number of victims from Sandy are known fairly large because of the disaster which hit the most populated parts of the nation. The USCIS released a news at the time potential relief available for the immigrant victims of the disaster. This posting is to remind of such relief which are potentially available whenever a disaster takes place, including the following:
    • A change or extension of nonimmigrant status, even if the request is filed after the authorized period of admission has ended;
    • Extension or re-parole of people who were granted parole before;
    • Expedited adjudication of off-campus employment authorization applications for F-1 students experiencing severe economic hardship;
    • Expedited adjudication of employment authorization applications; and

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USCIS Releases H-1B "Cap" Petition Processsing Data for FY 2009 thru FY 2012

Remember that this data does not include 20,000 Master degree cap cases, but any Master degree cases that exceeded the 20,000 and merged into regular cap track are included in this data. Since this data includes only cap cases, the cap exempt cases are not included here.

Link: http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/H1BFY09-12.pdf

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Reminder of USCIS Guidance for Employers of Newly Hired DACA Employees

The employers hiring DACA employees should pay attention to this guidance to not to violate USCIS employment authorization verification requirement rule and U.S. Department of Justice's rule of prohibition of discrimination of newly hiring people.

Link: http://www.uscis.gov/USCIS/Humanitarian/Deferred%20Action%20for%20Childhood%20Arrivals/DACA-Fact-Sheet-I-9_Guidance-for-employers_nov20_2012.pdf

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Explosive Growth of EB-5 Investor Immigrant Visa Applicants & Potential Cut-Off Date for EB-5 Visa Numbers in the Second Half of FY-2013

  • Report indicates that the number of EB-5 immigrant visa approvals have exploded, and from 2010 to 2011 the number of EB-5 visas almost doubled, 1,885 to 3,463 respectively, and the same growth seems to be occurring in 2012. Through June 20th there have already been 4,302 EB-5 visas issued, with 86% of them having been issued to Chinese nationals. The State Department predicts that the total number of EB-5 visas to be issued in 2012 will likely be approximately 6,200. (See also USCIS EB-5 statistics). The Department of State, aware of the high Chinese for EB-5 visas, has issued a statement claiming that a cut-off date may need to be implemented in the

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Saturday, December 1, 2012

New House Committee Chairs and Potential Impact on Immigration Policies and Legislation Process

Yesterday, the Speaker of the House released a list of the new chairs of House committees, noticeably replacing the chairs of the Judiciary Committee and the Homeland Security Committee. 

Even though no drastic change is anticipated, some change may take place down the road. We will watch what impact it will have on the immigration policies and directions in the new 113th House of Representaitves.

Link: http://www.govexec.com/oversight/2012/11/house-homeland-security-committee-gets-new-leader/59780/?oref=river

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U.S. Consular H-1B and L-1 Visa Fact Sheet in India

The rate of denial of L-1B visa petitions is extremely high at the level of USCIS. This fact sheet indicates that additional 10% of these approved L-1 visa cases are again denied at the level of the visa post.

Link: http://photos.state.gov/libraries/india/13974/pdfs/HLFactSheet.pdf

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