DHS Enhances Opportunities for H-1B1, E-3, CW-1 Nonimmigrants, and Certain EB-1 Immigrants

The Department of Homeland Security (DHS) is revising its regulations affecting highly skilled workers in specialty occupations from Chile and Singapore (H-1B1), Australia (E-3), nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification, as well as immigrants in the employment-based first preference (EB-1) category for outstanding professors and researchers. Effective February 16, 2016, the amendments will benefit these H-1B1, E-3, and CW-1 nonimmigrant workers as well as EB-1 professors and researchers by “removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.”

Specifically, the amended regulations will:

• Include H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer (as is the case with L-1, O-1, and H-1B classifications, for example), and clarify that H-1B1 and principal E-3 nonimmigrants are permitted to work without having to separately apply to DHS for employment authorization, codifying the standard practice;
• Authorize H-1B1, principal E-3 nonimmigrants, and CW-1 nonimmigrants for continued employment for up to 240 days with the same employer if the employer has timely filed for an extension of stay with US Citizenship & Immigration Services (USCIS), a move that will greatly benefit nonimmigrant workers in the US under those statuses;
• Update filing procedure regulations for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications to harmonize with current published UCSIS instructions; and
• Expand the current list of acceptable initial evidence for EB-1 outstanding professors and researchers to allow petitioners to submit “comparable” evidence, such as important patents or prestigious peer-reviewed funding grants, to prove that the researcher or professor is recognized internationally as outstanding in their academic field.

With these changes, DHS intends to “harmonize the regulations governing these classifications” to address discrepancies, all with the end goal of ensuring productivity and efficiency for employers as well as providing benefits to foreign national employees, such as preventing lost wages. Additionally, DHS hopes that expanding the range of evidence that employers may provide for EB-1 outstanding professors and researchers may result in more effective and wide-ranging recruitment. The final rule change, which was not substantially revised since being submitted to the public for comment, does not impose any additional costs on employers, workers, or any governmental agencies. The majority of public comments supported the rule change, and the published rule reviews them in detail, for those curious.

In the end, DHS states: “Attracting and retaining highly skilled workers is critical to sustaining our Nation's global competitiveness. By attracting the best and brightest from around the world, the United States can harness their talents, skills, and ideas to help the U.S. economy grow.”

Supertrees

I am on my way to Australia to see Roger, and I made a short stop in Singapore, where I visited the incredible Gardens by the Bay, a high-tech "horticultural mega project" featuring 160-feet-high solar-powered supertrees and climate-controlled biomes. The three waterfront gardens are built on reclaimed land, and the Bay South Garden alone is said to have cost more than $720 million. The highlight of the gardens, at least for me, are the so-called supertrees, which are essentially vertical gardens with bromeliads, ferns, and tropical flowering climbers. Two of the trees are connected via a cool aerial walkway, and some trees have photovoltaic cells on their canopies which light up at night, while others act as air exhaust receptacles. The supertrees are meant to "mimic the ecological functions of real trees through their environmentally sustainable features."

USCIS Proposes Rule to Improve Employment-Based Nonimmigrant and Immigrant Visa Programs

The Department of Homeland Security (DHS) and US Citizenship & Immigration Services (USCIS) are now seeking public comments on a proposed rule to “modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs.” Coming out of President Obama’s 2014 executive actions, these changes could potentially affect a large number of skilled immigrant workers as well as many applying for an employment authorization document (EAD). Specifically, the new rule also proposes to “better enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).”

The rule, published in the Federal Register as Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, proposes many key changes that could have a significant impact on the careers and lives of certain foreign nationals. Among the highlights, USCIS proposes to:   

• Discontinue the ninety-day adjudication time limit for the employment authorization document (EAD) application process and instead provide for automatic extensions of timely-filed I-765 applications assuming certain conditions are met;
• Allow a ten-day grace period now available to H-1B workers at the beginning and end of the authorized stay to other non-immigrant categories including E-1, E-2, E-3, L-1, and TN classifications;
• Establish a “one-time” grace period (no working allowed) for up to sixty days for certain highly-skilled nonimmigrant workers under E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN status whenever their employment ends to pursue new employment;   
• Allow US employers to employ and retain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions (i.e., I-140 petitions) by allowing these workers to accept promotions, make position changes with current employers, switch employers, and pursue other employment opportunities;
• Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval; 
• Explain when applicants may retain their priority date to use when applying for adjustment of status (AOS) to lawful permanent residence, including when USCIS has revoked the I-140 approval because of the employer's business termination or I-140 withdrawal; 
• Allow certain highly-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 status to apply for one year of unrestricted employment authorization if they are the beneficiaries of an approved I-140 petition, are unable to adjust status due to visa unavailability, and can provide evidence that compelling circumstances exists which justify issuing an employment authorization document.

These proposed changes wouldn’t take effect until after the comments period ends February 29, 2016, and until after the final rule is published. Individuals should follow the instructions in the notice to submit comments.

Dana and the Cupcakes

While we have quite a few January birthdays, we haven't yet had a Friday Photo featuring our superbly talented and energetic office manager, Dana, and so on the occasion of her birthday this week, we thought it would be appropriate to honor her. She was, of course, super excited about these cupcakes and had a hard time deciding which she wanted. It's okay, Dana, you can have more than one! 

ABC News: “US Agents Round up Central Americans Slated for Deportation”

Immigration agents over the weekend began conducting raids targeting the removal of Central American families as well as unaccompanied children who crossed over the US southern border without documentation over the past two years. The raids, seen as an effort to deter future undocumented immigrants from crossing the border, are targeting individuals who have entered the US since May 2014, have been issued final orders of removal by an immigration court, have exhausted appropriate legal remedies, and have no outstanding appeal or claim for asylum or other humanitarian relief, according to a statement by Jeh Johnson, the head of the Department of Homeland Security.

In the statement, Johnson said that the 121 people rounded up this past weekend during raids in Georgia, Texas, and North Carolina were transferred to family detention centers mainly in Texas to await removal. Johnson said the raids “should come as no surprise” and noted that he has said “publicly for months that individuals who constitute enforcement priorities, including families and unaccompanied children, will be removed.”

Although these latest actions affect only a small part of the more than 100,000 Central American family members, mostly mothers with children, who crossed into the US since 2014, the raids have been strongly condemned by many. Greg Chen, director of advocacy for the American Immigration Lawyers Association (AILA), told the AP the group was "shocked and outraged" to hear of the raids targeting "women and children who are extremely vulnerable and by and large have fled from horrendous violence in their home countries."

The immigration surge in the past two years has been linked to a rise in gang-related violence in El Salvador, Guatemala, and Honduras as well as extreme poverty in the region, while some immigrants crossed the border to reunite with family members in the US or to claim asylum.

One family caught up in the immigration raids was Maria Hernandez and her two sons, who fled gang violence in El Salvador in 2014. They were asleep early Saturday morning in her parents' Dallas home when immigration agents banged on the door. "They entered all the rooms and woke up my kids, saying they had a deportation order," Hernandez told VICE News in Spanish. "We were very surprised—I was almost naked when they entered. We were all crying."

The agents took Hernandez and her six- and nine-year-old sons into custody and drove them first to an Immigration and Customs Enforcement office and then to a detention center in South Texas, from where they will be deported to El Salvador. "They told us that in two days they'll send us to our country," Hernandez said Monday in a phone interview with Vice News from the South Texas Residential Center in Dilley, Texas. "It's the worst thing that could happen. We all have threats on our lives."

A Guardian investigation last year into the consequences of Obama’s deportation policies revealed many US deportees have been murdered shortly after returning to El Salvador, Guatemala, and Honduras, with a study saying as many as eighty-three returning deportees have been killed since 2014.

Guatemala's Vice Minister Oscar Padilla said that starting Monday “consulates would be interviewing and reviewing the cases of citizens on deportation lists to ensure that each has an order signed by a judge.” The foreign ministry also advised Guatemalans in the US that they “need not open their doors to immigration agents unless the officers have a warrant signed by a judge, and that they carry with them at all times phone numbers of family members, a lawyer and the nearest consulate.”

Immigration activist groups have also begun alerting undocumented immigrants of the impending raids and informing them of their rights through videos, social media, and email and phone blasts. Advocates are noting that immigrants have the right to deny ICE officials entry; immigration agents must have an order signed by a judge to enter a house. “To be on the safe side, just don’t answer the door,” Bryan Johnson, a New York-based immigration lawyer, told the LA Times. “The problem is if you open the door, then it’s he said, she said. But if you never open the door, there’s proof—they have to break it down.”