USCIS Halts Processing of Employment-Based Adjustment Applications Until October 1
The U.S. Department of State reports that the statutory cap for employment-based preference categories for fiscal year (FY) 2015 has been reached. The federal government’s fiscal year runs from October 1 to September 30. Therefore, FY 2015 ends on September 30, 2015, and FY 2016 begins on October 1, 2015.
As a result of the cap having been reached, on September 24, 2015, U.S. Citizenship and Immigration Services (USCIS) suspended final adjudications for employment-based adjustment of status (I-485) applications currently pending with USCIS. USCIS, nevertheless, continues to accept I-485 applications and will resume issuing final adjudications of employment-based adjustment applications as soon as it enters the next fiscal year on October 1, 2015. Since processing will resume in one week, any impact from the temporary halt in final adjudications should be minimal.
EB Filing Dates Pushed Back in Revised October 2015 Visa Bulletin
On September 25, 2015, the U.S. Department of State (DOS) issued a revised Visa Bulletin for October 2015 that supersedes the original Bulletin dated September 9, 2015. In the current Bulletin, the dates for certain categories on the “Dates for Filing of Employment-Based Visa Applications” chart retrogressed from the dates on the original Bulletin. Specifically, dates for the Employment-Based Second Preference category for China retrogressed by one year and five months from May 1, 2014 to January 1, 2013, and India retrogressed by two full years from July 1, 2011 to July 1, 2009. The Philippines moved for both Employment-Based Third and Other Workers Preference categories from January 1, 2015 to January 1, 2010, a retrogression of five years. There were no revisions to the actual priority dates for October.
A Potential Federal Government Shutdown: The Immigration Implications for Employers
Congress has until September 30, 2015 to reach an agreement on the 2016 Fiscal Year federal budget. If an agreement to fund the federal government is not reached, immigration processes are expected to be impacted as they were in the shutdown that occurred in October of 2013. Some federal agencies that rely solely on government funding would not be able to provide most services. Agencies that receive funding from fees or other government sources are expected to remain open, but they will probably experience service delays.
White House Report Offers Roadmap for Modernizing & Streamlining the U.S. Immigration System
By: Diane M. Rish
Steep Fines Underscore Value of I-9 Compliance
A recent ruling by the Office of the Chief Administrative Hearing Officer (which has jurisdiction over cases arising under the Immigration and Nationality Act) underscores the importance of employers revisiting their internal policies and procedures for verifying employees’ ability to legally work in the United States.
Advertising Requirements in PERM-A Survey of BALCA’s Application of 20 CFR § 656.17(f)(7)
The U.S. Department of Labor’s (DOL) permanent labor certification (PERM) program requires employers to conduct specific recruiting activities to test the labor market before filing an application. The regulation at 20 CFR § 656.17(f) sets forth the advertising requirements, which also apply to the Notice of Filing (NOF). This includes the requirement at section 656.17(f)(7) that the ads “[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL’s Board of Alien Labor Certification Appeals (BALCA) has come to rely on this section to uphold denials of certifications in a variety of factual situations where the agency speculates that more detail may have generated more or less interest in the open positions.
Court Finds STEM OPT Extension Rule to Be Deficient: Vacatur Stayed Temporarily to Allow DHS to Cure
On August 12, 2015, in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015), Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia vacated the 2008 Department of Homeland Security (DHS) rule extending Optional Practical Training (OPT) for science, technology, engineering, and mathematics (STEM) students. The court found the rule to be deficient because it was not subjected to public notice and comment procedures as required by law, and no emergency exception applied to relieve it of that obligation. However, Judge Huvelle concluded that an immediate vacatur would be disruptive, and so stayed the vacatur until February 12, 2016, to allow DHS to submit the rule for proper notice and comment.
The information above has been redistributed by Emigra Worldwide with permission from Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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