Immigration was a frequent topic in the news in 2015. From the crisis in Syria, to migrants seeking refuge from gang warfare and domestic violence in South America, to questions of whether high-skilled immigration benefits the economy, immigration has been in the headlines throughout the past year. Congress has been unable to reach any agreement on comprehensive reform of our immigration laws, and the Obama administration has reacted by using Executive Action authority to modify immigration policy where possible. The presidential debates have included questions about how the candidates would address immigration issues in the future. As we consider what 2016 may bring, Kevin Miner and Janora Hawkins of the Atlanta office of Fragomen, Del Rey, Bernsen & Loewy LLP, the world’s largest immigration law firm, provide perspective by reviewing some of the most prominent immigration-related developments from 2015.
January
The U.S. announces it will restore ties with Cuba, resulting in broader grounds for travel to Cuba, an opportunity for investment into some small businesses and agricultural operations, the export from the U.S. to Cuba of some technologies such as mobile phones, software and internet, and the import of some alcohol and tobacco products.
U.S. Customs and Border Protection announces that the Global Entry program, a trusted traveler program allowing for faster processing through customs and immigration following travel abroad, will be opened to nonimmigrants who are citizens of Panama.
February
A U.S. District Court in Texas court grants an injunction stopping the implementation of President Obama’s expansion of Deferred Action for Childhood Arrivals and stopping the creation of the new Deferred Action for Parents of Americans, the centerpiece of the President’s Executive Action to provide work authorization and temporary relief from the threat of deportation to individuals who arrived in the U.S. as children or who are parents of U.S. citizens. The programs continue to be suspended while under legal review, with the Supreme Court poised to hear the case in the near future.
United States Citizenship and Immigration Services (USCIS) implements a new regulation allowing applications for employment authorization for certain spouses of high-skilled workers on H-1B visas, which is a visa category for professional workers such as software engineers. The H-1B worker is required to be fairly far along in the green card process for that employment authorization to become available to his or her spouse.
The Department of Labor’s Office of Foreign Labor Certification issues a report summarizing its processing statistics from Fiscal Year 2013. Obtaining approval of a permanent labor certification application is the first step in the green card process for most high-skilled immigrants. The report provides insight into the growing backlog of labor certification applications. The report confirmed that in FY 2013, 44,149 permanent labor certification applications were adjudicated, which is a nearly 34 percent decrease from FY 2012, in which 66,488 applications were adjudicated.
March
The U.S. Embassy in India ceases permitting fast-tracked visa interviews for companies enrolled in the Business Executive Program, resulting in longer wait times for visa appointments despite the companies being well-known and having a solid visa track record.
USCIS releases a report detailing the agencies increase in issuing requests for more documentation for various employment-based visa petitions as well as noting an increase in the rate at which those cases are denied.
The House of Representatives passes a bill to fund the Department of Homeland Security (DHS) through the end of the fiscal year, averting a partial shutdown of the agency. The bill passed with no immigration provisions, despite months of debate in the House relating whether to use the funding bill to block the President’s executive actions.
April
The appellate body for USCIS, the Administrative Appeals Office, issues a decision in a case called Matter of Simeio Solutions LLC concluding that an H-1B employer must file an amended or new H-1B petition when there is a change in the H-1B worker’s place of employment. This unanticipated decision changed years of practice where such an amendment was not required, an employers had to scramble to review their H-1B programs.
USCIS receives over 233,000 H-1B petitions under the FY2016 H-1B cap in just 5 days, against a quota of 85,000 slots, and ultimately allocates those numbers by random lottery. This huge demand results in an approximate 1/3 chance of securing an H-1B petition on behalf of an employee or prospective employee.
May
Cuba is removed from the State Department’s list of states that sponsor terrorism, further marking the increased ties between the U.S. and Cuba.
USCIS announces that it estimates it received more than 50,000 H-1B petitions from individuals with a Master’s degree or higher from a U.S. university compared to a quota of just 20,000 such H-1Bs. This announcement illustrates that even foreign nationals with a good job offer and a high level of education gained in the United States have a very limited chance of obtaining an H-1B work visa.
June
Donald Trump makes controversial remarks against the Mexican government with respect to its contribution to illegal immigration into the U.S. causing a stir of responses from both political parties and the media.
In wake of the earthquake in Nepal in April 2015, Nepal is added to list of countries eligible for temporary protected status (TPS), which provides temporary legal status in the U.S. and work authorization to those who meet eligibility requirements.
Senate Judiciary Committee Chairman Charles Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT) introduce a bill to reauthorize the EB-5 regional center program through 2020. The EB-5 program allows individuals to obtain a green card if they make a substantial investment in the U.S. that creates a certain number of jobs. The proposed bill would increase the investment threshold to $1.2 million, with an exception allowing an $800,000 investment for targeted employment areas. The proposal would also substantially increase oversight of the EB-5 program, including giving DHS increased authority to conduct audits and site inspections, and to terminate or deny applications where there is fraud, criminal activity or threats to national security or safety.
July
A federal court upholds prior settlement that DHS may not hold undocumented women and children in detention where doing so does not create a deterrent, a ruling that has a major impact on more than estimated 1,700 women and children housed in detention facilities in the U.S.
USCIS issues final guidance on the April 2015 Simeio decision outlining the three key factors to consider when determining whether an H-1B amendment is required.
The Obama administration issues a proposed rule to expand unlawful presence waiver eligibility, which would provide greater protection for certain family-sponsored immigration applications.
August
The “STEM OPT Extension” regulation that has been in place since 2008 and provides an additional 17 months of employment authorization for foreign students who have graduated with a degree in a science, technology, engineering or mathematics, is ruled unlawful. The federal district court stays the ruling to provide DHS with an opportunity to promulgate a new rule, and sets a February 12, 2016 deadline for the rulemaking process to be completed.
USCIS publishes a long awaited policy memo regarding adjudication of L-1B petitions – a visa used by multinational companies to transfer specialized knowledge workers to the U.S. – providing some clarity to adjudicators and practitioners, but leaving many substantive issues unanswered.
The Department of State releases the September Visa Bulletin, which dictates which individuals in the green card backlog can move forward with their applications. The Bulletin has substantial retrogression for Indian and Chinese nationals. Under the new Visa Bulletin, individuals from India or China with a Master’s degree would have to have started the green card process in January 2006 – nearly 10 years earlier – to be able to receive a green card. The wait for individuals from India or China with only a Bachelor’s degree is even longer, and is extended to nearly 12 years.
September
Due to civil unrest, Yemen is added to the list of countries whose citizens may seek TPS in the United States.
USCIS releases updated processing statistics showing that more than 20% of L-1B petitions are being denied, hampering the ability of multinational companies to transfer key personnel to the United States.
October
The U.S. State Department begins issuing a bifurcated Visa Bulletin allowing individuals from countries with severe backlogs for visa numbers an opportunity to pre-file the final step of the green card process, which includes obtaining work and travel authorization and portability for new employment. However, the proposal is very limited in scope and very few individuals are able to utilize the pre-filing process.
DHS publishes a proposed updated STEM OPT rule for comment following the August federal court ruling. The proposed rule includes 24 month extension, a mandatory mentor/training program, and adds a variety of worker’s rights protections.
Republican presidential candidate Senator Ted Cruz introduces the “Stop Illegal Reentry Act,” which would increase penalties for individuals who are removed from the U.S. and then illegally reenter.
November
The United Kingdom is added to the Global Entry Program facilitating travel to the U.S. for UK citizens who have nonimmigrant status and register for the program.
Senators Charles Grassley (R-IA) and Richard Durbin (D-IL) introduce the H-1B and L-1 Visa Reform Act of 2015, a bill that would impose significant new obligations and limitations on H-1B and L-1 employers, toughen eligibility criteria for H-1B and L-1 visas, limit certain uses of the B-1 business visitor visa, and grant broader enforcement powers to the Departments of Homeland Security and Labor.
The U.S. House of Representatives passes a bill that would suspend the admission of refugees from Syria and Iraq.
The State Department begins implementing new program that revokes visas for certain nonimmigrants who receive a DWI conviction while in the United States.
December
In aftermath of Paris bombing, GOP frontrunner Donald Trump calls for a ban on travel to the U.S. by Muslims.
Congress passes a law as part of the Omnibus budget bill that doubles the fee charged to employers with a large percentage of H-1B or L-1 workers, increasing total government fees to more than $5,000 per application. The bill also creates security enhancements to the visa waiver program (VWP) including more stringent passport requirements and additional requests for information in the registration process. Many travelers will need to obtain a visitor visa stamp as a result.
DHS proposes new rules that would make small improvements to the high-skilled immigration process, such as creating a grace period for certain high-skilled workers on temporary visas who lose their jobs unexpectedly, and the ability of certain workers in the green card process to obtain an Employment Authorization Card by showing “compelling circumstances.”
As we move into 2016, immigration will doubtless continue to be a major topic of debate. This is the final year for the Obama administration to enact administrative reforms, and it is exceptionally difficult to predict what, if any, changes Congress will ultimately make. However, given the many developments in 2015, we can fully expect to see 2016 be just as busy.