Friday, June 28, 2013

S. 744 Passes in the U.S. Senate, Next Steps to Unfold in the U.S. House

By a strong vote of 68-32, the U.S. Senate passed the “Border Security, Economic Opportunity and Immigration Modernization Act (S. 744)” as modified by the Corker-Hoeven substitute to the bill. 

What changes were made to S. 744 this week that will impact employers? 
In a complex Senate procedural move to gain more Republican votes for S. 744, the Corker –Hoeven “border surge” amendment was the vehicle to substituting the entire Senate base bill with dozens of amendments, replacing Titles I, II, III and IV, in addition to creating a new Title V.

Title I (Border Security):  It became feasible at the end of last week for the Senate to work toward a compromise that would not only help the bill gain significant Republican votes, but also adds more costs to strengthen border security, after a Congressional Budget Office report revealed that overhauling our immigration system would reduce the federal budget deficit by $197 billion over ten years and over $700 billion over 20 years, as well as increase GDP by 3.3 percent in 2023 and 5.4 percent in 2033.  The Corker-Hoeven border surge amendment adds “triggers” to the bill that require at least 180 days before a registered provisional immigrant (the legalization group) may qualify for a green card; that DHS certify a border strategy has been deployed and that certain border security measure are met which include  the completion of a 700 mile fence, implementation of mandatory E-Verify, an electronic biometric exit system at all air and seaports of entry where CBP is located, deployment of new border security technology, and an additional 38,000 or so border patrol agents on the southern border.  This title also authorizes a pilot program to notify nonimmigrants that their period of authorized stay is about to expire.  All of this would be funded through increased authorization up from $8.3 billion in the bill to $46.3 billion, allowing DHS to add a surcharge to the fees of immigrant and nonimmigrant petitions to pay for its implementation. 

Title II (Immigrant Visas):  Amendments to the bill this week made the following clarifications and changes:
  • Labor Certification Exemption.  Certain U.S. STEM advanced degree graduates who have a job offer and earned their degree five years prior to filing their petition are not only exempt from the green card caps, but also exempt from labor certification.  This is a great benefit to U.S. employers and will ensure, should the bill become law, that employers can access these workers on a fast-track to green card.
  • Modifications to the New Merit Based Green Card System.  Drops from four to three years the amount of time the new 120,000 up to 250,000 green cards per year merit-based green card cap would be available solely to the EB-3 preference and to those who adjust from the new W visa (for those with under a bachelor’s degree; lesser skilled).  Should the bill be enacted, this would still help make the EB-3 preference more current than today and the bill would still work to clear our green card backlogs in the EB-2 and EB-3 preferences within seven years-time.  

    Additionally, the bill waives the three and ten year bar to re-entry for merit based track two applicants.  Further, in amendments to the bill this week, it establishes application procedures for those merit based green card applications filed in fiscal year 2018 and beyond.  The bill states that beginning in fiscal year 2018, on October 1 during the 30-day period following and in subsequent years during that timeframe, eligible foreign nationals may submit to USCIS an application for a merit-based immigrant visa that contains information DHS may reasonably require.  Before the last day of each fiscal year in which applications are filed USCIS shall: (1) review the applications to determine which foreign nationals will be granted a merit-based immigrant visa in the following fiscal year and (2) in coordination with the DOS, provide such visas to all successful applicants.  It is unclear from the bill’s language if the merit-based green cards would be issued in the order the labor certification or petition was filed.
Title III (Employment Verification System):  Amendments to the bill this week did not make many changes to the employment verification title.  The key amendments that were made include:   Excluding exchange visitors, such as interns or trainees, from the definition of worker under the foreign labor recruiting provisions in addition to excluding J sponsors from the definition of a foreign labor contractor.  A new Subtitle I is also added that would provide tools to exchange visitors and sponsors to prevent fraud while protecting participants.  This Subtitle contains directions to the DOS to institute a variety of regulatory improvements, including compliance audits and increased fee transparency for participants.  DOS is also directed to address the issue of program fees and whether these fees should be eliminated through the regulatory process. There are, however, concerning provisions in the enforcement section of this new subtitle that may create the right of private legal action against J-1 employers by J-1 participants.

Title IV (Nonimmigrant Visas): Amendments to the bill this week include:
  • Exemption for Public Universities from Non-Displacement Requirement.  Changes to the bill’s language this week ensure public universities would be exempt from non-displacement attestations if an H-1B is placed at one or more worksites owned, operated or controlled by a Federal, State or local government entity that directs and controls the work of the H-1B.  This was a critical exemption for public universities.
  • Exemption for Non-profit Higher Education and Research Institutions from Dependency.  Generally, the bill defines dependent employersas those with 51 or more full time employees who have over 15% of their U.S. workforce on H-1B. 
  • H-1B Cap.  Bill changes this week also clarify that the number of H-1Bs cannot exceed 180,000 visas per fiscal year, even though this already appeared to be clear in the base bill.
  • Reduces J-1 Summer Work Travel Fee.   Changes to the bill this week also reduced the fee from $500 to $100 per J-1 exchange visitor coming for Summer Work Travel.
  • O and P Visa Adjudication and Premium Processing Fee Waiver.  The bill also adds the requirement that DHS shall adjudicate all O-1, O-2, O-3 and P visas within 14 days after the date on which the petitioner submits the petition with a written advisory opinion, letter of no objection, or request for waiver or the date on which the 15-day period has expired if the petitioner has had an appropriate opportunity to supply rebuttal evidence.  If the petition is not adjudicated before the end of the 14 day period DHS shall provide the petitioner with the premium processing services without a fee.
  • Limits on B and F Nonimmigrant Health Related Programs.  The bill also made changes this week to bar payment to states for medical assistance for certain temporary workers like B and F nonimmigrants, but continue to generally provide for an exception regarding emergency medical care or medical care for pregnant women and children.
  • Title V (Youth Jobs):  An amendment to the bill this week also created a youth jobs program, and provides $1.5 billion over two years to fund the program.  A new $10 surcharge on all J visas will support the creation of the appropriated fund to provide summer and year-round employment opportunities to low income youth.

Global Human Resources will continue to provide updates as this landmark legislation evolves, so be sure to subscribe to The Global Buzz by email or add it to your RSS reader.

Source: ACIP

Thursday, June 27, 2013

Senate approves massive immigration bill

From, 06/27/2013

Senators approved sweeping legislation Thursday to remake the nation’s immigration system for the first time in a generation by spending tens of billions of dollars to bolster security along the U.S. southern border and offering a path to citizenship for millions of illegal immigrants.
By a vote of 68 to 32, senators concluded a nearly month-long debate of the 1,200-page measure. Fourteen Republicans voted with every member of the Senate Democratic caucus to approve the bill.
To note the significance, Vice President Biden presided over the vote and Senate Majority Leader Harry M. Reid (D-Nev.) made the unusual request that senators site at their assigned desks and stand to vote when called.
Supporters, led by the bipartisan “Gang of Eight” who wrote the bill and steered it through the Senate, fell just short of the 70 votes they had hoped to earn, but the measure got a significant margin for any legislation in the often-divided chamber.
At midday, two key gang members, Sen. Charles E. Schumer (D-N.Y.) and John McCain (R-Ariz.) admitted they initially doubted whether their efforts would succeed.
“This is one of the most divisive issues in one of the most divisive congresses,” Schumer said. “But you know what? Our Republican guys showed amazing strength.”
Read the entire article here:  

Immigration Implications of Supreme Court’s DOMA Ruling

From, 06/27/2013

Court's holding that section 3 of the act is unconstitutional will allow U.S. nationals to sponsor same-sex spouses for immigration benefits.

On June 26, the U.S. Supreme Court ruled that section 3 of the Defense of Marriage Act (DOMA)—the provision of the law barring the federal government from recognizing same-sex marriages—is unconstitutional.[1]
DOMA, which was signed into law in 1996, precluded same-sex married couples from receiving many of the benefits available under federal law to heterosexual married couples. Because immigration law is federal, one such precluded benefit was the ability to sponsor a spouse for an immigration benefit. While U.S. citizens and permanent residents in heterosexual marriages are permitted to sponsor a spouse from another country to reside legally in the United States, U.S. citizens and permanent residents in same-sex marriages have been unable to do so.
Janet Napolitano, Secretary of the Department of Homeland Security, issued the following statement on the Supreme Court's ruling: "I applaud today's Supreme Court decision in United States v. Windsor holding that [DOMA] is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the [Obama administration's] position that DOMA's restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."[2]
It is expected that the Supreme Court's ruling will result in immigration benefits being conferred upon same-sex married couples equal to those benefits currently available to heterosexual couples. These benefits are expected to apply to marriages that were lawfully entered into in a U.S. state or foreign country recognizing same-sex marriage. Whether a couple resides in a U.S. state recognizing same-sex marriage should have no impact on eligibility. It is not yet clear whether same-sex civil unions and/or domestic partnerships will be recognized for immigration benefits.
Representatives from the U.S. Citizenship and Immigration Services will be attending the national American Immigration Lawyers Association conference, which began on June 26 in San Francisco. We expect to have more information within the coming days on how this change in law will impact lesbian, gay, bisexual, and transgender (LGBT) foreign nationals.

[1]United States v. Windsor, No. 12-307 (U.S. June 26, 2013), available here.
[2]. Press Release, Dep't of Homeland Sec., Statement by Secretary of Homeland Security Janet Napolitano on the Supreme Court Ruling on the Defense of Marriage Act (June 26, 2013), available here.

Tuesday, June 25, 2013

The United States and India Announce Obama-Singh Awards Connecting Universities to Solve Global Challenges

From, 06/25/2013

In a continuation of the educational partnership between India and the United States, the State Department is pleased to announce the eight institutional partnership projects below for the second round of Obama-Singh 21st Century Knowledge Initiative awards. This initiative strengthens collaboration and builds partnerships between American and Indian institutions of higher education in priority fields. Each project will receive an award of approximately $250,000 that can be utilized over a three year period, with the objectives of cultivating educational reform, fostering economic growth, generating shared knowledge to address global challenges, and developing junior faculty at Indian and American institutions of higher learning.

Prime Minister Manmohan Singh and President Barack Obama announced the Obama-Singh Initiative in November 2009 as an affirmation of their commitment to building an enhanced India-U.S. partnership in education. Each government pledged $5 million for this endeavor, for a total of $10 million.

U.S.-led Partnerships:

Harvard School of Public Health

Project Title: Harvard-India Nutrition Initiative
Partner Institution: St. Johns Research Institute, Bangalore

Ohio State University

Project Title: The STEM Faculty Project: Training the Next Generation of STEM Faculty at Higher Education Institutions in India
Partner Institution: Aligarh Muslim University

University of Massachusetts, Amherst

Project Title: Inclusive Universities: Linking Diversity, Equity and Excellence for the 21st Century
Partner Institution: University of Pune

University of North Carolina, Chapel Hill

Project Title: Partnering for Success: Advancing Sustainability Research and Education in India
Partner Institution: Indian Institute of Management, Bangalore

Indian-led Partnerships:

Annamalai University

Project Title: Tamil Nadu Energy Futures: Mapping Uncertainties and Risks
Partner Institutions: Tennessee Technological University

Assam Agricultural University

Project Title: Engineering ADP – Glucose Pyrophosphorylase (AGPase) enzymes for heat tolerance in rice
Partner Institution: Washington State University

Avinashilingam Institute for Home Science and Higher Education for Women

Project Title: A Sustainable ‘Response to Intervention’ model for successful inclusion of children with disabilities –A India-US Partnership
Partner Institution: University of Minnesota, Minneapolis

National Institute of Technology – Trichy

Project Title: Cognitive based Curriculum Development Tool for emerging areas of Computer Engineering and Management Studies for improving Teaching-Learning Process
Partner Institution: University of Nevada, Las Vegas

The next request for proposals for the Obama-Singh Initiative grants will be announced in July 2013. Details will be available at and

Labor Department Set to Unveil Public Database of PERMs and LCAs on July 1

From, 06/24/2013

On July 1, the U.S. Department of Labor will launch a searchable online registry of PERM and labor condition applications (LCAs) that will make employer sponsorship information more quickly and easily accessible to the public. The database, which was announced earlier this year, will contain information on PERMs and LCAs certified since April 15, 2009. 

The new registry will appear on the agency’s iCERT portal. Data on new PERMs and LCAs are expected to be available for public viewing within two business days of certification. The information will reportedly be available in a variety of formats, including PDF copies of certified cases and a searchable database. DOL plans to redact certain information from public disclosure, including the names of foreign workers and employer FEIN numbers, but the full extent of the redaction will not be known until the database goes live. 

Currently, DOL discloses some PERM and LCA case data in quarterly reports to the public, though disclosure is limited to basic details of the employer and offered position.

Delays Anticipated in Visa Applications for India

From Morgan Lewis, 06/25/2013
Individuals in the United States applying for visas to India should expect processing delays in the coming weeks and months as India transitions to a new visa services vendor
As of July 1, India will transfer responsibility for the processing of Indian visa applications submitted in the United States from its current third-party vendor to a new third-party vendor. The transition is expected to cause significant delays in visa processing times.
The transfer to the new Indian-owned vendor, BLS International, is a result of a mandate by the Indian government that such outsourcing contracts be made exclusively with Indian-owned companies. Currently, Travisa Outsourcing processes Indian visa applications submitted in the United States. Under Travisa, these applications are generally processed within 3 to 10 business days.
As a result of this transition, substantial delays are expected in visa processing times over the coming weeks and months. Individuals requiring a visa for travel to India on or before July 9 are advised to submit their applications in person as soon as possible. For more information about applying for a visa through Travisa, visit this link.

USCIS Issues Numerous Requests for Evidence on Pending I-485 Applications

From Morgan Lewis, 06/25/2013

Identical requests on Adjustment of Status applications have been issued specifically to EB-2 applicants chargeable to India
On June 13, the U.S. Citizenship and Immigration Service (USCIS) began issuing a substantial number of identical Requests for Evidence (RFEs) on pending employment-based I-485 Adjustment of Status applications. The RFEs are dated June 13 and June 14, and applicants and their attorneys have now begun to receive hard copies of the RFEs.
The RFEs all appear to have originated from the USCIS's Texas Service Center and have been issued specifically to EB-2 applicants chargeable to India. The RFEs request the following: (1) evidence of continuous employment authorization in the United States from the date of filing through the present and (2) a currently dated verification of employment letter.
In some cases, these requests have been issued to derivative applicants whose eligibility for adjustment does not necessitate an employment offer or valid work authorization.
Continuous Work Authorization
The RFEs request proof of an applicant's continuous employment authorization in the United States from the date that the I-485 application was filed through the present. The nature of the requests suggests that the USCIS is closely scrutinizing whether adjustment applicants have been employed without authorization during the time that their I-485 applications have been pending. Accordingly, applicants and their attorneys should ensure that a complete history of employment authorization is provided with each RFE response.
Verification of Employment Letter
The RFEs also request a currently dated employment verification letter from the applicant's original employer or, in the case of adjustment portability applicants, from the applicant's new employer. The employment verification letters must include the applicant's title, job duties, minimum education or training requirement, dates of employment, and salary offered. In addition, the letters must be printed on company letterhead and bear an original signature by a person authorized to confirm an offer of permanent employment.
Derivative Applicants
In some cases, these RFEs have been issued to derivative adjustment applicants and have included the following erroneous language: "You are an Employment-Based Principal Applicant" and "A valid job offer may be required for your adjustment." Derivative applicants in receipt of these RFEs are being asked to provide proof of continuous work authorization and verification of employment letters. Often, derivative applicants (particularly dependent children) have never applied for work authorization. Moreover, neither of these items is required for adjustment eligibility for derivative applicants under the regulations. It is unclear what the USCIS's reasoning was in issuing these RFEs to derivative applicants; the USCIS may have simply utilized an identical template without regard to context.

Friday, June 14, 2013

Scam Alert: Individuals Misrepresenting Themselves as DHS Employees Calling Indian Nationals

There have been recent reports of Indian nationals in the U.S. receiving phone calls from people falsely representing themselves as DHS employees asking the foreign nationals to pay a penalty via money transfer to resolve discrepancies in their immigration cases.  The people making the phone calls have had access to personal information such as passport numbers and foreign addresses and have threatened adverse actions such as deportation. 

According to one source, phone calls have come from Ohio numbers with a 567 area code and Washington, DC number with a 202 area code.

The Department of State, USCIS and the CIS Ombudsman are aware of the situation. If you have been contacted by someone claiming to represent the Department of Homeland Security, please contact immediately. 

Wednesday, June 12, 2013

New online services remove need for second trip to driver’s license office

From, 06/07/2013

Gov. Nathan Deal today announced that more internet services are available to Georgia driver’s license and ID card holders from the Georgia Department of Driver Services. Customers can now provide additional residency information and/or Social Security information through the secure DDS website,, eliminating the need for a return trip to complete their permanent driver’s license or ID issuance.
“I applaud Commissioner Rob Mikell and the entire DDS team for initiating this time-saving customer service feature while ensuring Georgia continues to produce one of the most secure licenses in the country,” said Deal. “Our citizens deserve to have the highest degree of safety measures in place to safeguard their identity, and DDS is committed to achieving that goal in a customer-friendly manner and in compliance with federal regulations.”
With the new SecureID Program, which are Real ID Homeland Security compliant licenses and ID Cards, customers can expect to present documentation to establish identity, a name change, citizenship or lawful presence in the United States, a Social Security number, and two documents to prove their residential address. Customers who presently hold a Georgia license or ID are issued an extended temporary license or ID until they return with any pending information.
DDS has been particularly focused on ensuring that each customer brings two proofs of their residential address along with their identity and Social Security number documentation. Approximately 20 percent of renewal customers historically have needed to return for a second visit to DDS to provide one or both proof of address documents.
“The summer months are historically a very busy time at DDS’s customer service centers,” Mikell said. “These additional online services will save many customers a return visit and, in turn, will help us manage the additional demand.”
Breakdown of the process
Customers may access the caption “SecureID: Submit proof of residency or Social Security” from the DDS homepage and on the DDS Online Services Page (
First, customers are instructed to create or logon to their existing DDS online account. DDS’s first priority is to maintain the security of all personal information to ensure that a customer’s internet experience is as safe and secure as doing business in person.
The next step after the login process is to select the “gold star” icon titled “SecureID: Submit proof of residency or Social Security.” Customers will immediately be able to review their status of pending documentation and are instructed how to upload the required information. Directions to fax or mail the additional residency or Social Security information are also provided.
A follow-up email will alert customers when their license or ID has been processed for a permanent card to be mailed. Customers can expect to receive their permanent license and/or ID card within two weeks from the time they receive the DDS’s email verifying all required documents have been processed.
For more information visit or check the DDS facebook page.

State Department Projects Significant Movement for EB-2 India Later This Summer

From, June 6, 2013

The priority date cut-off for EB-2 India could advance as far as February 2008 in the August or September Visa Bulletin, according to Charles Oppenheim, the senior State Department official responsible for visa control. The EB-2 India cut-off date has been stalled at September 1, 2004 since October 2012. 

EB-2 China is likely to advance no more than a few weeks per month through the end of this fiscal year. 

For most countries, including China, priority dates for the EB-3 professional and skilled worker subcategory are projected to advance as far as January 2009 in July, though further progression is unlikely for the remainder of this fiscal year. EB-3 India is expected to advance by up to two weeks per month through the end of the fiscal year. 

Mr. Oppenheim made his projections at the annual symposium of the American Council on International Personnel, held this week. 

What EB-2 India Advancement Means for Employers and Foreign Nationals
If the EB-2 India cut-off date advances as predicted in the coming months, many adjustment applicants with long-pending cases could see their applications adjudicated to completion, and some foreign nationals who were unable to file permanent residence applications when their priority dates were current in the past might have a new opportunity to file. 

The exact cut-off date will not be known until the State Department releases a Visa Bulletin announcing the advancement. The Bulletin is usually issued about three weeks before the month to which it applies. 

When their priority dates become current, adjustment applicants with pending cases may need to provide supplemental documentation so that U.S. Citizenship and Immigration Services can finalize their cases. Applicants could be asked to provide updated job letters from their employer-sponsors, and may need to attend another biometrics appointment so that new fingerprints can be taken. Applicants should also be prepared for the possibility of an adjustment interview at a local USCIS office. Though interviews are not routine in employment-based cases, agency adjudicators have the authority to refer specific cases for local office interviews. 

Eligible Indian EB-2s who do not have an adjustment application on file with USCIS will need to act quickly if their priority date becomes current because the chance to file an adjustment may be brief. It is not known how many EB-2 India visa numbers will become available when the cut-off date advances, and many available numbers are likely to be captured by cases already on file, including an unspecified number of pending cases that have been upgraded from EB-3 to EB-2.

July 2013 Visa Bulletin

Further EB-3 Advancement for Most Countries

According to the State Department’s July Visa Bulletin, the EB-3 subcategory for professionals and skilled workers will advance by four months for China and most other countries, to January 1 , 2009, though EB-3 India will advance by just two weeks, to January 22, 2003. In the EB-2 category, the priority date cut-off for China will advance three weeks, to August 8, 2008, and will once again remain unchanged for India, at September 1, 2004. 

July 2013 Visa Bulletin, Employment Based Categories

See the entire bulletin here: