2016 Business Immigration Updates – Getting Through the Long Days of Summer

August ushers in a host of immigration-related news and updates, ranging from fine increases to wait times for visa appointments. Stay up-to-date with some quick notes on these issues.

DOJ Fines Increase as of August 1, 2016

Effective August 1, 2016, the Department of Justice (DOJ) in coordination with the Department of Homeland Security (DHS) will begin assessing significant increases in immigration-related fines. Largely tied to inflation, the increased civil penalties will be attributed to case violations that go back to November 2, 2015. The scope of penalties includes violations related to Form I-9 errors, discriminatory employment practices and employing workers without proper U.S. work authorization.

More Visa Backlogs for Permanent Residence Applicants as of August 1, 2016

It is that time of the year again when there are even greater backlogs in the permanent residence process. As those who follow and track the Visa Bulletin issued by the State Department year after year know, August 1 typically brings greater backlogs and delays to the permanent residence process. With the high volume of permanent residence cases approved during the first 10 months of the current fiscal year (October 1, 2015-September 30, 2016), more backlogs are at issue as of August 1 and will continue when the September Visa Bulletin is issued in the next couple of weeks. Such backlog changes for August 1 (and likely to continue into September) in the employment-based categories include:

• EB-1 backlogs for China and India. In July, there were no backlogs for the EB-1 category for individuals born in China and India. For August, the backlog now dates back to January 1, 2010, for both countries. EB-1 remains current for all other countries. In October, this is expected to come back to current for EB-1 China and India.
• EB-2 backlogs for All Chargeability Areas. Again, in July, there were no backlogs for the EB-2 category for the All Chargeability Areas Except Those Listed. For August, there is now a backlog dating back to February 1, 2014, for all countries except for China, India, Mexico and the Philippines, which have had and will continue to have extensive backlogs. Again, in October, the EB-2 category for all other countries (except for China, India, Mexico and the Philippines, which will remain backlogged) should also be back to current.
• EB-2 and EB-3 Backlogs for India. Unfortunately, the backlogs for both preference categories now go back to November 2004.

As has been outlined, it is likely that we will continue to see these backlogs with the release of the September Visa Bulletin in mid-August. Charles Oppenheim from the State Department has reported that the EB-1 and EB-2 backlogs we are seeing in August and September should come back to current in October. He also predicts that EB-2 China and EB-2 India cut-off dates will advance in October — but is not sure how much movement there will be at this time.

Read additional information from the Department of Homeland Security.

F-1 STEM OPT Students Must File for 7-Month Extension by August 8, 2016

On May 10, 2016, the long-awaited final rule on the F-1 STEM (Science, Technology, Engineering and Math) Optional Practical Training (OPT) extension for qualified foreign students took effect. As part of this new rule, which authorizes the STEM OPT extension for a 24-month period of time, DHS provided for a transition plan which allows F-1 students holding a 17-month F-1 OPT STEM time period to apply for a seven-month extension. The transition plan covers the following:

• Students who had pending 17-month STEM OPT extension applications as of May 10
• Students with existing 17-month STEM OPT extensions
• Students with 150 calendar days remaining before the end of their 17-month OPT period as of the filing of Form I-765
• Must meet requirements for 24-month STEM OPT extensions, including completion of Form I-983 training plan and obtaining new Form I-20 from student’s school

This extension for the additional seven months MUST be timely filed with USCIS by August 8. Read more about the STEM OPT.

Colorado Employers No Longer to Complete Separate New Employee Form as of August 10, 2016

As noted in a recent Faegre Baker Daniels legal update, Colorado employers will no longer be required to complete the Colorado Affirmation Form for new employees, effective August 10, 2016. Colorado’s Employment-Verification Law required Colorado employers to complete the Affirmation Form in addition to the federally mandated Form I-9 for all new employees. The Colorado legislature deemed the Affirmation Form “unnecessary and redundant,” given the requirements of Form I-9 employment verification requirements. Through August 10, employers in Colorado should continue using the Colorado Affirmation Form in addition to the Form I-9.

Summer Travel Means Very Long Wait Times for Visa Appointments in India

Following previous summer travel patterns, U.S. consulates in India are experiencing a dramatic increase in visa demand, leading to very long wait times for visa appointments. As of this writing, the wait time for a nonimmigrant visa appointment at the U.S. Consulate in Chennai, for example, is 101 calendar days. According to the State Department, wait times will likely continue (and may even worsen) throughout the rest of the summer.

Additional Wait for New PERM Rules

The Department of Labor continues to report that the new PERM regulation is coming soon. DOL officials at the recent American Immigration Lawyers Association (AILA) conference in late June 2016 reported that the new PERM rule would be published soon and no later than the time that President Obama leaves office. Although we were hoping that the new PERM regulation would help with the long days of summer — it appears that we will still need to wait since nothing has been published yet. It is anticipated that the new PERM regulation will bring changes to Form 9089, recruitment sources and other parts of the current PERM program. As soon as this new rule is released, we will provide a complete update. For now, we are encouraged by the current PERM processing times which stand at about three months once the PERM application has been electronically submitted. Unfortunately, prevailing wage determinations are taking about the same amount of time — three months.