President Obama Announces Immigration Reform


We are pleased to announce that President Obama unveiled a long-awaiting plan to reform the immigration system on November 20, 2014.  His executive action brings immediate relief to as many as 4.4 million undocumented foreign nationals living in the US through a few key programs:


Deferred Action for Childhood Arrivals (DACA):  The DACA program allows people who came to the US before the age of 16 and meet certain qualifications to remain in the United States without fear of deportation and receive work authorization.  Under President Obama’s executive order, the expanded DACA program removes the upper age limit for qualified applicants and extends the work authorization to 3 years.  The USCIS has announced that it will begin to accept work permit applications for this new category of DACA applicants in 90 days.


Deferred Action for Parents (DAP):  This new program will allow parents with US citizen or Lawful Permanent Resident children to remain united with their families. These parents must have been in the US since January 1, 2010, pass a criminal background check, and pay back taxes in order to qualify.  The USCIS expects to start accepting applications for work permits to qualified DAP applicants in 180 days.


Provisional WaiversThe executive order expands the provisional waiver program to allow spouses of lawful permanent residents and sons or daughters of both US citizens and lawful permanent residents to apply for waivers.  These waivers are required when the foreign national is eligible for a green card, but have been in the United States unlawfully.  Under this program, the applicant can apply for the waiver in the United States, then once the waiver is approved, leave the United States to obtain an immigrant visa at a US embassy abroad, thereby avoiding months or even years of separation from family members while awaiting waiver processing abroad.


President Obama’s executive action also has a significant and positive impact for U.S. businesses and highly skilled professional workers by announcing several reforms to employment-based visas.  The agencies implementing these programs will announce the details over the coming months, but below are the broad outlines of these changes:


Benefits for Employees With Approved Immigrant Visas Awaiting a Priority Date:  Under the current system, an employee with an approved immigrant visa must wait for their priority date to become current before being eligible to apply for a green card.  Under this initiative, 410,000 employees awaiting green card visa numbers could apply for certain benefits such as Employment Authorization Documents (EAD) and Advance Parole (travel) documents.   US Citizenship and Immigration Service (USCIS) must write implementing regulations for this initiative; thus these changes will not go into effect for several months.


Revamp the Allocation of Immigrant Visas:  Currently the Department of State uses a complicated system to determine how to allocate immigrant visas that allow beneficiaries to apply for green cards.  Under President Obama’s executive action, the USCIS will work with the Department of State to simplify the existing system and ensure all immigrant visas are issued each year.  This could result in the recapturing of thousands of unused visa numbers.


Worker Portability Under AC-21: Under current law, an employment-based adjustment of status applicant can change jobs after the application has been pending for 180 days, but only if the new position is in a “same or similar” occupational classification as the position through which s/he obtained the immigrant visa.  The USCIS will issue a policy memo to clarify the meaning of “same or similar,” thereby allowing workers for example to accept promotions to a supervisory level or accept related jobs in their field without fear that their underlying approved immigrant visas will no longer be valid.


Work Authorization for H-1B spouses:  USCIS will publish a final rule allowing the H-4 spouses certain of H-1B workers to apply for employment authorization.  The H-1B holder must 1) have an approved immigrant visa petition or 2) have a PERM labor certification pending for at least one year.  This regulation is expected to be published in the next several months.


L-1B Specialized Knowledge: The L-1B intracompany transfer program allows the transfer of employees from a foreign entity to the US who have “specialized knowledge” of the company’s products or processes.  The USCIS will issue a policy memo to provide clear guidance on the meaning of “specialized knowledge,” which will bring about more consistency in adjudications, a higher approval rate, thus making the L-1B visa status more accessible to qualified employees.


Optional Practical Training (OPT) Work Authorization: Currently, foreign students in F-1 student status are eligible for 12 months of OPT work authorization.  If they are students in science, technology, engineering, and mathematics (STEM) fields, they can apply for an additional 17 months of OPT.  Under President Obama’s new initiative, USCIS and Immigration and Customs Enforcement (ICE) will develop regulations to increase the length of OPT time and expand the type of degree programs eligible for this extended OPT work authorization period.  These changes are expected in the next several months.


National Interest Waivers and Parole for Inventors, Researchers, Founders:  The USCIS will issue guidance to clarify the standard by which to grant national interest waivers to foreign inventors, researchers, and founders of start-ups. USCIS will also initiate a program granting “parole” to inventors, researchers, and founders at an early stage in their careers or positions who do not yet qualify for a national interest waiver, but who have either been awarded US financing or hold the promise of innovation.  This “parole” will allow these individuals to enter the US temporarily to pursue their activity.


Labor Certifications: The Department of Labor will review the existing PERM program and initiate changes to modernize the system so that it aligns with the current recruitment practices for most professional occupations.  The exact changes to the PERM system have not been announced yet.  Further guidance is anticipated shortly.


Although Congress has yet to act on immigration reform, we applaud President Obama for taking a step to fix our broken immigration system.  There will be further discourse on these programs as Congressional leaders have vowed to block their implementation, but we are hopeful that millions of workers and families will benefit from this key policy announcement.  We look forward to keeping you updated over the coming weeks and months as the details are unveiled.


If you feel that you may benefit from any part of President Obama’s executive action, please contact the Law Office of Melissa Harms at 415.945.9600 extension 2 or via email at to schedule a consultation.

It’s H-1B Season!

The FY2014 H-1B cap filing period will open 04/01/2013 (for a 10/01/2013 start date).  The H-1B, “specialty occupation” visa is the most commonly used visa for employment purposes.  To qualify for an H-1B visa, the position must require the theoretical and practical application of a body of highly specialized knowledge.   To approve an H-1B application, the USCIS requires the position to require a Bachelor’s level degree (or the equivalent) in a specialized field and the foreign national to possess a Bachelor’s degree (or equivalent) in this field.

As you may know, there is a limited number of H-1B slots each year (known as the H-1B quota).  Currently, there are 65,000 slots afforded to foreign nationals with a Bachelor’s degree or higher and 20,000 afforded to U.S. Master’s degree holders.  In prior years, the quota was reached within days of April 1.  Last year, the quota remained open from April 1, 2012 until June 11, 2012.  There is no telling what will occur this year as the results are often unpredictable but it is anticipated that the cap will be reached within a month or less.  Accordingly, we plan to file all H-1B petitions on March 29, 2013 for an April 1, 2013 arrival at the immigration service.  This leaves under 3 months to prepare these petitions.

Please contact our office as soon as possible if you’d like to file an H-1B petition under this year’s cap.  We would be pleased to assist you with this process.

Visa Numbers Update from State Department Visa Office

On Thursday, August 30, 2012, Roberta Freedman, American Immigration Lawyers Association (AILA) Students & Scholars
Committee member, and Mike Nowlan, Chair of the AILA Business Committee,
discussed the Visa Bulletin, visa demand in the employment preference
categories, and predictions for FY2012 and FY2013 with Charlie Oppenheim of the
Department of State’s Visa Office. These are only discussions of what could
happen and are not assurances or guarantees by the Visa Office, as changes in
visa usage result in changes in the Visa Bulletin.

Notes from that discussion are:

  • Employment Based (EB)-1 visa usage is extremely high. August 2012 was at a
    near record high. The Visa Office does not know why. Is USCIS clearing out
    backlogs because of the new Deferred Action for Childhood Arrivals program, or
    is this pent up demand from 2011, or more “upgrades”? The answer is unknown. The
    EB-1 visa category could close in September if usage remains this high (close
    the 40,000). It would then go current in October. In July 2012, EB-1 usage was
    almost 3,000, of which roughly 1,200 had 2011 or earlier priority dates, and the
    rest had 2012 priority dates. The 13,000 unused EB-1 numbers that were expected
    in FY2012, and which would then “drop down” to EB-2, did not happen.
  • EB-2 India priority date will probably go to 2006 when the Visa Bulletin is
    published next month (not 2007 as previously predicted). This is due in part to
    the retrogression in 2012, as well as the high level of EB-1 usage. India is
    expected to stay in 2006 for some time. It could fall back to 2005, but that
    does not appear likely right now. Slow movement in this category in FY2013 is
  • EB-2 China priority date will be further ahead than India, but that
    assessment has not been completed yet.
  • EB-2 worldwide may go current in October, or it may go to early 2012 and
    then current in the November Visa Bulletin – a 2 step process. Why the delay?
    Employment-based numbers move in a fairly predictable usage pattern (unlike
    family-based cases). As a result, the Visa Office prefers to have a steady usage
    of EB cases per month. There are expected to be many EB-2 worldwide cases
    pending or filed in October, and slowing the usage could help predict usage for
    the rest of the year. A “correction” in EB-2 worldwide towards the latter part
    of FY2013 could happen (in other words, potentially visa retrogression for EB-2
    worldwide and no longer current).
  • EB-3 worldwide should remain as posted for the rest of September. No
    prediction could be given as to where it will go in the October Visa Bulletin.
    Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage in
    FY2013, which would slow the speed of EB-3 worldwide.


Other comments:

As reported previously, another problem with trying to predict the demand is
that USCIS is not providing real time data on EB-3 to EB-2 “upgrades”, and the
Visa Office is also seeing a significant number of EB-2 to EB-1 “upgrades.”
“Upgrades” continue to be a big “wildcard,” as no one knows how many are being
used per month. Mr. Oppenheim confirmed his previous comments that USCIS cannot
tell him how many upgrades are filed. He would appreciate a process where USCIS
notifies his office when the I-140 for the EB-2 “upgrade” is filed, so he can
understand what is in the pipeline. Since the retrogression earlier this year,
the Visa Office has better data on the cases pending than they did previously
because cases filed with a pending adjustment of status application are
pre-adjudicated, which gives his office more detail on the person’s priority
date history. Retrogression is still a problem, but understanding the data is a
small benefit to it.

Upgrades were initially limited to India and China. Worldwide upgrades are
now occurring, with 2,900 upgrades for EB-2 worldwide in February 2012. Over 500
of those had a priority date of 2009 or earlier. The Visa Office knows it has
3,500 EB-2 worldwide cases pre-adjudicated and ready to be approved on October
1st and expects more new filings in October.

Family Based (FB) 2A cases:
Usage is dropping. Outreach programs seem to increase usage. Immigrant visa
waiver delays, primarily in Mexico, also slow usage. FB-2A usage is slower than
it should be so the priority dates are expected to move forward at the same pace
as FY2012. However, if demand continues to be low, this group may move forward
more significantly in the spring of 2013.



On Tuesday, June 19, 2012, Roberta Freedman, AILA Students & Scholars
Committee member, discussed the Visa Bulletin,
visa demand in the employment preference categories, and predictions for FY2012
and beyond with Charlie Oppenheim of the Visa Office. Here are notes from that

2012 and 2013 News
  • In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates
    for China-Mainland born and India, which are currently “unavailable,” will move
    to August or September 2007 (China may be slightly better). It is unlikely that
    the cut-off dates will move forward at all for the first two quarters of FY2013.
    If they do, it will only be if the Visa Office is convinced that there is
    insufficient demand for the rest of the year. Mr. Oppenheim’s office already has
    17,000 EB-2 cases for natives of India, China, and worldwide with priority dates
    after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up
    for adjudication in October 2012, and it will take some time to get through
  • EB-2 worldwide will be current in October 2012.
  • If USCIS approves many pending cases during the month of June, the worldwide
    EB-2 category may retrogress or become unavailable for the rest of the year.
  • Why did the priority dates move ahead so far and then retrogress so
    drastically? USCIS encouraged Mr. Oppenheim’s office to move the categories
    forward so much in January, February, and March of 2012. USCIS reported that
    they had a lot of approved petitions but they were not receiving enough I-485s.
    USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted,
    since there already appeared to be heavy demand. In February, the demand had
    already increased 50%. In addition, USCIS said that they believed that
    adjudication of EB-1 cases would be at the same rate as last fiscal year, and
    this was not the case. It could be due to the fact that many EB-1 cases had very
    long adjudication times with USCIS. In addition, EB-5 usage has been higher this
    year. Unused EB-5 cases fall into EB-1, and unused EB-1 cases fall into EB-2.
  • Applicants from China and India who filed will be waiting years for
    adjudication of their I-485s.
  • USCIS also advised a 4-6 month timeline in the processing of I-485s, and
    then they processed a lot of cases in 3 months, which increased the demand as
    well for visa numbers this fiscal year.
  • The group of cases that were filed in July and August of 2007, when all
    employment-based categories were made “current,” were all completed by November
    2011, and at that point, Mr. Oppenheim’s office had to depend on USCIS estimates
    for adjudication of cases. Mr. Oppenheim’s office had no pre-adjudicated cases
    that gave him a point of reference to determine what was left or pending.
  • Mr. Oppenheim’s office has been very clear that they do not like
Going forward:

Another problem with trying to predict the demand is that no one is keeping
statistics on EB-3-EB-2 “upgrades.” Upgrades continue to be a big “wildcard,” as
no one knows how many are being used per year and no one is tracking it. Mr.
Oppenheim confirmed his previous comments that both cases for a person remain
open (so it looks like two numbers are being used) if a person is upgrading from
EB-3 to EB-2, and only when the green card is approved does the duplicate file
number go away. At that time, Mr. Oppenheim’s office is told by USCIS to cancel
a pending EB-3 case.

Mr. Oppenheim’s office believes that there are 10,000 to 15,000 numbers used
for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to
approve China and India adjustments that were EB-3-EB-2 upgrades. The actual
break down was 2,800 from India and 500 from China. All of these cases had
priority dates before 2007, so clearly, they were upgrades. For example, 363 of
the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005
priority date. In March 2012, alone, over 1,000 numbers were used for
applications from the worldwide quota that had priority dates before 2010, so
these were likely upgrades as well.

USCIS previously insisted that the number of upgrade cases was

Mr. Oppenheim’s office tries to use 13,500 visas per quarter for all EB
cases. This office already has more than 17,000 in line for FY2013.


On Thursday, January 19, 2012, Business committee chair Mike Nowlan and
Students & Scholars committee member, Roberta Freedman, discussed the Visa
Bulletin, visa demand in the employment preference categories, and predictions
for FY2012 with Charlie Oppenheim of the Visa Office. Notes from that discussion

  • EB green card usage has been very slow in FY2012, so DOS is advancing the
    dates to see how many cases are out there. Mr. Oppenheim is relying on USCIS and
    their estimate. USCIS thought more would come in, but 50% their estimate have
    actually filed an AOS. This movement is due in large part to the clearing out of
    the EB-2 2007 AOS cases. Mr. Oppenheim reminds AILA that DOS cannot “see” the
    I-140 cases that are approved and for which adjustment of status had been
    requested prior to September 2010, though he can “see” cases for which consular
    processing is requested.
  • Mr. Oppenheim could not speculate why usage is slow/low. Economy? Foreign
    nationals lost jobs?
  • Low usage of EB-1 numbers is assumed again this year. A fall-down of 12,000
    additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections
    for 2012, although he thinks EB-1 number availability may be down by
    approximately 1,000 as compared to last year, due to heavier EB-5 usage since
    unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.
  • Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers. We
    cited the impact of Kazarian on USCIS filings and demand for EB-1-1 numbers, and
    the fact that it is difficult for an owner-beneficiary to obtain approval of
    EB-1-3 petitions.
  • About 34% of the total number of permanent visas have been used this year,
    and 45% should be used by end of February.
  • Adjustment of status through USCIS accounts for 85% to 90% of all EB green
    card cases.
  • The impact on number usage of upgrades (EB-3 to EB-2) is still unknown.
    Upgrades were the reason the priority dates advanced so slowly in in the
    beginning of FY2011. For upgrades, the EB-3 case does not get cleared out of the
    system until the EB-2 for the same person is approved.
  • Mr. Oppenheim also wonders whether demand is weak for visas for dependent
    family members, and so fewer green cards are needed.
  • Mr. Oppenheim meets monthly with USCIS and the Ombudsman’s office to review
    the receipt of cases. There was a recent meeting to discuss December numbers.
    There will be another review before he decides what he will do in March.


  • Employment-based priority dates will advance again with the March Visa
    Bulletin, likely by at least a few months. An advance of six months is possible,
    although an advance of one year is not likely. He will know as this month moves
    on. With normal USCIS adjustment of status processing times of four-to-six
    months, March is the last time for Mr. Oppenheim to get the AOS cases filed and
    possibly approved in FY2012. He will then probably hold the priority date over
    the summer, and then retrogress or advance it if needed. Mr. Oppenheim does not
    have enough data to predict demand and priority date changes in the last quarter
    of FY2012.
  • • USCIS is agreeing to the priority date advances, though significant
    advances are bit of a gamble for USCIS, because if they get inundated with
    adjustment filings, and subsequently there is priority date retrogression, USCIS
    will have to process EAD and advance parole extensions without additional fees.
    As we all know, retrogression causes chaos.

AILA InfoNet Doc. No. 12012349 (posted Sep. 5, 2012)”

House Votes to End Per-Country Limits for Skilled Workers Seeking Green Cards

Last week, the house voted 389-15 to end per-country limits on worker based immigration visas, a move that will benefit skilled Indian and
Chinese residents seeking to stay in the United States.  The bad news is that foreign workers from other countries will now be subject to several year waits in the previously available “second-preference” category.

The measure would eliminate a current provision in the law that provides that employment based visas to any one country cannot exceed seven
percent of the total 140,000 allocated each fiscal year.

Although this provision will benefit those from over-subscribed countries such as India and China, those from “All Other
Countries” in the second preference category which previously did not have to wait for a current visa number to file their adjustment of status applications,
may now need to wait several years for a visa number before filing their applications for permanent residency.  Please see the current State Department visa bulletin which outlines which individuals may file their permanent residency applications each month based on their country of birth and priority date (date labor certification or immigrant visa petition is filed):

For more information about visa numbers and the current visa allocation visit the Immigrant Visa page of our website.

This bill must now pass the Senate and be signed by President Obama, but given the limited opposition to its passage in the House, it has a very real chance of becoming law in the short term.


Options for UC Davis Students and Scholars After Leaving the University

Yesterday, I visited UC Davis and presented Options for UC Davis Students and Scholars After Graduation.  We discussed the H-1B visa and many students and scholars had further questions.  I invite you to visit my website under the H-1B information page or download the following handouts: H-1B Flowchart and Fact Sheet on H Visas.  If you are interested in discussing your case, please contact me at mharms at harms-law dot com to arrange a consultation.

Asking for Too Many Documents in the Hiring Process Can Get You in Trouble

The Justice Department today reached a settlement agreement with Kinro Manufacturing Inc. in Indiana, resolving allegations  of discrimination against work-authorized non-citizens in the employment eligibility verification process. The company is a manufacturer of components for recreational vehicles and manufactured homes.

Under the terms of the settlement agreement, Kinro Manufacturing will pay a $25,000 civil penalty and $10,000 in back pay to the injured party.  They will also alter their practices, train human resources personnel, and provide periodic reports to the department for one year.

According to the department’s findings, the company subjected newly hired non-U.S. citizens to excessive demands for documents  in order to verify their employment eligibility, but did not require U.S. citizens to show the same documentation. The charging party, a lawful permanent resident, filed his charge of discrimination after he was required to provide additional proof of his employment eligibility not required by law before he could begin work at the company. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from placing additional documentary burdens on workauthorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

If you have questions about the employment eligibility verification process please contact our office at info at

The DOJ press release can be found at:

Alabama Immigration Law Blocked

A federal judge temporarily blocked enforcement of Alabama’s new law cracking down on illegal immigration, ruling Monday that she needed more time to decide whether the law opposed by the Obama administration, church leaders and immigrant-rights groups is constitutional.

This means the law won’t take effect as scheduled on Thursday.   The brief order did not go into whether the law is constitutional, and the judge could still let all or parts of the law take effect later. A longer ruling will be issued by Sept. 28 after the judge has had more time to consider lawsuits filed by the Justice Department, private groups and individuals that claim the state is overstepping its bounds with the law.

The law includes provisions requiring police to verify the status of people stopped whom they suspect may be in the country illegally. The law also makes it a crime to knowingly rent housing to unlawful immigrants.  It would require schools to verify the citizenship status of students. Officials say it wouldn’t prevent illegal immigrants from attending public schools. Both supporters and opponents say Alabama’s law is the nation’s toughest against illegal immigration.

Read more:

I-9 Violations Costly for Employers

Navigating the I-9 process can be difficult and mistakes or violations can be costly. The Justice Department today reached a settlement agreement with Farmland Foods Inc., a major producer of pork products in Kansas City, MO, resolving allegations of document abuse and discrimination in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA).   Farmland has agreed to pay $290,400 in civil penalties, the highest civil penalty paid through settlement since enactment of the INA’s anti-discrimination provision in 1986.  The DOJ stated that Farmland engaged in discrimination by imposing unnecessary and excessive documentary requirements on non-U.S. citizens and foreign-born U.S. citizens during the I-9 employment eligibility verification process. The investigation revealed that Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Ill., plant to present specific and, in many cases, extra work-authorization documents beyond those required by federal law. In the case of non-U.S. citizens, Farmland required the presentation of additional work authorization documents, generally by requiring social security cards, even when employees had already produced other documents establishing work authority. In the case of foreign-born naturalized U.S. citizens, Farmland required evidence of citizenship, such as certificates of naturalization or U.S. passports, even when those individuals had other means of proving their work authority. Farmland’s demand for specific or excessive documents to establish work authority.

Our attorneys conduct I-9 trainings for employers and human resources personnel.  If you are interested in a training or have questions about the I-9 form please contact our office at info at

Foreign Students Protest

About 400 foreign students walked off their jobs last week at a plant here that packs Hershey’s chocolates, saying the J-1 summer program which is supposed to be a cultural exchange had instead turned them into underpaid labor.  The students, from countries including China, Nigeria, Romania and Ukraine, came to the United States through the long-established State Department summer visa program that allows them to work for two months and then travel. They said they were expecting to practice their English, make some money and learn what life is like in the United States. The students were put to work lifting heavy boxes and packing Reese’s candies, Kit-Kats and Almond Joys on a fast-moving production line, many of them on a night shift. After paycheck deductions for fees associated with the program and for their rent, students said at a rally in front of the huge packing plant that many of them were not earning nearly enough to recover what they had spent in their home countries to obtain their visas.

Although the J-1 summer program has drawn complaints recently from students about low wages and unexpectedly difficult work conditions this appears to be the first time that foreign students have engaged in a strike to protest their employment.

The arrangements that brought the foreign students to work at the Eastern Distribution Center III near Hershey, PA involved layers of contractors. A spokesman for Hershey’s, Kirk Saville, said the chocolate company did not directly operate the Palmyra packing plant, which is managed by a company called Exel. A spokeswoman for Exel said it had found the student workers through another staffing company.  The students said they mainly placed blame on the organization that manages the J-1 visa program for the State Department, the Council for Educational Travel, U.S.A., which is based in California.

If you have any questions about the J-1 visa program or student visas please contact our office at info at

You can read more about this story at

Priority Processing of Citizenship for SSI Recipients

USCIS will prioritize the processing of Form N-400, Application for Naturalization, for certain SSI recipients when the applicant’s:

SSI benefits will be terminated within 1 year from the date listed on your SSI notice; AND,
Form N-400 has been pending for 4 months or more from the date of receipt.

If you have any questions about the Naturalization process or this priority processing please contact our office at info at

Please see the link below for instructions for individuals whose SSI benefits are being terminated within 1 year and have applied for OR will apply for citizenship through Form N-400: