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Immigration Law

News Excerpts From the Jan. 15, 2016, Bender’s Immigration Bulletin

Funding Bill Imposes Restrictions on VWP, Increases H and L Fees, Makes H-2B Changes

The omnibus funding bill enacted in December contained provisions restricting participation in the Visa Waiver Program by applicants who are nationals of or who have recently visited certain countries in Africa and the Middle East, while also doubling the supplemental fees for companies that substantially rely on L-1 and H-1B workers.

As a result of the law, noncitizens may not be admitted under the Visa Waiver Program if they are nationals of Iraq, Syria, Iran, or Sudan, or have been in one of those countries since March 1, 2011. The law contains exemptions, however, for people who were performing military service for or were employed by the government of a country who is eligible for the Visa Waiver Program. The law also allows the Department of Homeland Security to waive exclusion from the program to further law enforcement or national security interests.

Meanwhile, the law increased the supplemental fees for companies with fifty or more employees in the United States of whom more than 50% are in H-1B, L-1A, or L-1B status. The fees for L-1 petitions double from $2,250 to $4,500, while the fees for H-1B petitions double from $2,000 to $4,000.

The bill includes significant changes for H-2B visa employers by exempting returning workers from the 66,000 annual cap, allowing the use of private wage surveys, upping the “seasonal” definition from nine to ten months, blocking DOL from implementing provisions in the interim final rule regarding corresponding employment, the ¾ guarantee, certain audit procedures and assisted recruitment, and permitting the staggered crossing of seafood workers.

The funding bill is the Consolidated Appropriations Act, 2016, Public Law Number 114-113, 129 Statutes at Large 2242 (Dec. 18, 2015; 887 pages).

DHS and DOJ Release Joint Guidance on I-9 Audits

On December 14, 2015, the Departments of Homeland Security and of Justice released joint guidance for employers conducting internal audits of Forms I-9. According to the departments, the guidance is intended to ensure that employers conduct such audits properly and without violating the anti-discrimination provisions of the Immigration and Nationality Act. The joint guidance is reprinted at Appendix A.

Georgia Attorney General Acknowledges Lack of State Authority To Block Refugees

On December 30, 2015, Georgia Attorney General Samuel Olens issued an official opinion concluding that an executive order prohibiting state agencies from facilitating the resettlement of Syrian refugees was preempted by federal law. The Attorney General observed that under federal regulations, Georgia would be required to provide the Office of Refugee Resettlement at least 120 days’ notice if it no longer wanted to serve as a federally designated refugee resettlement program. Even then, the state could not refuse to provide benefits to which refugees are entitled under federal law, the Attorney General opined. The opinion is available at

ICE Releases Data on International Students

On December 17, 2015, the Student and Exchange Visitor Program released quarterly data regarding international students in the United States. According to a press release from ICE, there are currently 1.2 million students in the United States in F or M status, an increase of 8% from the previous year. Nearly 40% of international students were enrolled in STEM (science, technology, engineering, and mathematics) coursework. SEVP has certified 8,803 U.S. schools to enroll international students, a decrease of 2% from the previous year. New York University was identified as having the largest international student population, followed by the University of Southern California, Columbia University, Northeastern University, and the University of Illinois.

USCIS Hits U Visa Cap for Seventh Consecutive Year

On December 29, 2015, USCIS announced that it had approved 10,000 petitions for U nonimmigrant status in fiscal 2016. The agency has granted the statutory maximum number of petitions each year since 2009. USCIS will resume granting U nonimmigrant status on October 1, 2016.

Revised Filing Instructions for I-290B

USCIS announced that practitioners must submit Form I-290B, Notice of Motion or Appeal, in response to a decision on a Form N-600 or N-600K to the Chicago lockbox rather than the local field office.

Bender's Immigration Bulletin

[This is an excerpt from the Jan. 15, 2016, issue of Bender's Immigration Bulletin.]

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