Regarding holiday travel issues, many foreign workers have made plans to visit friends and family abroad during the year-end holidays. Workers who plan to obtain a new visa stamp while outside of the U.S. should plan in advance. U.S. consulates abroad observe both U.S. holidays and local holidays and many of their staff also take vacations at this time. These circumstances can extend processing times by a factor of 2-3 weeks or even longer. To accommodate any unforeseen delay, it is recommended that the foreign worker coordinate with his or her work supervisor to have a back-up plan in place so that work in the U.S. can continue without meaningful interruption in the event the foreign worker’s return from abroad is delayed. Information regarding visa application procedures at specific U.S. consulates abroad can be found at: http://www.usembassy.gov/
In his speech of November 20, 2014, the President announced that he would take action on certain immigration items that fall under the purview of his executive immigration authority. The speech outlined a number of broad policies, and the specific details of many items remain unclear. Some of the proposed changes may require regulatory changes, which can take time to promulgate. It is estimated that some of the proposed changes may take up to a year to implement. Although a politically charged issue, 135 law professors signed a letter supporting the President’s authority to take the proposed actions. [A copy of the letter can be found at: www.pennstatelaw.psu.edu]
Although existing laws already provide the President with broad executive powers in the area of immigration, only Congress can act to change the law. Normally Congress can curb executive action by exercising its “power of the purse” to eliminate funding for programs it does not wish to support. However, immigration applications and petitions are 100% funded by the fees paid by applicants and petitioners. As such, Congress has no direct ability to stop the proposed executive actions by limiting funding, although it can apply pressure by cutting off funding to other parts of the Department of Homeland Security that do depended on Congressional appropriations, including immigration inspectors staffing ports of entry, immigration court judges, and deportation attorneys from the Immigration and Customs Enforcement subunit.
DACA (Deferred Action for Childhood Arrivals) is a program that allows persons brought to the U.S. before the age of 16 and no later than to January 1, 2010 to obtain a work card and a 3 year reprieve from being deported. The program does not provide lawful permanent residence or a formal legal status. The President’s announcement extended the DACA term from 2 to 3 years, and also removed the age cap that had required persons to apply before age 31. There is currently no application form covering the newly expanded terms, and so persons who were not otherwise eligible under the pre-speech DACA will need to wait to apply. DACA only applies to persons with no lawful status prior to November 20, 2014.
The President also announced a similar program for parents of children who are lawful permanent residents (green card holders) or U.S. citizens, called DAPA (Deferred Action for Parental Accountability). This program will also provide a work card and a reprieve from deportation. Applicants must document continuous presence in the U.S. since January 1, 2010 and may not have any convictions for a serious criminal offense. Continuous presence may be documented through work or school records, medical records, bills, or contracts such as apartment leases. It is recommended that applicants include at least one document for every 12 month period of physical presence. DAPA only applies to persons with no lawful status prior to November 20, 2014. Together, DACA and DAPA may help more than 4 million people. USCIS adjudicates approximately 4 million benefit requests every year. The new programs may more than double their current work load.
The State Department has entered a 10 year multibillion dollar contract with two government contractors to manage consular information services, appointment scheduling, document delivery systems, and biometric collection. The contractors will also field public inquiries received by phone, interactive website, e-mail, and even in-person. This will create yet another layer of miscommunication between visa applicants and the consular post that ultimately will adjudicate the visa application. The contractors will provide answers from State Department approved scripts, although there are concerns about applicants being given answers from the wrong part of the script as well as concerns about well meaning contractors going off script in an attempt to be helpful. The phone, e-mail, and web communications may be managed remotely from countries other than the country where the consulate is located, in the words of the State Department spokesperson, “just as businesses do.” Unfortunately, third country call centers are unlikely to improve the “customer experience” for most visa stamp applicants.
Current PERM application processing times are averaging 5-6 months for non-audited cases, and 16-18 months for audited cases. The Department of Labor recognizes that much has changed in the 10 years that the PERM system has been in place. Prompted by the President’s speech, the Department of Labor has identified areas for proposed improvement including:
- Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
- Methods and practices designed to modernize U.S. worker recruitment requirements;
- Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
- Ranges of case processing timeframes and possibly premium processing; and
- Application submission and review processes and feasibility for efficiently addressing nonmaterial errors.
The President’s speech and subsequent administrative announcements allude to allowing persons with approved I-140 immigrant petitions, but for whom a visa number is not yet available under the green card quota system, to file an I-485 adjustment of status application to start the last and final step of the employment based green card process. This change would allow employees, their spouses, as well as children, to obtain work and travel authorization cards, and may also give the employee greater flexibility to change jobs 6 months into the last step. Upon the finalization of this proposed change, it is expected that the number of 15-day expedite requests, called “premium processing,” will increase greatly for pending I-140 petitions.