NewsCantey Hanger Firm News
January 10, 2018
Immigration News and Updates
This is our Immigration News and Updates page. Please also visit http://www.canteyhanger.com/practice-areas/immigration-law/ for information about our Immigration practice area as well as links to Immigration related websites.
These updates are for informational purposes only. If you
have any questions, please contact Susan Lane at 817-877-2805
I-9 Scam Alert
USCIS has learned that employers have received scam emails requesting Form I-9 information that appear to come from USCIS. Employers are not required to submit Forms I-9 to USCIS. These scam emails come from a fraudulent email address that is not a USCIS email address.
January 10, 2018
H-1B cap season FY2019
It is time to start working on H-1B CAP cases. The filing period is the first 5 business days of April. Please contact my office as soon as possible so that we can initiate H-1B case preparation and have the case(s) ready to go the first of April.
Important update: USCIS is now not considering changes to the H-1B extension rules.
In a news update made available late yesterday, the McClatchy DC news service reported that the U.S. Citizenship and Immigration Services (USCIS) has stated that it not considering a regulatory change to the H-1B extension rules, as had previously been reported in a December 30, 2017 article by McClatchy DC. In particular, USCIS stated to McClatchy DC that the agency is not considering changing its interpretation of section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21), which provides for H-1B extensions beyond the six-year limit for H-1B workers who have reached certain milestones in the green card process. USCIS went on to note that “such a change would not likely result in these H-1B holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”
January 8, 2018
The U.S. Department of Homeland Security announced today it will terminate a temporary protected status program for nearly 200,000 Salvadorans in September 2019.
January 5, 2018
Department of Homeland Security (DHS) Considering Changes to H-1B Extension Rules
DHS is reportedly considering new regulations that would limit the ability of H-1B workers who are in the lawful permanent residence (LPR) process to obtain an extension of their H-1B status beyond the usual six-year limit of authorized stay. The reported proposal, which arises from President Trump’s “Buy American, Hire American” executive order, could impact thousands of H-1B workers and their families, many of whom have been waiting in line for a green card for years.
Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process are met such as having an approved I-140 petition but stuck in a quota backlog and not eligible for LPR filing or approval.
To date, DHS has not issued a proposed regulation or formal announcement regarding its intention to change its long-standing practice in adjudicating H-1B extensions under AC21. For DHS to implement such a change, it would need to issue a proposed regulation and follow the notice and comment rulemaking procedures set forth in the Administrative Procedure Act. That could take months. Any policy change before that could be subject to litigation. Moreover, any final rule could also be subject to litigation.
December 23, 2017
January Visa Bulletin – Check-in with Charlie Oppenheim, Department of State
Employment-Based Preference Categories
EB-1 China and EB-1 India. These categories will remain current for the coming months, but the imposition of a final action date in the summer remains possible.
EB-2 Worldwide. The final action dates for this category will remain current for the foreseeable future.
EB-2 China and EB-3 China. No future projections provided by Charlie.
EB-2 India. Consistent with Charlie’s predictions, in January, EB-2 India will again advance by less than one month from November 1, 2008, to November 22, 2008. It is not likely that the final action date for this category will move into 2009 before summer.
EB-3 India. The final action date for EB-3 India will advance two weeks from October 15, 2006, to November 1, 2006, in January. As we move into the second quarter of Fiscal Year (FY) 2018, demand in this category is levelling out following heavy visa number usage in October. This allows for modest forward advancement which Charlie hopes will continue at the pace of up to a few weeks each month.
EB-4 Religious Workers and EB-5 Regional Center Categories “Unavailable. Congressional authorization for the EB-4 Certain Religious Workers (SR) and EB-5 Regional Center (I5 and R5) categories will sunset on December 22, 2017, if they are not reauthorized by Congress. If legislative action is taken to extend the authorization for these categories, EB-4 (SR) final action dates would become current, except EB-4 El Salvador, Guatemala, and Honduras, which would have a final action date of December 1, 2015, and EB-4 Mexico, which would have a final action date of June 1, 2016.
EB-5 China Non-Regional Center. This category advances one week to July 22, 2014, in January.
The recent retrogressions in FB-1 Philippines and FB-2B Philippines may continue to hold for a while. FB-1 Philippines has already used more than forty percent of its annual numbers, whereas it normally uses fifty-four percent of its visa numbers by March. This means that FB-1 Philippines only has approximately eleven percent of its numbers to use between January and March.
FB-4 India is advancing, and the FB-2A category for all countries is also moving faster than expected.
Posting of Projections in the Visa Bulletin
Members should not expect projections to be reported in the Visa Bulletin until February at the earliest due to uncertainty in how the transition of employment-based I-485 processing to USCIS field offices will impact visa number demand. Once Charlie gains more clarity regarding the rate of USCIS field office processing of employment based I-485s, reporting of projections in the Visa Bulletin should resume.
December 18, 2017
TPS Renewal for Honduras
Current beneficiaries of Temporary Protected Status (TPS) under Honduras’ designation who want to maintain that status through the current expiration date of July 5, 2018, must re-register between Dec. 15, 2017 and Feb. 13, 2018. Re-registration procedures, including how to renew employment authorization documentation, have been published in the Federal Register and on www.uscis.gov/tps.
All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an Employment Authorization Document (EAD) by submitting a completed Form I-765, Application for Employment Authorization, at the time of filing Form I-821, or separately at a later date. Both forms are free on USCIS’ website at http://www.uscis.gov/tps.
USCIS will issue Employment Authorization Documents (EAD) with a July 5, 2018 expiration date to eligible Honduran TPS beneficiaries who timely re-register and apply for EADs under this extension in accordance with the TPS Honduras Federal Register Notice. Given the timeframes involved with processing TPS re-registration applications, however, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on Jan. 5, 2018. Accordingly, DHS has automatically extended the validity of EADs issued under the TPS designation of Honduras for 180 days, through July 4, 2018.
TPS Renewal for Nicaragua
Current beneficiaries of Temporary Protected Status (TPS) under Nicaragua’s designation who want to maintain that status through the program’s termination date of Jan. 5, 2019, must re-register between Dec. 15, 2017 and Feb. 13, 2018. Re-registration procedures, including how to renew employment authorization documentation, have been published in the Federal Register and on www.uscis.gov/tps.
All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an Employment Authorization Document (EAD) by submitting a completed Form I-765 Application for Employment Authorization, at the time of filing Form I-821, or separately at a later date. Both forms are free on USCIS’ website at http://www.uscis.gov/tps
USCIS will issue new Employment Authorization Documents (EAD) with a Jan. 5, 2019 expiration date to eligible Nicaraguan TPS beneficiaries who timely re-register and apply for EADs. Given the timeframes involved with processing TPS re-registration applications, however, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on Jan. 5, 2018. Accordingly, DHS has automatically extended the validity of EADs issued under the TPS designation of Nicaragua for 60 days, through March 6, 2018. Additionally, Nicaraguan TPS beneficiaries who timely re-register and properly file applications for an EAD will have the validity of their current EADs automatically extended for up to 180 days from the date their current EADs expire, through July 4, 2018.
November 30, 2017
Adjustment of Status Filing Dates for December 2017: USCIS determined that for December 2017, family-based preference filings must use the Dates for Filing chart and employment-based preference filings must use the Final Action Dates chart in DOS’s Visa Bulletin for December 2017.
November 27, 2017
December Visa Bulletin – Check-In with Charlie Oppenheim, Department of State
EB-1 China, EB-1 India, and EB-2 and EB-3 Worldwide. As previously reported, these categories are expected to remain current for the foreseeable future, at least through the first half of the fiscal year.
EB-2 India. Consistent with Charlie’s predictions, EB-2 India will advance less than one month in December to November 1, 2008.
EB-3 India. The final action date for EB-3 India will continue to hold steady at October 15, 2006, for December. This is the result of high visa number usage in October due to a significant advancement of the final action date at the end of FY 2017. Many of the cases that could not be completed in September were finalized and issued a visa number in October. Charlie will closely watch demand in this category and determine whether to continue to hold the final action date or whether advancement is possible in January. Interviews at USCIS field offices is a factor which could influence movement in this category.
EB-2 China and EB-3 China. In December, EB-2 China will advance less than one month to July 1, 2013, and EB-3 China will advance slightly more than one month to March 8, 2014.
EB-3 Philippines. The final action date for EB-3 Philippines will hold steady at January 15, 2016, in December due to demand in this category increasing at a much higher pace than expected. It is unclear whether this spike in demand is temporary or whether it is indicative of a trend of a more sustained increased demand, which was not expected until March or April. Charlie will watch this category closely.
EB-5 China. The final action date for EB-5 China (both Non-Regional Center and Regional Center) will advance approximately two weeks to July 15, 2014, in December.
EB-4. In December, EB-4 El Salvador, Guatemala and Honduras will advance one week to November 8, 2015, and EB-4 Mexico will advance just under one month to April 22, 2016.
Family-Based Categories. Movement in the family-based categories for December remains mostly steady due to greater visibility into demand, and thus, greater predictability. As with EB-3 Philippines, demand for FB-1 Philippines and FB-2B Philippines is increasing significantly and beyond expectations. Both categories will retrogress in December, with FB-1 Philippines retrogressing two years to January 1, 2005, and FB-2B Philippines retrogressing one year to July 1, 2006.
November 21, 2017
If you have an H-4 spouse who is eligible to apply for an Employment Authorization Document (EAD) but has not done so, do so now.
The San Francisco Chronicle reports on plans by the Trump administration to overturn a rule allowing the spouses of H-1B holders, who hold H-4 visas, to receive work permits. DHS is currently facing a lawsuit challenging the right of H-4 visa holders to work in the United States, but the administration has delayed the decision in this case while, according to the Chronicle, it drafts a new regulation to rescind work authorization for H-4 visa holders.
November 17, 2017
DACA Renewal Mail Delivery Issues Update
USCIS announced on 11/15/2017 that it will accept DACA renewal requests that were previously rejected as late if they are resubmitted with individualized proof that the cause for receipt after the deadline was the result of U.S. Postal Service (USPS) mail service error.
November 1, 2017
VISA BULLETIN – Check-in with DOS’ Charlie Oppenheim
Employment-Based Preference Categories
EB-1 China, EB-1 India, and EB-2 and EB-3 Worldwide. As previously reported, all of these categories are expected to remain current for the foreseeable future.
EB-2 India. Consistent with Charlie’s predictions, EB-2 India will advance by less than one month for November to October 8, 2008.
EB-3 India. The final action date for EB-3 India will hold steady at October 15, 2006, for November, and Charlie is confident that this date will continue to hold in December.
EB-2 China and EB-3 China. Demand in these two categories is creeping along as expected. Charlie is interested in watching how the new USCIS interview requirement will impact demand in these categories and the downgrade phenomenon that has occurred for the past few years. In November, EB-2 China advances by less than one month to June 15, 2013, and EB-3 China advances by one month to February 1, 2014.
EB-3 Philippines. The final action date for EB-3 Philippines advances one and a half months to April 1, 2016, in November, consistent with Charlie’s predictions.
EB-5 China. The final action date for EB-5 China advances approximately one week to July 1, 2014, in November, consistent with Charlie’s projections.
EB-4. All EB-4 subcategories will remain the same in November with the exception of EB-4 Mexico, which will advance one month to April 1, 2016. Compared to the beginning of the last fiscal year, where Mexico, El Salvador, Guatemala, and Honduras were almost at their annual limits, the demand is starting out more slowly in these categories this year. Charlie expects to continue to advance EB-4 Mexico slowly, but he cautions members to not be surprised if the final action date for EB-4 Mexico rejoins that of EB-4 El Salvador, Guatemala, and Honduras later this fiscal year.
Movement in the family-based categories for November is consistent with Charlie’s predictions, with the final action dates of most categories either remaining the same or advancing modestly by about one month. FB-1 and FB-2B Philippines demand is starting to materialize. In particular, members should expect a correction to FB-1 in the December Visa Bulletin. Demand in FB-4 India is lower than expected, which might allow Charlie to advance the final action date in this category more quickly than previously anticipated.
October 6, 2017
Advance Parole Applications Being Denied for International Travel
Immigration is now denying applications for advance parole if the applicant travels abroad while the application is pending. The application is denied even if the applicant has a valid H or L nonimmigrant visa or another advance parole document that has not expired. This is a total reversal of Immigration’s prior practice in adjudicating advance parole applications.
October 3, 2017
Good news! Premium process is now available for all H-1B petitions.
September 28, 2017
H-1B Premium Processing
USCIS has indicated it will Resume Premium Processing for all H-1B Petitions by October 3. Stay tuned for updates.
September 27, 2017
October 2017 Visa Bulletin Update with Charlie Oppenheim, Department of State
EB-1 China and EB-1 India. These categories will become current again in October. These categories are expected to remain current for the foreseeable future, although a final action date will likely again be imposed at some point later in the fiscal year.
EB-2 Worldwide. As anticipated, this category becomes current again on October 1, and should remain current for the foreseeable future.
EB-2 India. This category is expected to advance at a pace of up to one month at a time. It is hoped that the final action date will reach early 2009 at some point in the next calendar year.
EB-3 India. The final action date for EB-3 India remains at October 15, 2006 as we start the fiscal year, and is likely to hold steady in November, with some movement possible in December.
EB-2 China and EB-3 China. EB-3 China will start the fiscal year with a final action date of January 1, 2014, which is almost eight months ahead of EB-2 China’s final action date of May 22, 2013. Even with the advancement of EB-3 China, Charlie is not fully utilizing the monthly target in an effort to avoid a drastic retrogression later this fiscal year as a result of increased demand. This situation is once again ripe for EB-2 to EB-3 downgrades resulting in the demand Charlie is expecting. EB-2 China’s modest advancement is attributable to material demand and a desire to maintain steady though limited forward movement through the fiscal year.
EB-3 Worldwide. EB-3 Worldwide’s final action date, which became current in August, continues to remain current in October and is expected to remain so for the foreseeable future.
EB-3 Philippines. The final action date for EB-3 Philippines advances one month to December 1, 2015 in October and may advance up to two months at a time as we enter the new fiscal year.
EB-5 China. The final action date for EB-5 China advances one week to June 22, 2014 in October and will continue to advance at a pace of up to one week at a time.
September 18, 2017
U.S. Citizenship and Immigration Services (USCIS) resumed premium processing today for all H-1B visa petitions subject to the Fiscal Year year (FY) 2018 cap. Premium processing has also resumed for the annual 20,000 additional petitions that are set aside to hire workers with a U.S. master’s degree or higher educational degree.
USCIS plans to resume premium processing for all other remaining H 1B petitions not subject to the FY 2018 cap, as agency workloads permit.
September 14, 2017
Diversity Visa Lottery Program Registration for 2019
Applicants must submit entries for the 2019 diversity visa lottery electronically at www.dvlottery.state.gov between 12:00 pm (ET) on October 3, 2017, and 12:00 pm (ET) on November 7, 2017.
There has been recent news that affects some TPS recipients. If you live in the Sixth or Ninth Circuits (TN, KY, OH, MI, AK, HI, AZ, CA, NV, ID, OR, WA, or MT), you may be eligible to apply for adjustment of status to permanent residence without having to depart the U.S. and return on advance parole. Certain requirements must be met. If you think you may qualify or if you have questions, contact Susan Lane.
September 12, 2017
H-1B Premium Processing
USCIS has stated that it anticipates resuming premium processing for H-1B petitions on or before October 3, 2017.
September 6, 2017
ATTN E-Verify Enrolled Employers
Recently, E-Verify released a redesigned participation poster. The new poster informs current and prospective employees of their legal rights, responsibilities, and protections in the employment eligibility verification process.
The poster is now available in English and Spanish as one poster. As stated in the E-Verify User Manual, employers must replace their participation posters when updates are provided by the U.S. Department of Homeland Security. Employers may also display any of 16 foreign language versions of the poster. The new posters can be downloaded when participants log into E-Verify.
Employers are still required to display the Immigrant and Employee Rights (IER) Right to Work posters in English and Spanish. To learn more, see the E-Verify Participation Posterswebpage.
September 5, 2017
The End of DACA
While the Trump Administration announced the end of DACA today, September 5, 2017, there is a six month window (to March 5, 2018) during which Congress must act to protect those who now hold DACA status. Contact your representatives to express your support for DACA!
Nobody’s DACA status will be revoked before it expires, administration officials said, and any applications already received by today will be processed.
Anyone who’s status expires by March 5 has one month to apply for a new two-year permit, and those applications will be processed.
Initial DACA Applications: USCIS will adjudicate properly filed initial DACA requests and associated applications for work authorization that were accepted by USCIS as of September 5, 2017. USCIS will reject any initial DACA requests received after September 5, 2017.
Renewal DACA Applications: USCIS will adjudicate renewal DACA applications and associated applications for work authorization that have been accepted by USCIS as of September 5, 2017. Until October 5, 2017, USCIS will also continue to accept renewal applications filed by DACA recipients whose benefits expire on or before March 5, 2018. USCIS will reject all DACA renewal requests that do not fit these parameters, including all applications received after October 5, 2017.
Applications for Advance Parole Based on DACA Grants: Effective September 5, 2017, USCIS will not approve any DACA-based applications for Advance Parole (Forms I-131). Any pending applications for advance parole will be administratively closed, and USCIS will refund the filing fees. Although DHS also stated that it will generally honor the validity period for previously approved applications for advance parole, remember that CBP retains the right to refuse admission to a person who presents themselves at a port of entry as a matter of discretion.
Visa Bulletin Update with Charlie Oppenheim, Department of State
EB-1 China and EB-1 India. The final action date of January 1, 2012, which was imposed in June 2017, will remain the same for EB-1 China and EB-1 India, as predicted. Based on current information, these categories will likely return to Current in October. However, Charlie will continue to monitor demand carefully between now and early September. A final action date will definitely be imposed again for EB-1 China and EB-1 India at some point during the summer of 2018.
EB-2 Worldwide. The final action date for EB-2 Worldwide, advances nine months in September, from April 1, 2015, to January 1, 2016. This category will become current again on October 1, 2017, and it should remain current for the foreseeable future.
EB-2 India. Smaller than anticipated EB-3 to EB-2 upgrade demand allows EB-2 India to advance one month to August 22, 2008, for September. Members should expect additional, slow movement of a few weeks at a time starting in October. It is hoped that the final action date for EB-2 India will be advanced to a date in December 2008 at some point between January and April 2018, depending on the level of EB-3 upgrade demand. Charlie is also hopeful that the final action date for EB-2 India could advance to a date in 2009 at some point during the second half of FY 2018.
EB-2 and EB-3 China. In September, the final action date for EB-2 China will advance slightly to May 15, 2013, and the final action date for EB-3 China will hold steady at January 1, 2012. Members should expect to see a full recovery of EB-3 China in October, putting it once again ahead of the final action date for EB-2 China, creating conditions for EB-3 downgrades. EB-2 China should advance at a pace of three to six weeks per month in the coming year.
EB-3 Worldwide. The EB-3 Worldwide final action date, which became current in August, is likely to remain current in October, absent significant demand materializing within the next few weeks. Demand for EB-3 Worldwide will have a significant impact on the ability of the EB-3 India final action date to advance significantly at the end of FY 2018, based on the availability of “otherwise unused” numbers.
EB-3 India. The final action date for EB-3 India advances three months in September to October 15, 2006, consistent with Charlie’s predictions. This category is expected to continue to advance at a pace of several weeks at a time as we enter the new fiscal year.
EB-3 Philippines. The final action date for EB-3 Philippines advances another five months to November 1, 2015, in September. Charlie speculates that demand in this category may materialize abruptly, but he does not expect that to occur until after the first of the year.
EB-5 China. The final action date for EB-5 China holds at June 15, 2014, in September. This category will sunset at the end of September if the program is not reauthorized by Congress. As in the past, the October Visa Bulletin will likely address the final action date that will apply to this category if it is reauthorized.
FB-1 and FB-4. As noted in the Visa Bulletin, high demand necessitated a temporary retrogression of the final action dates in the FB-1 and FB-4 Worldwide, China, El Salvador, Guatemala, India and Honduras categories for September. A full recovery of the final action dates for these categories will occur in October.
Special Immigrants. In September, the final action date for EB-4 India, Mexico, and El Salvador, Guatemala, and Honduras advances more than one month to October 22, 2015. EB-4 India will become current in October and will remain so until spring or summer 2018. Additionally, in October, it is possible that EB-4 Mexico will have a later final action date than the one imposed for EB-4 El Salvador, Guatemala and Honduras. If that should happen, it may only be temporary.
August 30, 2017
ATTN: DACA Recipients
The Trump Administration is considering ending the DACA program. There has not been a final decision yet. However, since ending DACA may happen, it is best for DACA recipients to not engage in international travel until we see what happens with the program. OR, if you are currently out of the U.S., return to the U.S. with your advance parole as soon as possible.
August 29, 2017
In-person interviews for employment-based I-485 applicants to begin October 1, 2017
USCIS will begin expanding in-person interviews for certain immigration benefit applicants whose benefit, if granted, would allow them to permanently reside in the United States. This change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.
Effective Oct. 1, USCIS will begin to phase-in interviews for the following:
- Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).
- Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.
August 23, 2017
Nonimmigrant Visa operations across Russia will be suspended beginning August 23, 2017. Visa operations will resume on a reduced scale. Please review the following document for details: Fact Sheet | U.S. Embassy & Consulates in Russia
July 20, 2017
Today, a bipartisan bill called the Dream Act of 2017 was introduced by Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL). The Dream Act of 2017 would provide young people who were brought to this country as children and grew up in the United States the chance to apply for lawful permanent residence, if they meet certain requirements.
Check-In with Department of State’s Charlie Oppenheim on the August 2017 Visa Bulletin.
EB-1 China and India. A final action date of January 1, 2012, which was imposed for EB-1 China and EB-1 India in June, remains for August and is expected to hold through the end of this fiscal year.
EB-2 Worldwide. A final action date of April 1, 2015, will be imposed for EB-2 Worldwide in August. This date is likely to remain the same for September, but there is a possibility that it may retrogress further. However, Charlie is confident that this category will become current again at the start of the new fiscal year on October 1, 2017.
EB-2 India. Despite signaling possible advancement in EB-2 India this fiscal year, the July final action date of July 22, 2008, will remain the same in August due to heavy demand for EB-3 upgrades. If demand continues to materialize at a rapid pace, there will be no forward movement in September, and the date may retrogress. If retrogression is necessary, the final action date would return to July 22, 2008 in October.
In Fiscal Year 2018, movement in EB-2 India and other employment-based categories is expected to be similar to movement this fiscal year, including more conservative advancement during the first quarter.
EB-2 and EB-3 China. In August, the final action date for EB-2 China will advance one month to April 22, 2013. Charlie hopes to advance this date again in September, but it will depend on how much EB-2 China demand materializes in the coming weeks. If this category does not advance in September, it will definitely advance in October when the new fiscal year’s numbers become available.
As predicted, the final action date for EB-3 China, which retrogressed three years in July, will remain at January 1, 2012, in August. This date is expected to hold through September and, based on current demand, should recover in October to a final action date of October 1, 2014. Members should also expect the final action date for EB-2 China to be earlier than that of EB-3 China in October 2017, resuming the dynamic which allows for EB-3 downgrades.
EB-3 Worldwide. EB-3 Worldwide, which has a final action date of June 8, 2017 in July, will be current in August. EB-3 Worldwide demand will have a significant impact on the advancement of EB-3 India in the coming fiscal year, since advancement is entirely dependent on the availability of otherwise unused EB-3 numbers.
EB-3 India. The final action date for EB-3 India, which advanced five months in July, will leap forward another nine months in August to July 15, 2006. While this category should advance again in September, it will not be as pronounced as in August.
Charlie cautions that EB-3 Worldwide demand will increase next fiscal year, as the “otherwise unused numbers” that were available this fiscal year may not be as plentiful next year. Members should respond immediately to any USCIS RFEs in an effort to complete adjudication and obtain an immigrant visa number during the current fiscal year.
EB-3 Philippines. The final action date for EB-3 Philippines will advance to June 1, 2015, in August. As with EB-3 India above, members should respond quickly to USCIS RFEs to provide a better chance of I-485 adjudication before the end of this fiscal year.
USCIS announced on July 19, that it has returned all fiscal year 2018 H-1B cap-subject petitions that were not selected in our computer-generated random selection process. If you submitted an H-1B cap-subject petition between April 3 and April 7, 2017 and have not received a receipt notice or a returned petition by July 31, contact your attorney or USCIS (if you don’t have an attorney) for assistance.
New Form DS-5535, Supplemental Questions for Visa Applicants: If a consular officer determines that an immigrant or nonimmigrant visa applicant warrants additional scrutiny in connection with terrorism or other national security-related visa ineligibilities, the applicant will be instructed to provide the following information on Form DS-5535:
- Travel history during the last fifteen years, including source of funding for travel;
- Address history during the last fifteen years;
- Employment history during the last fifteen years;
- All passport numbers and country of issuance held by the applicant;
- Names and dates of birth for all siblings;
- Name and dates of birth for all children;
- Names and dates of birth for all current and former spouses, or civil or domestic partners;
- Social media platforms and identifiers, also known as handles, used during the last five years; and
- Phone numbers and email addresses used during the last five years.
A new version of Form I-9 (https://www.uscis.gov/i-9) will become mandatory on September 17, 2017. Instructions to Form I-9 do not explain how to update the I-9 regarding the situation where an employee has the new automatic EAD (employment authorization document) extension.
Refer to Section 4.2 of the M-274 Handbook for Employers for instructions, https://www.uscis.gov/i-9-central/42-automatic-extensions-employment-authorization-documents-eads-certain-circumstances which include the following: “The employee’s expired EAD in combination with the Form I-797C Notice of Action showing that the EAD renewal application was timely filed and showing the same qualifying eligibility category as that on the expired EAD is an acceptable document for Form I-9. This document combination is considered an unexpired Employment Authorization Document (Form I-766) under List A.”
June 28, 2017
Travel Ban Update
The Supreme Court this week decided to hear the Travel Ban cases when it reconvenes in the fall. In the meantime, the Court will allow the administration to implement parts of President Trump’s second executive order, which bans the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen from the United States and suspends the admission of all refugees for 120 days.
The following article contains information on who will and won’t be impacted by the Court’s narrow interim decision: http://immigrationimpact.com/2017/06/26/impacted-travel-ban-scotus/
June 22, 2017
For those preparing for naturalization: U.S. Citizenship and Immigration Services has introduced a new app: “USCIS: Civics Test Study Tools,” which is now available on the iTunes and Google Play app stores. The app helps you prepare for the civics test conducted during the naturalization interview. It also has a game to challenge your civics knowledge, reminder notifications, and review of past tests.
The State Department issued the July Visa Bulletin and provides the following comments regarding the bulletin:
EB-1 China and India. The final action date for EB-1 China and EB-1 India (January 1, 2012) that was imposed in June 2017 remains for July 2017 and is expected to hold through the end of this fiscal year.
EB-2 Worldwide. A final action cut-off date will be imposed in this category in August and will be more dramatic than it would have been if a date had been imposed in July. The good news is that this category will become current again on October 1, 2017.
EB-2 India. In July, the final action date for EB-2 India will advance three weeks to July 22, 2008. Minimal advancement is expected in this category through the rest of the fiscal year. The best case scenario for this fiscal year would be a final action date of September or October 2008.
EB-2 China and EB-3 China. For the first time this fiscal year, the final action date for EB-2 China is later than the final action date for EB-3 China. EB-2 China advanced three weeks in July to March 22, 2013. Slow progress in this category is expected to continue. By contrast, EB-3 China will retrogress three years in July to January 1, 2012, as a result of a significant amount of EB-3 downgrades. The final action date for EB-3 China Other Workers will hold at July 15, 2006, and this date could also retrogress in August. The final action date of January 1, 2012, for EB-3 China will hold through the end of this fiscal year, but will advance to October 1, 2014, effective October 1, 2017.
EB-3 Worldwide. In July, EB-3 Worldwide will advance less than two months to June 8, 2017, keeping this category effectively current.
EB-3 India. In July, EB-3 India will advance five months to October 15, 2005, and should continue to advance.
EB-5 China. The final action date for EB-5 China will continue to hold at June 8, 2014, in July and may advance by one week for August. Some additional forward movement in this category remains possible for September should demand by USCIS be less than estimated.
FB-4 Worldwide. In July, the final action date for FB-4 Worldwide will be May 8, 2004.
Special Immigrants. A final action date of August 15, 2015, will be imposed for EB-4 India in July. In October, EB-4 India is expected to return to current. A final action date for EB-4 will continue into FY 2018 for the other countries, though Mexico may have different date from El Salvador, Guatemala, and Honduras.
June 5, 2017
Check-in with the Department of State’s Charlie Oppenheim regarding the June 2017 visa bulletin.
Employment-Based Preference Categories. Increased demand across the employment based preferences, including EB-4 and EB-5, has significantly decreased the “otherwise unused numbers” which have traditionally trickled up to EB-1 and potentially down to EB-2. For example, in FY 2016, Special Immigrant Juvenile cases used more than 50% of the entire EB-4 annual limit, thus preventing many of those 5,200 numbers to potentially become available for use by EB-1 applicants. This, together with high EB-1 Worldwide demand, has contributed to a situation where EB-1 India and EB-1 China now have a final action cut-off date, and in which EB-2 China and EB-2 India number usage is restricted to their annual limits. This is creating significant pressure on these categories that is not likely to abate in the foreseeable future.
As demand across employment based preference categories continues to grow, and absent reform, members can expect to see continued pressure on China and India in the EB-1 and EB-2 categories.
EB-1 China and EB-1 India. As predicted, a final action date of January 1, 2012 is being imposed for EB-1 China and EB-1 India which have already used almost half of the entire EB-1 Worldwide limit for this fiscal year. This date is expected to hold through the remainder of this fiscal year. It is hoped that the final action date for EB-1 China and EB-1 India will return to current on October 1, as it did last year, but Charlie will continue to monitor demand in these categories over the summer months. EB-1 Worldwide is expected to remain current through this fiscal year and into the next.
EB-2 Worldwide. For several months, Charlie has observed high EB-2 number usage, and is now certain that a final action cut-off date will be imposed for EB-2 Worldwide by August, and possibly in July. Charlie hopes that the date imposed will not be too drastic, and will determine that date based upon the remaining numbers and the monthly demand trend. In the worst case scenario, the date will remain the same through the end of the fiscal year but depending on demand, it is possible that the date could advance slightly in September. Charlie is confident that this period of retrogression will be brief, and that the category will again become current on October 1.
EB-2 India. Demand for EB-2 India continues to be strong, in large part due to EB-3 upgrades. As noted above, the supply of visas in this category is limited to the per country limit. Although EB-2 India will advance slightly in June, Charlie no longer believes this category will recover to last year’s final action date. Charlie hopes to hold the existing final action date through the remainder of the fiscal year but will be watching this category closely.
EB-2 China and EB-3 China. EB-2 China will advance less than one month to March 1, 2013 in June, and EB-3 China’s final action date of October 1, 2014 continues to hold steady in June. Charlie expects EB-2 China to continue to advance slowly and notes that it is on track to hit the per country limit. In addition, EB-3 downgrade volume has started to materialize in large numbers. Charlie hopes to hold the EB-3 China final action date as long as possible, but retrogression of this category cannot be ruled out. Since Charlie lacks visibility into downgrade demand until a visa number is requested, members should continue to watch this category closely.
EB-3 Worldwide. EB-3 Worldwide will advance by one month to April 15, 2017 in June, making this category effectively current. Charlie expects this category to continue to advance.
EB-3 India. In June, EB-3 India will leap forward from March 25, 2005 to May 15, 2005. Since EB-3 Worldwide and Mexico demand is low, those otherwise unused numbers will continue to advance the final action date for EB-3 India in July and August. Charlie has already predicted that the July final action date for EB-3 India will advance to October 15, 2005, as he announced during a May 18, 2017 meeting with AILA in Washington, D.C.
EB-5 China. EB-5 China will advance by one week to June 8, 2014 in June. Charlie expects slow forward movement in this category.
FB-4. As noted last month, FB-4 Worldwide is the family-based preference category that members should watch closely. Although the final action date will remain the same in June, Charlie hopes to advance this category this fiscal year.
FB-4 Worldwide continues to advance, as the majority of beneficiaries are not responding to the NVC “Agent of Choice” letters. Only 40% of 120,000 FB-4 Worldwide beneficiaries who had been sent “Agent of Choice” letters no later than April 2016 have responded to those letters, and of those, only 15% provided sufficient information for an interview to be scheduled. Had they responded in a timely manner, all of those applicants could have been scheduled for interview no later than April 2017. Charlie reminds members that timely response to the Agent of Choice letters is helpful to ensuring that case advances to completion as quickly as possible.
Special Immigrants. EB-4 India will be subject to a final action date in July. That date will track the final action date for El Salvador, Guatemala, Honduras and Mexico. At last week’s FBA conference in Denver, Charlie announced that the July EB-4 date for those five countries will be August 15, 2015.
May 3, 2017
USCIS announced on May 3, 2017 that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.
April 26, 2017
May Visa Numbers are Available.
Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, has the following comments on current trends and future projections for the various immigrant preference categories.
EB-2 Worldwide. May become oversubscribed in July. However, the date will once again be CURRENT in October.
EB-1 India and China. Charlie has been predicting the imposition of a final action cut-off date for EB-1 China and India for several months and echoes that warning in the May Visa Bulletin. Charlie predicts that a final action cut-off date will be imposed for EB-1 China and India no later than July. The date for these countries will once again become CURRENT in October.
EB-2 India. March demand for EB-2 India doubled from February. Based on this spike in demand, Charlie can no longer say with confidence that this category will recover to last year’s level. However, there may still be some room for the date to advance further, and based on current demand patterns, the absolute best case scenario would be for the final action date to reach December 2008.
The China EB-3 Downgrade Phenomenon. The gap between EB-2 China and EB-3 China continues to widen in May, with EB-3 China advancing six months to October 1, 2014 and EB-2 China advancing less than one month to February 8, 2013. Consistent with this trend, no significant advancement in the final action date for EB-2 China is expected this fiscal year. By contrast, we may continue to see a healthy advancement of EB-3 China until or unless the expected EB-3 downgrade phenomenon materializes. Based on current data, Charlie predicts that the final action date for EB-2 China may advance as far as a date in spring or summer 2013 before the end of this fiscal year.
EB-4 Religious Workers and EB-5 Investors (I5 and R5). Both the EB-4 Religious Worker and EB-5 Investor Programs will sunset on April 28, 2017 unless reauthorized by Congress. As such, the May Visa Bulletin notes that both of these categories will be unavailable in May unless Congress acts.
April 17, 2017
USCIS announced on April 7, 2017 that it had received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2018. USCIS has also received a sufficient number of H-1B petitions to meet the U.S. advanced degree exemption, also known as the master’s cap.
USCIS received 199,000 H-1B petitions during the filing period, which began April 3, including petitions filed for the advanced degree exemption. On April 11, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.
The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 cap.
April 6, 2017
USCIS announced this week multiple measures to further deter and detect H-1B visa fraud and abuse. USCIS will now take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:
Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers (unless the H-1B worker is exempt by having a Master’s degree or higher in a related field or receiving compensation of at least $60,000) are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. USCIS states that these site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.
To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.
March 30, 2017
The Nebraska Service Center (NSC) has advised that, due to the high volume of incoming premium processing requests, H-4 I-539 and H-4 I-765 EAD applications that are concurrently filed with premium H-1B petitions before the start of USCIS’s premium processing suspension on April 3, 2017, may not be adjudicated concurrently with the Form I-129 and within the prescribed 15 days. If no notice has been received on a riding I-539 or I-765 by the end of April, applicants or their attorneys can contact the National Customer Service Center to place a service request
March 20, 2017
The April Visa Bulletin has been released. Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, provides the following analysis of current trends and future projections.
EB-1 India and China have already surpassed their per country limits of 2,800 visas, with EB-1 India using more than 9,000 numbers, and EB-1 China using more than 4,500 numbers. Charlie is watching these categories very carefully. As the availability of “otherwise unused” numbers diminishes, a Final Action cut-off date will likely be imposed for both countries at some point this summer.
The China EB-3 Downgrade Phenomenon. For the last few years, the Final Action Date for EB-3 China has been closer to “Current” than the EB-2 China Final Action Date. This phenomenon has spurred EB-2 beneficiaries to file new I-140s to “downgrade” to EB-3. Once a sufficient number of “downgrades” materialize into demand for EB-3 China numbers, EB-3 and EB-2 China come back into alignment. Historically, this realignment typically happens in May.
Despite low number usage in EB-3 China, Charlie has been reluctant to advance the Final Action Date dramatically as he expects EB-2 China downgrade demand will materialize. With EB-3 China demand still low as we enter the second half of the fiscal year, EB-3 China will advance five months in April, to August 15, 2014. This will position the EB-3 China Final Action Date 17 months ahead of the EB-2 China Final Action Date of January 15, 2013. It will be interesting to see how long this phenomenon will continue in this fiscal year before the Final Action Dates realign.
Advancement of the EB-3 Worldwide Final Action Date to February 15, 2017 is consistent with Charlie’s predictions. EB-3 Worldwide is not expected to become current in the near future, but will likely advance about one month at a time, staying about two months away from being current.
The EB-3 Philippines Final Action Date will also advance six months to September 15, 2012 for April.
EB-5 China will advance to May 22, 2014 in April. Charlie reports that if the Regional Center pilot program is reauthorized before the end of April, it will continue to advance, but it remains to be seen how quickly and to what extent it will advance.
March 3, 2017
Just announced this afternoon: Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.
The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.
February 15, 2017
The March Visa Bulletin is now available.
Visa availability for employment categories for the coming months as set forth in the March Visa Bulletin:
- Employment First: This category will remain current. However, a final action date is likely to be imposed by August for China and India.
- Employment Second: Worldwide-current; China-up to five weeks; India-up to one month.
- Employment Third: Worldwide & Mexico-up to three months; China-up to six months; India-extremely limited forward movement; Philippines-up to six months.
- Employment Fourth: Current for most countries.
- Employment Fifth: Current for most countries; China-up to two weeks.
For additional information and for family-sponsored categories, please visit https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.
February 6, 2017
- Beginning Jan. 22, 2017, employers must only use the revised version Form I-9, Employment Eligibility Verification, dated 11/14/2016, to verify the identity and work eligibility of every new employee hired after Nov. 6, 1986.
- Reverification of expiring employment authorization for existing employees must be completed using the revised version, dated 11/14/2016.
- Prior versions of the form will no longer be valid for use on or after 11/22/2017.
- Employers should continue to follow existing storage and retentions rules for all of their previously completed Form I-9.
- Employers who fail to use Form I-9 (11/14/2016 N) on or after Jan. 22, 2017 may be subject to all applicable penalties under section 274A of the Immigration and Nationality Act, 8 U.S.C. 1324a, as enforced by U.S. Immigration and Customs Enforcement (ICE).
February 3, 2017
Immigration documents and travel
Nonimmigrants should carry their original Immigration documents with them at all times. This includes H-1B and H-4 approval notices, EAD/AP documents, and OPT cards. Keep a photocopy of your documents in a safe place at home. Of course, if you will be engaged in international travel, you will need a valid passport and perhaps some additional documents depending upon your situation.
February 2, 2017
No Current Plans to Expand Travel Ban Beyond Current Countries
In response to rumors of plans to expand the travel ban to other countries, Department of State (DOS) informed the American Immigration Lawyers Association (AILA) that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.” This includes Columbia and Venezuela which have been widely rumored to be under consideration. DOS confirmed that there is no information that supports such a rumor and asked that AILA members help end the spread of this false information.
WASHINGTON ― The Department of Homeland Security is planning to make exceptions to President Donald Trump’s executive order on refugees and certain foreign nationals, including by allowing 872 refugees into the U.S. this week. Legal permanent residents, dual nationals and Iraqis who worked for the U.S. government will be exempt from the ban on travelers from certain countries, officials said. They made the announcement on Tuesday, following a period of confusion over the executive order that began when Trump signed it on Friday….
Homeland Security DHS To Make Exceptions To Donald Trump’s Ban On Refugees And Certain Travelers.
Secretary John Kelly announced on Sunday that waivers would be provided on a case-by-case basis to legal permanent residents, or green card holders. On Tuesday, he and other DHS officials announced additional exceptions to the order. Iraqi nationals will now be eligible for entry using Special Immigrant Visas, which are granted to people who worked for or on behalf of the U.S. government in Iraq, officials said.
DHS officials also said that dual nationals with visas and passports from a non-restricted country are eligible to apply for entry into the U.S., such as someone with citizenship from Iran and the United Kingdom.
Even after the changes, millions of people from the seven affected countries, along with all refugees not scheduled to enter the U.S. this week, are subject to the ban.
January 27, 2017
Executive Order signed today which includes the following provisions:
Refugee Admissions: Suspends the Refugee Admissions Program for 120 days. Reduce refugee admissions for FY2017 to 50,000 from President Obama’s goal of 110,000. Notwithstanding the temporary suspension, refugees may be admitted on a case-by-case basis if certain criteria are met.
Ban on Entry to U.S. for Certain Countries: Suspends visa issuance and other immigration benefits to nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
Biometric Entry-Exit System: Directs agencies to expedite completion of biometric entry-exit system.
Suspends the Visa Interview Waiver Program: All visa applicants will be required to attend an interview unless not required by statute.
January 25, 2017
President Trump signed Executive Orders today which:
- Order the “immediate” construction of border wall, using Federal funds.
- Call for the hiring of 10,000 Immigration officers.
- Expand detention centers along the border.
- Increase deportations of undocumented immigrants.
- Defund sanctuary cities in the US.
- End “catch and release” practices.
Other Executive Order ideas under consideration are:
- Refugee Admissions: Suspend the Refugee Admissions Program for 120 days. Reduce refugee admissions for FY2017 to 50,000 from President Obama’s goal of 110,000.
- Ban on Entry to U.S. for Certain Countries: Suspension of visa issuance and other immigration benefits to nationals of countries of particular concern, probably for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
- Screening for All Immigration Benefits: Add requirements to screenings and procedures for all immigration benefits to identify fraud and detect intent to do harm.
- Biometric Entry-Exit System: Direct agencies to expedite completion of biometric entry-exit system.
- Suspends the Visa Interview Waiver Program: All visa applicants will be required to attend an interview unless not required by statute.
January 23, 2017
This bill amends the Immigration and Nationality Act to revise the definition of “exempt H-1B nonimmigrant” to eliminate the masters or higher degree requirement and raise the annual salary threshold requirement from $60,000 to $100,000.
The bill requires an inflation adjustment to the salary threshold every third fiscal year.
January 22, 2017
Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, provides his analysis of current trends and future projections for the various immigrant preference categories now that the February 2017 Visa Bulletin has been issued. Some highlights:
EB-1. Demand in this category remains strong and a cut-off date for EB-1 India and EB-1 China will need to be imposed later this fiscal year. Charlie will hold off doing so for as long as possible, but is confident that it will happen. When it does, members should not expect the date to retrogress quite as far back as last fiscal year when the date rolled back to 2010. Charlie continues to expect that the imposition of a Final Action cut-off date in these categories will be relatively short-lived and that EB-1 China and India will return to “Current” in October when the FY 2018 numbers become available.
EB-2. Tremendous demand resulting from EB-3 upgrades means EB-2 India will not advance in February and will likely hold at the current Final Action cut-off date of April 15, 2008 in March. If demand for EB-2 Worldwide remains strong, it is unlikely that EB-2 India will be able to benefit from any unused numbers and may be restricted to its 2,800 per country limit. If the trend in demand continues, EB-2 India is unlikely to recover to last year’s date. Members should not expect any significant movement in this category until at least July or August. Charlie continues to monitor this very closely. If the current surge in demand is not sustained, and Worldwide demand, or India demand with early priority dates subsides, more forward movement than what is currently projected may be possible.
Unlike EB-2 India, EB-2 China did advance somewhat to November 15, 2012 since demand in this category is not currently exceeding the monthly target.
EB-3. EB-3 Worldwide demand has subsided. The decrease in demand that allowed Charlie to advance the Final Action cut-off date earlier this fiscal year continues, and allowed him to advance the date again to October 1, 2016. While this trend may continue, due to current USCIS processing times, additional forward movements after March are unlikely to impact number usage in this category this fiscal year.
EB-3 China downgrades have not yet materialized at the level which had been experienced in past years. Nevertheless, Charlie is not advancing the Final Action date in this category significantly in an effort to avoid retrogression if demand from downgrades materializes in the coming months as expected.
January 17, 2017
Canadian citizen visitors to the U.S. – Admission issues
When entering the U.S. by air, the traveler will need to obtain her I-94 record by going to www.cbp.gov/I94. At land ports of entry, I-94 cards are typically not issued. It is very important to check for your I-94 record online to verify your period of admission.
If you are given a 6 month I-94 record, and you depart the US and seek readmission while the initial I-94 remains valid, you will only be admitted for the remaining time on the I-94; you are not given a new 6 month period.
Always check your I-94 record after each entry to make sure you do not overstay your period of authorized stay in the U.S.!
December 21, 2016
JANUARY 2017 VISA BULLETIN NEWS
Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, has provided the following insight into the January 2017 Visa Bulletin:
EB-1. Based on current demand, Charlie continues to predict that a final action cut-off date will need to be imposed for EB-1 India and EB-1 China later this fiscal year.
EB-2. Charlie expects to impose a final action cut-off date for EB-2 Worldwide at some point due to sizeable demand across the board in this category. Pent up demand from cases that otherwise would have been approvable in August and September last fiscal year are partly responsible for this surge in demand, as are EB-3 India upgrades.
China has already exceeded its EB-2 quarterly limit, so there is unlikely to be any major forward movement in this category.
Charlie continues to hope that EB-2 India will recover to the November 22, 2008 final action date from May 2015. However, EB-3 upgrades could negatively impact that recovery.
EB-3. EB-3 Worldwide demand has dropped a bit, which allowed Charlie to advance this category a bit in January. At some point, when EB-2 Worldwide becomes subject to a final action cut-off date, we may see an EB-3 downgrade phenomenon which to this point has only been seen with regard to China.
EB-5. EB-5 China should continue to advance, but is expected to do so very slowly, up to a few weeks at a time. Charlie reports huge demand for EB-5 Worldwide. Historically, China captured 80 percent of the available numbers in this category, whereas last year, China’s share of EB-5 Worldwide dropped to 75 percent.
EB-4 EL SALVADOR, GUATEMALA, HONDURAS AND MEXICO. Charlie continues to observe huge demand in the EB-4 category, especially with respect to El Salvador, Guatemala, Honduras, and Mexico. As previously reported, this is largely due to demand for Special Immigrant Juvenile (SIJS) visas from these countries. As noted in the January 2017 Visa Bulletin (AILA Doc. No. 16121234), the final action dates for these categories may retrogress at some point this fiscal year. When asked when this might occur, Charlie stated that the lack of visibility into USCIS demand in these categories makes it difficult to predict.
EB-4 NUMBER USAGE AND PER COUNTRY LIMITS. As of mid-December, Mexico has almost reached its EB-4 per country annual limit, and EB-4 El Salvador, Guatemala, and Honduras has used approximately 75 percent of their available numbers.
India has used more than 40 percent of its EB-4 per-country limit, attributable to EB-4 religious workers as well as some SIJS. If usage continues at this pace, Charlie expects that a final action cut-off date will need to be imposed for EB-4 India at some point in the spring or summer months.
December 13, 2016
The Senate passes a funding bill so a government shutdown is averted.
December 9, 2016
Is a government shutdown possible?
On December 6, 2016, the House Appropriations Committee introduced a Continuing Resolution (CR) that would fund the government until April 28, 2017. The CR would also extend the EB-5 Regional Center, Conrad 30 J Waiver, Special Immigrant Non-Minister Religious Worker, and E-Verify programs. It would not, however, reinstate the H-2B returning worker exemption. Yesterday, the House, by a vote of 326 to 96, passed H.R. 2028, a bill that included the CR, which keeps the government funded until April 2017. The Senate is expected to debate and vote on the CR today. In order to avoid a government shutdown, the CR must be passed by today, December 9, 2016.
December 6, 2016
Senators drafting legislation to protect DACA recipients
The Guardian reports that Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) are working to draft legislation that would extend the legal status of DACA grantees. Although the timing of the legislation remains unclear, Senator Durbin indicated in a Senate floor speech last week that he and Senator Graham could unveil a plan as early as this week—before the current Congress disbands—to send a message to President-elect Donald Trump, who made a hardline approach to immigration a centerpiece of his campaign and vowed to repeal President Obama’s 2012 executive actions on immigration on the first day of his presidency.
November 28, 2016
December Visa Bulletin Analysis
Following publication of each month’s Visa Bulletin, the American Immigration Lawyers Association “checks-in” with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, to obtain his analysis of current trends and future projections for the various immigrant preference categories. Through these discussions, it is hoped that Charlie will provide us with additional insight, beyond the basic visa availability updates that are provided in the monthly Visa Bulletin.
Highlights from the December visa bulletin:
- A prediction that EB-1 Chinaand EB-1 India will be subject to a final action date “at some point,” and
- A prediction that EB-2 Worldwide, EB-2 Mexico and EB-2 Philippineswill be subject to a cut-off date no later than July.
The final action date for EB-3 China is approximately ten months ahead of the EB-2 China final action date. This phenomenon has existed for the last few years and tends to spur greater demand for EB-3 China based on requests to “downgrade” from EB-2 China by filing a new I-140 petition based on an existing certified EB-2 labor certification. When asked how quickly he plans to close the gap between these two final action dates, Charlie noted that while he fully expects this gap to continue to close, how soon it occurs will depend on demand. Forward movement of the China EB-3 date has been limited because of the expected significant influx of “downgrade” demand, which resulted in retrogression in earlier years. If such demand fails to materialize in the coming months the date will begin to advance at a faster pace.
EB-2 India continues to receive significant demand, which Charlie attributes to EB-3 upgrades. It is hoped that this final action date will get into 2009 at some point this fiscal year, but Charlie does not yet have a sense as to how quickly that might occur.
There continues to be significant demand for EB-2 Worldwide, and if that continues, it will leave little, if any, otherwise unused numbers to reallocate to EB-2 India. In past years, EB-2 India has often benefitted from the addition of thousands of otherwise unused numbers not required for use by other countries.
In the December Visa Bulletin, Charlie projected that EB-3 India would move up to one week, hold for several months, then move one week, and then hold again. When asked to comment further, Charlie added that he expects EB-3 India to hold in January, advance up to one week in February, and hold again for a month or two before advancing modestly again.
EB-1 demand remains strong with EB-1 India having already surpassed its per country limit for this fiscal year. Although not yet there, EB-1 China is close to reaching its annual limit as well. Charlie expects to impose a final action date again this fiscal year for EB-1 India and EB-1 China. He anticipates that will happen much earlier than last year, but is not sure when. Given the current pace of EB-1 demand, there will be no EB-1 numbers available to fall down to EB-2, and this will put additional pressure on the final action dates in that category.
Demand has also not abated for EB-2 Worldwide/Mexico/Philippines, causing Charlie to speculate that a date will be imposed no later than July.
Charlie has been waiting for some time for demand to be generated in EB-3 Worldwide, which has generally been current for more than a year. Charlie is watching demand very closely, and though he has started to see an increase, it is unclear whether this demand will be sustained.
DACA NEWS – ADVANCE PAROLE TRAVEL WARNING
There is concern that President-elect Trump will end the DACA program, but what actions he may take regarding the DACA program and when are unknown.
As always, DACA recipients should not travel outside the U.S. if they do not have a current, valid advance parole travel document. For DACA recipients who have not yet applied for advance parole, processing times for Form I-131, Application for Travel Document indicate that an application submitted now will likely not be approved before January 20, 2017. DACA recipients with advance parole should complete their travel and return to the United States as soon as practicable, but certainly before January 20, 2017. Note that CBP is responsible for inspecting and paroling individuals with valid advance parole documents, and maintains the position that advance parole does not guarantee admission to the United States. DHS may revoke or terminate an advance parole document at any time, including while the DACA recipient is outside the U.S., which would inhibit or prohibit their ability to return.
November 7, 2016
USCIS will publish the revised Form I-9, Employment Eligibility Verification, by Nov. 22, 2016 . Employers may continue using Form I-9 dated 03/08/2013 N through Jan. 21, 2017. By Jan. 22, 2017, employers must use the revised form. Employers should continue to retain and store previously completed forms for existing and former employees in accordance with guidance provided on I-9 Central.
October 26, 2016
USCIS is expected to publish a revised Form I-9, Employment Eligibility Verification, by November 22, 2016. Employers may continue to use the current version of Form I-9 (revision date of 3/8/13) until January 21, 2017. After that date, all previous versions of Form I-9 will be invalid.
October 24, 2016
Immigration filing fees are increasing December 23, 2016. Applications and petitions postmarked or filed on or after Dec. 23 must include the new fees or USCIS will not accept them. The new fees are listed on the Form G-1055, Fee Schedule, and the Immigration website.
Adjustment of Status Filing Dates for November 2016
For Family-Sponsored Filings:
You must use the Dates for Filing Family-Sponsored Visa Applications chart in the Department of State Visa Bulletin.
For Employment-Based 1st through 4th Preference Filings:
You must use the Dates for Filing of Employment Based Visa Applications chart in the Department of State Visa Bulletin.
For Employment-Based 5th Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin.
For additional information, visit www.uscis.gov or contact Susan E. Lane.
November Visa Bulletin News
Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, provides his analysis of current trends and future projections for the various immigrant preference categories in the visa bulletin. The following information pertains to the November Visa Bulletin which was just released this week.
EB-1 China, EB-1 India, and EB-1 Worldwide will remain current in November and for the foreseeable future. The pent up demand caused by the retrogression of EB-1 China and India at the end of last fiscal year manifested itself with more than 3,000 numbers used as of October 1st, and that number is expected to increase throughout the month. Though this is strong demand, it did not reach the initial EB-1 total in October 2015 of 3,800 visas, and while number usage is high, a retrogression of the EB-1 category is not expected for the first half of the fiscal year. Charlie will continue to monitor demand and will advise if there might be cause for concern about retrogression later in the fiscal year.
EB-2 Worldwide will remain current in November and retrogression is not expected in the foreseeable future. Although Charlie anticipated that EB-2 India would advance at a four month pace, in November, EB-2 India will advance nine months to November 1, 2007. This aggressive forward movement is motivated by lower demand than expected and Charlie’s desire to advance the final action date sufficiently to achieve visa usage at the level of his projected monthly target. While it remains to be seen whether EB-2 India will continue to advance at this aggressive pace or average out to the four month projection over a period of time, members can expect only forward movement in this category for the foreseeable future. Charlie’s goal is to recover to the November 2008 date which was reached last spring as quickly as possible, most likely no later than March 2017.
EB-2 China advanced four months to July 15, 2012, and EB-3 China advanced three months to April 15, 2013. EB-2 China was previously up to September 2012, and is likely to recover to that date no later than February 2017. Charlie also believes that EB-2 China may advance more rapidly based on the anticipated EB-3 downgrades which could reduce the level of demand in EB-2.
October 4, 2016
Customs & Border Protection announced that the I-94 website now allows travelers to submit a request for their I-94 online, up to seven days prior to arriving at a land port of entry. After submitting the application and payment online, travelers will receive a provisional I-94. The I-94 online application will collect information that is otherwise collected in-person at the land port of entry, including biographic information (name, date of birth, country of citizenship), passport details, visa details (if applicable), and the applicant’s petition/Student and Exchange Visitor Program (SEVIS) number (if applicable). This is only available for those travelers arriving at a land port of entry. For more information, visit www.cbp.gov/I94.
October 3, 2016
Today, the U.S. Supreme Court denied the Obama administration’s request for a rehearing in the case over President Barack Obama’s controversial executive actions on immigration, leaving in place a block on programs that would have provided expanded deportation relief to millions. These programs are DAPA, Deferred Action for Parents of Americans and Lawful Permanent Residents, and the expanded eligibility requirements for DACA, Deferred Action for Childhood Arrivals. The existing DACA program remains in place.
September 28, 2016
Electronic Visa Update System (EVUS)
Beginning November 29, 2016, all individuals carrying 10 year validity B1/B2, B1, and B2 visas in passports issued by the People’s Republic of China must have a valid EVUS enrollment in order to travel to the U.S. Otherwise, they will not be able to obtain a boarding pass or enter the U.S. through a land port of entry.
U.S. Customs and Border Protection (CBP) expects to begin accepting early EVUS enrollments on a voluntary basis in mid-October, before enrollments become mandatory on November 29, 2016. Look for an announcement from CBP and the U.S. Embassy when the system is active and ready to accept enrollments. Go to www.cbp.gov/EVUS for additional details.
September 27, 2016
At the Department of Labor stakeholder meeting on September 12, 2016, Acting OFLC Administrator William Thompson confirmed that the draft PERM Modernization Regulation is still undergoing review, and based on the current state of the process, implementation of a final PERM Modernization Regulation before the end of the Obama administration in January 2017 is “highly unlikely.” A Notice of Proposed Rulemaking (NPRM) with the proposed changes may still be released at some point in the coming months, but any major changes to the PERM program do not appear to be imminent at this time. The PERM Modernization Regulation is part of President Obama’s Executive Actions on immigration, which included a directive for DOL to take regulatory action to modernize the PERM program that is over 10 years old.
Information for the FY2018 Diversity Lottery Program is now available. For FY2018, 50,000 diversity visas will be available. Entries must be submitted electronically between October 4, 2016, and November 7, 2016. https://travel.state.gov/content/visas/en/immigrate/diversity-visa/entry.html
Visa Bulletin Update: The October Visa Bulletin is available. You can access it by using the Visa Bulletin link below. The State Department’s comments on the October Visa Bulletin and future demand are the following: The final action date for EB-2 India advances to January 15, 2007 in October. This category is expected to advance at a pace of up to four months at a time. Slower movements of up to a week at a time are anticipated for EB-3 India, which advances to a March 1, 2005 final action date in October. Number usage for EB-3 India is expected to be high in October, which will decrease the amount of numbers the State Department can allocate in November and December and slow the advancement of this category.
EB-1 China and India. In October, the EB-1 final action date for all countries returns to current. EB-1 India and China can be expected to remain current for the foreseeable future. The State Department will continue monitor this category closely during the second half of the fiscal year if demand remains high.
EB-2 and EB-3. As predicted, EB-2 Worldwide is again current in October and ahead of EB-3 Worldwide. As there is pent up demand in EB-2 Worldwide due to the retrogression, visa usage in this category will be high in October. Members should not be concerned that a cut-off date will be imposed during the first half of the fiscal year. The State Department will monitor this category closely during the final quarter of the fiscal year.
USCIS has determined that for the month of October 2016, applicants for all family-sponsored and employment-based preferences may use the Dates for Filing Visa Applications chart, except for certain employment-based fourth preference (EB-4) non-minister religious workers and for employment-based fifth preference (EB-5) Regional Center Program participants.