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.
December 27, 2018
E-Verify AND E-Verify SERVICES ARE UNAVAILABLE DUE TO THE GOVERNMENT SHUTDOWN
While E-Verify is unavailable, employers will not be able to access their E-Verify accounts to: Enroll in E-Verify; Create an E-Verify case; View or take action on any case; Add, delete or edit any user account; Reset passwords; Edit company information; Terminate accounts; and Run reports.
Also, employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).
The government understands that E-Verify’s unavailability may have a significant impact on employer operations. To minimize the burden on both employers and employees, the following policies have been implemented:
- The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
- The time period during which employees may resolve TNCs will be extended.
- The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs. USCIS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
- Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
- Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines (/employers/federal-contractors/timeframes-for-enrollment-and-use).
For information on interim cases statuses and E-Verify resources see E-Verify publications (/employers/employer-resources) and Questions and Answers (/about-e-verify/questions-andanswers).
The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) (https://www.uscis.gov/i-9-central/handbook-employers-m-274) and on I-9 Central (https://www.uscis.gov/i-9-central).
December 21, 2018
What happens if the Government shuts down?
Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.
USCIS: USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers. As announced by USCIS on January 20, 2018, those programs may be suspended or otherwise impacted.
DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.
CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.
ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR: Immigration court cases on the detained docket will proceed during the lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings.
DOL:Is NOT impacted by this government shutdown. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.
December 20, 2018
Check-in with DOS’s Charlie Oppenheim Regarding the January 2019 Visa Bulletin
With only modest movement in the employment-based preference categories for the first quarter of the fiscal year, we were hoping to see more dramatic forward movement in some of these categories starting with the January 2019 Visa Bulletin. However, movement tracks similarly to what we experienced during the first quarter.
As of now, Charlie does not have sufficient data to know whether the current demand trend will continue into January so he is unable to comfortably predict final action date movements in the near term. While Charlie initially hoped to publish specific projections in the January Bulletin, he now expects to publish projections in the February Visa Bulletin.
Since final action dates in several employment-based categories retrogressed during the final months of FY2018, demand in the first quarter was generally high across these categories, and applications which were unable to be processed for a few months are now coming through the pipeline. Charlie is concerned that demand data may be artificially high and not reflect the true level of future demand. He will continue to cautiously monitor demand levels over the next few weeks to assess whether this is a true trend and will make predictions accordingly.
It has been fortunate that USCIS has decided to accept adjustment of status applications based on the “Dates for Filing” through the first quarter of FY2019, but the Final Action Dates may apply as early as February.
Interestingly, for both EB-3 China and India, the Dates for Filing far surpass those for EB-2. This creates the potential for downgrade filings which may not be available after January.
December 19, 2018
Adjustment of Status Filing Dates for January 2019
USCIS determined that for January 2019, the Dates for Filing chart must be used for both family-based preference filings and for employment-based preference filings.
UPDATE ON ADVANCE PAROLE DENIALS DUE TO INTERNATIONAL TRAVEL
USCIS recently updated its website with information regarding the agency’s practice of denying pending Form I-131 advance parole applications for abandonment due to international travel. Specifically, USCIS indicates on its website that if an applicant files Form I-131, Application for Travel Document, to request an advance parole document and departs the United States without possession of an advance parole document that is valid for the entire time the applicant is abroad, USCIS will consider the pending Form I-131 to be abandoned.
However, in some situations, an individual may have an approved advance parole document in hand while a second one is pending with the agency. USCIS indicates that individuals may travel on the approved advance parole document, provided the document is valid for the entire duration of the time abroad, and confirms that a pending Form I-131 application will not be considered abandoned in this situation.
Though not a formal announcement, this update can be found on the USCIS website under the “Special Instructions” section. This update does not appear to cover applicants who travel abroad with a valid H, K, L, or V visa.
Recap: If you currently have a valid Advance Parole document while an application for a new advance parole document is pending at USCIS, international travel will not result in a denial of the pending application. This only applies if you are returning to the U.S. with an advance parole document. This does not apply if you need to return to the U.S. using a nonimmigrant visa.
December 11, 2018
USCIS PROPOSES CHANGES TO H-1B LOTTERY PROCESS
Under this USCIS proposal, employers seeking to file H-1B cap-subject petitions must register electronically with USCIS during a designated registration period. Also, USCIS would reverse the order by which the agency selects H-1B petitions, conducting the general lottery first, and then selecting the advanced degree exemption cases. The expectation is that more petitions would be selected for advanced degree applicants. USCIS is accepting public feedback on the proposed regulation until January 2, 2019.
The electronic registration period would begin at least 14 calendar days before the first date the H-1B filing window opens each fiscal year, and would remain open for at least 14 calendar days. USCIS would give at least 30 calendar days’ notice of the registration period on the USCIS website.
USCIS would then conduct the annual H-1B lottery from the pool of timely-filed electronic registrants. The rule proposes that employers whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the filing period for registrants who are selected would be at least 60 days. USCIS anticipates staggering notifications so that the thousands of H-1B petitions selected in the lottery are received over a period of time for more efficient adjudication.
Employers would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year. USCIS is not proposing to charge a fee for electronic registration at this time.
Given the late publication of the proposed regulation, it is uncertain whether the agency will be able to finalize and implement the proposed regulation in time for the FY2020 lottery. Thus, we will proceed with FY2020 case preparation as in the past.
If you anticipate having any H-1B cap cases that will need to be filed during the April 2019 filing period, please contact Cantey Hanger ASAP.
December 4, 2018
National Day of Mourning for President George H.W. Bush
President Trump has declared Wednesday, Dec. 5, a national day of mourning to remember the life and legacy of George H.W. Bush, the 41st president of the United States. Accordingly, all U.S. Citizenship and Immigration Services (USCIS) offices will be closed Wednesday. USCIS will reschedule all naturalization ceremonies, interviews, and appointments set for that day.
USCIS will schedule new dates and promptly inform those affected. All applicants with biometric appointments scheduled for Wednesday will receive a new appointment notice within three weeks.
November 20, 2018
Update on USCIS Practice of Denying Pending Forms I-131 for Abandonment Due to International Travel
On November 16, 2018, USCIS Director L. Francis Cissna spoke briefly on the USCIS policy to deny pending Forms I-131, Application for Travel Document when an applicant travels overseas. Based on feedback from the CIS Ombudsman and other stakeholders, Director Cissna indicated that USCIS will end the practice of denying pending I-131 applications when an applicant travels overseas. Though he did not provide a timeline for this change, he indicated that policy on this would be forthcoming.
This is finally a bit of good news. We will post more information as it becomes available.
Check-in with DOS’s Charlie Oppenheim Regarding the December 2018 Visa Bulletin
Family-Based Preference Categories
All of the family-based Final Action Dates advance in December with the exception of FB-1 Mexico, FB-2B Mexico, FB-3 Mexico, and FB-4 Mexico, which will hold at their November Final Action Dates.
Employment-Based Preference Categories
EB-1. As predicted last month, in December all of the EB-1 Final Action Dates advance three months, with EB-1 Worldwide, El Salvador, Guatemala and Honduras, Mexico, Philippines and Vietnam advancing to July 1, 2017. The Final Action Dates for EB-1 China and EB-1 India advance to September 1, 2016.
If the Dates for Filing are any indication, members might see the Final Action Dates for EB-1 Worldwide, El Salvador, Guatemala and Honduras, Mexico, Philippines and Vietnam reach June 1, 2018 within the next eight to twelve months. Similarly, the Final Action Dates for EB-1 China and EB-1 India are predicted to reach October 1, 2017 within the next eight to twelve months.
Charlie expects that the Final Action Dates for all EB-1 categories will continue to advance. It is difficult, however, for Charlie to predict at this time how rapidly they might advance, but he hopes to have more information in December. Data provided in the USCIS National Benefits Center reports are guiding his decisions on this and other employment-based categories.
It is pure coincidence that EB-1 Worldwide (including El Salvador, Guatemala, Honduras, Mexico, Philippines and Vietnam) advance at the same pace as EB-1 China and EB-1 India in December. These categories could advance at a faster pace than EB-1 China and EB-1 India at some point over the next few months.
EB-2 and EB-3 China. Massive EB-3 China demand—far in excess of the targeted amount–materialized in October, whereas EB-2 China demand fell short, resulting in the Final Action Date for EB-2 China leaping ahead one and a half months to July 1, 2015, ahead of EB-3 China, which advanced only one week to June 8, 2015. This is likely to discourage EB-3 downgrades, but watch this closely as there is always a possibility that these categories will flip again, depending on demand.
EB-2 and EB-3 India. The Final Action Date for EB-2 India advances only one week in December to April 1, 2009, while the Final Action Date for EB-3 India leaps forward two months to March 1, 2009, putting these categories within only one month of one another. If EB-3 to EB-2 upgrades continue, this will further impact the ability of EB-2 India to advance. It is likely that members will see the Final Action Date for EB-3 India surpass EB-2 India within the next few months, creating the same scenario we have seen with China over the past few years.
EB-3 and Other Workers Philippines. In December, EB-3 and Other Workers Philippines again advance one week to June 15, 2017. Members should continue to expect only minimal movement in this category during the first half of the fiscal year due to concerns that sharp advancement could trigger huge demand which would result in retrogression.
EB-4. The Final Action Date for EB-4 El Salvador, Guatemala and Honduras which has recently been in a holding pattern, advances one week in December to February 22, 2016. Members should expect this category to hold for a month or so followed by possible intermittent modest advancement.
EB-4 Mexico is current for filing and its Final Action Date advances five weeks to January 1, 2017 in December. If demand trends for this category continue, members may see continued forward movement. Despite the comparative lower demand in this category, Charlie still expects EB-4 Mexico to reach its per country limit at some point this fiscal year (possibly May), at which time it will track to the Final Action Date of EB-4 El Salvador, Guatemala and Honduras.
EB-5. In December, the Final Action Date for EB-5 China advances one week, while EB-5 Vietnam advances three months.
October 29, 2018
CHECK IN WITH CHARLIE OPPENHEIM, DOS, REGARDING NOVEMBER VISA BULLETIN
Family-Based Preference Categories
All of the family-based final action dates advance in November with the exception of FB-1 Mexico and FB-3 Mexico, which will hold at August 1, 1997 and December 22, 1995.
Demand for FB-3 India is extremely heavy. Charlie reports that he has not previously seen this much consistent demand in the FB-3 category in any other country.
Employment-Based Preference Categories
EB-1. As predicted last month, the EB-1 final action dates hold steady in November. Although it now appears likely that there will be some forward movement in December for EB-1 China, EB-1 India and EB-1 Worldwide, it remains unclear how far these categories will advance, though they will not return to current this calendar year. Charlie also cautions not to expect EB-1 Worldwide to return to current in the foreseeable future and that this is likely to be “the new normal” through at least the first half of the fiscal year.
EB-2 China and EB-3 China. EB-2 China leaps forward one and one-half months to May 15, 2015 in November, while EB-3 China holds at June 1, 2015, rendering EB-3 China only two weeks ahead of EB-2 China. Based on available demand data, members should expect EB-2 China to continue to advance. In contrast, the current demand pattern in EB-3 China continues to be heavy, prohibiting forward advancement at this time. It is unclear whether this surge in EB-3 China demand is attributable to downgrades from EB-2 or new third preference filings. This creates the possibility that EB-2 China will surpass EB-3 China again.
EB-2 India and EB-3 India. There is no advancement in November in any of the employment-based final action dates for India. The September projection of limited movement in EB-2 India continues to apply, and any advancement that may occur in December will be limited to no more than one week. In contrast, demand in EB-3 India is light, so members should start to see a fairly sizeable advancement in this category of at least a few weeks (and possibly months) in December.
The EB-3 India final action date moved very rapidly over the past year, advancing almost one and one-half years. Current demand projections make it likely that EB-3 India could surpass EB-2 India at some point this fiscal year.
EB-3 Philippines and Other Workers Philippines. In November, EB-3 Philippines and Other Workers Philippines advances one week to June 8, 2017. Members should continue to expect only minimal movement in this category during the first quarter of the fiscal year. This slow forward movement is based on a concern that rapid forward movement during the past year will eventually result in an increased level of demand.
EB-4. The final action date for EB-4 El Salvador, Guatemala and Honduras holds at February 15, 2016 in November due to a significant amount of potential demand prior to that date, and pre-adjudicated demand beyond it. EB-4 Mexico will continue to advance at a steady pace until it reaches its per country limit, at which time it will return to the same final action date as EB-4 El Salvador, Guatemala and Honduras. It will probably take until at least the spring for this to occur.
EB-5. EB-5 (Regional Center and Non-Regional Center) China holds at August 15, 2014 in November, with EB-5 (Regional Center and Non-Regional Center) Vietnam continuing to advance until it reaches its per country limit, at which time, its final action date will track that of EB-5 China.
October 23, 2018
H-4 EAD News
DHS has updated their rule making agenda page with the possible effects of H4 EAD withdrawal along with estimated publish date to Nov, 2018 (11/00/2018).
We will post more news as it becomes available.
October 18, 2018
USCIS determined that for November 2018, the Dates for Filing chart must be used for both family-based preference filings and for employment-based preference filings.
October 5, 2018
USCIS Using Tablets to Administer the English Reading and Writing Tests for Naturalization
On Oct. 1, USCIS began using digital tablets to administer the English reading and writing tests during naturalization interviews as part of the agency’s ongoing business modernization efforts. Although USCIS applicants already use digital tablets to sign or verify parts of their applications, this new approach expands tablet usage, allowing the device to be used for a greater portion of the application process. USCIS will be able to continue using the paper process on a case-by-case basis. While the eligibility requirements and the subject material of the naturalization test have not changed, applicants are now using a stylus on a digital tablet instead of a paper application.
Immigration Services Officers (ISO) will instruct applicants on how to use the tablets before administering the tests. For the reading test, a sentence will appear on the tablet and the ISO will ask the applicant to read it. For the writing test, several lines will appear on the tablet, replicating the appearance of a piece of blank paper. The ISO will read a sentence aloud and ask the applicant to write it on the tablet.
October 1, 2018
Notice to Appear Policy Memorandum
USCIS announced that it would begin implementing its June 28, 2018, memo, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, on October 1, 2018. USCIS will take an incremental approach to implement this memo.
September 25, 2018
October Visa Bulletin Charts for Filing
USCIS determined that for October 2018, the Dates for Filing chart must be used for both family-based preference filings and for employment-based preference filings.
September 18, 2018
Check-in with DOS’s Charlie Oppenheim Regarding October Visa Bulletin
Employment-Based Preference Categories
EB-1. For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017. Charlie remains pessimistic that the EB-1 Worldwide final action date will advance before the end of this calendar year. He forecloses the possibility of advancement in November and is pessimistic that there will be advancement in December but notes that there will be some forward movement in all EB-1 categories after the beginning of 2019. Demand is sufficiently high that Charlie is unable to predict at this time whether this category will become current in FY 2019. Charlie does not expect any advancement of EB-1 China or EB-1 India before January 2019 and believes it is “almost guaranteed” that both categories will be subject to a final action date through the fiscal year.
EB-2 and EB-3 Worldwide. As previously predicted, EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year. Charlie has not seen expected growth in EB-3 Worldwide.
EB-2 China and EB-3 China. While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015. It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand. If there are not as many downgrades, EB-3 China could advance more rapidly than expected. Charlie has no visibility into EB-3 China “downgrade” demand until a visa number is requested, so this category may move modestly to avoid future retrogression. Members should continue to watch these two categories closely.
EB-2 India and EB-3 India. EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009. Members should carefully watch movements in these two categories. Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.
EB-3 Philippines and Other Workers Philippines. As predicted, EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Members should expect only minimal movement during the first quarter of the fiscal year.
EB-4. As predicted, EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October. There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1. Due to visibility into pre-adjudicated cases filed prior to the imposition of a final action date in May 2016, as well as potential future demand by cases with old priority dates, Charlie is moving this category conservatively to avoid a future retrogression.
EB-4 India. It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.
EB-5 Non-Regional Center for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.
EB-5 China. Demand remains high, so members should not expect much movement in this category throughout the fiscal year. EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.
September 14, 2018
The October Visa Bulletin is now available.
USCIS determined that for October 2018, both family-based preference adjustment filings and employment-based preference adjustment filings must use the Dates for Filing Chart in the Visa Bulletin for October 2018.
September 7, 2018
PREMIUM PROCESSING FILING FEE INCREASING 10/1/2018
U.S. Citizenship and Immigration Services (USCIS) announced it is adjusting the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers beginning on Oct. 1, 2018 to more effectively adjudicate petitions and maintain effective service to petitioners.
The premium processing fee will increase to $1,410, a 14.92 percent increase (after rounding) from the current fee of $1,225. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.
August 29, 2018
SUSPENSION OF H-1B PREMIUM PROCESSING
USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.
While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.
Who Is Affected
The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).
The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.
We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if:
- The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
- We did not take adjudicative action on the case within the 15-calendar-day processing period.
Premium Processing Remains Available for Certain H-1B Petitions
The suspension does not apply to:
- Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
- Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
- Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
- Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).
This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.
Requesting Expedited Processing
While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. The petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request.
We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.
Why We Are Temporarily Suspending Premium Processing for H-1B Petitions
This temporary suspension will help us to reduce overall H-1B processing times by allowing us to:
- Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
- Be responsive to petitions with time-sensitive start dates; and
- Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.
August 15, 2018
Check-in with DOS’s Charlie Oppenheim Regarding the September Visa Bulletin
Family-Based Preference Categories
September brings a one-month retrogression in the final action dates for FB-1 Worldwide, China and India, from May 8, 2011 back to April 8, 2011.
FB-3 Worldwide, China and India also retrogress approximately 6 weeks, from June 15, 2006 to May 1, 2006. In October 2018, when the new fiscal year commences, these categories will recover and return to the previously held August final action dates.
All Philippines family-based preference categories will advance in September except FB-2A Philippines.
FB-1 Mexico, FB-2B Mexico and FB-3 Mexico all advance modestly in September.
In the first few months of FY 2019, it is predicted that the Worldwide family-based preference categories will advance as follows: FB-1: up to three weeks, following an October recovery; FB-2A: up to three to five weeks; FB-2B: up to six weeks; FB-3: up to three to five weeks, following an October recovery; FB-4: up to five weeks. Members should keep in mind that whenever the Visa Bulletin indicates there will be movement “up to” a certain amount of time, there could be no movement or movement up to the maximum of the referenced period.
Employment-Based Preference Categories
EB-1. Despite a one-month advancement in September and previously expressed hopes that EB-1 Worldwide would return to current on October 1, 2018 (as it has in past years), heavy demand will preclude the category from returning to current in October. Charlie further believes that EB-1 China and EB-1 India will continue to have final action dates in October which are earlier than those established for Worldwide. It is unlikely that any of the EB-1 categories will have much forward movement before December or possibly into Q2 of FY 2019.
EB-2 Worldwide. This category will return to current in October and will remain so for the foreseeable future.
EB-2 China and EB-3 China Flip Again, but is it Too Soon to Downgrade? In September, EB-2 China will retrogress from March 1, 2015 to the Worldwide date of January 1, 2013, resulting in EB-3 China having a more favorable date than EB-2 China. Despite this dramatic retrogression, Charlie predicts that EB-2 China will fully recover to at least the August Visa Bulletin date of March 1, 2015 in October, once again causing EB-2 China’s final action date to be later than that of EB-3 China. EB-2 China will move very slowly through the first quarter of the fiscal year, as Charlie assesses demand from earlier movements.
EB-3 China advances four months in September to November 1, 2014 and is expected to advance from this date by up to three weeks at a time, starting in October. While EB-2 China is likely to stay ahead of EB-3 China for the first quarter of the fiscal year, members should continue to watch these categories closely as their dates are only within a few months of one another.
EB-2 and EB-3 India. After its long-awaited movement into 2009, EB-2 India retrogresses more than two years to January 1, 2007 in September. This abrupt retrogression should be short-lived as Charlie expects EB-2 India to recover to a 2009 date in October and to advance at a pace of up to two weeks at a time. In September, EB-3 and Other Workers India retrogresses six years to January 1, 2003 but will recover in October and then move slowly pending receipt of demand from recent advances. The dramatic retrogression of these categories was required to stop further number use in light of the recent increase in demand by all other countries, resulting in a lack of “otherwise unused” numbers available for India EB-2/EB-3.
EB-3 and Other Workers. A final action date of November 1, 2016 is briefly imposed for EB-3 Worldwide, Mexico and Vietnam (as well as El Salvador, Guatemala, and Honduras), and Other Workers Worldwide, Mexico, and Vietnam, but all of these categories will return to current in October.
EB-3 China. This category advances four months to November 1, 2014, and Other Workers China holds at May 1, 2007. These categories are expected to move at a pace of up to three weeks.
EB-3 Philippines. In September, this category and Other Workers Philippines retrogresses seven months to November 1, 2016 but is expected to recover some in October.
EB-4 El Salvador, Guatemala, Honduras, EB-4 Mexico and EB-4 India all advance one week to February 15, 2016. Members should expect variances in these categories starting in October.
Given the complexity of processing Special Immigrant Juvenile cases, it is very difficult for Charlie to predict when pending cases will mature into demand for visa numbers. Members should expect EB-4 El Salvador, Guatemala and Honduras to at least hold at February 15, 2016 for October.
EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, and EB-4 India will return to current in October.
EB-5 Non-Regional Center and Regional Center for both China and Vietnam will advance one week to August 8, 2014 in September. Charlie expects that for both countries, these categories will continue to operate under a final action date as we enter FY19. Their dates are likely to be different, however, with Vietnam’s date being later than that of China for the first five to six months of the fiscal year, until EB-5 Vietnam hits it’s per country limit. At that time, its final action date will track that of China.
August 9, 2018
Lawsuit Filed To Protect Foreign Students From ICE And USCIS
July 25, 2018
Check-in with Department of State’s Charlie Oppenheim regarding the August Visa Bulletin
Employment-Based Preference Categories
Further retrogression of the EB-1 Worldwide final action date cannot be ruled out in September, but there will be a recovery of the date in October.
The final action date for EB-1 Worldwide China and EB-1 India will hold at January 1, 2012 in August, and again for September, with the anticipated recovery of visa availability in October. Charlie will continue to watch trends over the summer and is working closely with USCIS to determine applicant demand which will be eligible for processing in October.
EB-4 India Tracks EB-4 El Salvador, Guatemala, Honduras and Mexico in August. As predicted, in August, EB-4 India joins EB-4 El Salvador, Guatemala, Honduras and Mexico, with a final action date of February 8, 2016, due to an influx of demand in May, June, and early July.EB-4 India will return to current in October.
There is a slim chance of forward movement in EB-4 El Salvador, Guatemala, Honduras and Mexico in September. If that occurs, the date will likely hold for a few months. Charlie is cautious about advancing this category to avoid a subsequent retrogression. The ever-increasing availability of statistical data required for the determination of this date could lead to slightly more regular movements throughout FY 2019, rather than just during the final quarter.
China. EB-2 China advances two months to March 1, 2015 and EB-3 China advances 1.5 years to July 1, 2014 in August. EB-3 China, which had recently retrogressed due to significant downgrade demand, has subsided somewhat, allowing for this forward movement. At this point there has not been a dramatic increase in EB-2 China demand based on movement of that date, which is allowing some of these numbers to fall to EB-3. Charlie cautions against expectations of regular advancement of EB-3 China during FY-2019, as such movements are dependent on the development of future demand patterns.
India. EB-2 India will hold at March 15, 2009 in August and is anticipated to remain there through this fiscal year. EB-2 Worldwide demand has picked up sufficiently enough to use the remaining EB-2 numbers which had allowed the India EB-2 date to advance. Although Charlie will review the numbers again later this month, unless there is an unlikely dramatic dip in worldwide demand that would justify advancing EB-2 India further, it will continue to hold.
In our last column we reported that EB-2 Worldwide demand is increasing and might require Charlie to impose a final action date before the end of the fiscal year. EB-2 Worldwide will remain current in August. As noted last month, if a final action date is imposed in September, the category will return to current in October.
EB-3 India will advance two months in August to January 1, 2009. The gap in final action dates between EB-2 India (March 15, 2009) and EB-3 India (January 1, 2009) continues to narrow, leaving only 2.5 months between these categories. As to whether he expects these dates will “flip-flop” as they have for China in recent years, Charlie reminds members that he advanced the final action date for EB-3 India to generate demand for visa usage next fiscal year. Once that demand starts to materialize it is likely to slow EB-3 India’s advancement. The possibility of EB-3 India’s final action date advancing beyond that of EB-2 India cannot be ruled out but Charlie is not able to speculate on this at this time.
EB-5. EB-5 China Non-Regional Center and Regional Center will continue to hold at August 1, 2014 in August and is expected to advance one week either in September or in October.
EB-5 Vietnam Non-Regional Center and Regional Center similarly holds at August 1, 2014. Charlie expects this category to advance to a 2016 date in October but cautions that the category it is likely to retrogress again once it hits its annual limit by spring.
July 20, 2018
ATTENTION H-4 EAD HOLDERS!
In preparation for pushing back against any attempts or steps by the administration to rescind the rule that enables H-4 visa holders to apply for an Employment Authorization Document (EAD) and work in the United States, FWD.us is offering a free media training on July 26, 2018 from 3:30–5:00 pm (ET) to H-4 EAD holders and those who employ them who would like to share their story publicly with the press. Participants of this training are then invited to be a part of the FWD.us Surrogate Program.
The FWD.us Surrogate Program helps equip participants with policy knowledge around immigration reform and provides them with strategies to better navigate tricky interviews with both print and broadcast reporters. FWD.us does this through group media trainings, as well as 1:1 interview practice with FWD.us communications staff upon request. FWD.us also provides breaking political updates to program participants through regular phone conferences and a newsletter. Those interested in the program can submit their names and information to the FWD.us team via this form.
After an individual completes the introductory media training, FWD.us will begin to connect them with reporters looking to cover this issue from a variety of angles. It’s the goal of the Surrogate Program that participants walk away from the training prepared and empowered to leverage their personal story and experiences to advocate for their community and for commonsense immigration reform. Program participants have been interviewed in a wide range of publications and mediums, including MSNBC, The Atlantic, The New York Times, Elle, Fox News, CNN Money, NBC News, the Christian Broadcasting Network, and many other outlets including local outlets and TV stations.
July 17, 2018
Reminder To All Permanent Residents – You are required to carry your green card with you at all times.
Every lawful permanent resident 18 years of age and over is required to carry with them at all times their green card. Failure to do so results in a misdemeanor offense and shall upon conviction, result in a fine not to exceed $100 or imprisonment for not more than 30 days, or both.
July 10, 2018
New USCIS Policy Will Result in More Foreign Nationals Placed in Deportation Proceedings
On July 5th, USCIS published guidance regarding issuance of Notices to Appear (NTA). The NTA is the charging document issued to foreign nationals who are deemed “removable” form the U.S. People who receive NTAs must appear before an immigration judge to determine whether they should be removed (i.e., deported).
For years, NTA issuance has been the responsibility of CBP (border enforcement and inspections) and ICE (interior enforcement). This new guidance requires USCIS to issue NTAs to individuals whose applications to extend or amend their stay or change status are unexpectedly denied by USCIS due to changing USCIS policies.
For example, an H-1B petition requesting an extension of stay is timely filed before the current H-1B status expires. However, due to USCIS backlogs, the petition is not adjudicated until after the underlying petition has expired. If USCIS unexpectedly denies the extension request, the H-1B worker will be issued an NTA and placed in removal proceedings.
Given H-1B backlogs at USCIS and the uncertainty of case adjudications under the current administration, it is more important than ever to file cases as soon as possible and use premium processing to achieve an expedited decision from USCIS.
June 26, 2018
Check-in with DOS’s Charlie Oppenheim re the July 2018 Visa Bulletin
Employment-Based Preference Categories
EB-1 China and EB-1 India remain steady at January 1, 2012, and Charlie anticipates this date will hold for the remainder of the fiscal year. It is hoped that these categories will become current again on October 1, 2018, but demand trends will be monitored over the summer. If USCIS District Offices are not interviewing EB-1 China and EB-1 India applicants with priority dates beyond the established final action date, Charlie may not have clear visibility into total demand. If there is a surge in demand for these categories beginning in October, it could cause a final action date to be imposed more quickly in the fiscal year than otherwise anticipated.
Charlie expects that a final action date for EB-1 Worldwide will be imposed either in August or September, but notes that the category will return to current in October.
EB-2 India breaks into 2009, advancing almost three months to March 15, 2009 in July, and is likely to hold at that date through this fiscal year. Charlie has significant demand in his pending demand file for this category and chose this date to offset the low demand for numbers under the worldwide annual limit through mid-May. This advancement of the EB-2 India final action date will help ensure that all EB-2 visa numbers are used by the end of the fiscal year.
EB-2 Worldwide demand has been increasing in recent weeks, but it is too early to tell if it will be sustained. If this trend continues or increases, Charlie may need to impose a final action date in August or September. If that occurs, EB-2 Worldwide will return to current in October.
Demand for EB-2 China has been low in recent months despite the steady movement of the final action date. In July, EB-2 China will leap forward four months to January 1, 2015, in an effort to generate demand. EB-3 China demand is extremely high, attributable to hundreds of downgrades, and has reached its per country limit. This results in the final action dates for EB-2 China and EB-3 China flipping again-with EB-2 China now a full two years ahead of EB-3 China. Members should not expect any further advancement in EB-3 China this fiscal year, with the final action date returning to June 1, 2015 in October. Charlie will continue to watch this and notes that as the final action dates for EB-2 China and EB-3 China get closer together, we may see the downgrade trend of the last few years start to diminish.
As predicted, EB-4 Mexico exhausted its annual limit and in July, its final action date will track that of EB-4 El Salvador, Guatemala and Honduras at February 8, 2016. Charlie expects EB-4 Mexico to return to a final action date of October 22, 2016 in October but predicts that the final action date for EB-4 El Salvador, Guatemala and Honduras will likely hold for the first few months of the next fiscal year.
EB-4 India demand is increasing and may result in the imposition of a final action date in August or September. If that occurs, the category will return to current in October.
EB-5 China Non-Regional Center and Regional Center will hold at August 1, 2014 in July and is expected to remain at that date at least through September.
Family-Based Preference Categories
The family-based preference categories continue to advance modestly. Charlie notes low response rates to Agent of Choice Letters, particularly in FB-3, which is causing the dates to move somewhat more rapidly than they otherwise would.
June 14, 2018
Increased H-1B scrutiny by USCIS resulting in RFEs and denials
As many of you are aware, USCIS has increased scrutiny of H-1B petitions resulting in issuance of numerous Requests for Evidence on stellar H-1B cases. As a result of this shift in adjudications, the American Immigration Council has filed a lawsuit against USCIS challenging “U.S. Citizenship and Immigration Services’ (USCIS) failure to respond to two FOIA requests asking for records that would explain increased scrutiny and denials of H-1B petitions. The Council and the American Immigration Lawyers Association (AILA) are concerned that USCIS had adopted new adjudication standards without informing the public. The requests ask for records relating to USCIS’s consideration of evidence demonstrating an occupation’s “prevailing wage,” as well as records relating to USCIS’s determination of whether a position is a ‘specialty occupation.’ ”
June 5, 2018
H-1B Employer Audits
H-1B employer audits are on the rise. Sample H-1B Audit Questionnaires can be found here:
Questions or concerns, please contact Susan Lane.
June 4, 2018
Check-in with Charlie Oppenheim, Department of State, re June 2018 Visa Bulletin.
Family-Based Preference Categories:
Most of the family-based preference categories continue to advance slightly or remain constant in June with two primary exceptions. FB-1 Mexico will leap forward seven months in June 2018 to June 1, 1997, while FB-4 Mexico is the only FB-4 category to hold steady in June, remaining at January 8, 1998.
Employment-Based Preference Categories:
On the employment-based side, all final action dates remain the same in June except EB-2 India, which will advance a modest four days to December 26, 2008, and EB-5 China and EB-5 Vietnam (Regional and Non-Regional Center), which advance about one week to August 1, 2014.
All other employment-based preference category final action dates will hold in June due to the dramatic forward movements in April and targeted slight movements in May.
Charlie remains confident that EB-2 India will reach a 2009 final action date this fiscal year. Notably, there has been a 60 to 75 percent decrease in the volume of EB-3 to EB-2 India upgrades. As this is relatively new, it is not possible to cast this as a trend, but Charlie continues to watch this category closely.
Despite the dramatic forward movement in the EB-3 India final action date, USCIS is not reporting a corresponding increase in demand in this category.
June 4, 2018
H-4 Employment Authorization
Bipartisan group of lawmakers oppose revoking H-4 employment authorization:
May 22, 2018
U.S. Citizenship and Immigration Services (USCIS) announced today that current beneficiaries of Temporary Protected Status (TPS) under Nepal’s designation who want to maintain their status through the effective termination date of June 24, 2019, must re-register between May 22, 2018, and July 23, 2018.
May 15, 2018
USCIS announced on 5/15/2018 that it has completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in the computer-generated random selection process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their 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.
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.
May 1, 2018
How to Track Delivery of Your Green Card, Employment Authorization Document (EAD), and Travel Document
Beginning April 30, 2018, USCIS will begin using USPS’ Signature Confirmation Restricted Delivery in phases for the mailing of Green Cards, EADs, and Travel Documents. USCIS will begin with documents that need to be re-mailed because they have been returned to USCIS as undeliverable.
- Sign up for a Case Status Online accountto get automatic case updates, including your U.S. Postal Service (USPS) tracking number when we mail your card or travel document.
- Register for Informed Deliverythrough USPS to get daily images of mail being sent to you. With Informed Delivery, you can:
- Automatically track the packages you’re expecting
- Set up email and text alerts
- Enter USPS Delivery Instructions™ for your mail carrier
If your USPS tracking information shows your package was delivered but you have not received it, contact your local post office immediately. If your mailing address changes after you file your application, you must update your address with USCIS and USPS as soon as possible. If you don’t update your address promptly, your case could be delayed, your document(s) could get lost, and you may need to reapply and pay the fee again.
With Signature Confirmation Restricted Delivery, you or your designated agent (PDF) will need to present valid identification and sign for the package in person.
April 23, 2018
Check-in with Charlie Oppenheim, Department of State, regarding May Visa Bulletin.
It is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July. What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS. The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.
With regard to EB-1 China and India, it is too early to know whether the high worldwide EB-1 demand seen over the past few months is the result of a processing glut or sustained demand. It is likely that EB-1 China and India will hold for at least another month, but Charlie will continue to watch demand to determine whether any advancements may be possible.
While Charlie is hopeful that the advancements made in April to EB-2 China will be sufficient to exhaust the visa numbers in this category, he continues to monitor China EB-3 downgrades and is likely to hold the final action dates in these categories for at least another month. However, there still remains the possibility of some advancement later this fiscal year if the anticipated demand does not materialize.
EB-4 Mexico will advance five weeks in May. Although Charlie predicted a summer retrogression of this category to track to the final action date of EB-4 El Salvador, Guatemala and Honduras, if demand lightens it may be possible to avoid or perhaps delay retrogression for EB-4 Mexico.
April 12, 2018
It was just announced that USCIS completed a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.
USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will begin returning unselected cases and fee receipts for selected cases. This can take considerable time.
April 4, 2018
USCIS will destroy documents returned as undeliverable!
USCIS announced that starting 4/2/18, it will destroy permanent resident cards, employment authorization cards, and travel documents returned as undeliverable by the U.S. Postal Service after 60 business days if USCIS is not contacted with the correct address.
March 21, 2018
April 2018 Visa Bulletin – Check-in with Charlie Oppenheim, Department of State
EB-1. Last month, we reported that EB-1 India and EB-1 China were expected have final action dates imposed as early as late spring. Both will have a January 1, 2012, final action date imposed starting in April. EB-1 Worldwide demand has been high, and a high volume of EB-1 India and EB-1 China cases were adjudicated to completion. Charlie imposed a final action date to allow EB-1 Worldwide to remain current for all other countries which had not yet reached the per-country annual limit. It is unclear whether this demand is a one-time spike caused by the transfer of cases within USCIS, or whether that demand will be sustained. If EB-1 Worldwide demand starts to drop off, it is possible that the EB-1 India and EB-1 China final action dates can be advanced late in the summer.
EB-2 and EB-3 China. In April, EB-2 China advances almost eight months to August 1, 2014, and EB-3 China advances six and a half months to June 1, 2015. In making this advancement, Charlie has depleted all requests for visa numbers from his pending demand file. This dramatic forward movement is the result of having utilized all pre-adjudicated EB-2 China demand and ensuring that sufficient demand is generated to use all available visa numbers this fiscal year. If significant demand materializes, these categories could be at risk of retrogression.
EB-2 India. Unlike the lack of visibility into EB-2 China demand, Charlie has significant visibility in his pending demand file for India. Members should therefore expect intermittent holding of the final action date coupled with continued gradual movement without volatility. Charlie is unable to advance EB-2 India more aggressively due to concerns about EB-3 to EB-2 upgrades. If there are otherwise unused EB-2 Worldwide numbers later this fiscal year, it may allow EB-2 India to advance further. The EB-2 India final action date advances one week in April to December 22, 2008. Charlie remains hopeful that the final action date in this category will get to early 2009 before the end of this fiscal year.
EB-3 India. EB-3 India leaps ahead 11 months to February 1, 2008 in April. It is unclear at this time whether this category will advance or will hold at the same date for May. Since the final action date for EB-3 India is approaching that of EB-2 India, there may be fewer EB-2 upgrades, which could have a positive impact on the advancement of EB-2 India. Members should watch this category closely and should file adjustment of status applications for clients as soon as they are eligible to do so.
EB-3 Philippines. EB-3 Philippines leaps forward eight months to January 1, 2017 in April. Demand in this category has been fluctuating recently, with a fair amount of consular demand, but insignificant USCIS demand in recent months. As noted above, historically, consular and USCIS demand have been roughly equal, but consular demand is now 80 percent of overall demand for EB-3 Philippines. Given demand fluctuations, this category is susceptible to retrogression if significant demand starts to materialize.
EB-4. The non-minister SR category expires March 23 unless reauthorized by Congress, requiring this category to be listed as “unavailable” in the April Visa Bulletin. If reauthorized, the category will be current for most countries. The final action date for EB-4 El Salvador, Guatemala and Honduras will advance to December 15, 2015 in April, while the final action date for EB-4 Mexico will advance just over one month to August 8, 2016. As noted in our last column, Charlie will likely wait until later in the fiscal year before advancing the final action date for EB-4 El Salvador, Guatemala and Honduras, and predicts that EB-4 India and Mexico will hit the per country limit by mid-summer, at which time the date will track that of EB-4 El Salvador, Guatemala and Honduras.
Delay in Oversubscription of EB-5 Vietnam. Although we reported in our last column that a final action date for EB-5 Vietnam would be imposed in April, this has not happened. As explained in the April Visa Bulletin, the last minute and brief extensions of the pilot program by Congress did not allow for advance scheduling of February appointments at Ho Chi Minh City in sufficient numbers, resulting in a return of EB-5 Vietnam unused numbers. Charlie expects these numbers to be depleted in April, pushing the retrogression of this category to May, with a date that will track the China final action date.
EB-5 China. The April Visa Bulletin lists the I5 and R5 categories as “unavailable,” given that the program will expire on March 23 unless reauthorized by Congress. If reauthorized, these categories will return to “current,” except China, which will be subject to a final action date of July 22, 2014. The final action date for EB-5 China (C5 and T5) holds at July 22, 2014 for April.
Family-Based Categories. The family-based categories continue to advance steadily and slowly in April.
March 20, 2018
FY2019 H-1B CAP information
Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. USCIS will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.
March 7, 2018
FY2019 H-1B CAP information
USCIS confirmed today in a teleconference that it will temporarily delay premium processing for H-1B cap subject petitions. USCIS will announce later when the premium processing clock will begin.
March 2, 2018
H-4 EAD Update
Department of Homeland Security intends to publish a Notice of Proposed Rulemaking by June 2018 to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of noncitizens eligible for employment authorization. We will post more news as it becomes available.
February 23, 2018
H-1B Cap Season & Premium Processing: USCIS does not anticipate that premium processing will be suspended for non-cap H-1B petitions; however, there may be a brief suspension of premium processing for H-1B cap-subject petitions.
February 22, 2018
Visa Bulletin News: USCIS announced for March 2018, individuals seeking adjustment of status for family-sponsored filings must use the Dates for Filing Chart and those seeking adjustment of status for employment-based preference filings must use the Final Action Dates Chart in DOS’s Visa Bulletin for March 2018
January 27, 2018
February 2018 Visa Bulletin – Check-in with Charlie Oppenheim, Department of State
EB-1 India and EB-1 China.
Charlie expects these categories to remain current for the coming months, but the imposition of a final action date in the summer remains likely if the current rate of demand continues.
This category should remain current for the foreseeable future.
EB-2 and EB-3 China.
The February Visa Bulletin predicts that EB-2 China will continue to advance at a rate of “(s)everal months.” Charlie clarified that this means advancement at a rate of two to three months, noting that EB-2 China may move at a faster pace to generate demand. EB-3 China is predicted to advance at a pace of “(u)p to five months.” Charlie advised that EB-3 China will likely continue to advance at a faster pace than EB-2 China.
EB-2 India. Given heavy demand, the February Visa Bulletin predicts modest forward movement for EB-2 India at a rate of “(u)p to two weeks.”
EB-3 India. The February Visa Bulletin predicts forward movement in this category at a pace of one to three months.
EB-3 Philippines. Demand in this category is comfortable, but not extremely high, which means there is less room to advance this date significantly.
The February Visa Bulletin includes predictions for Worldwide family-based cases, with FB-1 Worldwide advancing at a pace of up to one month, FB-2A Worldwide advancing three to five weeks, FB-3 Worldwide advancing up to five weeks, and FB-4 worldwide advancing up to three weeks.
January 19, 2018
What happens if the government shuts down today?
USCIS: USCIS is a fee-funded agency with the exception of E-Verify, so if the government shuts down, only E-Verify shuts down. Otherwise, it’s business as usual.
DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.
CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.
ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR: EOIR’s detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.
DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
January 18, 2018
Re-registration for El Salvador TPS Recipients
U.S. Citizenship and Immigration Services (USCIS) announced today that current beneficiaries of Temporary Protected Status (TPS) under El Salvador’s designation who want to maintain their status through the effective termination date of Sept. 9, 2019, must re-register between Jan. 18, 2018, and March 19, 2018.
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.