In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (August 16, 2019), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.

Check-in with DOS’ Charlie Oppenheim:  August 16, 2019

UPDATE:  Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam.  Charlie had identified this possibility on page 8 of the September visa bulletin when he stated that “(i)t is likely that corrective action will also be required for other preferences prior to the end of the fiscal year.”  Additionally, Charlie has cautioned that, similar to EB-3, an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if the level of demand results in those annual limits being reached prior to the end of the fiscal year.

The fact that demand has resulted in various annual limits having been reached is not a surprise to Charlie and is his goal each year.  What is unexpected is that it is happening much sooner than expected. Prior to FY-2018 if such action were required it had normally occurred in September, and the FY-2018 issues could be attributed to the changes in USCIS processing of employment cases.

At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.

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Family-based Preference Categories

As has been the case for the past few months, the F2A Final Action Date will remain current across categories for September 2019. Fairly sizeable USCIS demand in the FB Mexico preference categories continues.  The continued lack of significant demand in the FB Philippines preference categories has resulted in artificially rapid movement in those final action dates. This continues to be done to maximize number use under the various annual limits.  Apart from Mexico, there seems to be lack of interest in the family-sponsored preference categories based on the failure of applicants to act on their case in timely manner.  As we move into the next fiscal year, expect movements in the family-sponsored preference categories that are consistent with what we have seen in FY2019; until the demand patterns sufficiently improve.

Employment-based Preference Categories

EB-1:  As we enter FY2020, expect to see the EB-1 categories continue to be separated into three different Final Action Dates-one for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam), two others for EB-1 China and EB-1 India respectively.  Charlie does not expect any of the EB-1 categories to become current at any time in the foreseeable future.  Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October.  While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover.  However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.

In September 2019, EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.

In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category’s ability to recover.  EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.

EB-2:  EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines,and EB-2 Vietnam) advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009.  EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.  Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide, including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) will be able to recover to current in either October or November 2019.

EB-3:  Charlie is unable to say when the Final Action Dates for EB-3 Worldwide, EB-3 El Salvador, Guatemala, Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam, will once again become current.  While it is possible that this could occur in October 2019, it might also take longer.  Charlie hopes that there can be rapid recovery for EB-3 India, which also retrogressed earlier, over a period of several months. However, a timeline for recovery is not guaranteed.

Already scheduled USCIS interviews may continue in USCIS’ discretion for all categories that have either retrogressed or become “unavailable”. If the application is approvable, rather than receiving a visa number immediately, USCIS’ request for a visa number will be placed in Charlie’s pending demand file and will be authorized for use once the Final Action Date advances beyond the applicant’s priority date. Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner without the volatility which has been experienced.  For September 2019, EB-3 China Other Workers holds at November 22, 2007.

EB-4:  The entire EB-4 category is “Unavailable” for September, and that status has already been imposed during August 2019.  Charlie discussed demand resulting from an increase in decisions for Special Immigrant Juvenile (SIJ) cases in June 2019.  The result of these decisions being a significant and unexpected increase in demand for June and July 2019.  Charlie mentioned that had this unexpected increase in demand not happened, it would have been possible to allow most EB-4 categories to be listed as “Current” for the month of September.

Diversity Visa Lottery

All categories will be current for September.  To the extent that the winners are eligible and had promptly submitted their documentation and timely responded to any inquiries from the Kentucky Consular Center (KCC) and/or the post in order to be scheduled for interview, they should be able to receive their immigrant visas by the end of September.  Any such cases not finalized and approved by close of business (COB) September 30, 2019 will no longer be entitled to status or eligible to receive DV immigrant visas.  Since 1999, 5,000 DV numbers were offset to support the NACARA program. As there are very few remaining NACARA matters, going into 2020 the vast majority of these previously diverted 5,000 numbers will once again be available for the DV program usage.

You may access the August 2019 Visa Bulletin here and the September 2019 Visa Bulletin here.

 

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

As you (should) know, the current edition of the Form I-9 expired on August 31, 2019.  USCIS has decreed that, until further notice, employers should continue using this 2017 edition of the Form I-9 (annotated with “Form I-9 07/17/17 N” in the lower left corner and “Expires 08/31/2019” in the upper right corner) until further notice.  This version of the Form is available on USCIS’ website for use in Fillable PDF, Print and Spanish (for employers in Puerto Rico only).

Employers are to Continue to Use the Current Form I-9 for Employment Eligibility Verification even after the expiration date of Aug. 31, has passed because USCIS is still in the process of issuing an a new version of the form.

USCIS initially published an information collection notice in the Federal Register on March 1, 2019, at 84 FR 7101, allowing for a 60-day public comment period. USCIS received 21 comments in connection with the 60-day notice.  On June 5, USCIS published a new information collection notice in the Federal Register, at 84 FR 26140, allowing an additional 30 day public comment period.

It is expected that the current version of the form will be extended without changes, although minor clarifications may be made to the form’s instructions.

Employers must continue to comply with all IRCA requirements, including timely completion and updating of the Form I-9 to verify the identity and employment authorization of all employees.  There is no exception or waiver from these requirements due to the expiration date listed on the Form I-9.

We will provide updated information about the new version of the Form I-9 as it becomes available.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

The Department of Homeland Security (DHS) has published a notice in the Federal Register of a proposed rule to amend its regulations to allow for USCIS to require a $10 registration fee for each petitioner seeking to file H-1B cap-subject petitions.   Written comments are due by October 4, 2019.     As a reminder, April 1, 2020 will be the first day to file Fiscal Year 2021 H-1B cap-subject petitions and we anticipate further information from USCIS.    Immigration View will continue to provide updates on changes to the H-1B process.

On Wednesday, July 24th 2019, the U.S. Department of Homeland Security published a new EB-5 regulation which will go into effect November 21, 2019.  The new EB-5 regulations will effectuate a number of changes, including increasing the minimum investment amounts, revising the standards for TEA determination, allowing investors to maintain their priority dates, and clarifying procedures for investors removing conditions on permanent residence.

  • Increasing the Minimum Investment Amounts:

 The new regulations increase the minimum investment amounts for TEA investments from $500,000 to $900,000 and for non-TEA investments from $1 million to $1.8 million.  This change maintains the 50% ratio as before with the minimum investment distinction between TEA and non-TEA investments.   Additionally, moving forward, the government will adjust the minimum investment amounts every 5 years to account for inflation.

Investors who have been considering making an EB-5 investment should move so immediately to avoid paying an additional $400,000 for a TEA investment.  There is sufficient time to file an investor’s I-526 petition before November 21, 2019.  The next 120 days provides investors with ample time to select a project, work on their source of funds documentation with immigration counsel, complete the subscription agreement, wire the funds, and authorize immigration counsel to file their I-526 immigrant investor petition.

  • Revising the Standards for TEA Determination:

The new regulation addresses one of the most hotly contested items surrounding the EB-5 program: TEA designation.  The regulation changes the manner by which TEAs are determined and removes State authority for TEA designation.  TEAs will now be managed by the Department of Homeland Security.  Specifically, TEAs may be issued for projects that can meet the 150% the national average unemployment through use of a single census tract, where the project is located, plus directly adjacent tracts that touch the tract where the project is located.

This revised standard will likely minimize the number of projects that qualify for TEA designation.  Likewise,  we expect to see a change in the types of EB-5 projects in the market with a shift out of major metropolitan areas and into smaller or rural areas, or areas of high unemployment.   The new regulations expressly address the contentious ‘gerrymandering.’

  • Allowing Investors to Maintain Priority Dates:

 One of the positive changes in the new regulations offers investors with approved I-526 petitions the flexibility to maintain their priority dates and file a new petition.  This is tremendous for investors who invested in a project that failed or a regional center that was terminated.

  • Clarifying Removal of Conditions:

The regulation also provides clarity for investors filing the I-829, Petition to Remove Conditions on Permanent Residence.  Specifically, the rule indicates that family members who are lawful permanent residents must file their own application to remove conditions on their permanent residence.  This would not apply to relatives who were included in the principal EB-5 investor’s petition to remove conditions.

  • Explaining Application of Grandfathering:

 Moving forward, there will be no grandfathering of projects, only filed I-526 petitions.  As a result, it is likely we will see some projects currently in the marketplace cease fundraising efforts.

Barring legislative action, we expect the new rule will go into effect on November 21, 2019 and become the new standard for the EB-5 program.  Developers, Regional Center Owners/Operators, and Investors should act within the next 4 months in order to benefit from the program under the current regulation.  There is sufficient time to file EB-5 investor petitions before the new rules become effective.  Please reach out to me immediately and directly should you wish to file an investor petition or establish a new EB-5 project.

 

Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

USCIS’ previous practice of adjudicating the I-539, Application to Extend/Change Nonimmigrant Status, filed with a qualifying I-129 petition under Premium Processing has ended.  USCIS now requires every I-539 applicant pay a biometrics fee and an Application Support Center appointment take place to capture the applicant’s biometrics.  This has led to I-539 applications taking substantially longer to process.  I-539 applications cannot be premium processed.    

Applicants should contact an immigration attorney to discuss issues such as timing and travel restrictions. 

At a recent event, one of my former high school classmates who today is a distinguished Stanford University professor asked me whether there was much immigration legal work in Pittsburgh.  He then commented that 80 percent of his graduate students were foreign nationals.

Of course, the same likely could be said for Carnegie Mellon or the University of Pittsburgh because a majority of graduate students in the nation’s science, technology, engineering and mathematics (STEM) fields are foreign nationals.

Some surprising hard statistics drive home this point. A 2017 study reports that 81 percent of full-time graduate students in electrical and petroleum engineering at U.S. universities are international students, and 79 percent in computer science are foreign nationals. The Pew Research Center noted that the federal Optional Training Program or OPT has seen a 400 percent increase in foreign students graduating and working in STEM fields from 2008 to 2016.

Immigrants from all over the world are being educated at American institutions of higher education, and many are seeking or being sought after to stay and apply their knowledge and talent to the United States workforce.

Education, in many ways, is a U.S. export with a positive balance of trade. Many foreign students pay full tuition, others make academic, scientific, economic and entrepreneurial contributions to this country’s body of work, knowledge and innovations.  They are often top students or they wouldn’t have made it here.  Their numbers are declining because current immigration policy makes a foreign student’s ability to stay in the U.S., regardless of their accomplishments or an employer’s need for their service, less secure.

The U.S. Citizenship and Immigration Services (USCIS) claims to be “cracking down” on employment-based immigration. For example, the very popular H-1B visa – which provides for foreign workers to be temporarily employed in specialty occupations – is plagued with requests for evidence to prove in the extreme that the position sought to be filled requires at least a bachelor’s level education and that the immigrant has that education.  Recently, USCIS cracked down on a post-doctoral researcher whose visa was sought by a local university.  USCIS demanded proof that a position that requires a doctoral degree is one that also requires a bachelor’s degree. In another case, USCIS required a translation of the immigrant’s diploma into English because the esteemed University of Pennsylvania, from which he earned his degree, issues its diplomas in Latin.

Not all of the “crackdown” is that funny.  As USCIS re-adjudicates previously approved petitions, some long-employed H-1B workers are being denied extensions of their visas.

A highly valued tech worker whom I know had been in his position for close to a decade while waiting for the availability of visas so he and his family could file for permanent residency green cards.  The long wait is because of the simple fact that he was born in India.  The denial of his recent extension petition was because USCIS arbitrarily chose not to believe that a senior software developer for an international consulting firm required a bachelor’s degree – notwithstanding that three prior extensions had been approved, and in spite of the worker having a master’s degree, a decade of experience and praise from industry experts.  The worker and his family returned to India.  The company lost a valuable employee. The community lost a high earning family and taxpayer. After another family learned of the impediments to coming to the U.S. legally and staying legally, and realized that the U.S. is no longer very open to them, the nation lost even more rich talent who wanted to study, work or invest here.

This is not about undocumented individuals, refugees or criminal aliens.  It is a different story, sadder as the beacon of hope that once was the U.S.’s message to the rest of the world has grown dim.  It is about walls of a different sort – administrative and procedural and bureaucratic walls erected to deter immigrants from coming legally to the U.S. with the intention of learning, working and achieving. These same barriers are forcing U.S. firms to cease or relocate parts of their businesses that require foreign- born workers. Frustratingly, USCIS has been creative in its almost daily changes of processing protocols, changes that impose more restrictions, delays and roadblocks.

This year record numbers of H-1B petitions were filed in the annual lottery. The high demand reflects the need for workers and the absence of sufficient numbers of U.S. workers at a time when record numbers of Americans are reaching retirement age and leaving the workforce.

Why are there Pittsburgh based start-ups that export their research and development functions to Canada and Spain?  The answer is because their workers can safely secure and maintain lawful status and employment authorization in those nations.  Other countries welcome and benefit from foreign talent that the U.S. “doesn’t have room for.”

Is there immigration work in Pittsburgh?  Are there immigrants still coming to Pittsburgh?  Of course there is and are.  Walk through most business districts, and one likely will hear many passersby speaking a language other than English (and other than Yinzerese).

Our local schools, universities, hospitals, businesses, restaurants and institutions have a host of foreign immigrants learning, working and owning there.

Immigration can continue to make America great, if we let it!

Yesterday, United States Citizenship and Immigration Services (USCIS) announced that the agency has completed data entry for all fiscal year 2020 H-1B cap-subject petitions selected in the lottery. USCIS is still issuing receipt notices as a result of the computer-generated selection process.  We received a notice yesterday, so please note that others may be forthcoming.  Once all petitioners are notified, USCIS will start returning unselected petitions and issue an announcement.  There is no time frame in which this will happen.  Notifications of case transfers have also started to be issued, which is commonly done by the agency to balance workload.  Please continue to check in with your attorney regarding your H-1B petitions.

The Department of Homeland Security and Department of Labor jointly announced the addition of 30,000 H-2B temporary worker visas for fiscal year 2019.  These additional visas are available only to returning workers who received an H-2B visa or were granted H-2B status in the past three fiscal years.  The returning worker visas will prioritize those businesses that submit an attestation to USCIS in which the petitioner affirms, under penalty of perjury, that if the petitioning employer does not receive all of the H-2B workers requested under the cap increase, the employer is likely to suffer irreparable harm.  The rule defines irreparable harm to be permanent and severe financial loss.   No evidence is required to show this need at the time of filing, but the employer will have to present the evidence as requested by the Department of Homeland Security, Department of Labor or Department of State.

In March 2019, the Social Security Administration resumed issuance of Employer Correction Request Notices, commonly referred to as “Social Security No-Match Letters.”

The No-Match Letters are being sent to businesses throughout the country that are identified as having a name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match SSA records. Employers may recall receiving these notices until 2012 when the Obama administration suspended these communications.

Employers receiving No-Match Letters in 2019 must take proper steps in addressing the request. Most importantly, employers should not assume that a No-Match Letter is proof of an unauthorized or undocumented worker; likewise, an employer cannot use the letter alone as a basis to take adverse action against an employee.

Upon receipt of a No-Match Letter, an employer should take the following initial steps :

  • CHECK the reported no-match information against its personnel records.
  • If the reported discrepancy cannot be resolved, INFORM the employee of the letter and ask the employee to confirm his or her name/SSN.
  • If the discrepancy still exists, ADVISE the employee, in writing, to contact the SSA to correct and/or update his or her SSA records and give the employee a reasonable period of time to resolve it.
  • SUBMIT corrections to the SSA.
  • If the employee does not respond or act to resolve the issue, CONTACT immigration counsel to discuss next steps and document a continued proactive response.

An employer’s failure to address a No-Match Letter and/or failure to follow-up with an employee and their progress towards resolving the no-match could lead to a finding by ICE of constructive knowledge of employing unauthorized workers.

Additionally, it is worth noting during an ICE Form I-9 Audit, the Notice of Inspection usually requests employer records concerning receipt of No-Match Letters and evidence as to how the company responded to the letter(s).

The reintroduction of No-Match Letters is a reminder for employers across the country in all industries of the need to ensure accurate records for wage-reporting and Forms I-9.

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Ali Brodie is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

Israelis will finally be eligible to receive an E-2 Treaty Investor Visa.  The U.S. Embassy in Israel has confirmed it will begin processing E-2 visas for Israeli citizens effective May 1, 2019.  This announcement follows years of negotiations between the United States and Israel.  This is welcome news for many Israelis, including those in hi-tech startups, medical innovation, small business, diamond dealers, restaurant operations and others who seek to invest and/or live in the U.S. and direct, develop or manage their investment.  Additionally, the corresponding B-5 Israel Investor Visa is available to U.S. citizens.

Please contact your Fox Rothschild immigration attorney for questions or clarifications, or a member of the Fox Rothschild Israel Practice Group.

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Ali Brodie is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.