On November 2, 2020, the Department of Homeland Security issued a Notice of Proposed Rulemaking (NPRM) announcing its plan to drastically change the way USCIS selects the H-1B Cap registrations of U.S. employers.  If the Proposed Rule is finalized in its current form and made effective, this would affect the registration selection process for employers and their prospective H-1B employees.

You may recall that for last year’s H-1B Cap Season, the agency implemented an electronic registration step that preceded the actual filing of H-1B petitions.  This change streamlined the selection process by enabling prospective H-1B petitioning employers the ability to electronically register in the H-1B cap lottery to sponsor a specific individual in lieu of filing a completely prepared H-1B petition as a means of entering the lottery.  Consistent with historical practice, USCIS then conducted a random selection lottery to determine which US employers would be able to sponsor the workers that they needed.  With such a great variety of employers registering for the H-1B Cap lottery and advanced degree exemption, random selection provided a fair chance to all.

A tweak designed to increase the selection of employers registering to sponsor those with a US master’s or higher degree reversed the order of registration selection from prior years. USCIS selected registrations first from the 65,000 regular cap, and afterward registrations under the 20,000 advanced degree exemption, tilting the odds slightly more in favor of registrations for those with advanced US degrees.

Recently, the agency issued an Interim Final Rule to change basic definitions that are central to eligibility for H-1B status. And further, the US Department of Labor issued an Interim Final Rule to significantly increase Level I, II and III wage levels by pushing up the scale within the four levels.

Nobody knows whether registrations will exceed the regular cap and advanced degree exception limits such that a lottery will be necessary in March, but if there is a lottery, USCIS is proposing a significant change to the selection process.  The agency proposes to select H-1B cap registrations with a strong preference for employers who can pay the highest Occupational Employment Statistics (OES) prevailing wage level for the job category (Standard Occupational Classification or SOC code) in the area of intended employment.

More specifically, DHS proposes to “generally” rank and select employer registrations beginning with those who offer to pay the highest wage (Level IV) for the occupation in the geographic area of employment.  In other words, lottery selection would first be made from all registrations indicating a wage offer of Level IV or higher.  If the number of such registrations would exceed the regular cap, a random selection process of only Level IV registrations would be conducted (followed by selection of advanced degree exception Level IV registrations).  Conversely, if not enough registered employers offer a wage that equals or exceeds the Level IV wage, the process of selection would continue in descending order with those offering Level III wages, then Level II and finally, Level I.

Note that under the NPRM, it is proposed that if an employer uses a wage survey or other independent authoritative wage source rather than the OES wage, regardless of any other case factors, such registrations will be grouped in Level I and have the lowest odds of selection.

The NPRM mentions consideration of an alternative selection process whereby random selection would continue–but with a twist.  The registrations would be “weighted according to their OES prevailing wage level, such that, for example, a Level IV position would have four times greater chance of selection than a level I position, a level III position would have three times greater chance for selection than a level I…” and so on.

Overall, the proposed new selection process would benefit employers who are able and willing to pay a Level IV or III wage even though the majority of employers offer a Level II wage (i.e., the NPRM notes that ~54% of registrants offered Level II wages, with ~15% combined offering Levels III and IV wages for a total of ~70% of registrants offering wages above Level I).  While the stated goal of the proposed changes is to incentivize employers to pay higher wages to H-1B workers, and this sounds great at first glance, the NPRM also notes potential downsides to employers like lost profits and increased costs in terms of training and replacement of workers, along with potential lost productivity while that takes place.

Of course, in order to implement the Proposed Rule if it becomes effective, it would be necessary for employers to include additional information in their registrations so that the ranking could be conducted.  This would require a more in-depth analysis of the case prior to registration.

All combined, more than in the past, it’s important that employers who are interested in sponsoring individuals for H-1B status contact qualified legal counsel as early as possible to allow time for a reasoned legal analysis and for potential considerations such as the use of alternative wage surveys and degree evaluations, among other things.

Please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540 with questions.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

In March, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a new temporary flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.   This temporary policy was originally scheduled to last for 60 days, however, due to ongoing pandemic conditions, USCIS extended the policy several times, most recently until November 19, 2020. Today, November 18, 2020, because of ongoing precautions related to COVID-19, DHS has extended this policy until December 31, 2020.

See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. Please recall that this provision only applies to employers and workplaces that are operating remotely.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please see COVID-19 webpage for more information.

DHS advises that it will continue to monitor the ongoing national emergency and provide updated guidance as needed.

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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.

U.S. Citizenship and Immigration Services (USCIS) recently announced revisions to the naturalization civics test.  The changes will affect those applicants who apply after December 1, 2020.  These applicants will need to take the updated version of the civics test.

Instead of studying 100 questions, applicants must now study 128 possible questions.   The new test is available online here.

USCIS will not change the 60% passing score, but will now require 12 questions answered correctly out of 20 possible questions, instead of the 6 out of ten previously required.

The exception for applicants aged 65 and older who have been Lawful Permanent Residents for at least 20 years will remain the same and require 6 out of 10 correct answers.

USCIS indicates that the revised test more appropriately tests the applicant’s understanding of U.S. history and civics, as per the statutory requirements for the applicant to demonstrate these qualifications for U.S. naturalization.

Should you wish to apply for U.S. naturalization, please contact an attorney with the Immigration Practice group at Fox Rothschild to discuss your eligibility.

Mr. Harley is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  Mr. Harley’s practice covers the United States and Consulates worldwide.  Mr. Harley is based in our Pittsburgh, Pennsylvania office.  He can be reached at mharley@foxrothschild.com or at 412-391-2418.

Just released by USCIS:  The U.S. Department of Homeland Security has announced an interim final rule (IFR) that strengthens the H-1B nonimmigrant visa program to protect U.S. workers, restores integrity to the H-1B program, and better guarantees that H-1B petitions are approved only for qualified beneficiaries and petitioners.

While the H-1B program was intended to allow employers to fill gaps in their workforce and remain competitive in the global economy, it has expanded far beyond that, often to the detriment of U.S. workers. Data shows that the more than a half million H-1B nonimmigrants in the United States have been used to displace U.S. workers, which has led to reduced wages in a number of industries in the U.S. labor market and the stagnation of wages in certain occupations.

Additionally, this IFR restores the guidance contained in the recently rescinded 2010 policy memorandum, “Determining Employer-Employee Relationship for Adjudication of Petitions, Including Third-Party Placements,” with limited clarifications.

This IFR will be effective 60 days after its publication in the Federal Register. USCIS is forgoing the regular notice and comment period to immediately ensure that employing H-1B workers will not worsen the economic crisis caused by COVID-19 and adversely affect wages and working conditions of similarly employed U.S. workers.


This IFR is scheduled to be published tomorrow and as such will take effect on Monday, December 7, 2020 (60 days later).  We will provide more detailed analysis and guidance on this Interim Final Rule in the coming days.  Stay tuned.  You can read the entire text of the IFR here.

___________________________

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.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it will not furlough employees as had been previously scheduled to begin on August 30, 2020.  USCIS had previously pushed back the anticipated furlough in August and now has cancelled it altogether, with the expectation of being able to maintain operations through the end of fiscal year 2020.    The furlough was to include more than 13, 000 employees, or approximately 70% of the USCIS workforce.   The cancellation of the furlough was based on USCIS spending cuts and an increase in revenue and receipts.  USCIS indicated that “Anticipated operational impacts include increased wait times for pending case inquiries with the USCIS Contact Center, longer case processing times, and increased adjudication time for aliens adjusting status or naturalizing.”  For immigration practitioners, employers and beneficiaries unfortunately this means that the unprecedented delays at USCIS will only continue, but for now a crisis was averted.   Should you have any questions or concerns about immigration case processing, please contact one of the immigration attorneys at Fox Rothschild.

The production of certain Employment Authorization Documents (EAD) have been delayed due to to COVID-19.  Today, USCIS announced that due to these production delays, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 for Form I-9 employment eligibility verification purposes.  Specifically, employees may present Form I-797 informing the applicant of approval of an Application for Employment Authorization (Form I-765) for purposes of satisfying Form I-9, List C #7 as a document that establishes employment authorization issued by the Department of Homeland Security.   This is allowed during the specified time period even though the applicant’s Form I-797 Notice of Action states it is not evidence of employment authorization.  Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a Form I-9 List C document through December 1, 2020.

Employers and employees should note the I-797 Notice of Action does not serve as a Form I-9 List A document (a document establishing both identity and employment authorization) OR a Form I-9 List B document (a document establishing identity).   For new hire scenarios, an employee who presents a Form I-797 Notice of Action described above must also present a valid List B document.  For existing employees requiring reverification, the employee may present Form I-797 Notice of Action described above for List C purposes.

By December 1, 2020, employers must reverify employees who presented Form I-797 Notice of Action as a List C document.  This means these employees will need to present the employer with new evidence of employment authorization consistent with the Form I-9 List of Acceptable Documents from List A or List C.  It is the employees’ choice whether to present their new EAD or a different document from List A or List C.

Employers are reminded to maintain Form I-9 compliance throughout the COVID-19 public health emergency.

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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.

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” (July 21, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories and his answers to various questions from the public.

As posts and USCIS will not be processing as many immigrant visa (IV) and adjustment of status applications due to the closures and suspension of services due to the coronavirus, we are in a unique, unexpected situation.

Check-in with DOS’s Charlie Oppenheim:  July 21, 2020

Given reduced processing capacity occasioned by the COVID-19 pandemic, the Department of State and USCIS are closely collaborating to maximize number usage for FY20, focusing on processing capacity and the applications that are capable of being finalized this fiscal year.  There continues to be forward movement in all family-based preference categories and in most employment-based preference categories in August, with the exception of EB-2 India, EB-4 El Salvador, Guatemala and Honduras and EB-4 Mexico, which hold at their July dates (July 8, 2009, April 1, 2017 and June 15, 2018 respectively).  In particular, there is rapid advancement in the EB-1 and EB-3 categories.  There is insufficient time for new I-485 filings resulting from these advancements to be processed to completion before the end of the fiscal year.  These movements were instead motivated by a desire to convert pre-adjudicated demand at USCIS into immigrant visa issuance prior to October 1, 2020.

Processing capacity has been dramatically diminished at consular posts, and USCIS normally processes about eighty-five percent of the Employment-based immigrant visa numbers each fiscal year.  Following imposition of final action dates on EB-1 China and EB-1 India, USCIS continued to process these applications, and in many cases, even conducted interviews before the pandemic hit.  Thousands of these applications can potentially be finalized following a renewed security check and/or upon receipt of a medical exam, thus enabling the employment-based annual limits to be reached or approximated as closely as possible.  If a furlough of USCIS employees occurs as planned in early August, it could have a significant negative impact on the government’s efforts to maximize immigrant visa number usage for FY20.  [Note that as of the publication of this article, the potential furlough of UCSIS employees has been postponed until August 31, 2020.]

Employment-based Preference Categories

EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) remains current in August and will continue to be so through the end of this fiscal year.

In August the final action date for EB-1 China leaps forward 4.5 months from August 22, 2017 to February 8, 2018.  EB-1 India continues to advance rapidly but at the slightly slower pace of nine months in August, from May 8, 2017 to February 8, 2018.  AILA members may notice that EB-1 China and EB-1 India now have the same final action date.  This is because they have both reached their per country limits and are now utilizing “otherwise unused numbers” from the EB-1 category as well as numbers that have “fallen up” from otherwise unused EB-5 numbers.  Otherwise unused numbers are available within the EB-1 category because the rest of world demand is currently insufficient to fully utilize numbers under the Worldwide limit this fiscal year.  While there is still potential for forward movement in EB-1 China and EB-1 India in September, any advance movements are unlikely to be as dramatic as in August.

EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) remains current in August and will remain so through this fiscal year.  EB-2 China advances approximately nine weeks from November 8, 2015 to January 15, 2016.  In contrast, EB-2 India holds at July 8, 2009 in August.  It is currently estimated that there is a sufficient amount of worldwide demand to reach or approximate the EB-2 annual limit for FY2020.

EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) continue to advance rapidly at the pace of almost one year in August from April 15, 2018 to April 1, 2019. This advancement includes over three thousand EB-3 Philippines applications which are eligible to be finalized.  EB-3 China leaps forward more than seven months in August from June 22, 2016 to February 15, 2017.  EB-3 China Other Workers advances modestly from July 22, 2008 to August 1, 2008.  The spread between EB-2 China and EB-3 China, which held at approximately 7.5 months for some time, widens greatly in August, putting EB-3 China’s final action date 13 months ahead of EB-2 China.  We will have to monitor this to see whether this spurs downgrades to EB-3 China.  EB-3 India and EB-3 India Other Workers both advance four months in August from June 1, 2009 to October 1, 2009.

EB-4 Worldwide (including China, India, Philippines and Vietnam) remains current in August and likely to remain so for the foreseeable future.  EB-4 El Salvador Guatemala and Honduras advances two months in August from February 1, 2017 to April 1, 2017, while EB-4 Mexico continues to hold at June 15, 2018.

As predicted, EB-5 India (Regional and Non-Regional Centers) which became current in July, continues to will remain current in August and is expected to remain so for the foreseeable future.  EB-5 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines), Regional and Non-Regional Centers, will also remain current into the next fiscal year.  EB-5 China (Regional and Non-Regional Centers) advances two weeks in August, from July 22, 2015 to August 8, 2015.  EB-5 Vietnam (Regional and Non-Regional Centers) advances two months and one week, from May 15, 2017 to July 22, 2017, with the hope that this will maximize number usage in this category.

Family-based Preference Categories

Recent advancements in the family-based preference categories have resulted in the accumulation of large amounts of demand and may result in a slow-down in advancement of the family dates, as there has been limited processing capacity to finalize these applications.

F2A remains current in August across countries and is expected to remain so in September and October.  All other Philippines family-based preference categories advance three months in August, due to a very low response rate and despite rapid advancement over the past eighteen months. In August, F1 Philippines advances to September 1, 2011, F2B Philippines advances to April 1, 2011, F3 Philippines advances to November 15, 2001, and F4 Philippines advances to September 1, 2001.  Family-based preference categories for all other countries will continue to advance at a pace of two to five weeks in August.

F1 Worldwide (including F1 China and F1 India) advances five weeks from July 8, 2014 to August 15, 2014.  F1 Mexico advances two weeks from December 8, 1997 to December 22, 1997.

F2B Worldwide (including F2B China and F2B India) advances five weeks in August from May 1, 2015 to June 8, 2015.  In August, F2B Mexico advances two weeks from March 8, 1999 to March 22, 1999.  F3 Worldwide (including F3 China and F3 India) again advances three weeks in August from May 8, 2008 to June 1, 2008, and F3 Mexico advances one week from July 8, 1996 to July 15, 1996.  F4 Worldwide (including F4 China) again advances two weeks in August from August 22, 2006 to September 8, 2006. F4 India also advances at a pace of two weeks from February 8, 2005 to February 22, 2005. F4 Mexico advances two weeks from June 1, 1998 to June 15, 1998.

Diversity Visa Lottery

AILA also notes that the limitation of immigrant visa processing to mission critical matters, coupled with the impact of Presidential Proclamation 10014, the validity of which was extended by PP 10052 through December 31, 2020, will result in large numbers of FY2020 DV lottery winners being unable to process immigrant visas by the end of FY20.

Q&A:

QUESTION:  I’m confused by the recent Check-Ins.  About two months ago I asked the reason for the rapid advancement in China EB-5 considering that consulates were not issuing visas and it was unlikely that USCIS would process and adjudicate newly submitted AOS applications before the end of the fiscal year.  Charlie said that it was because applicants were not responding to NVC and completing the consular processing steps in a timely manner and also because USCIS had told him they could process a certain number of AOS cases prior to the end of the fiscal year.

ANSWER:  My comments were valid at the time;  1) at that time the dates were being moved to try and stimulate future responses, despite our not being able to process cases at this time, but it was hoped processing might be resumed later in the summer.  Plus, the applicants had not been responding in great numbers based on recent movement of the dates, and it can be many months from the time an applicant begins submitting documents, and they are finally fully ready for the scheduling of an interview.  2) I knew that USCIS had hundreds of potential applicants who could be processed based on the movement of the dates.  That could allow numbers to be used this year, which had it not been for the movement would have required those applicants using numbers under the FY 2021 limit.

QUESTION:  However, at the most recent check-in, he says basically what I was saying, that the advancement in the cut-off dates was superficial since the visa numbers weren’t being used at all due to the pandemic cutting off IV interviews and USCIS processing of AOS applications.  If he now thinks that way, what is the reason behind the advancement of China EB-5 by two weeks instead of say, none or one week?  If, according to him, there is no USCIS pending demand for EB-5 numbers, then what did he mean in the previous check-in when he said USCIS told him they could adjudicate new cases?  Has USCIS changed its opinion on its capacity?

ANSWER: By last month’s check-in three things had become apparent; 1) it was unlikely that overseas processing of such applicants would return to normal this fiscal year, 2) we already had over 3,500 China EB-5 applicants who would be eligible for potential interview once posts are able to return to full operational status, and 3) future movement of the date would not have any impact on this year’s USCIS number use. Therefore, I have limited movement of the China date for now, allowing me to get a better understanding of what impact past movements are having, and what the true need for numbers is likely to be under the FY 2021 EB-5 limit.

QUESTION:  I’m also surprised by his comments that EB-5 applicants are not completing the CP steps.  We have a large number of EB-5 China clients with processing complete letters from NVC and no interview notices, even before the pandemic began.  Is there communication between Charlie and the consulates regarding interviews and the number they are conducting each month to ensure visa numbers are being used throughout a fiscal year?

ANSWER: There is no problem with communication. I have not said I didn’t have applicants who were documentarily qualified and eligible for scheduling. What I had been saying is that (at the time) we didn’t have enough of them based on the expected availability of China numbers, and that there were significant amounts of China applicants who had not been submitting all of the required documents despite being notified to do so. Since I began making those statements to AILA, IIUSA, and others the response rates have improved. Plus, if it were not for the fact that the COVID issues which have prevented current processing, we would have insufficient China EB-5 demand as we enter FY 2021.

QUESTION:  We understand that the recent proclamation that seeks to “normalize” Hong Kong will effectively cause Hong Kong born persons to become chargeable to Mainland China. Please confirm whether we should act consistent with Hong Kong persons being chargeable under the Worldwide/All Chargeability Areas Except Those Listed until or unless advised otherwise.

ANSWER:  I cannot comment on the Hong Kong issue at this time. The Executive Order (EO) provide 15 days to “commence all appropriate actions” to implement, and the issue is currently being reviewed.  Please monitor the travel.state.gov web site for the latest guidance on this issue.

NOTE FROM AILA:  During the DOS Open Forum at AC20, AILA asked whether the July 14, 2020 Executive Order on Hong Kong Normalization would result in Hong Kong born individuals becoming chargeable to Mainland China. David Newman, Director of Legal Affairs in the Visa Office, indicated that the Visa Office is still reviewing this matter, but that Section 103 of IMMACT90 granted separate chargeability treatment to Hong Kong born individuals and that the proclamation does not alter this.

You may access the July 2020 Visa Bulletin here and the August 2020 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.  Ms. Bahal is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Ms. Bahal at (973) 994-7800, or abahal@foxrothschild.com.

U.S. Immigration and Customs Enforcement (ICE) announced on July 18th that it will provide a 30-day extension to its temporary policy allowing flexibility in the rules related to Form I-9 for employers operating 100% remotely in light of COVID-19. The new expiration date for these accommodations is August 19, 2020.

On March 19 due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This provision was implemented for 60 days and was set to expire on May 19. On May 19, DHS extended this policy for an additional 30 days, until June 18.  On June 19, DHS extended this policy for an additional 30 days, until July 19.   Our prior blog post provides additional documentation information and instructions.

ICE also announced that after July 19, no additional extensions will be issued to employers who were served notices of inspection (NOIs) by ICE during the month of March 2020.  Previously, employers who were served notices of inspection (NOIs) by ICE during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date, followed by an additional extension of 30 days.   See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please see the COVID-19 webpage for more information.

DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed.

___________________________

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.

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.

 

The United States-Mexico-Canada Agreement known as the USMCA is effective July 1, 2020. The USMCA replaces the North American Free Trade Agreement (NAFTA) which expired June 30, 2020. As it relates to US immigration, the USMCA includes comparable provisions as found in the NAFTA for Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. No occupation categories are eliminated or added and there are no numerical limitations for entries under the new provisions.

Notably, the USMCA retains all of the occupations previously designated as eligible for the NAFTA TN visa. There are interesting changes including new footnotes that the Mathematician occupation includes the profession of Actuary and the Biologist occupation includes the profession of Plant Pathologist.

Businesses and individuals impacted by the recent executive order suspending visa issuance of H-1B, L-1, and J-1 visas should consider the TN visa category for Canadian and Mexican citizens.

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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 (424) 249-1759 or at abrodie@foxrothschild.com.

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” (June 17, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories and his answers to various questions from the public.

As posts and USCIS will not be processing as many immigrant visa (IV) and adjustment of status applications due to the closures and suspension of services due to the coronavirus, we are in a unique, unexpected situation.

Check-in with DOS’s Charlie Oppenheim:  June 17, 2020

EMPLOYMENT-BASED PREFERENCE CATEGORIES:

EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) remains current in July and should remain so through the end of this fiscal year. In July the final action date for EB-1 China advances one week from August 15, 2017, to August 22, 2017. There are currently almost 2,000 EB-1 China adjustment of status (AOS) cases pending at USCIS. EB-1 India again advances significantly, moving forward eleven months from June 8, 2016, to May 8, 2017. This rapid advancement is made possible by the infusion of otherwise unused numbers falling up from EB-5 and the lack of significant EB-1 Worldwide demand. Charlie is consulting with USCIS regarding their processing capacity and to determine how much of the outstanding demand is close to completion in order to understand what can realistically be approved before the end of the fiscal year.

EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in July and should do so through FY2020. EB-2 China advancement slows to one week, moving modestly from November 1, 2015, to November 8, 2015. In contrast, EB-2 India advances more rapidly by three weeks, from June 12, 2009, to July 8, 2009. As with EB-1 China and EB-1 India, there is a significant amount of pre-adjudicated demand in these categories and relatively low rest of world demand.

EB-2 China and EB-2 India will certainly exceed their per country limits this year. The open question is how close the EB-2 category will be to reaching its worldwide limits.

EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) which advanced more than ten months in June, advances at a significant yet slower five month pace in July 2020 from November 8, 2017, to April 15, 2018. Similar to EB-1 India, there is a large amount of pre-adjudicated demand in EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam), making it more reliable that the advancements will result in visa issuances this fiscal year. However, as also noted above, this category is much closer to reaching its annual limit than the other categories.

EB-3 China advancement slows to one week in July from June 15, 2016, to June 22, 2016. EB-3 China Other Workers starts to advance again in July by one week from July 15, 2008, to July 22, 2008. As EB-2 China and EB-3 China both advance by one week in July, the spread between them remains the same, with EB-3 China’s final action date holding ~7.5 months ahead of EB-2 ChinaEB-3 India and EB-3 India Other Workers both advance two months in July from April 1, 2009, to June 1, 2009.

EB-4 Worldwide (including China, India, Philippines, and Vietnam) remains current in July. EB-4 El Salvador, Guatemala, and Honduras advances 1.5 months from December 15, 2016, to February 1, 2017 and is likely to hold at this date through the remainder of the fiscal year. EB-4 Mexico advances one week–from June 8, 2018, to June 15, 2018. Members should continue to watch EB-4 Mexico for potential movement. It is too early to predict what will happen in the remaining months of FY2020.

EB-5 India (Regional and Non-Regional Centers) becomes current in July and will remain so through FY2020.

EB-5 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines), Regional and Non-Regional Centers, remains current in July and will remain so through this fiscal year as well.

EB-5 China (Regional and Non-Regional Centers) advances one week in July, from July 15, 2015, to July 22, 2015. EB-5 Vietnam (Regional and Non-Regional Centers) advances three weeks in July from April 22, 2017, to May 15, 2017.

FAMILY-BASED PREFERENCE CATEGORIES:

Although consular processing is minimal, the National Visa Center (NVC) is operational and continues to process cases, approximately 95% of which are family-based.

F2A remains current in July and will continue to do so throughout the remainder of FY2020. All other family-based preference categories continue to advance in July, many at the same or a slightly slower pace, with a few (F2B Philippines and F3 Mexico) advancing more rapidly.

F2B Philippines advances four months from September 1, 2010, to January 1, 2011, and F1 Philippines, F3 Philippines and F4 Philippines advance four months to June 1, 2011, August 15, 2001, and June 1, 2001 respectively. As reported in prior columns, family-based Philippines demand continues to be extremely low, with applicants not acting to become documentarily qualified in a timely manner, despite rapid advancements in the Final Action Dates. The Philippines family-based categories will continue to advance at a similar pace in the coming months. Based on the data, there is a trend of Philippines applicants responding to the NVC Agent of Choice letter and becoming documentarily qualified within three months of when the advancement indicates their priority dates will become current and within the three months after they would become current. This behavioral trend data helps Charlie understand how to best advance the final action date to elicit responses.

F1 Worldwide (including F1 China and F1 India) advances approximately six weeks from May 22, 2014, to July 8, 2014. F1 Mexico advances three weeks from November 15, 1997, to December 8, 1997.

F2B Worldwide (including F2B China and F2B India) advances 1.5 months in June from March 15, 2015, to May 1, 2015. In July, F2B Mexico advances three weeks from February 15, 1999, to March 8, 1999.

F3 Worldwide (including F3 China and F3 India) advances three weeks in July from April 15, 2008, to May 8, 2008, and F3 Mexico also advances three weeks from June 22, 1996, to July 8, 1996.

F4 Worldwide (including F4 China) advances two weeks in July from August 8, 2006, to August 22, 2006. F4 India also advances at a pace of two weeks from January 22, 2005, to February 8, 2005. F4 Mexico advances another three weeks from May 8, 1998, to June 1, 1998.

Moving forward, Charlie expects movements in the family-based categories to remain consistent with what we have been seeing these past few months.

QUESTIONS & ANSWERS:

QUESTION: In last month’s Check In, Charlie said that “it is unlikely that the employment-based limit will be reached in FY2020.” If that is the case, why is Charlie not accelerating the Visa Bulletin with the hope of attracting as many approvals as possible?

ANSWER: That is exactly what I am doing, but I have to do so within reason based on processing capacity, and not strictly for the sake of movement with no reasonable expectation of actual number use.  Processing capacity at both consular posts and USCIS is diminished due to the pandemic. Currently, immigrant visa processing at consular posts abroad is limited to “mission critical” processing, which is defined at the discretion of the post and which is often limited to adjudicating cases based on compelling reasons, such as age-outs.  Immigrant visa processing at USCIS has also been constrained due to the pandemic, but their capacity has been much greater than that of the consular posts. For example, in May 2020, USCIS used over 3,600 numbers across the employment-based first and second preference categories. This contrasts with number usage in excess of 6,000 for the same categories in May 2019.

The premise that dramatically advancing the Final Action Dates will result in full (or closer to full) number usage is flawed. The agencies’ (and State’s) diminished processing capacity makes it unreasonable to expect that an even more accelerated advancement in the Final Action Dates would increase actual number usage this fiscal year. Additionally, such abrupt movements would likely result in corrective action in the form of retrogression, which should be avoided.  The good news is that there is currently a significant amount of pre-adjudicated demand in EB-1 China, EB-1 India, EB-2 China and EB-2 India that can reasonably be expected to be adjudicated despite the processing constraints. Many of these cases may only require renewed security checks to complete processing, and others may also require renewed medicals. Given USCIS’s potential processing capacity and the current status of these cases, it may be realistic to expect that USCIS will be able to finalize as many employment-based cases as its capacity allows. In contrast, while there is significant demand for EB-5 China numbers awaiting processing in Guangzhou, there is no pre-adjudicated pending demand for EB-5 China numbers at USCIS, and at this time USCIS’s data does not demonstrate significant USCIS demand for that category.

There is no data to indicate the existence of significant EB-5 China USCIS demand that would warrant a more rapid advancement of the Final Action Date in this category. As it stands, this category has advanced much more rapidly than I would have thought possible earlier in the fiscal year. Last October, I expected the best case scenario for the FY2020 EB-5 China Final Action Date to reach March 8, 2015. However, I have been pleased that the data has subsequently supported advancing the date far into the summer–to July 22, 2015. As there remains a significant amount of pending consular demand and no USCIS pending demand, sweeping advancements in this category are not supported by the data at this time. However, as the situation is constantly being monitored, future changes cannot be ruled out.

Although many employment-based preference categories are unlikely to reach their annual limits, there are two categories which are close to doing so. When a final action date was imposed for EB-3 Worldwide earlier this fiscal year, it signaled that this category was close to reaching its annual limit. Given significant early number usage, the EB-3 and EB-4 categories are most likely among the various employment-based categories to reach their annual limits this fiscal year.

QUESTION: Also, does he have an estimate as to how many visas they would be short in FY2020?

ANSWER: The processing limitations resulting from the COVID-19 related issues continue to impact number use under the various numerically controlled visa annual limits. At this time, it is estimated that there could easily be 25,000 unused numbers under FY2020 Employment-based annual limit. That estimate depends largely on the extent that processing is able to return to something approaching normal processing. Although we are unlikely to use all of the employment-based visa numbers this fiscal year given the current family-sponsored processing capacity, there is a silver lining. The law requires that the number of unused family-sponsored visas will be added to the FY2021 employment-based annual limit. In FY2020, we already enjoyed the second highest employment-based annual limit in recent memory—156K, which places the current per country limit at almost 11K. I expect that in FY2021 there will be over 200K employment-based numbers available—which is the highest number I can recall ever having in a fiscal year–and which translates to a 14K per country limit—a 21.5% increase over FY2020. Effectively, any unused employment-based numbers in FY2020 will be more than compensated for next year, and assuming the pandemic subsides and processing returns to normal, these excess numbers will create the possibility of significant advancement in EB-1 China, EB-1 India and EB-5 China, as well as the possibility of EB-3 Worldwide becoming current. Keep in mind that the next fiscal year is just over 3 months away

You may access the June 2020 Visa Bulletin here and the July 2020 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.  Ms. Bahal is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Ms. Bahal at (973) 994-7800, or abahal@foxrothschild.com.