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.

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” (March 18, 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’s Charlie Oppenheim: March 18, 2019
Data and Projections
Charlie bases Final Action Date movement on the performance of each category over recent months, as well as his visibility regarding employment-based cases pending at the USCIS National Benefits Center and those already forwarded to the local USCIS field offices.

Following an early April 2019 meeting at the National Benefits Center, Charlie will have additional data upon which to base the Final Action Dates in the May 2019 Visa Bulletin. If that data demonstrates shifts in the demand trends, Charlie may alter his projections for Final Action Date movements through the second half of the fiscal year.

Family-Based Preference Categories
Charlie advises to expect movements in the family-based preference categories consistent with those in recent visa bulletins. However, he cautions that consistent rapid forward movement in these categories is not likely to continue. Charlie remains concerned that the lack of apparent demand in many of these categories, which is causing the dates to advance more quickly than usual, may eventually result in a great amount of demand materializing all at once. If this were to occur, it could result in an abrupt retrogression and lead to volatility in some categories.

Charlie recalls that this phenomenon occurred in the family-based preference categories in Calendar Years (CY) 2009 and 2010 when the U.S. economy was lagging. This economic slowdown caused low demand for immigrant visas, which in turn, spurred rapid movement for family-based categories. As the economy improved, the demand for immigrant visas heated up abruptly, causing a dramatic retrogression during the second quarter of FY2011.

In particular, there has been unusually rapid movement in FB-3 and FB-4 Philippines, each of which advance six months in the April 2019 Visa Bulletin. The visa bulletin’s “Section D. Final Action Date Movement” on page 8 contains more details on Final Action Date movements.

Employment-Based Preference Categories
EB-1:  Reported demand levels across all countries in the EB-1 category remain high, having changed since the “Visa Availability” projections were provided in Section E of the February 2019 Visa Bulletin on page 9. In absolute terms, EB-1 has used more total visa numbers this fiscal year than any other employment-based category, with usage up to 25% higher than that of EB-2, and EB-3. The increased demand for EB-1 Worldwide numbers is negatively impacting EB-1 China and EB-1 India, which in the past have normally benefitted from the availability of otherwise unused EB-1 numbers from other countries.

Charlie warns that there should not be an expectation of any movement for EB-1 China and EB-1 India Final Action Dates. Movement for both is only possible if EB-1 Worldwide demand slows down to a sufficient level that would allow otherwise unused numbers to be allocated to these countries. If the current demand trends continue, that is unlikely. For context, Charlie mentioned that EB-1 number use during January and February 2019 exceeded that of the entire first quarter of FY2019. From December to January, EB-1 Worldwide number usage increased by over 45%. In February, that number usage was slightly higher than December, but declined slightly overall. I t was still excessive, however, given that February is a short month. March is at least on par with the number usage that materialized in February 2019, indicating that the demand does not show signs of significantly decreasing at this time. Individuals should expect movement of anywhere from minimal movement to up to two months for EB-1 Worldwide Final Action Dates. Charlie is watching the demand trends in this category very carefully. He cannot yet conclude whether this elevated demand represents a bubble that will be processed and then quickly dissipate, or whether it represents an ongoing consistent demand trend.

EB-2 Worldwide:  Charlie mentioned that only about half of the EB-2 Worldwide numbers for this fiscal year have been used, which is approximately where he would like that number to be. If the current demand trend continues, EB-2 Worldwide should remain current throughout the FY2019.

EB-2 and EB-3 India Remain Flipped:  In the April 2019 Visa Bulletin, the EB-2 India Final Action Date once again advances only three days to April 12, 2009. EB-3 India remains ahead of EB-2 India, advancing a full month for a Final Action Date of June 22, 2009. While the same movement patterns are expected for the foreseeable future, individuals should continue to watch these two categories carefully. Since EB-2 Worldwide demand is on target to use, but not exceed its numbers this fiscal year, few, if any numbers can be expected to be left unused. Thus, there will likely not be any additional numbers available for EB-2 India use.

EB-2 and EB-3 China:  In contrast to India, EB-2 China remains ahead of EB-3 China. In April 2019, EB-2 China advances three months to a Final Action Date of April 1, 2016, and EB-3 China advances three weeks to a Final Action Date of August 1, 2015. Like India, these trends are expected to continue for the foreseeable future.

EB-3 Philippines:  Rapid advancement continues for EB-3 Philippines in April, as the category leaps forward three months for a Final Action Date of March 1, 2018. The rapid movement throughout the past year has covered most pending cases, and the current levels of new demand for this category are extremely low both overseas and at USCIS. Although a continuing lack of demand will create additional forward movement, individuals are cautioned to not expect this rapid advancement to continue indefinitely. If significant demand abruptly materializes, it can slow down advancement and even result in a retrogression. In last month’s check-in, Charlie addressed a similar demand pattern for EB-3 Philippines experienced in FY2014 and early FY2015.

EB-4:  EB-4 El Salvador, Guatemala and Honduras advance one week to a Final Action Date of March 8, 2016, and EB-4 Mexico advances three months to a Final Action Date of April 1, 2018. Individuals should expect continued forward movement in EB-4 Mexico until this category reaches it per country limit, at which time its Final Action Date will match that of EB-4 El Salvador, Guatemala and Honduras. EB-4 El Salvador, Guatemala and Honduras may experience some additional movement in May or June 2019, though it will be minimal. Charlie mentioned that there is currently enough pending demand for this category. However, the category may advance later in FY2019 if it becomes apparent that there are available numbers. According to Charlie, EB-4 India is likely to reach it’s per country limit again in either August or September of FY2019. He expects that when this occurs the category will retrogress briefly, and then come current again on October 1, 2019.

EB-5:  In the April 2019 Visa Bulletin, the Final Action Date for EB-5 China advances one week to September 15, 2014. In China, the Consulate in Guangzhou is trying to get scheduling up to speed following the recent periods in which the EB-5 I5 and R5 programs were not authorized. A decrease in the level of expected demand has been occurring for other countries. It is possible that applicants held off submitting documents while awaiting the reauthorization of EB-5 (I5 and R5) programs. Charlie expects the demand levels to increase again, as a result of the recent reauthorization. C harlie mentioned that EB-5 Vietnam has slightly less demand in the upcoming weekly groupings and is better positioned to advance, until the per-country annual limit is reached. The Final Action Date included in the April 2019 Visa Bulletin for EB-5 Vietnam is August 22, 2016. Charlie previously expected EB-5 India to reach it’s per country limit by July 2019. However, he is no longer certain that will happen. He is watching the demand data and should have a better sense of the number usage within a few weeks. The decline in demand mentioned above, possibly resulting from reauthorization concerns, makes it difficult for Charlie to estimate how many additional numbers may be used by “high demand” EB-5 countries.

You may access the March 2019 Visa Bulletin here and the April 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.

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced start dates for premium processing of fiscal year (FY) 2020 cap-subject H-1B petitions.  USCIS will review premium processing requests in two phases.  The first phase will process cap-subject petitions that request a change of status and the second phase will include all other FY 2020 cap-subject petitions.

Starting on April 1, petitioners requesting a change of status may request premium processing by concurrently filing the Form I-907, Request for Premium Processing Service, along with their cap-subject H-1B petition.  USCIS will conduct the lottery and will begin processing these selected petitions no later than May 20, 2019.   The public will be notified once premium processing begins for these petitions.

USCIS estimates that premium processing for all other FY 2020 cap-subject H-1B petitions will not start until June 2019.  Premium processing requests for these petitions should not be filed concurrently with the initial H-1B petition.   These petitioners must wait until the USCIS announcement allowing for petitions in this category to request premium processing.

Yesterday, USCIS announced it will resume Premium Processing effective Tuesday, March 12, 2019 for all H-1B petitions.  Petitions processed with Premium Processing result in USCIS review within 15-calendar days.  If USCIS fails to act within this time period, the government will refund the petitioner’s premium processing fee.

The reopening of Premium Processing is not specific to FY 2020 H-1B cap petitions.  USCIS will make a separate announcement whether Premium Processing is available for FY 2020 cap petitions soon.  If your H-1B petition is already pending, it is important to file the request for premium processing with the correct USCIS Service Center.  Petitioners who have received a USCIS Transfer Notice, indicating the file was transferred to either the Nebraska or Vermont Service Centers, must file the request for premium processing with the USCIS Service Center now handling the petition.

Numerous news agencies are currently reporting on the European Union Announcement from last year  creating a European Travel Information and Authorization System (ETIAS).  The United States currently uses the Electronic System for Travel Authorization (ESTA) and this new European Union program would be similar to the United States program.  The ETIAS is in the process of further development for future implementation.

Starting in 2021, ETIAS will require that U.S. Citizens traveling to the Schengen Area will need to apply for and receive ETIAS in order to travel into the following countries in Europe:  Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland.

Visa Exempt third-country nationals over the age of 18 will need to complete an online application that requests background information on the applicant and pay an application fee.  The application will be checked against security databases and most responses are anticipated within a matter of minutes.  ETIAS will be valid for 5 years or until the expiry date of the person’s travel document/passport.  Carriers will check for ETIAS authorization prior to boarding for people traveling by air, land and sea.  Please note that this is for visa free travel and will impact a number of other nations in addition to the United States.

 

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” (February 26, 2018), 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’s Charlie Oppenheim:  February 26, 2019

Noteworthy Movements in March

The February 2019 Visa Bulletin listed projections for Final Action Date movements through May 2019 were all fulfilled, with the exception of EB-5 Vietnam, which was projected to move only 3 weeks, but actually advanced by one month for March. Members are reminded that when the projected movement is “up to” a particular amount of time, it means that movement should be interpreted as a range of movement per month between zero and the outer limit of said range from the present through May of 2019.

Employment-Based Preference Categories:

EB-1:  As predicted, there is only modest movement of one month for the EB-1 Worldwide Final Action Date in March, from December 1, 2017 to January 1, 2018. Similarly, the Final Action Dates for EB-1 China and EB-1 India creep forward only three weeks from February 8, 2017 to February 22, 2017.

Charlie underscores that AILA members should expect EB-1 to move at the lower end of the projected range of 0-2 months for EB-1 Worldwide and 0-1 months for EB-1 China and EB-1 India. Based on the continuing high demand, “minimal if any’ movement in the EB-1 categories is expected, and especially in EB-1 China and EB-1 India. The level of demand received after the publication of the projections in the February 2019 bulletin increased by over 50 percent during January, and the level received during the first three weeks of February exceeds that received during all of February 2018.

India EB-2 and EB-3 Remain Flipped:  The EB-2 India Final Action Date advances only three days to April 9, 2009 in March, whereas the Final Action Date for EB-3 India, which was already ahead of EB-2 India in February, advances a full month to May 22, 2009. Although the possibility of this inversion was hinted at for some time, this phenomenon only occurred in February 2019, so it is too soon to know if EB-2 downgrades will be filed, and if so, how that might impact the relative Final Action Dates between these two categories.

EB-2 and EB-3 China:  The Final Action Date for EB-2 China remains ahead of EB-3 China, and continues to advance at a faster rate, with EB-2 China advancing three months to January 1, 2016 in March, and EB-3 China advancing only one week to July 8, 2015 for March. Given the projected advancements and barring any changes in the demand trends, members can expect this to continue for the foreseeable future.

EB-3 Philippines:  Demand in this category continues to remain below the targeted level, requiring the Final Action Date for EB-3 Philippines to advance 4 months to December 1, 2017, in an attempt to generate demand.

Charlie is concerned that this rapid advancement might reflect a similar demand pattern to what this category experienced in FY2014 and early FY2015. At that time, the demand was similarly low. As such, the Final Action Date rapidly advanced. In the Spring of FY2015, a surge of demand in this category resulted in number use during a three-month period, equaling that of the entire previous year, requiring a more than 7-year retrogression in the Final Action Date for EB-3 Philippines. The FY2015 Final Action Date had, at one point, reached October 2014 for April. By May 2015 it retrogressed to July 2007, and ultimately ended the year at December 2004. The drastic retrogressions were required to stop all number use once the limit was reached, and it took many years to fully recover to the October 2014 date.

While Charlie is cautious about advancing the Final Action Date too quickly to avoid a reoccurrence of this type of retrogression, he cannot avoid advancing it where he does not see sufficient demand to meet the per country limit.

EB-4:  The Final Action Date for EB-4 El Salvador, Guatemala and Honduras holds at March 1, 2016 in March, and EB-4 Mexico advances 4 months to January 1, 2018.

EB-5:  EB-5 China advanced the Final Action Date by one week to September 8, 2014 for March. The Final Action Date had previously been advanced in January in anticipation of the Chinese New Year but processing was limited due to the sunsetting of the EB-5 I5 and R5 programs until very late in the month. Guangzhou is working to process as many cases as it can in February, but these may spill into March. EB-5 Vietnam has less demand with early priority dates and as such reaches a Final Action Date of July 15, 2016.

Family-Based Preference Categories:

FB-3 Mexico:  The Final Action Date for FB-3 Mexico, which has remained the same for the last few months, advanced slightly by 3 weeks in March to January 15, 1996. This movement was made possible by a decline in demand for cases being processed at Ciudad Juarez. Charlie did want to note that there is a potential for higher levels of demand pending final action at USCIS.

FB-3 Philippines and FB-4 Philippines:   Both FB-3 and FB-4 Philippines Final Action Dates advanced by more than 4 months and 3 months respectively in March. This reflects continuing low demand in these categories, despite a very large “pool” of applicants with approved petitions that have not yet acted on their case.

Program Reauthorizations and Timing of Visa Bulletin Issuance:

The Department of State published its March 2019 Visa Bulletin prior to President Trump signing into law the Consolidated Appropriations Act, 2019, which reauthorized the EB-4 Religious Workers (SR) and EB-5 (I5 and R5) categories. Members should refer to section D on page 8 of the March 2019 Visa Bulletin for the dates applicable to the EB-4 SR and EB-5 (I5 and R5). Specifically, in March, EB-4 SR is current for all countries except EB-4 SR El Salvador, Guatemala and Honduras, which have a Final Action Date of March 1, 2016, and EB-4 Mexico, which has a January 1, 2018 Final Action Date. EB-5 (I5 and R5) are current in March for all countries except EB-5 (I5 and R5) China-mainland born, which is subject to a September 8, 2014 Final Action Date, and EB-5 (I5 and R5) Vietnam, which is subject to a July 15, 2016 Final Action Date.

Changes to Methodology for Setting Application Filing Dates in the Family-Sponsored Categories:

As mentioned in prior columns, the Application Filing Dates (“Dates for Filing”) are a projection of where Charlie expects the Final Action Date to be about 8-12 months in the future. While this will continue to be the case regarding the Employment-Based (EB) Dates for Filing, the Dates for Filing in the Family-Sponsored Categories are being adjusted to more closely reflect where Charlie expects the Final Action Date to be within 3-6 months.

You may access the February 2019 Visa Bulletin here and the March 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.

It has been widely reported, including by the American Immigration Lawyers Association, that on February 20, 2019 the Department of Homeland Security (DHS) sent a proposal to the Office of Management and Budget (OMB) as per normal regulatory procedure to rescind the H-4 spouse employment authorization document (H-4 EAD) regulation. Reportedly, approximately 90,000 H-4 EAD-holders will be affected if the rule is rescinded.

According to procedure, OMB will first review the DHS proposal, the text of which has not yet been released to the public. The proposed rule will then appear in the Federal Register. After publication in the Federal Register, the public comment period is typically 30-60 days. Thereafter, DHS must review the feedback from the public before issuing a final regulation.

If not already done, it would be prudent for those with H-4 EAD work authorization to contact an attorney right away to consider other work-authorized immigration options. With the time for filing H-1B cap petitions quickly approaching, the sooner this is done the better or the possibility of an FY2020 H-1B cap petition may be foreclosed to H-4 EAD-holders for whom it would otherwise be available.

When the proposed rule is published in the Federal Register, we will provide further information.

 

Mark D. Harley is a Partner of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Mark at 412-391-2418, or mharley@foxrothschild.com.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Catherine at 412-391-1334, or cwadhwani@foxrothschild.com.

Robert S. Whitehill is a Partner and the Immediate Past Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Bob at 412-394-5595, or rwhitehill@foxrothschild.com.