The Department of Homeland Security (DHS) has issued its long-awaited Notice of Proposed Rulemaking (NPRM) to amend USCIS Regulations relating to cap-subject H-1B petitions filed under both the regular cap and advanced degree exemption. Comments from the public may be submitted to the agency within the next 30 days.  This does not affect cap-exempt H-1B petitions.

 While the proposed changes are subject to possible modification, be aware that the upcoming H-1B cap season will likely be dramatically different from past years.  Highlights of the proposed changes include:

Pre-Registration

Electronic Registration/Pre-Registration
There is a proposed requirement that all cap-subject H-1B employers first register each intended petition electronically with USCIS during a designated period rather than directly filing complete H-1B petition packets with USCIS.  Basic information relating to the petitioner and beneficiary would be required in order to register. An employer would be limited to one registration per beneficiary within the same fiscal year.  USCIS does not plan to impose a registration fee at this time.  Only those employers whose registrations are selected (selected registrants) would be eligible to file cap-subject H-1B petitions during the particular filing period. 

Initial Registration/Random Selection 
An initial, time-limited registration period would be created with a start date at least 14 days prior to April 1st, which is the first date when cap-subject petitions may be filed each year. During the initial registration period USCIS would determine whether sufficient employer registrations were received to reach the regular cap for the new fiscal year.

  • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.

    • On a rolling basis, USCIS would continue accepting and selecting electronic registrations until the regular H-1B cap is met, checking registration numbers at the end of each day to determine when there are enough to meet the cap.
    • A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and randomly select enough registrants to meet the regular cap.
  • USCIS would notify the selected registrants of the applicable H-1B petition filing period and where to file their H-1B cap-subject petitions.
  • After the selection process is completed for the regular cap, USCIS would determine whether there are enough remaining eligible registrants to meet the 20,000 advanced degree exemption.
    • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.
    • USCIS would continue accepting and selecting electronic registrations until the advanced degree exemption is met. A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and use a computer-generated random selection process to meet the advanced degree exemption.

Petition Filing for Selected Registrants Only
USCIS would notify the selected registrants when and where they may file their H-1B petitions on behalf of the named beneficiaries.  Only the selected registrants would be permitted to file cap-subject H-1B petitions.

  • An employer that registers to file multiple petitions (each on behalf of a different beneficiary) may be selected to file some of its petitions and not selected for others.

Unselected Registrations
Unselected registrations would remain on reserve for the fiscal year so that if USCIS determined that it must increase the number of registrations to meet the regular cap or advanced degree exemption (presumably in case some of the selected registrants fail to file or their H-1B petitions are denied), then USCIS would select from among the reserve registrants and if needed re-open the registration until the regular and advance degree exemptions are met. 

  • If the registration period is re-opened, USCIS would announce the re-opened registration period start date on its website and accept additional registrations sufficient to meet the new projected amount of registrations needed to meet the regular cap and/or advanced degree exemption. 

 Selection Process

Regular Cap Exhausted First
With the goal of maximizing approvals for the most-skilled or highest-paid petition beneficiaries, the proposed regulations would change the sequence for considering petitions filed for beneficiaries counted against the regular cap or beneficiaries counted under the advanced degree exemption.

  • USCIS would select registrants toward the regular cap first until that cap is reached.  This would include all registrants (that is, those seeking to employ beneficiaries with only bachelor degrees or equivalent as well as those with advanced degrees from US education institutions).
  • Only when the projected number of registrations needed to meet the regular cap is reached would USCIS select registrants who are eligible for the advanced degree exemption.

The proposed rule states that by changing the selection order, USCIS believes that the total number of petitions selected under the regular cap for H-1B beneficiaries possessing a master’s or higher degree from a U.S. institution of higher education will increase overall each fiscal year.


If you wish to discuss your plans for the upcoming H-1B cap season or the proposed rule, please contact your Fox Rothschild attorney or any of the firm’s Immigration Practice Group co-chairs.

Employers large and small need to understand how immigration policy updates and enforcement affect their workplace compliance status. In a time of ramped-up government inspections, lack of preparation or information can leave businesses facing penalties. In fact, common structural changes like mergers, reorganizations, downsizing, relocations and layoffs require employers to reassess documentation for visa-holding employees and potentially notify government agencies. Knowing what to do is half the battle.

Immigration Practice Co-Chairs Alka Bahal, Ali Brodie and Catherine Wadhwani offer a free webinar on November 13, Immigration Compliance: What Employers Need To Know, that focuses on key issues facing employers who hire personnel from all corners of the globe.

 •   The immigration landscape in 2018 under the Trump administration

•   Current Form I-9 requirements – avoiding potential pitfalls

•   Organizational tips and best practices

•   Proactive steps to improve your compliance program

•   Audits and inspections by ICE and Department of Homeland Security

The event is open for registration through November 11.

On Saturday, September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule designed to redefine a status known as “public charge” — a category used to determine whether someone seeking permanent resident status is “likely to become primarily dependent on the government for subsistence” for those seeking to immigrate to the United States. This rule was signed by Department of Homeland Security Secretary Kirstjen Nielsen on September 21, 2018 and will open for comment on the date of the official version’s publication in the Federal Register. As per past practices, the comment period should last for 60 days from the date of publication.

The 400 page rule expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Specifically, under Section 212(a)(4) of the Immigration and Nationality Act, an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. (Note that there are many exceptions in which a public charge finding would not apply, including but not limited to: Refugees and Asylees, those who are victims of violence (VAWA), Special Immigrant Juveniles (SIJ), Temporary Protected Status (TPS) applicants, Amerasians, Afghan/Iraqi interpreters or U.S. Government employees, Cuban Adjustment Act applicants, NACARA applicants, etc.)

Currently, there is no formal definition of a public charge, but DHS states that “A number of factors must be considered when making a determination that a person is likely to become a public charge”. The proposed new rule would define a public charge as “an alien who receives one or more public benefits.” In the past, people have been at risk of being defined a “public charge” if they took cash welfare — known as Temporary Assistance for Needy Families, or Supplemental Security Income — or federal help paying for long-term care. (Immigrants must be in the country legally for five years before being eligible for TANF or SSI.) The new rule would expand the list to include some health insurance, food and housing programs. Specifically, it would penalize green-card applicants for using Medicaid under certain conditions, using food stamps, Section 8 rental assistance, federal housing vouchers and even enrollment in a Medicare Part D program subsidy.

Specifically, pages 95-96 of the proposed Rule lists the following that would be considered Public Benefits:
· Monetizable benefits: – Any Federal, State, local, or tribal cash assistance for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
– Benefits that can be monetized in accordance with proposed 8 CFR 212.24:
· Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”),
· Public housing defined as Section 8 Housing Choice Voucher Program;
· Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
· Non-cash benefits that cannot be monetized:
– Many Benefits paid for by Medicaid;
– Premium and Cost Sharing Subsidies for Medicare Part D; Benefits provided for institutionalization for long-term care at government expense;
– Subsidized Housing under the Housing Act of 1937.

While public charge is an old idea dating back to the 1990s, the proposed changes are unprecedented. Including programs like Medicaid and food stamps, which are much wider in scope, is a significant change.

In the past, DHS has been forgiving regarding the issuance of immigration benefits if someone had obtained government benefits in the past, so long the individual can prove that he or she is not likely to become a public charge in the future. Under the proposed rule as currently envisioned, it is clear that DHS will not be forgiving now looking at multiple factors including age, health, and past employment history, and, most importantly, receipt of past public benefits.

If implemented as contemplated, DHS will look back within a 36 month period of receipt of government benefits in making their decision on admissibility. Immigrants are encouraged to reexamine any currently public benefits that he/she is currently receiving to determine whether in the upcoming months it will be necessary to drop-out of these public benefit programs once the new public charge rule formally goes into effect.

DHS estimates that 2.5 percent of eligible immigrants would drop out of public benefits programs because of this change — which would tally about $1.5 billion worth of federal money per year, but others expect a much larger impact, including a chilling effect on the use of routine health benefits, particularly for children. In the proposed rule, DHS itself notes that the changes could result in “worse health outcomes,” “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty” and other concerns.

Fear of being deemed a public charge and being unable to attain lawful permanent residency, and ultimately U.S. Citizenship will necessarily result in a detriment to low-income immigrant populations and eventually, the separation of families.

This is an early step in the complex federal rule-making process and many things could still change. Once the proposed rule appears in the Federal Register, it opens a 60-day public comment period allowing members of the public to provide input. As such, a final rule is unlikely to take effect before 2019.

We recommend that any immigrant, regardless of immigration status, who has previously received a public assistance benefit in the past for themselves, or immediate family members, should contact an immigration attorney for evaluation of their case.

Fox Rothschild immigration attorney, Kristen Schneck will be speaking on this topic as a panelist on Oct 24th, at the DHS Advisory Committee meeting to be held in Pittsburgh hosted by the Allegheny Dept. of Human Services.

Fox Rothschild will continue to monitor and report on activity regarding these rule making efforts. Over the course of the next few weeks, we will publish a series of blog posts with more details and updated regarding the Public Charge proposed rule. As always, please refer to ImmigrationView for the latest information on topics of importance in the immigration law practice.
For questions or more information about this alert, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice

 

 

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” (September 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie comments on the close of this fiscal year and the recovery in certain categories at the start of FY2019, provides his predictions on final action date movement in the coming months, and answers questions from the public.

Check-in with DOS’s Charlie Oppenheim: September 13, 2018

On September 14, 2018, USCIS announced that it would accept adjustment of status applications based on the “Dates for Filing” chart for both family-based and employment-based cases.  Since Charlie sets the “Dates for Filing” based on where he expects the final action dates will be in the next 8 to 12 months, these charts are also helpful in understanding how far the final action dates are likely to advance in the near term.

Family-Based Preference Categories

Since most family-based cases are processed at Embassies/Consulates, Charlie’s visibility into family-based demand is good, which avoids dramatic fluctuations in the final action dates.  These categories are expected to advance modestly or hold steady, except Mexico.  Given lower than anticipated demand members may see the Mexico family-based categories move more rapidly than normal.  Demand from China continues to be relatively low, whereas India demand has rebounded over the past year.

Employment-Based Preference Categories

EB-1:  For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017.  Charlie remains pessimistic that the EB-1 Worldwide final action date will advance before the end of this calendar year.  He forecloses the possibility of advancement in November and is pessimistic that there will be advancement in December but notes that there will be some forward movement in all EB-1 categories after the beginning of 2019.  Demand is sufficiently high that Charlie is unable to predict at this time whether this category will become current in FY 2019.  Charlie does not expect any advancement of EB-1 China or EB-1 India before January 2019 and believes it is “almost guaranteed” that both categories will be subject to a final action date through the fiscal year.

EB-2 and EB-3 Worldwide:  As previously predicted, EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year.  Charlie has not seen expected growth in EB-3 Worldwide.

EB-2 China and EB-3 China:  While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015.  It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand.  If there are not as many downgrades, EB-3 China could advance more rapidly than expected.  Charlie has no visibility into EB-3 China “downgrade” demand until a visa number is requested, so this category may move modestly to avoid future retrogression.

EB-2 India and EB-3 India:  EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009.  Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.

EB-3 Philippines and Other Workers Philippines:  As predicted, EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Nnly minimal movement during the first quarter of the fiscal year is expected.

EB-4:  As predicted, EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October.  There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1.  Due to visibility into preadjudicated cases filed prior to the imposition of a final action date in May 2016, as well as potential future demand by cases with old priority dates, Charlie is moving this category conservatively to avoid a future retrogression.

EB-4 India:  It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.

EB-5 Non-Regional Center:  for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.

EB-5 China:  Demand remains high, so members should not expect much movement in this category throughout the fiscal year.  EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.

Expiration of Two Visa Categories

Unless reauthorized by Congress, the EB-4 Religious Worker and EB-5 (I5 and R5) categories will be unavailable after September 30, 2018.  If Congress reauthorizes these programs, the EB-4 Religious Worker category will become current in October, except EB-4 El Salvador, Guatemala and Honduras which will have a final action date of February 15, 2016 and EB-4 Mexico, which will have an October 22, 2016 final action date.  If reauthorized, EB-5 Worldwide (I5 and R5) would become current, with EB-5 China (I5 and R5) subject to an August 15, 2014 final action date, and EB-5 Vietnam (I5 and R5) subject to a January 1, 2016 final action date.

QUESTION:  USCIS data from July 2018 indicates that there are only 473 pending applications for EB-3 India.  USCIS notes that this is for service centers only and doesn’t include field offices.  The number of EB-3 China cases is 161.  Do these numbers track to the information DOS is receiving from USCIS about pending demand?

CHARLIE’S RESPONSE: As these are USCIS statistics, I would suggest that you pose your question to USCIS.  However, I am told that the Service Centers have dramatically reduced their inventories as pending adjustment cases which were filed years ago have become current and were approved, and new cases are now being sent to field offices via the National Benefits Center (NBC).  If I were to speculate, the numbers posted likely represent only India and China cases that were pending and subject to a priority backlog on March 6, 2017, when USCIS started sending new cases to the NBC.  Therefore, it should be expected that the number of cases at the NBC and the field offices far exceeds those which remain at the Service Centers.

QUESTION: Can you explain why sometimes final action dates are the same for different countries in a certain preference category and why sometimes they are different?

CHARLIE’S RESPONSE: Whenever the total number of documentarily qualified applicants for an individual country or category exceeds the supply of numbers available for a particular month, it is considered to be “oversubscribed” and a final action date is established.  The final action date is the priority date of the first documentarily qualified applicant who cannot be accommodated for a visa number.  For example, if the monthly allocation target for the China and India EB-2 preference categories were 250, and each country had demand in excess of 500, a final action date would be established so that only 250 numbers would be allocated.  In this case, the final action date for each country would be the priority date of the 251st applicant.  That date could be widely different based on EB-2 demand patterns for each country.

QUESTION: Using the EB-1 patterns we have observed over the past couple of years as an example, can you explain how “otherwise unused” numbers are allocated?

CHARLIE’S RESPONSE: Section 202(e) of the INA says that if there are “otherwise unused” employment numbers under the respective Worldwide preference limit, such numbers may be made available to those countries which have already reached the per-country preference limit.  In the past, EB-1 has been listed as “Current” for all countries for at least the first six months of each fiscal year because the worldwide level of demand at that time was insufficient to use all numbers available under the annual limit.  However, the “otherwise unused” numbers situation is constantly monitored, and subsequent changes in demand patterns can negatively impact the availability of future numbers to countries which had previously benefitted from their use.  Such increases in EB-1 Worldwide demand later in the year have eventually required the imposition of a final action date for EB-1 China and India to allow other countries that had not yet reached the per-country limit to remain “Current.”  Any remaining unused numbers are then made available strictly in priority date order without regard to country, and a single date would be applied.  That has been the case in past years when it has been necessary to apply a final action date to govern the use of a more limited amount of unused numbers (or none) available for use by China and India EB-1 applicants.  This is the reason why the October China and India EB-1 date is earlier than the Worldwide date, with both being required to govern number use within the overall annual limit.

You may access the September 2018 Visa Bulletin here and the October 2018 Visa Bulletin 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.http://www.foxrothschild.com/alka-bahal/

The U.S. Citizenship and Immigration Services (USCIS) announced that the filing fee for premium processing will increase from $1,225 to $1,410, beginning on October 1, 2018.  According to USCIS, this 15% increase in price is in step with inflation since DHS last adjusted premium processing rates in 2010 and will allow USCIS to more effectively adjudicate petitions and maintain service to petitioners.  The new rule was published in the Federal Register on August 31, 2018.

Premium processing is an optional expediting service that is currently authorized for certain employment-based petitioners filing Forms I-129 or I-140.  The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.  Under premium processing, USCIS has 15 days to process these specific types of employment-based immigration benefit requests.  Without premium processing, adjudication can take upwards of 4 months.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits.  Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore.  “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is available for certain employment based nonimmigrant visas, including H-1Bs, L-1s, O-1s and Ps, as well as some employment base permanent residency categories.  Earlier this year, USCIS suspended premium processing for all H-1B petitions subject to the annual quota on H-1 visas (i.e. “cap cases”).  This suspension was initially slated to end on September 10, 2018, but USCIS has now pushed that date back to February 19, 2019.  Additionally, USCIS also announced that, as of September 11, 2018, it will expand the suspension to include H-1B petitions seeking to amend existing H-1B status, to request a change of employer, or to change status.  Only H-1B petitions seeking an extension of status (with no change in circumstances or employer) or H-1B petitions filed under the H-1B Cap Exemption will be able to file under premium processing beginning September 10, 2018.  In the absence of premium processing, USCIS may take four to six months (or longer) to complete the processing of an H-1B petition.

Employers and employees alike will have to take into consideration the impact of processing times and increased fees when planning to file nonimmigrant and immigrant visa petitions.  The unavailability of premium processing can impact the timing of employment and prolong restrictions on international travel.

___________________________

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.

On March 6, 2018, the US Department of State announced a change in the location of certain greencard interviews in India.

In summary, for interviews scheduled on or after April 1, 2018:

  • The US Embassy in New Delhi will no longer conduct interviews for US Permanent Residence for the spouse (IR1/CR1) and the unmarried minor child(ren) (IR2/CR2) of a US citizen
  • The US Consulate General in Mumbai will begin conducting interviews for US Permanent Residence for the spouse and the unmarried minor child(ren) of a US citizen.

The change includes cases already in process and going forward. The National Visa Center will notify applicants of the specific location of their interview, along with details relating to visa interview preparation.

This change is for the purpose of consolidating visa processing of this type in Mumbai.

If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  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.

 

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 13, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the July 2017 Visa Bulletin and provides his projections for monthly final action date movement through the remainder of this fiscal year.

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

EB-1 China and India. The final action date for EB-1 China and EB-1 India (January 1, 2012) that was imposed in June 2017 remains for July 2017 and is expected to hold through the end of this fiscal year. Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.

EB-2 Worldwide. Since demand declined slightly in the second half of May, and demand during the first week of June was steady, Charlie felt comfortable keeping EB-2 Worldwide current in July. A final action cut-off date will be imposed in this category in August and will be more dramatic than it would have been if a date had been imposed in July. The good news is that this category will become current again on October 1, 2017.

EB-2 India. In July, the final action date for EB-2 India will advance three weeks to July 22, 2008. Charlie expects minimal advancement in this category through the rest of the fiscal year. The best case scenario for this fiscal year would be a final action date of September or October 2008.

Pressure on this category is attributable to high demand in EB-2 India and the lack of otherwise unused numbers under the EB-2 annual limit, which had been prevalent through FY-2015. Charlie noted that approximately 40 percent of the available EB-2 India numbers are being used by beneficiaries who have upgraded from EB-3 India.

EB-2 China and EB-3 China. For the first time this fiscal year, the final action date for EB-2 China is later than the final action date for EB-3 China. EB-2 China advanced three weeks in July to March 22, 2013, and Charlie expects slow progress in this category will continue. By contrast, EB-3 China will retrogress three years in July to January 1, 2012, as a result of a significant amount of EB-3 downgrades. The final action date for EB-3 China Other Workers will hold at July 15, 2006, and this date could also retrogress in August.

The final action date of January 1, 2012, for EB-3 China will hold through the end of this fiscal year, but will advance to October 1, 2014, effective October 1, 2017.

The annual allocation for EB-3 China is only 2,500 because the Chinese Student Protection Act requires an offset of 1,000 numbers from the China employment-based visa annual limit each fiscal year. Three hundred of those numbers are deducted from the EB-3 limit, and seven hundred numbers are deducted from the EB-5 limit.

EB-3 Worldwide. In July, EB-3 Worldwide will advance less than two months to June 8, 2017, keeping this category effectively current.

EB-3 India. In July, EB-3 India will advance five months to October 15, 2005, and should continue to advance. The otherwise unused numbers for EB-3 Worldwide are required to be allocated in order of priority date, meaning that these numbers will fall to EB-3 India, which has the earliest final action date in the EB-3 category.

EB-5 China. The final action date for EB-5 China will continue to hold at June 8, 2014, in July and Charlie expects this category to advance to by one week for August. Some additional forward movement in this category remains possible for September should demand by USCIS be less than estimated.

FB-4 Worldwide. In July, the final action date for FB-4 Worldwide will be May 8, 2004. Charlie hopes to advance this category later this fiscal year, but the data is too close to make a definitive prediction at this time. The response rate to the NVC “Agent of Choice” letters in this and most family-based categories is less than 50%, with less than 35% of those respondents providing all of the information required for a visa interview to be scheduled. Charlie reminds members that it is important to promptly respond to an “Agent of Choice” letter. If individuals who received “Agent of Choice” letters before April 2016 had responded promptly, more than 100,000 of them could have been scheduled for an interview by April 2017.

Special Immigrants. A final action date of August 15, 2015, will be imposed for EB-4 India in July. This date tracks the July final action date for El Salvador, Guatemala, Honduras, and Mexico (which advanced one month from June) and will continue to do so for the remainder of the fiscal year, possibly reaching October 2015. In October, EB-4 India is expected to return to current. A final action date for EB-4 will continue into FY 2018 for the other countries, though Mexico may have different date from El Salvador, Guatemala, and Honduras.

Note: numbers “otherwise unused” under the Worldwide EB-3 limit are allocated in order of priority date without regard to the per-country limitation. Therefore, such numbers would be provided to EB-3 India applicants, which are subject to the earliest final action date.

For July, EB-3 Philippines will advance one year to May 15, 2014, and will likely advance to a date in the fall of 2015 before the end of this fiscal year.

You may access the July 2017 Visa Bulletin here and the August 2017 Visa Bulletin (once available) here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, 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.

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” (April 16, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories for the beginning of the next fiscal year (May 2017) and beyond.                                                                      

Check-in with DOS’s Charlie Oppenheim: April 16, 2017

FB-4 Worldwide. FB-4 Worldwide should be watched closely. Following aggressive movement of the final action date in April, this category is not expected to advance. The April movement seems to have stimulated applicants to take action, and increased demand may require a temporary retrogression in this category later this fiscal year. Should retrogression occur, the category would recover completely in October, the first month of the new fiscal year. The final action dates for all other family-based categories are expected remain stable.

EB-1 and EB-2 Worldwide. As noted in the May 2017 Visa Bulletin, EB-1 and EB-2 Worldwide demand at USCIS has increased dramatically over the past six weeks, signaling the possibility of a future correction to the final action date. Charlie explained that number usage in both of these categories for January and February was about 1,000 higher than earlier months and he expects that it will be at least that high, if not higher, in April. While this is positive in the sense that USCIS is clearing out and approving cases, it may limit the ability for the agencies to take final action on pending cases towards the end of the summer if a correction is required.

EB-1 India and China. Charlie has been predicting the imposition of a final action cut-off date for EB-1 China and India for several months and echoes that warning in the May Visa Bulletin. Charlie tells AILA that the only reason a final action cut-off date has not already been imposed is that thus far, India and China have been able to benefit from “otherwise unused numbers” not currently required for other countries. The use of “otherwise unused numbers” by these two countries will soon end in order to ensure that other countries who have not yet reached their EB-1 per country limit can remain “current.” The worldwide demand and heavy use of EB-4 and EB-5 numbers, which in earlier years had remained unused and had “fallen up” to EB-1, has resulted in the restriction of EB-1 number use strictly to those numbers available to that category on an annual basis.

Charlie predicts that a final action cut-off date will be imposed for EB-1 China and India no later than July. When that occurs, both countries will have the same final action date. While these categories will not technically become “unavailable,” the date that is imposed will effectively shut off the use of additional numbers.

EB-2 India. March demand for EB-2 India doubled from February. Based on this spike in demand, Charlie can no longer say with confidence that this category will recover to last year’s level. However, there may still be some room for the date to advance further, and based on current demand patterns, the absolute best case scenario would be for the final action date to reach December 2008. The wildcard factor is whether EB-3 upgrades will subside or continue at the same or faster pace. Charlie lacks visibility into EB-3 upgrade demand until a visa number is requested, and therefore cannot plan final action date movements with as much precision as he would like.

The China EB-3 Downgrade Phenomenon. The gap between EB-2 China and EB-3 China continues to widen in May, with EB-3 China advancing six months to October 1, 2014 and EB-2 China advancing less than one month to February 8, 2013. Consistent with this trend, AILA members should not expect any significant advancement in the final action date for EB-2 China this fiscal year. By contrast, we may continue to see a healthy advancement of EB-3 China until or unless the expected EB-3 downgrade phenomenon materializes.

Based on current data, Charlie predicts that the final action date for EB-2 China may advance as far as a date in spring or summer 2013 before the end of this fiscal year.

EB-4 Religious Workers and EB-5 Investors (I5 and R5). Both the EB-4 Religious Worker and EB-5 Investor Programs will sunset on April 28, 2017 unless reauthorized by Congress. As such, the May Visa Bulletin notes that both of these categories will be unavailable in May unless Congress acts. Should Congress reauthorize both programs, EB-4 will return to current with the exception of EB-4 El Salvador, Guatemala, Honduras and Mexico, which would be subject to a July 15, 2015 final action date. With regard to these countries, and despite healthy demand, Charlie maintains that it is still possible that the final action date may advance before the end of the fiscal year.

If the Investor Program is reauthorized, all countries except China would become current, with a final action date of June 1, 2014 for EB-5 China (I5 and R5).

You may access the May 2017 Visa Bulletin here, the April 2017 Visa Bulletin here, and the March 2017 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, 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 Trump Administration issued a revised Executive Order on travel with an apparent desire to survive a court challenge by modifying some of the elements that judges found troubling in the January 27 travel ban.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

Issued March 6, the new ban, captioned “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” has an effective date of Thursday, March 16 — allowing a 10-day window for foreign nationals, federal agencies and others to prepare for the changes.

The Executive Order imposes a 90-day “temporary pause” on entry into the United States by nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen. Notably, Iraq has been removed from the list, but “additional scrutiny” measures in the new ban will apply to those from Iraq.

Subject to certain “categorical exceptions and case-by-case waivers,” the new travel ban is narrower than the previous broad-sweeping measure and applies only to those from the listed countries who:

  • are outside the United States on the effective date, Thursday March 16
  • did not have a valid visa by 5 p.m. (U.S. EST) on Jan. 27, 2017
  • do not have a valid visa on Thursday, March 16.

Exceptions Recognized

In contrast to the prior Executive Order on travel (Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry into the United States), which this new Order revokes as of March 16, the revised ban also recognizes six categories of individuals from the listed countries:

  • Lawful permanent U.S. residents
  • Any foreign national admitted to or paroled into the U.S. on or after the effective date, Thursday, March 16
  • Any foreign national who has a document (other than a visa) that is valid on or issued on any date after the effective date, that permits the holder to travel to, and seek entry or admission to, the US such as an advance parole travel document
  • Any dual national of one of the six countries when travelling on a passport issued by a non-designated country
  • Any foreign national travelling on a diplomatic-type visa, NATO visa, C-2 for UN travel, or G-1 – G-4 visa
  • Any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Presumably, these exceptions will reduce concern by the larger group of travelers, including nationals of countries not listed in the Executive Order. Yet, the new Executive Order leaves open the possibility that restrictions may be imposed on nationals of additional countries at some point in the future.

Additional highlights of the Order include:

  • A call for enhanced vetting procedures during the adjudications process
  • 120-day suspension of the US Refugee Admissions Program for FY 2017, subject to waivers, and with a call for enhanced vetting
  • Expedited completion of the biometric entry-exit tracking system
  • Suspension of the “visa interview waiver program”
  • A review of visa reciprocity agreements
  • Making certain data available to the public
  • Clarifications regarding visa revocations, and more