Government Reopened Through February 15, 2019

President Trump announced in a speech on January 25, 2019 that he reached a deal with congressional leadership to sign a short-term funding bill to reopen the government that does not include funds to construct a border wall. The measure, passed by both chambers and signed by the president on the same day as the speech, funds the government through February 15, 2019.

Iandoli Desai and Cronin, P.C. is monitoring this and will provide updates concerning agency operations in the event there is another partial government shutdown.

USCIS Discontinues Service Center E-Mail Boxes and INFOPass

Following USCIS’s announcement of phasing out Self-Scheduled INFOPass Appointments, where the petitioner or attorney can seek direct assistance from USCIS, USCIS has now discontinued the use of its USCIS service center e-mail boxes for attorney’s case-specific questions effective January 21, 2019. Instead, USCIS is focusing resources online via self-help tools. This new USCIS initiative will limit attorney’s ability to seek direct assistance from USCIS.

In place of INFOPass Appointments, USCIS has instituted its Information Services Modernization Program. Under the Information Services Modernization Program, individuals are required to first contact the USCIS Contact Center and if it is determined that an applicant needs in-person assistance, personnel at the USCIS Contact Center will help schedule an appointment without the individual having to search for available timeslots. USCIS anticipates expanding the program to all remaining field offices by the end of FY2019 (i.e., 9/30/2019) to completely remove self-scheduled InfoPass appointments.

USCIS Processing Delays

The American Immigration Lawyers Association (AILA) has just issued a policy brief on January 30, 2019, on USCIS processing delays based on newly available data from USCIS. AILA found that the overall average case processing time surged by 46% over the past two fiscal years and 91% since FY2014. "Processing delays" may sound like something minor but those delays have reached crisis levels under the Trump administration, inflicting hardships on individuals and employers nationwide.

February Visa Bulletin

Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. For February 2019, there continues to be a worldwide backlog for all applicants for the EB-1 "Priority Worker" preference category. As in previous months, the final action dates remain steady. This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India is December 1, 2017. China and India are backlogged to February 8, 2017, meaning that only those applicants whose I-140 was filed on or before that date are able to file to become permanent residents, or if their I-485 applications are already pending, to be approved. DOS predicts that there will be little movement in first quarter of 2019 for EB-1 China, EB-1 India and EB-1 Worldwide. Based on the information provided by USCIS, it appears that there is sufficient EB-1 demand to reach the annual limits this year, which would prevent EB-1 Worldwide from returning to “current” status. 

While, in the EB-2 preference category, there is currently no backlog for the worldwide numbers (except for China and India). China EB-2 numbers are backlogged to October 1, 2015 and India EB-2s are backlogged to April 6, 2009.

These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

E-Verify Operations Have Resumed

Department of Homeland Security provides guidance regarding the resumption of E-Verify operations following the lapse in government appropriations. While all E-Verify features and services, including the ability to resolve a tentative nonconfirmation (TNC) are now available, employers may experience longer-than-usual processing times as the agency works through a large volume of accumulated cases.

Now that E-Verify operations have resumed, employers who participate must create an E-Verify case by 2/11/19 for each employee hired while E-Verify was not available.

USCIS Resumes Premium Processing Option for Last Year’s FY2019 H-1B Cap Petitions

USCIS had previously suspended Premium Processing, the optional service to have a petition adjudicated within 15 calendar days, during last year’s H-1B lottery season for a variety of H-1B petitions.  USCIS has now resumed premium processing on Monday, January 28, for all last fiscal year (FY) 2019 H-1B cap petitions. Petitioners who have received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing they may submit. This service is only available for pending petitions.

The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. USCIS plans to resume premium processing for the remaining categories of H‑1B petitions as agency workloads permit.

Department of State and Mission China Announce Changes in H and L Visa Processing

The Department of State and Mission China shared a plan to consolidate the processing of H and L visa applications:

“The United States Embassy in Beijing and Consulates General in Mission China would like to take this opportunity to advise the American Immigration Lawyers Association that changes have been made to consolidate the processing in China of H and L visa applications for foreign nationals seeking to work in the United States. Starting March 1, 2019, interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. We will no longer be conducting H or L visa interviews at U.S. Consulate General Chengdu or U.S. Consulate General Shenyang. We have made these changes due to the volume and complexity of H and L visa cases and to ensure that we have the proper resources and expertise to efficiently process them. For more information, please go to: http://www.ustraveldocs.com/cn/cn-niv-typework.asp#WhentoApply.”

Federal District Court Issues a Temporary Restraining Order (TRO) in the "Unlawful Presence" Challenge

On August 9, 2018, USCIS published its finalized Unlawful Presence Memo regarding students and certain scholars, referred to as F, J, and M nonimmigrants. This change in USCIS policy regarding the accrual of unlawful presence for F, J, and M nonimmigrants not only has an immediate effect on students and exchange visitors and their dependents, but for those unaware of a violation of status, the resulting effect can be devastating and long lasting.

On October 23, 2018, a group of higher education institutions challenged the Unlawful Presence policy change that could open up more international students to harsh immigration penalties, and filed a lawsuit in North Carolina federal court (Guilford College v. Neilsen, 10/23/18) asserting that the policy change will hurt both the students and American universities.

This past January 28, 2019, the court granted a temporary restraining order, barring application of the new USCIS unlawful presence policy to the two individual named plaintiffs.  The TRO does not offer protection yet to other persons from the effects of the unlawful presence memorandum.

A hearing has been set for arguments on the merits on March 26, 2019.

No Action on Administration’s Request to Expedite Ruling on DACA

As of Tuesday January 22, 2019, the U.S. Supreme Court had taken NO action on a November 2018 request by the Trump Administration to expedite a ruling on the court decisions that keep the DACA program in place. As a result, it is increasingly likely that the earliest the Supreme Court would hear the case – if at all – is in its new term that starts October 2019. If that prediction holds true, DACA protections will likely remain in place under current court rulings through at least the end of 2019.

I-360 Religious Workers Program Extended Temporarily

The i-360 Religious Workers Program was temporarily extended on January 25, 2019, as part of the joint resolution signed by the president, extending the EB-4 non-minister special immigrant religious worker program through February 15, 2019. This resolution allows these workers to immigrate or adjust to permanent resident by that date, after which period, the program is on hold until reauthorized.