“This legislation includes a permanent path to U.S. citizenship for immigrant youth, including recipients of Deferred Action for Childhood Arrivals (DACA), and individuals with temporary protected status (TPS) or deferred enforced departure (DED). This bill is much broader than past versions of the Dream Act debated in previous sessions of Congress because of the inclusion of TPS and DED, and there is an elimination of upper age limits to ensure protections go beyond immigrant youth to include more people who've been in the country for decades.“
Check-in with Department of State’s Charlie Oppenheim regarding the June 2019 Visa Bulletin
General Trends and Observations: Employment-based (EB) adjustment of status applications filed on or after March 6, 2017 require an in-person interview at the local USCIS District Field Offices. As of 2017, only 14,000 to 15,000 applications were processed at USCIS District Offices. At this time, the majority of adjustment of status applications are now at the local USCIS offices. Initial concern that this policy would lead to longer processing times resulted in an increase in consular processing. Although the consular processing of employment-based immigrant visas continues to be elevated, Charlie believes that this trend may subside as people become more comfortable with the USCIS adjustment of status interview process.
Based on the number use through the first half of FY2018, Charlie was concerned that number usage for the year might be 10-15,000 lower than the annual limit due to lower than normal number use by USCIS Offices. However, beginning in mid-April 2018, USCIS doubled its number use in several employment preferences, which in turn necessitated imposition of a final action date for
EB-1 Worldwide demand remains steady. The Final Action Date is likely to hold as Charlie continues to monitor demand trends. If there is any movement in this category, it is not expected to move more than 6 weeks. Charlie does not anticipate that EB-1 Worldwide will return to "Current" in the foreseeable future.
Charlie also indicated that EB-1 India will not advance again this fiscal year. It should return to a Final Action Date of February 22, 2017 in October 2019.
EB-1 China is expected to advance to May 8, 2017 in the July 2019 bulletin.
EB-2 Worldwide is expected to remain current through FY19. Some downgrades are contributing to changes in demand for this category.
EB-2 China will advance to November 1, 2016 in the July 2019 bulletin. This category continues to advance rapidly due to low demand. Advancements in this category could slow in the future if demand increases.
EB-2 India will continue to advance very slowly, in daily movements, or up to one week at the most. Charlie noted that there are 14,000 Indians with pending adjustment of status applications filed in 2012 in the queue for numbers in this category. Lower Worldwide EB-2 demand may allow for the advancement of this date during the summer. This situation is being closely monitored.
Charlie anticipates that EB-3 Worldwide should remain current through FY19. There is always a possibility that it would be necessary to impose a final action date later in the fiscal year, but only if demand increases. Currently, that does not appear likely.
EB-3 China should advance to January 1, 2016 in July 2019. Demand in this category is starting to increase. However, if demand in EB-2 China remains steady, it may be possible to shift some of those numbers to EB-3 China.
The Final Action Date for EB-3 India will hold in July 2019. Earlier in the year, Charlie hoped he would have more overflow from unused Worldwide EB-3 numbers to shift to EB-3 India, but that has not happened to the extent expected. Since Charlie lacks visibility of this demand, he cannot speculate on how long the wait might be for this category, or when it will move forward.
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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 applicants in those categories or from those countries for submitting their green card applications. For June 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 in the EB-1 category is April 22, 2018. China and India are backlogged to February 22, 2017 and January 1, 2015, respectively, meaning that only those applicants whose I-140 priority dates are on or before that date may file Form I-485 to seek permanent resident status, 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 on October 1, 2019, the start of the government’s new fiscal year.
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 August 1, 2016 and India EB-2 is backlogged to April 19, 2009. EB-2 India and EB-3 India according to the Final Action Date Chart are almost identical which is a significant turn of events as traditionally the EB-3 category has a much longer backlog. Some employers may want to consider “downgrading” their Indian employees from EB-2 to EB-3 in the near future if EB-3 continues to move more quickly.
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.
On May 31, 2019, the Department of State updated its immigrant and nonimmigrant visa application forms to request additional information, including social media identifiers, from most U.S. visa applicants worldwide. This update is a result of the President’s March 6, 2017, Memorandum on Implementing Heightened Screening and Vetting of Applications for Visas and other Immigration Benefits and Section 5 of Executive Order 13780 regarding implementing uniform screening and vetting standards for visa applications.
Under this State Department policy, almost all visa applicants to the United States will now be required to submit the social media usernames, email addresses and phone numbers they’ve used in the past five years. Previously, only a select number of visa applicants who’d been singled out for additional scrutiny had been required to submit their social media, email and phone number histories. Under the new policy, however, only applicants for certain diplomatic and official visa types will be exempted from this requirement. Almost 15 million visa applicants are expected to be impacted by the policy change.
Since visa programs often work in a reciprocal manner between countries, it may not be long before other countries follow the lead of the U.S. and begin requiring visa applicants, including U.S. citizens, to provide similar information on their visa applications.
On June 4, 2019, the Office of Foreign Labor Certification (OFLC) announced that beginning Monday, June 10, OFLC will accept online submissions of the Application for Prevailing Wage Determination (Form ETA-9141) in the FLAG System covering all visa programs.
As part of the Department's technology modernization initiative, the FLAG System is being developed to improve customer service and modernize the administration of foreign labor certification programs through the Employment and Training Administration's OFLC. Technology is a key enabler for OFLC to deliver the highest quality customer service, and implementing the FLAG System will ensure our technology capabilities are modern, secure and resilient. According to the FLAG website, DOL anticipates between July - September 2019 to roll out H-1B, H-1B1, and E-3 Labor Condition Applications (LCA) using the new FLAG system.
FLAG System Implementation: Form ETA-9141
Beginning Monday, June 10, 2019, OFLC will accept online submissions of the Application for Prevailing Wage Determination (Form ETA-9141) in the FLAG System covering all visa programs.
Beginning June 10, 2019, the capability to submit the Form ETA-9141 using the iCERT System will be deactivated. OFLC will continue to accept online submissions of the Form ETA-9141 through the iCERT System until 11:59 p.m. Eastern Time, Sunday, June 9, 2019.
IMPORTANT REMINDER: OFLC’s National Prevailing Wage Center (NPWC) will process all Form ETA-9141s submitted through the iCERT System before 12:00 a.m. (Eastern Time), Monday, June 10, and stakeholders will still be able to access their iCERT System accounts to check the status of their applications and obtain prevailing wage determinations.
The North American Free Trade Agreement (NAFTA) permits qualifying Canadian citizen employees of multinational companies to apply for admission to the United States in L-1 intracompany transferee status without first obtaining USCIS approval. Until recently, U.S. Customs and Border Protection (CBP) would review all such applications made directly at U.S. ports of entry, making no distinction between an initial application and subsequent renewal applications made by the same Canadian employee.
In a recent policy change, CBP headquarters has confirmed that it will now only review the initial application made by that Canadian employee. Subsequent applications must now be filed with U.S. Citizenship and Immigration Services (USCIS), and only upon USCIS approval may the individual apply for admission to the United States. With one exception Canadian employees who are considered “intermittent” or “commuter” L-1 intracompany transferees may process initial or subsequent applications directly at a port of entry.
Since the 2nd week of May 2019, the American Immigration Lawyers Association (AILA) has received reports of inconsistent handling of commuter/intermittent L-1s at ports of entry. Please feel free to contact the attorneys of Iandoli, Desai & Cronin if you have any questions or concerns about the quickly changing landscape for L-1 entries for Canadians.
U.S. Citizenship and Immigration Services (USCIS) announced at the end of May a new strategy known as eProcessing to accelerate USCIS’ transition to a digital business model. eProcessing will be a complete digital experience, from applying for a benefit, to communicating with USCIS, through receiving a decision on a case.
USCIS will create official digital immigration records through this fully modernized process of applying for immigration benefits. According to the agency’s press release, USCIS states, “From application to decision, eProcessing will give USCIS officials faster access to applicant data.” USCIS further assures applicants they will encounter a more responsive and effective USCIS.
As a first step, USCIS will permit certain visitors for business, visitors for pleasure, and vocational students to apply online to extend their stay in the United States, with additional classifications forthcoming. We note these online applications apply only to those filing as a single applicant without legal representation. Whenever submitting an application to USCIS, it is always advisable to consult with an immigration attorney regarding eligibility. Please feel free to contact the attorneys of Iandoli, Desai & Cronin if you need to schedule a consultation.
On April 29, 2019, President Trump issued a memorandum ordering changes to the U.S. asylum policies. The memo orders the Attorney General and the Secretary of Homeland Security to propose regulations within 90 days that would dramatically alter how asylum seekers obtain protection.
Among the changes, the proposed regulations would:
Require asylum seekers to pay a fee just to apply for protection. The regulations would also require applicants to pay a fee to apply for work authorization for the first time. Right now, asylum applicants – who must wait 180 days before qualifying for work authorization – can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.
Place people who have shown a credible or reasonable fear of being persecuted or tortured into limited removal proceedings that would restrict the judges’ ability to consider any forms of relief aside from asylum or withholding of removal.
Prohibit anyone who has entered or attempted to enter the U.S. unlawfully from qualifying for work authorization until their asylum applications are approved.
Give immigration courts a 180-day limit to adjudicate asylum claims “absent exceptional circumstances.” The White House memo fails to address the 800,000 case immigration court backlog that causes years-long delays to asylum cases and will make it impossible for the government to meet this deadline.
This proposed change would be the first time in U.S. history that asylum seekers would have to pay to apply for asylum. People fleeing violence and persecution are among the most vulnerable in the world, and often leave their homes with little more than the clothes on their backs. Forcing them to pay a fee, even if nominal, would be an insurmountable challenge to many asylum seekers, leaving unable to access protections that they are entitled to under both international and domestic law.
Putting asylum seekers into special, limited proceedings means that the Administration is blocking people – including people who have been victims of crimes or trafficking, or the children that have been abused, abandoned, or neglected – from applying for relief that Congress has made available to individuals in these vulnerable situations.
USCIS issued policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law. The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.
Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.
According to recent reports, the Social Security Administration (SSA) is carrying through on its recent announcement to send Employer Correction Request Notices (EDCOR) to employers who file one or more 2018 W-2 forms that contain a name and social security number mismatch. The SSA letters may cause confusion to employers related to potential illegal employment and anti-discrimination issues under the Immigration & Nationality Act. For example, the SSA notice states that a mismatch is not an indication of an employee’s immigration status and the employer should not take actions such as requesting certain documentation of the employee with a mismatch. SSA advises the employer to utilize its Business Services Online tools to view and correct name and SSN errors: https://www.ssa.gov/employer/notices.html
If you are concerned because your business has received a SSA mismatch letter, or, if you are interested in a review of your I-9 procedures and wish to conduct a self-audit, please contact attorneys at ID&C.