Check-in with Department of State’s Charlie Oppenheim regarding the August 2019 Visa Bulletin

General Trends and Observations:  Employment based demand has increased steadily since late May 2019 in the EB-1, EB-2, EB-3 and EB-3 Other Worker categories.

Whereas in past years, Charlie often predicted that employment-based preference categories which retrogressed towards the end of the fiscal year "would have a full recovery" in October (the beginning of the next fiscal year), his prediction in the August 2019 Visa Bulletin is much more guarded. Charlie merely indicates in Section D. of the August 2019 Visa Bulletin that "every effort will be made to return these final action dates to those which applied for July." This means that while Charlie hopes that he will be able to bring these dates back to where they were in July, demand levels are so high and unpredictable, practitioners should not automatically count on a return to the July Final Action Date levels at the start of FY2020.

Charlie cautions that an immediate cut-off in visa usage, similar to that for EB-3 and EB-3 Other Workers, could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high for these categories. No forward movement in these Final Action Dates should be expected before October for certain employment-based visa categories. Any potential movement in these preferences would be subject to a change in the current USCIS demand pattern, and a larger than expected return of unused July numbers by overseas posts.

EB-1:

• As predicted last month, the Final Action Date for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) retrogresses in August 2019 almost two years to July 1, 2016. The Final Action Date for EB-1 China, which was May 8, 2017 in July, joins the rest of world countries in retrogressing to July 1, 2016 in August 2019. The Final Action Date for EB-1 India holds at January 1, 2015.

EB-2:

• The week prior to Memorial Day, Charlie started receiving data from USCIS that was different than what he had received in the past. This data showed that demand in the employment-based categories started picking up, with the daily totals increasing quickly. For example, through May 21, 2019, 1,800 numbers were used in the EB-2 category. Between May 22nd and May 31st, another 1,300 numbers were used, with this high pace continuing into June. Not only is the actual demand high, but as mentioned earlier, USCIS's projected future usage also remains high relative to the monthly demand targets for number use.

As a result of this high demand, all countries are subject to a Final Action Date in August. EB-2 Worldwide (including EB-2 China and EB-2 for all countries except for India) will have a Final Action Date of January 1, 2017, while EB-2 India advances one week to May 2, 2009.

 EB-3:

• EB-3 China Other Workers holds at November 22, 2007.

• The August 2019 Final Action Date for EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam remains at July 1, 2016. Charlie indicated that it is very difficult to say at this time whether these categories will become current again in October 2019. EB-3 India, which already had a Final Action Date, retrogresses further to January 1, 2006 in August.

Between April and May 2019, EB-3 demand increased over 25%. From May to June, the overall demand increased by more than 45%. During the first week of July 2019, EB-3 had already used 36% of the total numbers used during the entire month of June. This in turn necessitated immediate action to limit future number use by applicants with priority dates later than the Final Action Dates imposed for each country in the August 2019 Visa Bulletin. This is happening because number use is approaching the worldwide annual limit, and some countries have reached or are very close to reaching, their annual limits. USCIS interviews that were already scheduled may continue in USCIS's discretion. If the application is approvable, rather than receiving a visa number, USCIS's request for a visa number will be placed in Charlie's pending demand file and will be authorized for use once the applicant's priority date is once again "current". Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner.

Charlie cautions that an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high.

The fact that demand has increased so dramatically is not a surprise to Charlie. What is unexpected is that it is happening much sooner than expected. Prior to FY2018, if such corrective action was required, it normally occurred in September. In addition, the issues that arose in FY2018 were attributed to the changes in USCIS processing of employment cases.

At a macro level, the fact that it may be necessary to limit/cut-off future use of numbers means that all of the numbers available under the applicable annual limits will have been used. However, for applicants for which the ability to immediately file an I-485 adjustment of status application is critical to remaining in the U.S., the retrogression may have significant negative impact

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

August 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 August 2019, there is now  a worldwide backlog for all applicants for the EB-1, EB-2, and EB-3 preference categories.

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 July 1, 2016. China and India are backlogged to July 1, 2016 and January 1, 2015, respectively, meaning that only those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved.

While, in the EB-2 preference category, the listed date for all countries other than China and India is January 1, 2017. China and India are backlogged to January 1, 2017 and May 2, 2009, respectively. 

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.

Federal District Court on OPT error

On July 3, 2019, the District Court in Pennsylvania ruled on Dalgic v. Misericordia University (M.D. Pa. July 3, 2019), denying Defendant's Motion for Summary Judgment and granting Plaintiff's Cross-Motion for Summary Judgment.

Plaintiff, a Turkish-born former student in Misericordia University's (MU) Doctor of Physical Therapy Degree Program who was on an F-1 visa, alleged negligence and negligent interference with prospective contractual relations.

Plaintiff sought to remain in the United States after completing the Program for post-completion Optional Practical Training (OPT), which required a recommendation from MU under federal law. Once submitted, Plaintiff had to submit his OPT application within 30 days of the date the Designated School Official (DSO) entered the recommendation, the earliest time being 120 days before his graduation.

Plaintiff's OPT application was denied because MU's DSO prematurely submitted the OPT recommendation more than 120 days before Plaintiff's graduation. The court found that the undisputed material facts showed that MU's negligence in prematurely filing the recommendation without properly curing the early filing caused the denial of the OPT application, which entitled Plaintiff to summary judgment on both claims.

MU also was not entitled to summary judgment on the negligent interference claim because a special relationship existed between MU and Plaintiff. Plaintiff justifiably trusted MU and the DSO to guide him through OPT, which was one of the DSO's job responsibilities, and this trust is consistent with obligations imposed on MU under federal law to employ a DSO and the Department of Homeland Security's characterization of DSOs as the "biggest resource" for an M or F visa student. MU was also aware of Plaintiff's prospective contract for post-OPT employment and did not dispute that it acted negligently in handling his OPT application.

This case highlights the important role the DSO plays for both the student and the school.

STEM OPT site visits have started

A new provision in the STEM OPT rule allows Department of Homeland Security (DHS) to perform site visits to employer locations that train STEM OPT students.

Site visits ensure that STEM OPT students receive structured and guided work-based learning experiences and reduce the potential for abuses of the STEM OPT extension. During the site visit, DHS’s intent is to confirm that information reported on the student’s Form I-983 (Training Plan) concerning the training opportunity is accurate, while not placing an unnecessary burden on employers.

As part of a site visit, DHS may:

• Confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program.

• Ask employers to provide the evidence they used to assess wages of similarly situated U.S. workers.

It is important that supervisors and employees all know that the job is "training."  If you have questions about a site visit, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

How to know which employers are enrolled in E-Verify for STEM OPT students

F-1 students in Science, Technology, Engineering and Math (STEM) related programs who plan to apply for a 24-month Optional Practical Training STEM extension may only work for employers enrolled in E-Verify. The Department of Homeland Security (DHS) provides an E-Verify Employers Search Tool that students may find helpful in their search for eligible employers.

New Court Decision on STEM OPT WashTech Litigation

The Department of Homeland Security (DHS) reformulated the F-1 STEM optional practical training (OPT) benefit, with the "24-month STEM OPT Rule" [81 FR 13039] that became effective on May 10, 2016. The Washington Alliance of Technology Workers union (WashTech) filed suit in the U.S. District Court for the District of Columbia against both the 2016 24-month STEM OPT rule and the standard 12-month post-completion OPT rule, raising many of the same substantive issues WashTech had brought up in the suit they filed against the 2008 17-month STEM OPT rule.

In a July 1 decision, the U.S. District Court for the District of Columbia found that DHS's 2016 STEM OPT rulemaking also had the legal effect of reopening the legacy United States Immigration and Naturalization Service's 12-month post-completion OPT regulation that had been finalized in 1992. This means that the Court no longer considers a challenge to DHS's statutory authority to implement standard post-completion OPT to be outside the statute of limitations. Additionally, the WashTech plaintiffs can challenge DHS's underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well.

On July 22, 2019, the Government answered the WashTech Complaint, and asked the Court to dismiss the case. If WashTech prevails however, STEM OPT as well as OPT are in danger.  Iandoli Desai & Cronin will continue to monitor the lawsuit and provide updates as they become available.

Harvard University President: U.S. Immigration Policies Make Student Attendance "Unpredictable and Anxiety-Ridden"

In a July 16 open letter to U.S. Secretary of State Mike Pompeo and acting Homeland Security Chief Kevin McAleenan, Harvard University President Larry Bacow laments the negative impact that some recent U.S. immigration policies are having on students and faculty. In the letter, Bacow cites visa delays, regulatory red tape, security crackdowns, increased scrutiny on students and scholars from specific countries, and issues related to Dreamers, echoing concerns expressed by others in the U.S. higher education community. Please refer to the article in Bloomberg for more details.

U.S. College and University Presidents Call on Congress to Support International Students

On June 24, thirty Michigan college and university presidents wrote a letter to the state’s congressional delegation expressing concerns with current U.S. immigration policy and practice and identifying actions Congress can take to help Michigan schools attract and welcome international students and faculty. This follows a similar letter sent in early May of this year from the presidents of more than two dozen New Jersey colleges and universities to members of its congressional delegation. NAFSA: Association of International Educators is aware of several similar letters that are being drafted to congressional delegations from other states.

These letters identify five actions that Congress can take to reinvigorate and streamline the foreign talent pipeline to our colleges and universities:

• Preserve duration of status for foreign students and exchange visitors (F and J status): For decades, students and scholars have been granted immigration status that lasts for the period of time they are engaging in their studies or research, known as duration of status or D/S. Alarmingly, the Department of Homeland Security (DHS) included the elimination of D/S in its Unified Agenda of Regulatory and Deregulatory Actions published this spring. Maintaining D/S is necessary because the time for study or research can fluctuate given the changing goals and actions of the student or scholar. U.S. Citizenship and Immigration Services (USCIS) already struggles with long backlogs and delays, and it will be unable to timely adjudicate the filings that this change would generate. USCIS average processing times have increased by 46% over the past two fiscal years and 91% since fiscal year 2014. Ending D/S for students and scholars would exacerbate an existing problem by adding an enormous number of new application filings to extend status.

• Protect experiential learning opportunities for foreign students: Optional Practical Training (OPT) permits foreign students studying in the U.S. to apply for “practical training” with a U.S. employer in a job directly related to their course of study. According to a 2019 report from the Niskanen Center, experiential learning opportunities like OPT for international students lead to increased innovation and higher average earnings, while not costing U.S. workers their jobs. The program allows students to supplement their education with valuable experiential learning and on-the-job-training as they start their careers. DHS included elimination of OPT in its Spring and Fall Unified Agenda of Regulatory and Deregulatory Actions last year. Experiential learning like OPT for international students is a key component of U.S. higher education. Access to this opportunity attracts international students; many competitor countries like Australia and Canada use their similar programs to attract students away from the United States.

• Reduce administrative processing delays for entry visas: In a number of recent cases, graduate students and faculty members have been forced to miss or defer entire semesters because their entry visa applications were mired in “administrative processing” at the State Department. Administrative processing is the time period outside of “normal” processing times in which cases that appear to meet the basic eligibility requirements are referred for additional background checks. Applicants are generally not provided with any explanations, nor are they told how long the additional processing may last. This situation creates untenable uncertainty for the applicant, the university, and other affected parties, especially as anecdotal reports indicate an increase in the amount of time that cases are remaining in this category. This can be especially problematic for foreign students and academics, whose commitments in the U.S. align with an established academic calendar.

• Mitigate processing delays for OPT: Unfortunately, processing times for OPT applications have increased from a previous maximum of 90 days in 2016 up to 5½ months today. Processing times of this length create an enormous burden for students. The consequence of these delays is that students are unable to begin their job or program on time and, in many instances, they may lose out on the position altogether. This harms not only the students, but also the employers seeking to hire qualified, U.S.-trained workers for a practical training opportunity.

• Alleviate increased Requests for Evidence: Over the past year, employers seeking to hire foreign-born employees have seen a dramatic increase in the number of “Requests for Evidence” (RFEs) from USCIS, particularly for H-1B visas, which allow U.S. employers to hire highly-skilled foreign workers in specialty occupations. We understand that USCIS has a responsibility to ensure that it has necessary information about eligibility. The scope of the increase, however, is staggering. RFEs for H-1B visa petitions more than doubled between the third and fourth quarters of FY 2017. These requests delay the issuance of visas for employers by months and increase legal costs. Meanwhile, our professors and other employees are putting their lives on hold as they wait for start dates.

Plan to Improve the Naturalization Test

On July 23, 2019, U.S. Citizenship and Immigration Services (USCIS) announced it is revising the current naturalization test with improvements to ensure it continues to serve as an accurate measure of a naturalization applicant’s civics knowledge and that it reflects best practices in adult education assessments. USCIS reports the goal is to create a meaningful, uniform, and efficient test that will assess applicants’ knowledge and understanding of U.S. history, government and values.

This past December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group has been reviewing and updating the naturalization test questions. The working group will also assess potential changes to the speaking portion of the test. USCIS is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent. After careful analysis of the pilot, and thorough officer training, USCIS will set an implementation date in December 2020 or early 2021.  USCIS is also formalizing a decennial revision process to allow for updates every 10 years. Critics have expressed concerns that the announcement is a continuation of efforts by USCIS to make naturalization more difficult, including dramatically slowing down the processing of naturalization applications.

An End to Certain Types of Expedited Processing

For years applicants with urgent priorities were given the option to request expediting of their application or were granted a courtesy expedite based on the principal applicant’s petition being premium processed for a fee. Like many other attempts to slow overall processing times and stifle customer service, USCIS is eliminating certain avenues for having a case expedited.

Courtesy Expedites for I-539 Applications:

In March 2019,  U.S. Citizenship and Immigration Services (USCIS)  revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. With the addition of the new biometric requirement for all I-539 applicants USCIS has reminded practitioners that its longstanding courtesy practice of premium processing I-539 applications filed concurrently with a qualifying I-129 petition could not be continued because it generally takes at least three weeks for the I-539 biometrics to be completed, such that USCIS cannot meet the 15-day premium processing timeframe. Rather, I-539 applications are now separated from the I-129 petition and follow the regular I-539 processing queue, which can take 3 to 7 months for adjudication.

Depending on timing, travel restrictions, visa processing issues, finances, etc., as an alternative to filing the I-539 application with USCIS, derivatives may opt, as the fastest option, to process for a nonimmigrant visa at a U.S. consulate abroad after the I-129 petition is approved, in order to avoid processing delays associated with the adjudication of Form I-539 by USCIS.

Expedite Requests for “Severe Financial Loss”:

In light of USCIS delays across the board from change of status to employment authorization petitions for certain non-immigrants including F-1 students, J-2 spouses, and H-4 spouses, immigration practitioners have gleaned insight on changes to expediting cases. USCIS has updated its Expedite Criteria on its website as related to expediting cases due to delays causing severe financial loss to a company or person.   The specific wording on the website is as follows:

“Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to:

1. File the benefit request or the expedite request in a reasonable time frame, or

2. Respond to any requests for additional evidence in a reasonably timely manner…

All expedite requests claiming severe financial loss, regardless of the immigration benefit sought and regardless of whether the claimed loss is to a company or a person, must be documented to establish the loss and that the requestor is not able to withstand the temporary financial loss that is the natural result of normal processing times.”

With this update, anyone experiencing delays in employment petitions should be prepared to provide compelling factors, aside from the need for employment, that warrants expedited treatment. In addition, all applications should be submitted as early as possible, at least up to six months ahead of the expiration date. If you have questions about a specific situation, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).