Check-in with Department of State’s Charlie Oppenheim regarding the September 2019 Visa Bulletin
The man in charge of the Visa Bulletin, Charlie Oppenheim, provides his insights each month of the state of immigrant visa numbers along with his projections for the upcoming month and fiscal year ending on September 30. Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide.
Charlie cautions that, similar to EB-3, 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 the level of demand results in those annual limits being reached prior to the end of the fiscal year.
At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.
EB-1:
Charlie would like to remind practitioners that they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October. While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover. However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.
In September 2019, EB-1 Worldwide advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.
In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category's ability to recover.
EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.
EB-2:
EB-2 Worldwide advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009. EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.
Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide) will be able to recover to current in either October or November 2019.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
September 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 September 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 October 1, 2017. China is backlogged to January 1, 2014 while India is unavailable, 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, 2018. China and India are backlogged to January 1, 2017 and May 8, 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.
Department of Homeland Security Launches E-Verify Video Resources Page
Department of Homeland Security (DHS) launched a new page containing video resources on E-Verify case processing, including how to create a new case, how to process and refer an E-Verify TNC case, and how to close a case, employee rights, and my E-Verify among others. The page can be accessed at: https://www.e-verify.gov/about-e-verify/e-verify-videos
Employers Should Continue Using Current Form I-9 Until Further Notice
USCIS has announced that until further notice, employers should continue using the Form I-9 currently available on I-9 Central, even after the expiration date of August 31, has passed.
Proposed H-1B Cap Registration Fee Rule
On September 3, 2019, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS. Public comments will be accepted from September 4 (when the proposed rule publishes in the Federal Register) through October 4.
This past January 2019, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. While DHS suspended the registration requirement for the fiscal year (FY) 2020 cap season, to complete required user testing of the new H-1B registration system and otherwise ensure the system and process work correctly, DHS has not announced whether that testing has been successful. American Immigration Lawyers Association (AILA) and other associations recently urged USCIS to confirm by September 15, 2019, whether use of the electronic registration system will be mandatory for the FY2021 H-1B cap filing season.
Iandoli Desai and Cronin, P.C. will provide H-1B updates as they become available.
Latest On The Court Cases That Could Restrict Optional Practical Training (OPT) and ways to sign on to Amicus Brief against suit challenging OPT
A recent Forbes interview with former American Immigration Lawyers Association (AILA) President William Stock highlights two important lawsuits that may affect whether international students and the spouses of H-1B visa holders will continue to be permitted to work in the United States. According to Mr. Stock, "Based on the adverse impacts, eliminating [Optional Practical Training (OPT) for F-1 international students and H-4 work authorization] would be bad policy."
Mr. Stock elaborates that “Eliminating OPT work authorization would make U.S. universities much less attractive to foreign students. International students represent a $40 billion contribution to our economy from abroad, supporting over 450,000 U.S. jobs, according to NAFSA. Not only would world-class students begin to choose Canada, Australia or other countries over the United States for higher education in greater numbers, but high-tech industries would have no choice but to expand employment in other countries where the talent pool of highly qualified students doing cutting-edge research is located. Eliminating H-4 work authorization would stop about 90,000 highly skilled women from continuing to contribute to the economy, costing billions in lost tax revenue, without any net job creation for U.S. workers. Based on the adverse impacts, eliminating those two programs would be bad policy.”
The Presidents’ Alliance for Higher Education and Immigration and NAFSA: Association of International Educators are working to coordinate an amicus brief for higher education institutions to join, to be filed with the Court in support of OPT. The brief would outline the importance of OPT to institutions, their students, and higher education in this country, highlighting the value of OPT as an important educational component to a student’s program of study, as a key complement to the classroom experience, and as supplemental training and experiential learning. The deadline to join this amicus brief is October 11, 2019.
Institutions can learn more and express interest in joining the brief here.
Changes to filing address for certain H-1B petitions
USCIS announced that on September 1, 2019, the direct filing addresses for certain Forms I-129, Petition for a Nonimmigrant Worker has changed. Starting October 1, 2019, USCIS may reject Forms I-129 filed at the wrong service center. The changes apply to the following cap-exempt H-1B petitions (those counted against the Cap):
Continuing previously approved employment from the same employer;
Changing previously approved employment;
New concurrent employment;
Changing an employer;
Changing status to H-1B;
Notifying a U.S. consulate, port of entry, or pre-flight inspection; or
Amending a petition.
This excludes petitions:
Filed by cap-exempt petitioners or for cap-exempt entities;
That are cap-exempt based on a Conrad/Interested Government Agency waiver.
Please see the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page to determine where to file Forms I-129.
Possible Changes to Employment-Based Green Card Processing as House Passes Fairness for High-Skilled Immigrants Act
Current U.S. federal immigration law places a numerical cap on the total number of employment-based green cards issued each year. Of this annual quota, nationals of any single country can receive no more than 7% of the total number of available employment-based green cards. Under the present law, nationals of countries with high population numbers (particularly India and China) face green card waitlists that can be decades long because the demand from these countries far exceeds the available number of immigrant visas.
Representatives Zoe Lofgren (D-CA), Ken Buck (R-CO), and 112 bipartisan members introduced the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), which would among other things eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants from 7% to 15%. This means the wait time for national of India and China for employment-based green cards would go down but the wait time for all other countries worldwide would increase significantly. This past July, the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) by a vote of 365 to 65. Unfortunately, the House of Representatives never had a single hearing on the bill before it passed.
This bill has immigration practitioners split. The Fairness for High-Skilled Immigrants Act of 2019 is expected to increase costs, burdens and uncertainty for U.S. employers that rely on foreign workers to supplement labor shortages in the American workforce. Removing the numerical quote would appear fair on its face. However, employers that previously have not experienced substantial delays in the employment-based green card process should prepare for increased wait times. If enacted, the bill will force such employers to wait several years for a large number of sponsored employees to receive green cards.
Another bill, introduced by Senator Rand Paul, Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act, would also eliminate the per-country numerical limitation for employment-based immigrants, but also among other things increase the number of employment-based green cards available each year, exempt certain health care workers and certain spouses and children from counting against the worldwide limitation on the number of employment-based visas, and allow spouses and children of E, H, and L visa holders to pursue employment.
Since the BELIEVE Act would eliminate Employment Based per-country quotas just like H.R. 1044, hopefully the overwhelming majority of Representatives who voted for H.R. 1044 in the House would also support the bill.
USCIS Re-Opens Some Previously Pending Deferral Requests
Attorney Madeline Cronin of our firm appeared on MSNBC last Friday (see: https://www.youtube.com/watch?v=aBJ1qdOGqsU ) in support of our clients and in defense of the 40+ year old Federal “Deferred Action” program.
In conjunction with a Boston Hospital, Madeline had applied for Medical Deferred Action on behalf of a 5 year old Brazilian boy, Samuel Costa and his parents. The boy suffers from a life threatening disease which was treated by successive surgeries; he now has a central line delivering medicine and nutrients directly into a major heart artery, 12 hours per day.
Medical Deferred Action would allow Samuel to remain in the U.S. for continued, complex care and treatment - the type of treatment which is unavailable in Brazil. It would also permit Samuel’s parents to remain with him and to work legally.
Samuel and his mother and cousin appeared with Madeline on MSNBC.
On August 7, 2019, United States Citizenship and Immigration Services (USCIS) had abruptly announced it is no longer adjudicating requests for non-military, deferred action, including Medical Deferred Action. The Medical Deferred Action program is distinct from the "Deferred Action for Childhood Arrivals" (often called "DACA" or the “Dreamers” program) which is unaffected by this change.
USCIS, without warning, denied all pending applications and ordered Samuel, his parents and many others across the country to leave the U.S. within 33 days or face deportation.
Needless to say, this was devastating.
After significant public outrage, a letter to DHS from over 100 Senators and Congresspersons (see: attachment above) and widespread media attention, including from several Boston-based immigration attorneys, civil and immigrant rights organizations and hospitals, USCIS announced on September 3, 2019 that it will reopen non-military deferred action cases that were pending on August 7 and that consideration of such cases is ongoing. Thankfully, Samuel’s application is included in this change in USCIS policy.
However, it appears that USCIS will permit no new, non-military Medical Deferred Action applications nationwide. Future Samuel’s would have no access to critical medical care. The Administration seeks unlawfully to end this vital humanitarian program, without due process and without complying with the APA (the Administrative Procedures Act). A challenge to this change in policy was filed last week by the Irish International Immigrant Center in the Federal District Court in Massachusetts.
Federal Judge Blocks New Asylum Restriction
On July 24, 2019, a federal judge in California has blocked the Administration from enforcing new asylum restrictions for people crossing the U.S.-Mexico border. The ruling by U.S. District Judge Jon Tigar in San Francisco came hours after a judge in Washington decided to let the rules stand while lawsuits played out in court. Judge Tigar noted: "The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country. Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress. Congress has empowered the Attorney General to establish additional limitations and conditions by regulation, but only if such regulations are consistent with the existing immigration laws passed by Congress. This new Rule is likely invalid because it is inconsistent with the existing asylum laws."
Further to restricting asylum, the Administration has just signed on July 26, 2019, an agreement with Guatemala on that appears to allow the U.S. government to send certain asylum applicants to Guatemala, forcing them to seek asylum there. Immigration Impact has reported the this “Safe Third Country” agreement, will place thousands of asylum seekers at risk in a country ill-prepared to process a high volume of applications for protection and with safety problems of its own.
To avoid sending people back to a country where they could be seriously harmed, U.S. law allows any person who reaches the border to apply for asylum, with limited exceptions. Among those exceptions are individuals who could be removed to another country (Safe Third Country) where their life would not be endangered if the United States has an agreement with that country to receive them. This would not include people who are nationals of that country. The United States has only one Safe Third Country agreement – with Canada – in place since 2002. It requires asylum seekers who arrive at a port of entry along the U.S. northern border to return to the country they just passed through (the U.S. or Canada) and apply for protection there. The agreement was made with a general understanding that both nations were safe countries whose asylum systems were sufficiently robust to handle the processing of those claims.
But an arrangement of this nature with Guatemala is untenable. Currently, Guatemala is one of the leading countries from which people are fleeing to the United States due to pervasive violence, impunity, poverty, and food shortages. The U.S. Department of State advises travelers to reconsider travel to many parts of the country, noting that “violent crime, such as armed robbery and murder, is common.”