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

EB-1:

For November, the EB-1 Final Action Dates advanced according to Charlie’s previous prediction with EB-1 Worldwide advancing approximately 5 weeks from April 22, 2018 to June 1, 2018; EB-1 China advancing a full three months from November 1, 2016 to February 1, 2017; and EB-1 India holding at January 1, 2015.

Charlie noted that for November, EB-1 China advanced the anticipated three full months due to lower than expected demand, but cautioned that the rate of advancement could slow down. Members should not expect EB-1 India to advance for some time since there is already significant number use and pending demand in that category. Charlie noted that he has already given out 17% of the targeted EB-1 India numbers set aside for Q1 of the fiscal year. Since EB-1 China and EB-1 India will be subject to their per country limits in the foreseeable future, the only possibility of more rapid movement in these categories is if demand for visas in EB-1 Worldwide were to fall below that allowed under the overall annual limit.

The latest report Charlie received from USCIS shows significantly lower demand in EB-1 Worldwide compared to the last few years. He notes that the potential demand reported for EB-2 Worldwide and EB-3 Worldwide combined dwarfs the reported demand for EB-1 Worldwide.

If this low demand trend continues, EB-1 Worldwide could potentially return to current at some point this fiscal year. Practitioners should not expect to see this happen prior to April at the earliest, and should be cautioned that a significant increase in demand in this category could prevent this possibility. If EB-1 Worldwide does return to current again, EB-1 India, and possibly China, would benefit from the "otherwise unused numbers" which would allow the Final Action Date to advance at a faster pace for those two countries.

In the past, Charlie was able to wait until closer to the end of the fiscal year to redistribute the otherwise unused worldwide numbers in the EB-3 and EB-1 categories, allowing the India and China categories to advance. More recently, the high demand in EB-3 and EB-1 Worldwide prevented these categories for China and India from advancing as they had in the past. This has resulted in significant amounts of pending demand awaiting forward movement of the Final Action Dates, particularly for India.

Charlie reports that there are 17,000 pre-adjudicated EB-1 India requests pending at USCIS or overseas posts. No forward movement is expected in EB-1 India through January. However, when the date does begin to move, there is a potential for EB-1 India to leap forward by up to 6-8 months because of low concentration of demand in the weekly groupings.

EB-2:

EB-2 Worldwide remains current for November and is expected to remain current for the foreseeable future.

In November, EB-2 India advances only one day from May 12, 2009 to May 13, 2009, which is consistent with Charlie’s earlier prediction that it will advance at a pace of "(u)p to one week." Charlie is starting to see an increase in upgrades from EB-3 India to EB-2 India, with the numbers requested so far in October most likely being attributable to upgrade requests.

EB-2 China advances two months in November from January 1, 2015 to March 1, 2015. Given that the Final Action Date for EB-3 China (November 1, 2015) is eight months ahead of EB-2 China, it is likely to prompt downgrades which could take the pressure off of EB-2 China demand, causing that category to advance.

EB-3:

The EB-3 category bears watching as we continue to move into Q2 of the fiscal year and beyond, and especially EB-3 Other Workers. Charlie is very surprised at the high level of numbers used in this category this fiscal year as well as pending demand for this category, noting that it is significantly higher than it has been in the past to the tune of thousands. Nevertheless, Charlie still expects EB-3 Worldwide to remain current through at least January.

EB-3 China is receiving a high level of downgrade requests, with 300 requests in October alone, causing its Final Action Date to hold at November 1, 2015 for November. As noted above, if this trend continues it will limit the advancement of EB-3 China while potentially increasing the rate of advancement for EB-2 China.

Members should expect little to no movement for EB-3 India.

November 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 November 2019 USCIS has again indicated that the “Dates for Filing Applications,” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. Since last month’s retrogression of all preference categories, there has been significant advancement in many, but not all, preference categories. This means that those who filed the Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status.

While the EB-1 preference category for all countries remains backlogged, the November movement for all countries other than China and India remains at July 1, 2019, meaning that 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. China and India remain backlogged to September 1, 2017 and March 15, 2017, respectively.

The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to August 1, 2016 and July 1, 2009, respectively. 

Because of the difference in dates on the two charts, I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now.

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

Presidential Proclamation Suspending the Entry of Legal Immigrants Not Covered by Approved Health Insurance and Subsequent Court Challenge

On October 4, 2019, President Trump issued a proclamation suspending the entry of immigrants who “will financially burden the U.S. healthcare system,” effective at 12:01 am (ET) on November 3, 2019.  With some exceptions, the proclamation held that immigrants must establish to the satisfaction of a consular officer that they will be covered by approved health insurance within 30 days of entry into the United States or that they possess the financial resources to pay for reasonably foreseeable medical costs. This measure prevents legal immigrants from receiving immigrant visas if they lack the immediate financial ability to purchase health insurance outside of the Affordable Care Act (ACA) exchanges. Inability to meet this requirement will result in the denial of an otherwise approvable visa application.

Prospective immigrants had been scrambling to figure out how to get the necessary coverage, navigating a complex healthcare bureaucracy that has, for the most part, not previously catered to those who are not yet in the country.

However, on Wednesday, October 30, 2019, a class-action suit was filed in Portland, Oregon, to bar President Trump from restricting visas for immigrants without health insurance. It applies to people seeking immigrant visas from abroad, not those already in the country, and doesn’t affect asylum seekers, refugees or children.  On November 2, 2019, the Court issued a Temporary Restraining Order (TRO), which prevents the administration from implementing the proclamation for the next 28 days.

Iandoli Desai and Cronin, P.C. will continue to monitor the ongoing litigation regarding the health insurance proclamation and will provide updates as they become available.

Lawsuits Halt USCIS Public Charge Rule and Department of State Public Charge Rule will not be implemented in 2019 until new form and rules published

On October 11, 2019, Judges before the U.S. District Courts for the Southern District of New York (PDF, 68 KB), Northern District of California (PDF, 888 KB), Eastern District of Washington (PDF, 631 KB), Northern District of Illinois (PDF, 137 KB), and District of Maryland (PDF, 498 KB) have ordered that US Citizenship and Immigration Services (USCIS) cannot implement and enforce the final rule on the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act. The court orders also postpone the effective date of the final rule until there is final resolution in the cases. Most of the injunctions are nationwide, and prevent USCIS from implementing the rule anywhere in the United States.

Also on October 11, 2019, Department of State (DOS) published an interim final rule that amends 22 CFR 40.41, Ineligibility Based on Public Charge Grounds, to add certain definitions, including definitions of public charge, public benefit, alien's household, and receipt of public benefit. On October 15, 2019, DOS announced that "Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. The Department is seeking approval for use of a new form before it implements any changes to our processes. We will inform applicants of any changes to current visa application procedures." On October 24, DOS published in the Federal Register the DS-5540, Public Charge Questionnaire for public comment. The comment period will be open until December 23, 2019, and comments may be submitted via regulations.gov or via email at PRA_BurdenComments@state.gov. 

As a reminder, the interim final rule will not be implemented until the form and DOS revisions have been finalized. Given the public comment period for the form, the DOS rule will not be implemented in 2019.

USCIS Premium Processing Fee Increase Effective December 2, 2019

US Citizenship and Immigration Services (USCIS) announced beginning on December 2, 2019, the premium processing fee will increase to $1,440 from the current fee of $1,410 for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. Premium processing is an optional service currently authorized for certain petitioners filing Forms I-129 or I-140. The premium processing system allows petitioners to request 15-day processing of these forms if they pay an extra fee.

According to USCIS, this increase reflects the full amount of inflation from the implementation of the premium processing fee in June 2001 through August 2019 based on the Consumer Price Index for all Urban Consumers (CPI-U). USCIS last increased the fee in 2018.

TPS extended for Syria

On September 23, 2019, USCIS published a notice in the Federal Register of the extension of the designation of Syria for Temporary Protected Status (TPS) for 18 months, from October 1, 2019, through March 31, 2021. The reregistration period runs from September 23, 2019, through November 22, 2019.

USCIS will issue new Employment Authorization Documents (EAD) with a March 31, 2021, expiration date to eligible beneficiaries under Syria’s TPS designation who timely re-register and apply for an EAD. Given the timeframe for processing TPS re-registration applications, USCIS recognizes that not all re-registrants will receive a new EAD before their current EAD expires on September 30, 2019. Accordingly, USCIS has automatically extended the validity of those EADs for 180 days, through March 28, 2020.  This automatic extension also covers individuals who have an EAD with an expiration date of March 31, 2018, and who applied for a new EAD during the last re-registration period but have not yet received their new EAD.

The Department of State (DOS) released instructions on how to apply for the 2021 Diversity Immigrant Visa Program

The DOS annually administers the statutorily-mandated Diversity Immigrant Visa Program. The Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States. For Fiscal Year 2021, 55,000 Diversity Visas (DVs) will be available. There is no cost to register for the DV program and it is safe for non-immigrant only visa holders to apply (i.e., F, J, etc.).

Applicants who are selected in the program (selectees) must meet simple but strict eligibility requirements to qualify for a diversity visa. The DOS determines selectees through a randomized computer drawing. The DOS distributes diversity visas among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.

For DV-2021, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Applicants must submit entries for the DV-2021 program electronically at dvlottery.state.gov between noon, Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 2, 2019, and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 5, 2019. Do not wait until the last week of the registration period to enter, as heavy demand may result in website delays. No late entries or paper entries will be accepted. The law allows only one entry per person during each registration period. The DOS uses sophisticated technology to detect multiple entries. Individuals with more than one entry will be disqualified. Please visit the DOS website for instructions.

New Travel Resource Page from Study in the States

Department of Homeland Security (DHS) through its Study in the States website has updated its resources about the steps an F-1 student should take before traveling outside of the United States. Students who travel internationally, for annual vacation or during a school break, should take the appropriate steps before any travel to ensure a smooth reentry into the United States which includes:

• Meet with Designated School Official (DSO)

  • When meeting with the DSO, F-1 students should ensure that their record in the Student and Exchange Visitor Information System (SEVIS) is up-to-date and in Active status.

  • F-1 students should make sure their Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status” is signed by the DSO within the last year, and that travel outside the country is not for more than 5 months. F-1 students should also make sure that they have the school’s most up-to-date contact information, including both a daytime telephone number at the school and a 24-hour emergency phone number.

  • If the F-1 student has a pending practical training application, it is not recommended that the F-1 student leave the United States. United States Citizenship and Immigration Services (USCIS) may send a request for evidence while the F-1 student is travelling.

  • If USCIS approves the F-1 student’s practical training application, the F-1 student will receive an Employment Authorization Document (EAD), which USCIS will only send to a U.S. address. The F-1 student is expected to have the EAD in hand to re-enter the United States. Visit the Travel page on ICE.gov/SEVP for more information about traveling with pending applications. 

• What to Bring to U.S. Ports of Entry  

  • When entering the United States, the F-1 student will arrive at a port of entry and meet with U.S. Customs and Border Protection (CBP) officers for primary and sometimes a secondary inspection.

  • The CBP officer may ask questions about the reason for travel and to inspect important documents like:

    • Student visa

    • Form 1-20

    • Passport

  • The passport must be valid for at least six months after the date of reentry for certain countries.

  • Be sure to hand-carry all of these items and do not put them in checked baggage. 

• Form I-515A

  • If the F-1 student arrives at a U.S. port of entry without the signed required documents, has not paid the I-901 SEVIS Fee on the current Form I-20 or has a SEVIS status issue, a CBP officer may issue the F-1 student a Form I-515A, “Notice to Student or Exchange Visitor.” The Form I-515A admits the F-1 student to the United States for 30 days while the F-1 student obtains and submits the proper documentation to SEVP.

Reminder: I-9s for H-1Bs effective October 1, 2019

If your company filed for an H-1B worker in the annual H-1B lottery and the petition was approved, these new H-1B statuses should have effective start dates of October 1, 2019.  As such, the employee “status” may be changing from one status to that of H-1B. Employers must either: 1) execute an I-9 for a new employee; or 2) update/reverify the current I-9 to capture this change of status.

If you have questions about I-9 compliance, please feel free to schedule a consultation with our I-9 team (info@iandoli.com).

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

In October, we typically see full recovery, or essentially full recovery, of the Final Action Dates from the previous year. Until several years ago, stakeholders could normally anticipate that low levels of demand would allow for thousands of unused numbers from EB-4 and EB-5 to become available for use in the EB-1 category. Not only have those numbers not been available in recent years, the high demand for numbers has required the application of Final Action Dates for all countries, and the dates for China and India have actually retrogressed during the past year. Going into the upcoming fiscal year, there is no expectation that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future. Charlie anticipates that both EB-1 India and EB-1 China will be subject to their minimum statutory limits of (approximately) 2,803 visa numbers for at least the first half of fiscal year (FY) 2020.

EB-1

Charlie would like to remind immigration practitioners that for planning purposes they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Charlie further predicts that there will not be any movement for EB-1 India until January 2020 at the earliest. There are currently approximately 16,000 EB-1 India applicants that were interviewed, adjudicated, and are simply waiting for a visa to become available. Potential upgrades from EB-2 India could make EB-1 India backlogs worse. EB-1 India is expected to remain severely backlogged for years, but it is too early to predict what the date movement may be in the coming years.

Potential EB-1 movement:

Worldwide:

Up to 3 months

China:

Up to 3 months

India:

Little if any forward movement

EB-2

EB-2 India will continue to have limited forward movement for the foreseeable future. This is also true to a lesser extent for EB-2 China, which reflects a change from years past where there was generally a full recovery from early year retrogression. Due to an overall increase in EB-2 China, Charlie does not expect a full recovery in FY2020. EB-3 China does not appear to have the same level of demand at this time. With the inversion of the EB-2 and EB-3 dates, it is possible the EB-2 downgrades will impact movement of the EB-3 China date later in FY2020.

At this point, demand is within the amount of available numbers to satisfy the needs for EB-2 and EB-3 worldwide. Should increasing levels of demand begin to materialize it may necessitate setting a Final Action Date for either EB-2 and/or EB-3 worldwide at some point during the second half of the fiscal year.

Potential EB-2 movement:

Worldwide:

CURRENT

China:

Up to 2 months

India:

Up to 1 week

EB-3

EB-3 has returned to "current" status for worldwide. There has been a partial recovery of the dates for EB-3 India, EB-3 China, and the EB-3 Philippines categories. There may be irregularity in movement for these categories as Charlie does not have as much visibility into pending demand. EB-3 India will have little if any forward movement until possibly January 2020.

As discussed above, at this point, demand is keeping pace with available numbers to satisfy the needs for EB-2 and EB-3 worldwide. In the coming months, increased demand may materialize which would necessitate setting a priority date for EB-2 and/or EB-3 worldwide.

Demand has been steadily increasing for EB-3 Other Workers. Of particular note is the tremendous increase in demand for EB-3 Other Workers from Mexico. The Final Action Date is typically the same for EB-3 and EB-3 Other Workers, however, separate dates may need to be imposed for some categories later in FY2020.

Potential EB-3 movement:

Worldwide:

CURRENT

China:

Little if any forward movement

India:

Little if any forward movement

Mexico:

Will remain at the Worldwide date

Philippines:

Up to several months