January Visa Bulletin

Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. 

Please note that USCIS has clarified that “if a particular immigrant visa category is ‘current’ on the Final Action Dates chart or the cutoff date on the Final Action Dates chart is later than the date on the Dates for Filing chart, applicants in that immigrant visa category may file using the Final Action Dates chart during that month.”

For January 2020, USCIS has again indicated that the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. In January, the EB-1 preference category on the Dates of Filing Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140.  China and India remain backlogged to October 1, 2017 and March 15, 2017, respectively.

The EB-2 preference category also 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).

H-1B Planning Season is Upon Us with a New Process and New Deadlines

H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience).  Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.

USCIS has announced they will implement the new e-registration tool this upcoming H-1B cap season.  As such, employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Given this advanced timeline for e-registration, it is now the best time for employers to decide whether they will file H-1B petitions. 

Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.

Iandoli Desai & Cronin P.C. News

  • IDC attorneys are presenting an I-9 seminar mid-January at the Worcester Chamber of Commerce.  Our attorneys are also continuing to present post-graduation employment options at area colleges and universities.

    If your institution is interested in a presentation, please contact Iandoli Desai & Cronin at info@iandoli.com.

  • Iandoli Desai & Cronin, P.C. joins the BBA as a Sponsor Firm

The Boston Bar Association (BBA) is proud to welcome Iandoli Desai & Cronin, P.C. (IDC), a seven-attorney immigration law firm with offices in Boston and Worcester, as a new sponsor firm member. IDC joins the BBA’s growing community of more than 13,000 members drawn from law firms, in-house legal departments, government agencies, law schools, and nonprofit organizations.

IDC Shareholder Prasant Desai said, “We are honored to join the ranks of other leading Boston firms as BBA sponsors. The BBA’s demonstrated commitment to the residents of the Commonwealth, citizens and immigrants alike, through its promotion of due process and access to justice, as well as its broad, relevant, and timely CLE offerings, made the decision to sponsor extremely easy for us.”

IDC provides employment-based immigration legal services to a diverse client base consisting of nonprofit employers such as secondary and post-secondary educational institutions, teaching hospitals, and physician practice groups. They also represent for-profit companies in the software, engineering, architecture, and professional services sectors. In addition to employers, IDC represents individual scientists, scholars, medical professionals, other persons eligible for self-sponsorship, and families in immigration matters.

Firm attorneys frequently address businesses, scholars, entrepreneurs, and students on federal immigration policy changes, including recent executive orders on travel and enforcement priorities, compliance matters, employment visas, pathways to lawful permanent residency, and naturalization. 

The firm also maintains a strong commitment to pro bono work. Firm founder Richard Iandoli is a past recipient of NAFSA’s James Leck Distinguished Lifetime Service Award for service to the foreign student advisors of New England as well as the Political Asylum and Refugee Immigration Project’s Lifetime Outstanding Achievement Award. The Supreme Judicial Court’s Standing Committee for Pro Bono Service awarded IDC attorney Donal Eoin Reilly the Adams Pro Bono Publico Award for his 15 years of pro bono service to the immigrant communities of the Commonwealth. For their commitment to protecting and defending the rights of immigrant workers and families affected by the raids in New Bedford, Massachusetts, attorneys Madeline Choi Cronin and Prasant Desai were both recipients of the Daniel Levy Award by the National Immigration Project of the National Lawyers Guild.  

Attorneys from IDC have bolstered the BBA’s work in many ways and have been active in a number of BBA public service projects, professional development programs, and policy initiatives. Desai is currently a member of the BBA Council and Executive Committee. Previously, he served as Co-Chair of the Immigration Law Section and was a member of the BBA’s Immigration Working Group that developed an Immigration Principles report in 2018. Attorney Mary Walsh currently serves as the BBA’s Immigration Section Co-Chair.

The RELIEF Act

The RELIEF Act is one of several pieces of immigration-related legislation being considered by Congress and is endorsed by the American Immigration Lawyers Association (AILA).

Last month, Senators Dick Durbin (D-IL), Patrick Leahy (D-VT), and Mazie Hirono (D-HI) introduced S. 2603, Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act. They have been joined by other champions of immigration reform, including Senators Richard Blumenthal (D-CT), Tammy Duckworth (D-IL) and Patty Murray (D-WA). The bill helps ensure that the US immigration system advances the needs of American families, communities and businesses. The RELIEF Act contains many necessary reforms to achieve a fair and equitable solution to the ever-increasing immigrant visa backlog, including:

Eliminating the family and employment green card backlog over five years in the order in which applications were filed.

o   The current immigrant visa backlog has nearly 5 million eligible individuals who are waiting to become lawful permanent residents (LPRs) simply because a visa number is not available to them. They have demonstrated that they are eligible to live and work permanently in the United States but are forced at times to wait decades before they actually can. These individuals have followed the legal path towards becoming an immigrant but risk falling out of status, being separated from family members and losing out on economic opportunities as they wait for a visa number to become available to them.

o   The RELIEF Act addresses this untenable situation by making additional visas available to those individuals who have been stuck in the immigrant visa backlog. This is a necessary step to ensure that those individuals who have proven that they are eligible for the benefit and who have followed the immigration laws can pursue their American dreams and get on the path to become U.S. citizens.

 

Making it easier for families to be together.
o   The RELIEF Act makes two important changes to ensure that families can be together sooner while ensuring that families are not significantly disadvantaged because of their country of birth.

o   First, by exempting the spouse and children of LPRs from the numerical limitations, the RELIEF Act ensures that these individuals can more quickly reunite with their family member who is already a contributing member of U.S. society.

o   Second, the RELIEF Act increases the per-country numerical limitation for all family-based immigrants from 7 percent to 15 percent to be more reflective of immigrant visa demand.

Exempting derivative beneficiaries of employment-based petitions from annual green card limits.

o   The current system of employment-based immigration is intended to bring more workers with needed skills into the United States to bolster the economy. The current practice of counting derivatives individually against the employment-based numerical limitations undermines these goals.

o   Nearly half of all green cards that are granted annually are distributed to the family members of the principal applicant, which exponentially increases the wait times for all eligible principal applicants.

o   The wait times for all prospective employment-based immigrants increases simply because some individuals get married or have children while waiting.

o   The annual green card limit for employment-based immigrants of 140,000 should be allocated towards those individuals who are specifically described in the statute and will fulfill the intent of the statute.

o   By exempting the family members of these workers from the total allotment, the RELIEF Act will ensure that the U.S. economy will more quickly benefit from those individuals who have proven that they will be providing necessary skills to the U.S. economy.

 

Protecting “aging-out” children from falling out of status and becoming ineligible to become LPRs based on their parents’ petitions.
o   This is a necessary common-sense reform. Through no fault of their own, children who have been stuck in the backlog for years or even decades, lose their underlying nonimmigrant status and become ineligible to become an LPR simply because they have grown up. They are powerless from changing this situation.

o   The RELIEF Act solves this problem by determining a child’s eligibility for lawful permanent residence, not based on the age they are when applying for permanent residency, but by considering their age at the time the associated immigrant visa petition was filed.

 

Eliminating the per-country numerical limitation for employment-based immigrants.
o   The application of per country quotas for employment-based immigrants defeats the purpose of our employment-based immigration system to ensure that workers with necessary skills help boost the U.S. economy, by placing emphasis on an applicant’s country of birth rather than their qualifications.

o   This has led to similarly situated employees of U.S. businesses being subject to drastically different wait times not based on their merit, but rather based on where they were born and the demand from that country. For example, skilled workers from India may be forced to wait for multiple decades, whereas skilled workers from Europe may have no wait at all.

o   By eliminating employment-based per country caps, the RELIEF Act emphasizes the skills an individual will bring to the United States and equalizes the playing field for all individuals, regardless of where they were born.

Court rejects J-1 au pair program’s challenge to state minimum wage rules

On December 2, 2019, the United States Court of Appeals for the First Circuit rejected an au pair program’s attempt to cast federal J-1 regulations as preempting state minimum wage laws.  The Court found unavailing the argument, among others, that the detailed nature of Department of State’s au pair J-1 regulations amounted to preemption over state minimum wage laws.  Court held that,

“...the mere fact that a state law implicates the interests of persons who are the subject of federal regulation, even with respect to immigration, does not alone provide a basis for inferring that the federal regulatory scheme was intended to preempt a field that encompasses such a state law, at least when it concerns a matter of such quintessentially local concern as employment.”

 In light of the decision, we recommend that J-1 sponsors in the 1st Circuit (Mass, NH, Maine, RI, and Puerto Rico) review their current employment practices against state minimum wage rules.  Although the case involved an au pair program, the decision has broader implications for J-1 exchange program sponsors in general--compliance with federal program rules will not necessarily shield sponsors from state law based claims.     

Updates to the FLAG System for the Prevailing Wage and LCA Programs

In November, the Office of Foreign Labor Certification (OFLC) released new features and enhancements for the Foreign Labor Application Gateway (FLAG) System regarding the ability for users to take actions on submitted applications for the Prevailing Wage, H-2A and LCA (H-1B, H-1B1, E-3) programs. Customers will be able to take certain actions on pending Prevailing Wage, H2A and LCA applications under review by OFLC.

Form ETA-9141 (Application for Prevailing Wage Determination):

  • Request Redetermination for LCA (H-1B, H-1B1, E-3) and PERM prevailing wage applications in the “Determination Issued” status within 30 calendar days from the determination date

  • Request Center Director Review for H-2B prevailing wage applications in the “Determination Issued” status within 7 business days from the determination date

  • Request Center Director Review for LCA (H-1B, H-1B1, E-3) and PERM prevailing wage applications in the “Redetermination Affirmed” or “Redetermination Modified” statuses within 30 calendar days of the redetermination date

Form ETA-9035 (Labor Condition Application for Nonimmigrant Workers):

  • Withdraw pending applications in the “In Process” status

  • Withdraw pending applications in the “Certified” status

As FLAG continues to evolve its platform, practitioners should always submit a FLAG technical Help Desk ticket at: https://flag.dol.gov/support/contact, as this helps OFLC identify, isolate, and hopefully resolve issues.

 

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

EB-1:

In December 2019 Final Action Dates for EB-1 Worldwide advances 6 weeks to July 15, 2018. EB-1 China advances 10 weeks to May 15, 2017, and EB-1 India’s Final Action Date holds at January 1, 2015. All of these movements are consistent with Charlie’s projections which were provided in the October 2019 Visa Bulletin.

In contrast to the unexpected and excessively high demand in EB-2 and EB-3, Charlie continues to see a normal, if not somewhat low, demand level in the EB-1 Worldwide category.

Therefore, he maintains his prediction that EB-1 Worldwide will continue to advance at a pace of up to 3 months for the foreseeable future.

EB-2:

As noted above, EB-2 Worldwide remains current for December, but could retrogress as early as January 2020.

Consistent with Charlie’s predictions, in December the Final Action Date for EB-2 India advances 2 days from May 13, 2009 to May 15, 2009.

EB-2 China advances about 2 months in December to June 22, 2015, with the gap between the final action dates for EB-3 China (November 1, 2015) and EB-2 China, narrowing to just over 4 months.

EB-3:

As noted above, although EB-3 Worldwide will remain current in December, there is a real possibility that this category could have a final action date imposed as early as January 2020.

EB-3 China continues to hold at November 1, 2015 for December, while EB-3 China Other Workers advances 1 month to March 1, 2008.

Both EB-3 India and EB-3 Other Workers India hold at January 1, 2009 for December.

December Visa Bulletin

Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.

For December 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. In December, the EB-1 preference category on the Dates of Filing Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140.  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).

USCIS Proposed Rule with Adjustments to Fee Schedule and Other Changes

Department of Homeland Security (DHS) proposed a rule which would make changes to the USCIS fee schedule. DHS proposes to adjust USCIS fees by a weighted average increase of 21%, add new fees, and make other changes, including form changes and the introduction of several new forms. 

 Of particular note, DHS is proposing to separate Form I-129 into several forms and adjust the filing fees per visa type (E, H-1B, L, O, R, etc). Please see below.

Form No.: I-129 E&TN (Proposed)

Form Title: Application for Nonimmigrant Worker: E or TN Classification

Current Fee: $460

Proposed Fee: $705

Difference: $245

Percent Change : 53% increase

Form No.: I-129 H1 (Proposed)

Form Title : Petition for Nonimmigrant Worker: H-1 Classification

Current Fee : $460

Proposed Fee : $560

Difference: $100

Percent Change: 22% increase

Form No. : I-129L (Proposed)

Form Title : Petition for Nonimmigrant Worker: L Classification

Current Fee : $460

Proposed Fee : $815

Difference : $355

Percent Change : 77% increase


Form No. : I-129O (Proposed)

Form Title : Petition for Nonimmigrant Worker: O Classification

Current Fee : $460

Proposed Fee : $715

Difference : $255

Percent Change : 55% increase


Form No. : I-129MISC (Proposed)

Form Title : Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification

Current Fee : $460

Proposed Fee : $705

Difference : $245

Percent Change : 53% increase

Comments to DHS regarding the proposed fee changes are due 12/16/19 and can be made through the Federal Register here

New H-1B Registration Tool

In November, Acting Director of USCIS Ken Cuccinelli stated that he has a fairly high degree of certainty that USCIS will be ready to implement the new e-registration tool for the upcoming H-1B cap season, and that he expects USCIS will make a formal announcement by the end of the year as to whether or not USCIS will move forward with the tool for this upcoming H-1B cap season.

Upon implementation of the e-registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended. The registration tool will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers. The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.

Iandoli Desai and Cronin, P.C. continues to monitor the e-registration roll out and will provide updates as they become available.