Check-in with Department of State’s Charlie Oppenheim regarding the March 2020 Visa Bulletin
The March 2020 Visa Bulletin calls out a key development. Consistent with Charlie’s prior predictions, a final action date of January 1, 2017 will be imposed in March for EB-3 Worldwide, as well as for the EB-3 (EW) Other Workers category for these countries.
No forward movement is expected in these categories in the foreseeable future. Charlie anticipates that USCIS could revert resources that were previously allocated to EB-3 processing to EB-2 and/or EB-1 processing, generating additional demand in those latter categories. Charlie will watch movements in these categories closely and will likely refrain from posting updated projections until either the May 2020 or June 2020 Visa Bulletin.
EB-1:
In March EB-1 Worldwide advances three months to March 1, 2019. It remains possible that this category could become current in the summer of 2020. If demand levels remain steady, there may be sizeable advancement in April in EB-1 Worldwide. However, it is also possible that this category could advance less quickly if USCIS shifts resources previously used to adjudicate EB-3 cases to EB-1 processing, thus increasing the demand.
After holding steady, the final action dates for EB-1 China and EB-1 India start to advance again in March, with EB-1 China advancing one week to June 1, 2017 and EB-1 India advancing two months to March 1, 2015.
EB-2:
EB-2 Worldwide remains current in March, but Charlie continues to monitor demand closely. Based on current demand patterns, retrogression in EB-2 Worldwide will be required no later than June 2020 and possibly as early as April 2020.
EB-2 China advances one month in March to August 15, 2015, and EB-2 India advances three days to May 22, 2009.
EB-3 and EB-3 (EW) Other Workers:
As noted above, a final action date of January 1, 2017 is being imposed in March for EB-3 Worldwide and EB-3 Other Workers Worldwide.
EB-3 China advances seven weeks to March 22, 2016 in March and EB-3 China Other Workers advances one month to June 1, 2008. This places EB-3 China’s final action date more than seven months ahead of EB-2 China. Charlie is starting to see some downgrades from EB-2 to EB-3, but not yet in large numbers.
EB-3 India and EB-3 India Other Workers advance one week to January 15, 2009 in March.
March 2020 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 March 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 for all categories except for applicants in the Employment 3rd and Other Worker categories from all chargeability areas other than China, India, and the Philippines may file for adjustment of status using the Final Action Dates chart for March 2020. In March, 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 contact the attorneys of Iandoli, Desai & Cronin.
H-1B Registration is Open March 1-20
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 experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
USCIS has opened an initial registration period from March 1 through March 20, 2020. The H-1B random lottery process 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, employers must decide whether they will file H-1B petitions ASAP before the March 20 deadline.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin immediately with your questions about potential H-1B sponsorship.
Department of State Provides Information for Exchange Visitors Impacted by Coronavirus
The Department of State’s (DOS) Office of Academic Exchanges has provided information for exchange visitors whose travel may be affected by the Novel Coronavirus 2019 (COVID-19). In an email to sponsors, the office describes USCIS’s discretion to extend or change status, and in some cases provide student work authorization, for individuals who cannot depart the United States at the appropriate time due to extreme circumstances.
In the email, the DOS office reiterates that any exchange visitors subject to the home residency requirement will need a 212(e) waiver, but notes that expedited waiver processing may be requested for cases with urgent humanitarian need. Additionally, DOS notes that exchange visitors can request a “No Objection Statement” from their home country government and submit it as an update to their application once they have a waiver case number. For more information concerning applying for a J visa waiver, please review the information included here.
Public Charge Rule Implementation with both USCIS and Department of State
On February 22, 2020, USCIS confirmed that it will implement the Inadmissibility on Public Charge Grounds final rule on February 24, 2020, nationwide after the Supreme Court granted the government's motion for a stay of the Illinois-based injunction. USCIS will now determine whether a person is inadmissible to the United States based on the prospective “likelihood of becoming a public charge at any time in the future” and this includes a requirement that those seeking a nonimmigrant extension of stay or change of status “demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.”
At the same time, the Department of State (DOS) will implement the new public charge standards pursuant to the DOS Interim Final Rule for overseas applications on the same date, including the new DS-5540, DOS Public Charge Questionnaire. DOS has indicated that it may apply the DS-5540 to applicants who have previously been found documentarily qualified for a visa before February 24, 2020.
These polices apply to immigrants applying for immigrant visas abroad or green cards processed inside the United States, including green card holders that leave for 180 days or more and seek to reenter the US as well as those seeking a change of status or extension of nonimmigrant status (such as H-1B, F-1, J-1, O-1 visa status).
The following are additional resources regarding the public charge policy:
Supreme Court opinion issued February 21, 2020, including a dissent by Justice Sonia Sotomayor, https://www.supremecourt.gov/opinions/19pdf/19a905_7m48.pdf
Department of State’s interim final rule published in October 2019, https://www.federalregister.gov/documents/2019/10/11/2019-22399/visas-ineligibility-based-on-public-charge-grounds, and related announcement, https://travel.state.gov/content/travel/en/traveladvisories/ea/Information-on-Public-Charge.html
DS-5540, DOS Public Charge Questionnaire, https://eforms.state.gov/Forms/ds5540.pdf
Updated DOS Foreign Affairs Manual section on public charge, https://fam.state.gov/fam/09fam/09fam030208.html
USCIS revised forms and updated policy guidance, https://www.uscis.gov/news/alerts/public-charge-inadmissibility-final-rule-revised-forms-and-updated-policy-manual-guidance
USCIS policy alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20200205-PublicCharge.pdf
USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions
Immigrant Legal Resource Center, Public Charge Toolkit, including a “Totality of the Circumstances Worksheet” with ideas for positive evidence, https://www.ilrc.org/sites/default/files/resources/2019.12_public_charge_legal_toolkit-final-12.10.pdf
National Immigration Law Center, Protecting Immigrant Families page, https://protectingimmigrantfamilies.org/;summary of developments, https://www.nilc.org/issues/economic-support/pubcharge/
If you have received public benefits in the past or could require public assistance, we recommend that you contact Iandoli Desai & Cronin to schedule a consultation.
Iandoli Desai & Cronin PC News
IDC attorneys are 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.
I-9 Updates
USCIS announced the release of its revised Form I-9 (Employment Eligibility Verification) with a version date of ‘‘(Rev. 10/21/2019)’’ is available for use starting January 30, 2020 to replace the form currently in use. Employers may continue using the prior version of the form, with a version date of “(Rev. 07/17/2017 N),” until April 30, 2020. After this date, the prior version of the form will no longer be valid for use.
Employees who have already completed the Form I-9 on the previous version of the Form I-9, including employees who have accepted their offer of employment, but have not yet begun working, do not need to complete a new Form I-9 using the newly released version.
Employers can download the newest version of the Form I-9 at www.uscis.gov/I-9.
SEVP Broadcast message concerning Novel Coronavirus
On January 29, 2020, the Student and Exchange Visitor Program (SEVP) broadcast a message concerning Novel Coronavirus and how the nationwide response to the 2019 novel coronavirus (2019-nCoV) will impact F and M students and their accompanying dependents.
SEVP highlighted that the Center for Disease Control (CDC) is the primary resource for up-to-date information on all diseases and biological threats. CDC information about this virus is available at About 2019 Novel Coronavirus (2019-nCoV).
Additionally, many state and local government public health agencies are developing directions, and state educational systems are incorporating this information into their messaging for schools. Identify and refer to these resources in the management and enrollment of students traveling from 2019-nCoV impacted places. Additionally, advise students traveling from 2019-nCoV impacted places to refer to guidance from the CDC and U.S. Customs and Border Protection about specific port of entry screening processes.
If your school has international students who are currently outside of the United States in impacted places or who are exhibiting symptoms of 2019-nCoV:
1. Initial students:
a. Delay their program start date and issue a new initial Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.”
2. Active students:
a. You may authorize a medical reduced course load. The student will need to provide medical documentation from a doctor. The DSO would then register the student in the Student and Exchange Visitor Information System (SEVIS) for a medically reduced course load with no course load.
b. You may terminate their SEVIS records for authorized early withdrawal upon the student’s request.
3. Students on temporary absence:
a. You may advise them not to travel to the United States until they can re-enroll in a full course of study.
b. If the delay in a student’s return from a temporary absence exceeds the five-month limit, you should provide details to the SEVP Response Center at SEVP@ice.dhs.gov. SEVP will resolve these on a case-by-case basis.
If your school has students currently inside the United States who are exhibiting symptoms of 2019-nCoV:
1. If it is not possible for the student to enroll for this term, please follow step 2a above to authorize a medically reduced course load.
2. Please have the student follow the directions from the CDC: What to do if you are sick with 2019 Novel Coronavirus (2019-nCoV).
Check-in with Department of State’s Charlie Oppenheim regarding the February 2020 Visa Bulletin
EB-1:
In February, the final action date for EB-1 Worldwide advances two months to December 1, 2018. Based on currently available information, it remains possible--yet too early to confirm--that this category could become current in the summer of 2020. The final action dates for EB-1
China and EB-1 India continue to hold at May 22, 2017, and January 1, 2015, respectively in February.
EB-2:
EB-2 Worldwide is current for February 2020. Charlie notes that demand for EB-2 Worldwide numbers continues to trend in such a way that a final action date may be imposed at some point during the second half of FY2020.
EB-2 China advances two weeks in February to July 15, 2015, and EB-2 India advances one day to May 19, 2009.
EB-3:
Charlie notes that EB-3 Worldwide and EB-3 Other Workers Worldwide will become subject to a final action date in March 2020. Charlie will determine what that date will be upon receipt of data from USCIS in February 2020.
EB-3 China advances one month to January 1, 2016, in February 2020, slightly widening the final action date spread between EB-3 China's and EB-2 China's final action dates, placing EB-3 China 5.5 months ahead of EB-2 China. Evidence of significant downgrades from EB-2 to EB-3 have not yet materialized, but Charlie continues to watch these categories closely.
EB-3 India advances one week to January 8, 2009, in February 2020, narrowing the gap with EB-2 India, final action date of May 19, 2009, to about four months.
February 2020 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 February 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 for all categories except for applicants in the Employment 3rd and Other Worker categories from all chargeability areas other than China, India, and the Philippines may file for adjustment of status using the Final Action Dates chart for February 2020. In February, 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).