DOS: NO EB-3 PROGRESSION UNTIL AT LEAST UNTIL MAY OR JUNE

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association.  Mr. Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.

Charlie offered a number of interesting observations about the March Visa Bulletin, which resulted in a retrogression for EB-3.

-Because of the potential for USCIS to move resources to EB-1 and EB-2 and the unpredictability in processing times that will be caused by such a resource allocation, Charlie does not expect any forward movement to the EB-3.  The absolute earliest would be the May 2020 or June 2020 Visa Bulletin, but EB-3 could remain at January 2017 until the end of the fiscal year.  Charlie did assure readers that

-While it is expected that the implementation of the public charge rules may slow USCIS processing times, any potential slowdown at USCIS has not been factored into the March Visa Bulletin.

-DOS was not surprised that the retrogression happened in March, in spite of the January and February progression of dates in some EB-3 categories.  DOS wanted to wait until it was certain that the increase in demand was not showing any signs of decline.

STRATEGIES FOR DEALING WITH THE EB-3 RETROGRESSION

The March 2020 retrogression of EB-3 has significant consequences for those who are in the immigrant visa process.  It is expected that between March 1 and September 30 of this year, immigrant visas/green cards will only be issued to immigrants who have a 2016 priority date or earlier.  When the first bulletin of the next fiscal year is released in late September, we expect the Rest of World EB-3 to return to current and the Philippines EB-3 to have a roughly 18-24-month retrogression.  

Below are strategies for EB-3 immigrant applicants in various stages of the immigrant visa process:

Immigrants who will be adjusting status

USCIS has indicated that the dates for filing chart can be used in March. This means that the I-485 can only be filed if the immigrant has a priority date earlier than January 1, 2019.  This applies to both Filipino and Rest of World immigrant applicants. 

Immigrants currently at NVC phase with fee bill

If the applicant has already received fee bills, then the case can continue to be processed until the documentarily qualified notification is received from NVC.  An embassy interview will not be scheduled until the immigrant’s priority date is current under the final action chart which for March is January 1, 2017.  This applies to both Filipino and Rest of World immigrants.

Immigrants with approved I-140 but no fee bill

Immigrants should only receive the fee bill if the priority date is earlier than the date for filing of January 1, 2019, only we often see the NVC issue fee bills to those who have priority dates later than the dates of filing chart.  Those immigrants with 2019 and 2020 priority dates will receive a letter from NVC explaining that the case cannot move forward and a fee bill issued until the priority date is current under the date for filing chart.  Rest of World immigrants will continue to receive fee bills and be able to proceed through the NVC process but will not be able to receive an embassy interview until current under the final action chart.

Immigrants with embassy interviews scheduled for March

We expect these interviews will be rescheduled by the Embassy or Consulate until the priority date is current under the final action chart.

WHAT DOES THE PHILIPPINE AND WORLDWIDE RETROGRESSION MEAN FOR EB-3 VISAS?

The March 2020 retrogression of the EB-3 category means that the US government has "overshot" their usage of visas in Fiscal Year 2020 (Oct 2019 - Sept 2020).  In order to remedy this, the government retrogresses the visas, which serves as a pause on the issuance of new visas.  The Philippine EB-3 date retrogressed because of increasing demand for Worldwide immigrant visas.  The Worldwide cut-off date can never be less favorable than any other country’s date.

This happens every few years.  Visa approvals will slow or stop starting in March, until the end of the fiscal year in September.  In October 2020, new allotment 140,000 visas are released into the system.  There is a chance that more visas are released into the system before the end of the Fiscal Year because, from time to time, the government's pause has its intended effect and more visas can be released before year-end.

If you are in any part of the visa process and you do not have your visa issued before March 1, 2020, your case will be held in abeyance at the Embassy or NVC, unless you have a priority date earlier than January 1, 2017 (Worldwide and Philippines). 

MARCH 2020 VISA BULLETIN: RETROGRESSION FOR EB3

The Department of State has just issued the March 2020 Visa Bulletin. This is the sixth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

March 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	01MAR19	01JUN17	01MAR15	01MAR19
2nd	C	15AUG15	22MAY09	C
3rd	01JAN17	22MAR16	15JAN09	01JAN17

MU Law Analysis

All Other: The All Other EB-1 had a four-month progression and the EB-2 category remained current.  Both should stay in their current ranges for the foreseeable future.  The EB-3 is retrogressed back to Jan 2017.  This retrogression occurred in all categories, except for China and India, where the retrogression is worse.  No forward movement is expected in EB3 for the rest of the fiscal year.  Demand in All Other EB-3 Adjustment of Status cases is responsible for the retrogression.

China: All Chinese EBs improved slightly.  Chinese EB-3 will not progress beyond the January 2017 retrogression date in all other EB-3 categories.

India:  There was virtually no progress for India.  We continue to expect very little progress in either category in future months.

Philippines:  The Philippine EB-3 number continues to confound.   We were encouraged by the three-month progression in EB-3 in February, only to be surprised by the retrogression back to January 2017.  Adding to the complexity is that virtually no Philippine EB-3s have been issued at Manila since the beginning of the year

H-1B CAP 2020: NEWS AND NOTES

The H-1B cap filing date will be here before you know it.  New H-1Bs are subject to the H-1B cap lottery and must be filed between March 1-20, 2020.  The USCIS will notify us of H-1B cap lottery winners by March 31, 2020.  If you are preparing to file an H-1B cap petition for 2020, please send MU the items on our checklist no later than March 10.

A variety of types of case are subject to H-1B cap:

-International students working on an EAD card under an OPT or CPT program 
 after having attended a U.S. school;

-International employees working on a TN may need an H-1B filed for them in
 order for them to pursue a permanent residency (green card) case;

-Prospective international employees in another visa status e.g. H-4, L-2, J-1, 
 F-1; H-1B workers with a cap exempt organization; and

-Prospective international employees currently living abroad.

These types of case are not subject to H-1B cap:

-H-1B amendments/extensions/transfers

-When the employee has been in H-1B status for less than 6 years

-Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico

-Institution of higher education (or its affiliated or related nonprofit entities), a 
 nonprofit research organization, or a government research organization.

Please contact us if you have any questions or are looking for representation in filing H-1B cap petitions.

TRAVEL BAN 4.0

On January 31, 2020, the President issued a Presidential Proclamation expanding the existing travel ban to include the following countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. 

The new travel ban goes into effect February 21, 2020 at midnight.  Individuals from countries on the new travel ban who have received their visas before February 21, 2020 can still enter the US. However, we recommend that individuals from the newly banned countries enter before the travel ban goes into effect on February 21, 2020.

The government will be reviewing the banned countries on October 1, 2020, and annually thereafter. If the banned countries comply with the US on information sharing, the country may be removed from the banned list. 

The full travel ban now includes the following thirteen countries and different types of visas are banned for each country:

Eritrea	Suspends the entry of immigrants, except as Special Immigrants who have provided assistance to the U.S. government.
Kyrgyzstan	Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
Iran	Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.
Libya	Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
Myanmar	Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
Nigeria	Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
North Korea	Suspends the entry of all immigrants and nonimmigrants.
Somalia	Suspends the entry of immigrants and requires enhanced screening of all nonimmigrants.
Sudan	Suspends the entry of Diversity Visa immigrants
Syria	Suspends the entry of all immigrants and nonimmigrants.
Tanzania	Suspends the entry of Diversity Visa immigrants
Venezuela	Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).
Yemen	Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).

Citizens of the banned countries who are already present in the United States can file for extensions of status, changes of status, or for green cards (adjustment of status). 

If you are a citizen of one of the banned countries, please reach out to your MU attorney for further guidance. 

US DEPARTMENT OF HOMELAND SECURITY IMPLEMENTS NEW “PUBLIC CHARGE” RULE

On August 14, 2019 the Department of Homeland Security (DHS) announced a new “public charge” rule.  The rule was set to into effect on October 15, 2019, but was stopped by a nationwide injunction.  On January 27, 2020 the US Supreme Court lifted the nationwide injunction.  Note that an injunction still remains in effect in Illinois.  On February 24, 2020 the new public charge rule will go into effect.

Under a longstanding law and policy, if immigration authorities determine someone is “likely to become a public charge” the US can deny the applicant’s green card or other visa to the US.  A public charge is someone who is dependent on the government, through benefits programs.  The Trump Administration’s new rule changes the standard by the DHS determines whether a foreign national is likely to become a public charge.

Under the previous policy, DHS examined whether an intending immigrant was primarily dependent on public benefits.  Under the new rule, immigration officers will examine whether immigrants are likely at any time to become a public charge, using a multi-factor test. 

Public benefits under the new rule include:

1)   Any federal, state, or local cash assistance, including:

a.    Social Security Income (SSI)

b.    Temporary Assistance for Needy Families (TANF)

c.    Government programs for income maintenance often called “general assistance”

2)   Supplemental Nutrition Assistance Program (SNAP) also known as food stamps

3)   Section 8 Housing Assistance

4)   Medicaid, with certain exceptions

5)   Public Housing under Section 9

The immigration officer will take into account a broad range of factors and consider all of the following when making a determination if the foreign national visa applicant is likely to become a pubic charge:

a.  Receipt of a public benefit for more than 12 months in the aggregate within a 36 month period

b.    Age

c.    Health

d.    Family status

e.    Education and skills

f.    Assets, resources, and financial status 

This rule will apply to all applicants for any type of visa, though it is expected that the immigration officers will look most closely at those applying for a green card.  Employment-based visa applicants should be treated favorably because, by virtue of their employer-sponsor, they have guaranteed employment and income in the United States.  However, policy experts forecast that this rule will likely be applied inconsistently and cause fewer legal immigrants to enter the United States. 

VISA REFUSALS AT THE US EMBASSY IN MANILA

Musillo Unkenholt is aware that the US Embassy in Manila has refused to approve almost any immigrant visa for the last 3 weeks.  The problem is, apparently, that the Embassy is mistakenly interpreting clauses in employment contracts between nurses and their US employers, perhaps based on some bad information that was sent to the Embassy. 

The problem seems to be localized in Manila.  Philippine nationals processing for immigrant visas at other embassies around the world are being issued their immigrant visas.  Likewise, other embassies are also issuing immigrant visas to non-Philippine nationals. 

We are working with clients, trade associations, and nurses to solve this problem.  It may take a little while to solve the problem but it is a fairly straightforward problem that will be solved, hopefully in the next few weeks.

REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

·   Top 10 things H-1B employers can do to stay compliant

·   Q&A

PLEASE JOIN US!

FEBRUARY 2020 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the February 2020 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

February 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	15DEC18	22MAY17	01JAN15	01DEC18
2nd	C	01JUL15	19MAY09	C
3rd	C	01JAN16	08JAN09	01JUN18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 category remained current and is expected to remain current for the foreseeable future.  The EB-3 is current, but the DOS expects to implement a retrogression in March.

China: EB-2 did not move, although EB-3 progressed by a month.  The EB-2 and EB-3 each progressed about one month.  Over the course of FY2020 we expect EB-2 and EB-3 to remain within a few months of each other.

India:  There was virtually no progress for India.  We continue to expect very little progress in either category in future months.

Philippines:  We were encouraged by the three-month progression in EB-3.  We remain surprised by the slow progress of EB-3, although we were encouraged by this month’s progression.  We think that there is a chance of continued progression in the next few months, although the enactment of All Other EB-3 retrogression may mean that fewer visas are available for the Philippines.

REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

·   Top 10 things H-1B employers can do to stay compliant

·   Q&A

PLEASE JOIN US!

BUSINESS IMMIGRATION OUTLOOK FOR 2020

There are some obvious areas where we can expect to see activity in business immigration 2020.  Here are a few topics that we will keeping our eye on this year:

New H-1B Cap Process

The USCIS has confirmed that it will use an electronic pre-registration system for 2020 (Fiscal Year 2021).  Under this program, H-1B petitioners and beneficiaries must be registered between March 1-20, 2020.  Please join us for a teleconference on the new H-1B registration system to learn more.  REGISTER.

H-1B Specialty Occupation Rule

The USCIS recently published notice that it intends to revise the definition of specialty occupation, with an aim to restricting the number of people who qualify for the H-1B visa.  It remains to be seen what the revised definition says and whether or not the USCIS oversteps its authority with a new rule.  The USCIS continually is sued on these issues and usually settles the case by reopening and approving the H-1B petition. 

H-1B Employer-Employee Rule

Likewise, USCIS will also seek to revise the H-1B rule by creating a stricter law on who can be an H-1B employer.  USCIS’ own regulation says that its aim is to “to better protect U.S. workers and wages,” which has traditionally been the Department of Labor, not the USCIS’ role.  Again, we expect to see lawsuits if the USCIS exceeds the rules set forth by Congress.

Recession of the H-4 / EAD rule

The Trump Administration has, for years, sought to eliminate the H-4/EAD rule.  A recent USCIS court filing indicates that the rule rescinding work authorization could happen in March. 

NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

·   Top 10 things H-1B employers can do to stay compliant

·   Q&A

PLEASE JOIN US!

JANUARY 2020 VISA BULLETIN: PREDICTIONS AND ANALYSIS

The Department of State has just issued the January 2020 Visa Bulletin. This is the fourth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

January 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	15OCT18	22MAY17	01JAN15	01OCT18
2nd	C	01JUL15	18MAY09	C
3rd	C	01DEC15	01JAN09	15MAR18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: EB-2 did progress by three months.  The EB-2 and EB-3 each progressed about one month.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was just three days’ progress in EB-2 and no progress in EB-3.  We continue to expect very little progress in either category in future months.

Philippines:  We remain surprised by the slow progress of EB-3.  The DOS indicates that the Philippine EB-3 will only be moving one month at a time for the next 3 calendar months, which is slower than our internal metric indicate should be happening.  We are no longer predicting as rosy progressions in early 2020.  

FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT VOTE TABLED UNTIL 2020

Sen. Lee and Durbin have agreed to postpone S. 386 (Fairness for High-Skilled Immigrants Act) until 2020. It seems that Sen. Lee may not have had all of his Republicans on board with some of the latest amendments.

Musillo Unkenholt's analysis on what is in the current version of Act is on our December 17, 2019 blog post.

FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT COULD PASS SOON

The Fairness for High Skilled Immigrants Act has been a hot legislative item all year.  On several occasions, the bill has looked to be set into law, until a last minute Senate hold out has blocked the law’s progress.  One of the final holdouts, Sen. Durbin (D-IL), has just agreed to a compromise with Sen. Mike Lee (R-UT).  Sen. Lee is bill’s lead sponsor.

The bill, including Sen. Durbin’s amendments, would make these changes to Employment-Based Immigration:

Changes to the Green Card Quota and Process

• Eliminate the per-country visa caps on employment-based workers over a three-year phase in period.  This will speed up processing Indian EB2 and EB3 retrogressed immigrants.
• Allow all nonimmigrants in the US to file an I-485 Adjustment of Status 270 days (9 months) after the filing of their I-140, Petition for Alien Worker.  This will allow more job flexibility and protect Indian and Chinese H-1B and L-1 workers and their immediate families.  These Adjustment applicants must maintain qualifying employment and the entire family will retain their priority dates even if they would otherwise age-out.  This provides a great relief to long-retrogressed families.
• There is a 4,400 visa carve-out for Schedule A workers.  As with current law, their immediate family members also take visas at the same time.  This provision will end in 2026.
• There is also a second carve-out for non-Indian and Chinese nationals who have not worked in the US.  Our sense is that this will largely be used by non-H-1B occupations, such as Registered Nurses.  This provision ends in nine years.

 Changes to the H-1B visa

• Employers with more than 50% H-1B / L-1 workers would be barred from the H-1B program.
• H-1B Cap petitions must be posted on an on-line government job board prior to the filing of the H-1B cap petition.
• Elimination of the B-1 in Lieu of H-1B business visa rule.
• Additional wage protection for H-1B workers.
• Additional protections for H-1B whistleblowers. 

Next Steps

Sen. Lee is expected to try to pass the bill in the Senate this week, perhaps as soon as today.  The bill will need to go back to the House of Representatives, where it is expected to pass, perhaps before the end of the year.  After that the President will need to sign the Bill into law, which is expected.