OCTOBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the October 2018 Visa Bulletin.  This is the first Visa Bulletin of Fiscal Year 2019.  This blog post analyzes this month's Visa Bulletin.  

The USCIS is allowing Adjustment of Status filings based off of Table B, Dates of Filing.  If you are physically in the US, you can file your I-485 on October 1, if your priority date is earlier than the date in Table B.

October 2018 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.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	01APR17	01JUN16	01JUN16	01APR17	01APR17
EB-2	C	01APR15	26MAR09	C	C
EB-3	C	01JUN15	01JAN09	C	01JUN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18	01JUN18
EB-2	C	15JUN15	22MAY09	C	C
EB-3	C	08AUG15	01OCT09	C	01JUL17

MU Law Analysis (all references are to Table A unless noted)

All Other, Mexico:  EB2 and EB3 returned to current, as we expected.  They should stay current for most/all of FY2019.

China: The EB2 and EB3 dates moved into CY2015.  Our sense is that these dates will stay in 2015, slowly improving over this Fiscal Year.

India: These dates moved back into 2009, again as expected. We expect to steady progress in both categories in FY2019. 

Philippines: The fact that the EB-3 Final Action date stayed in 2017 is a terrific sign, indicating that there may be fewer immigrant visas in the pipeline than we had expected.  Over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, both in Tables A and B.

CHANGES FOR F-1 STUDENTS – ACCRUAL OF UNLAWFUL PRESENCE

On May 11, 2018, the USCIS issued a policy memorandum that changed the rules regarding unlawful presence for F-1 students.  Unlawful presence begins to accrue once a foreign national has stayed beyond the end date on his/her I-94 card.  Because F-1 I-94 cards do not have an end date, but show D/S (duration of status) as the term of stay, unlawful presence previously did not apply to F-1s. 

As of August 9, 2018, individuals in F, J, and M status who fail to maintain their status will start accruing unlawful presence on or after the date of one of the following events:

The day after DHS denies the student’s request for an immigration benefit with a formal finding that the student violated status while adjudicating the benefit request;

• The day after the student’s I-94 expires; 

• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), orders the student excluded, deported, or removed;

• The day after the student no longer pursues a course of study or authorized activity, or the day after the student engages in unauthorized activity (e.g. unauthorized employment); or

• The day after the student completes his/her course of study or program, including any authorized CPT or OPT plus any authorized grace period.

Individuals who have accrued more than 180 days of unlawful presence are generally subject to a 3 year bar of re-entry to the US.  Individuals who accrue more than 365 days of unlawful presence are generally subject to a 10 year bar of re-entry to the US.

Things to keep in mind with regard to this new rule:

• This new rule went into effect on August 9, 2018.  Unlawful presence will accrue from August 9, 2018 or the date the student engages in unlawful activity forward.  No formal notice will be given to the student as to when unlawful presence begins to accrue.  If a student believes he or she may have engaged in unlawful activity, the student should contact their DSO or an immigration attorney immediately for advice.

• The timely filing of an application for reinstatement stops the accrual of unlawful presence, and, if the application for reinstatement is approved, cures any unlawful presence in the student’s record.  Applications for reinstatement must be filed within 5 months of the date the student first engaged in unlawful activity.

• There is no accrual of unlawful presence during the cap-gap period or when a change of status from F, M, or J to another status has been filed, unless the change of status request is denied.  Unlawful presence will begin to accrue from the date of the denial of the change of status going forward.  If the change of status is approved, the USCIS will not reopen the previous F, M, or J.  For example, if an F-1 student engaged in unlawful activity in 2016 while on F-1 status but has now changed status to H-1B, the USCIS will not reexamine the 2016 F-1. 

USCIS WILL NO LONGER ACCEPT PPS FOR H-1Bs EXCEPT EXTENSIONS, CAP EXEMPT INSTITUTIONS

In an unexpected move (although all-too-common for an increasingly erratic agency), the USCIS will no longer accept Premium Processing Service (PPS) for all H-1Bs, except for H-1B extensions with the same employer or H-1Bs for cap-exempt institutions, such as Universities or research organizations.

Effective September 11, 2018, PPS will not be available for H-1B cap petitions and H-1B amendments.  The ban on PPS will continue until February 19, 2019. 

The justification for the ban on PPS is to reduce overall H-1B processing times.  

If you are asking yourself how eliminating a fee-based premium processing service will reduce processing times, you are not alone.  The PPS is supposed to pay for itself.  This is yet another example of an agency that cannot get out of its own way.

USCIS BACKTRACKS: STEM OPT EMPLOYMENT AT THIRD PARTY WORKSITES IS NOW PERMITTED

USCIS has updated its Optional Practical Training Extension for STEM Students (STEM OPT) webpage indicating STEM OPT participants may engage in training experience at third party worksites as long as the all of the training obligations are met.  The employer must maintain a bona fide employer/employee relationship with the student.  Previously the USCIS had said that STEM OPTs could not work at third-party locations. 

Any material changes in the student’s employment must be reported to the Designated School Official (DSO) within 5-10 business days.  These changes include any modifications to the training listed on the I-983, a change in the employer’s name or address, and termination of the student’s employment.

The USCIS’ backtracking was likely a result of a lawsuit filed in federal court.  That lawsuit, ITServe Alliance v. Nielsen, was filed by Attorney Jon Wasden.  Jon, who is a friend of MU Law, previously worked for the USCIS’ AAO Office.  He has filed several lawsuits on behalf of H-1B employees and H-1B employers.  If you have an egregious denial decision and would like to have Jon review your case, please contact him or contact MU and we an put you in touch with him.

DO NOT LET YOUR VISA SCREEN EXPIRE

The USCIS requires Healthcare Worker Certificates, sometimes called Visa Screens are required for foreign-born healthcare workers who will be employed in the US in the following professions:

• ·         Nurses (including LPNs, vocational nurses, and RNs);
• ·         Physical Therapists;
• ·         Occupational Therapists;
• ·         Speech-Language Pathologists and Audiologists;
• ·         Medical Technologists or Clinical Laboratory Scientists;
• ·         Medical Technicians or Clinical Laboratory Technicians; and
• ·         Physician Assistants.

A valid Visa Screen must be provided to the USCIS when the healthcare worker applies for entrance to the US, change of status, extension of status, or adjustment of status (a green card application).  In light of the USCIS’s new policies regarding the issuance of Requests for Evidence (RFE), Notice of Intent to Deny (NOID), and Notices to Appear (NTA), healthcare workers are advised to not let their Visa Screens expire. 

In the past, if an H-1B extension was filed without a valid Visa Screen, the USCIS would generally send an RFE to request it.  Under the new USCIS new policies, the lack of a valid Visa Screen would be grounds for immediate denial.  Further, with the new NTA policy, if the healthcare worker’s I-94 has expired at the time of the denial, the worker could be put into deportation proceedings immediately.

MU strongly advises healthcare workers to timely renew their Visa Screens so that they can continue to maintain their immigration status and their ability to work in the US.

SEPTEMBER 2018 VISA BULLETIN: DON'T PANIC! ALL WILL BE FIXED ON OCT 1

 DON'T PANIC ABOUT THIS VISA BULLETIN!

We invite you to read our FAQ on August and September Visa Bulletins

The Department of State has just issued the September 2018 Visa Bulletin.  This is the final Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.  

September 2018 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.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	01JUN16	01JAN12	01JAN12	01JUN16	01JUN16
EB-2	01JAN13	01JAN13	01JAN07	01JAN13	01JAN13
EB-3	01NOV16	01JUL14	01JAN03	01NOV16	01NOV16

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	C	C	C	C
EB-2	C	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

MU Law Analysis (all references are to Table A unless noted)

This Visa Bulletin retrogressed all categories several years.  This is the Department of State's signal that all employment-based visas have been used for this fiscal year.  This is normal and happen at the end of each fiscal year.  The new fiscal year starts on October 1, 2018.  This Visa Bulletin includes a note confirming that "the implementation of the above mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August."

Accordingly, things will return to normal on October 1, 2018.

USCIS CREATES NEW NTA POLICY

On June 28, 2018 the USCIS issued a memo regarding Notices to Appear (NTA) in a wider range of cases.  On July 30, 2018, the USCIS indicated this memo’s implementation would be delayed until further guidance regarding its administration can be issued.

Under the new memo, USCIS Officers are now mandated to issue (NTAs for cases where the individual is removable because there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the US.  An NTA initiates deportation proceedings and instructs the foreign national to appear before an Immigration Judge.  Even if issuance of the NTA is erroneous, there is a five year ban to re-entering the US if the foreign national departs the US while deportation proceedings are on-going.  NTAs will be sent to the employee’s last known address and not to the H-1B attorney.

Unlawful presence accrues if the previous I-94 card has expired from the date of denial of the new immigration petition forward.  For example, an H-1B worker is considered unlawfully present when the request for an H-1B extension is denied and the prior H-1B has already expired.

o   180 days to 364 days of unlawful presence results in 3 year bar of return to US

o   365 days+ results in 10 year bar of return to the US

This would most commonly apply to cases where the foreign national’s I-94 has already expired and their extension case denied.  For example: the employee’s I-94 expires on May 1; extension filed February 1, but is pending for 9 months until November.  In November the H-1B extension is denied.  The employee now has an expired I-94 card and is deportable.

Appealing the H-1B denial is generally not advised as the Appeals Office has a 90%+ rate of upholding the USCIS denials and a pending appeal does not stop accrual of unlawful presence or protect the worker from deportation. 

MU recommends the following in light of this new policy:

o   File extension petitions as early as possible

o   Use premium processing service to ensure a quick decision

o   Employees who are porting from one H-1B employer to the next may want to wait until the new H-1B case is approved to resign and begin work with the new employer

o   F-1 to H-1B applicants should maintain their underlying OPT, including STEM OPT, until H-1B approval

o   Those applying for green card through adjustment of status (AOS) should maintain their underlying status until AOS is approved

o   Foreign nationals should keep their address up-to-date with USCIS, even when leaving the US

Finally, this policy is expected take the focus of USCIS from adjudicating petitions and to create lengthier delays.  MU will alert clients once the memo has been implemented.

USCIS ISSUES NEW MEMO ON RFE AND NOID ISSUANCE

On July 13, 2018 the USCIS issued a memo indicates USCIS adjudicators now have full discretion to deny applications, petitions, and requests without first issuing an Request for Evidence (RFE) or Notice of Intent to Deny (NOID), when appropriate. 

Applicants must include all required initial evidence, as listed in operating procedures, form instructions, or regulations with their immigration petition or application.  In some cases a second RFE or NOID may be issued.  Reuters reports RFE and NOID issuance is up significantly in the last year.

Apart from RFEs, Officers have the discretion to validate assertions or corroborate evidence and information submitted with an immigration application by consulting USCIS or other governmental files, systems, and databases, or by obtaining publically available information that is readily accessible. 

It is unclear how strictly this new policy will be enforced. MU recommends employers work to get all documentation for a case, including end-client documentation, upfront in the initial filing and advises employers to file extension cases as early as possible.  MU encourages employers to closely review all template language in support letters and immigration forms as well as on the employer’s website and other publicly available information about the employer.

USCIS NTA MEMORANDUM IMPLEMENTATION DELAYED

On July 30, the USCIS announced that it will delay the implementation of a recent memo regarding the issuance of Notices To Appear (NTAs) to foreign national who fall out of status when their immigration petition is denied.  The issuance of an NTA initiates deportation proceedings.

On June 28, 2018 the USCIS issued a new policy memorandum which instructed USCIS Officers to initiate deportation proceedings for those foreign nationals’ whose immigration petition was denied after their I-94 card had already expired.  Generally, when the USCIS creates a new policy the USCIS delays implementation of the policy until a guidance memo can be issued.  The June 28, 2018 memo did not give a date specific on which the policy would be implemented, meaning it would be implemented immediately.

Today's announcement indicates the new NTA policy not be implemented until the USCIS guidance is issued.  The announcement also confirms that USCIS is not currently initiating deportation proceedings for those whose immigration petitions are denied after their I-94 cards expire.

For more information on this new policy please join us on Wednesday, August 1, for a teleconference on this new policy and other updates from the USCIS: REGISTER

MU TELECONFERENCE: USCIS NEW POLICIES UPDATE

The USCIS has recently issued new policies regarding Notices to Appear (NTAs), Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs).
 ______________________________________

Please join MU Law for a teleconference regarding these topics of new policy.
 

REGISTER HERE

The agenda for the call is as follows: 

• Under this new guidance, when will the USCIS issue an NTA and initiate deportation proceedings?
• When are foreign nationals “unlawfully present” in the US and what are the consequences?
• What if I do not receive the NTA or leave the US once my immigration application is denied?
• When will the USCIS issue an RFE?  A NOID?  A denial? 
• What initial evidence is required for an immigration application?
• Can a second RFE or NOID be issued?

______________________________________

This teleconference is free for MU Law clients and friends of the firm. We look forward to speaking with you! 

AUGUST 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

The Department of State has just issued the August 2018 Visa Bulletin.  This is the eleventh Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.  The August and September Visa Bulletins always are a little unusual.  We invite you to read our FAQ on these Visa Bulletin.  

August 2018 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.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	01MAY16	01JAN12	01JAN12	01MAY16	01MAY16
EB-2	C	01JAN15	01MAR09	C	C
EB-3	C	01JUL14	01JAN09	C	01JUN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	C	C	C	C
EB-2	C	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

MU Law Analysis (all references are to Table A unless noted)

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future. The EB-1 retrogression is temporary and is because of the reasons listed on the above-linked FAQ.

China (mainland-born):  China EB-3 (Chart A) moved favorably by 18 months.  This move was done to spur filings in this category before the end of the fiscal year.

India:  As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018.  EB-3 continued its steady progress, improving by to months.  India EB-3 should continue to steady progress into FY 2019.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 improved by 6 months, which is terrific, but probably temporary.  The DOS is trying to encourage filings in this category before the end of the fiscal year.  The EB-1 retrogression is of no consequence, and is simply reflective of the fact that all countries' EB-1 demand was higher than expected in FY2018. It will be Current in October 2018.