JULY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

July 2019 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	22APR18	08MAY17	01JAN15	22APR18
2nd	C	01NOV16	24APR09	C
3rd	C	01JAN16	01JUL09	C

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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	01SEP18	01OCT17	01OCT17	01SEP18
2nd	C	01FEB17	01JUN09	C
3rd	C	01JUN16	01APR10	C

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

All Other: The EB-1 category stayed still.  We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

China:  China EB-1 moved three months.  China EB-2 moved 3 months, a fifteen-month progression so far in 2019’s calendar months.  EB-3 also moved ahead about three months -- which reflects continued demand in EB-3, likely related to the many EB-3 “downgrades”.  EB-2 remains superior to EB-3.

India: There was very little movement in any of the Indian categories.  EB-1 will almost surely not move in FY 2019.  We do not expect any significant Indian movement this fiscal year.  Longer term, we are slightly more optimistic about India EB-3, which should progress faster than EB-2.

Philippines: The EB-3 is current!  We do not expect any retrogression in the near future.  Great days for Philippine employment-based nationals.

US DEPARTMENT OF STATE ADDS QUESTION REGARDING SOCIAL MEDIA ACCOUNTS

The US Department of States (DOS) has added a question to both the immigrant visa application (DS-260) and non-immigrant visa application (DS-160) asking for the applicant’s social media information.  Specifically, the form asks which social media platforms the applicant has used in the last five years and provides a dropdown with a list of options.  Once the platform is selected, the form requires the applicant provide his/her username or handle for the social media account.  The US DOS will review any social media the applicant uses to collaborate, share information, and interact with others in an effort to heighten security and further vet applicants for entrance to the US. 

VISA BULLETIN PREDICTIONS: PHILS EB-3 TO BE CURRENT

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts regular 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.

In May he presented at the Federal Bar Association – Immigration Law where he outlined his expectations for future Visa Bulletins.

Here are some of his expectations:

Philippines

Philippines EB-3 will become current with the publication of the July Visa Bulletin.  It is expected to remain current well into the next fiscal year.  Philippines EB1 and EB-2 will also remain current.

India

Both EB-2 and EB-3 categories will only have slow progressions for the foreseeable future.  While lower Worldwide EB-2 demand may allow some advancement, it does not appear that this will be the case or EB-3.  EB-1 will also not advance, although EB-1 should return to Feb 2017 with the start of the next fiscal year.

China

China EB-3 should advance into 2016 with the next Visa Bulletin.  China EB-2 will move into late 2016.  The inversion of these dates is no longer likely. 

Worldwide

EB-3 will remain current for the foreseeable future.  EB-2 may have a slight retrogression later in the summer.  The EB-1 date will remain unmoved.

TRUMP FIRES USCIS CHIEF AND NOMINATES CONTROVERSIAL REPLACEMENT

Over the Memorial Day weekend, President Trump fired USCIS Director L. Fracis Cissna and replaced him with a one-time Virginia candidate for Governor, Ken Cuccinelli.  Cuccinelli has been an outspoken critic of legal immigration.  Danielle Spooner, the president of the American Federation of Government Employees union representing USCIS employees, criticized President Trump’s decision, “the resignation of Francis Lee Cissna as Director of USCIS and the possible appointment of Ken Cuccinelli as his successor spells the end of legal immigration as it currently exists.” 

It remains to be seen if the President follows through on yet another controversial hire, or backs off after learning more about the candidate, as he has done in about 50 other high-level appointments.  Notably, ICE has not had a confirmed permanent Director in the entirety of the Presidency.  Earlier in the year, President Trump withdrew Ron Vitiello’s nomination, after the ICE officer’s union opposed the nomination.  It would not be surprising to see this nomination and appointment process to take all summer.

Under Director Cissna, H-1B denial rates have skyrocketed, despite no change in law, leading to lawsuits challenging error-prone decisions.  MU Law has worked with clients to file lawsuits on 17 different erroneous decisions, winning 16 victories, with one case remaining open.  It remains to be seen if Nominee Cuccinelli will seek to double down on outgoing Director Cissna’s failed policies.

USCIS FINISHES H-1B LOTTERY

USCIS has finished the data entry for all FY 2020 H-1B cap-subject petitions.  Musillo Unkenholt continues to see H-1B checks being cashed and continues to receive H-1B receipt notices in our mail.  Therefore H-1B cap-subject petitioners should not lose hope yet if they have not received an H-1B receipt notice.  We expected that we will continue to see H-1B receipts for the next two weeks.

After the final H-1B receipt notices are sent by USCIS, they will begin returning all H-1B cap-subject petitions that were not selected.  In past years it has taken USCIS 1-2 months to complete this process.  Musillo Unkenholt does not expect the final H-1B returns until late June or early July.

JUNE VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

June 2019 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	PHILIPPINES
EB-1	22APR18	22FEB17	01JAN15	22APR18
EB-2	C	01AUG16	19APR09	C
EB-3	C	15SEP15	01JUL09	01NOV18

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	PHILIPPINES
EB-1	01SEP18	01OCT17	01OCT17	01SEP18
EB-2	C	01NOV16	01JUN09	C
EB-3	C	01JAN16	01APR10	01JAN19

  

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

All Other: The EB-1 category moved about 7 weeks.  We expect continued steady movement in this category for All Other.  We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

China: China EB-2 moved 2+ months, moving more than one year so far in 2019’s calendar months.  EB-3 moved ahead half as fast – about three weeks -- which reflects continued demand in EB-3, likely related to the many EB-3 “downgrades”.  EB-2 remains superior to EB-3.

India: There was very little movement in any of the Indian categories.  EB-1 will almost surely not move in FY 2019.  We do not expect any significant Indian movement this fiscal year.  Longer term, we are slightly more optimistic about India EB-3, which should progress faster than EB-2.

Philippines: The EB-3 date leaped again.  It should be into 2019 shortly, and we do not expect any retrogression in the near future. 

USCIS BLOCKED FROM ENFORCING UNLAWFUL PRESENCE MEMO AGAINST F-1 AND OTHER STUDENTS

A federal district court judge has issued a nationwide preliminary injunction, effective immediately, which prohibits the USCIS from enforcing its "Accrual of Unlawful Presence and F, J, and M Nonimmigrants” Guidance Memo.  That memo penalized F, J, and M international students for overstaying or violating the terms of their visas in extremely harsh, unprecedented ways.  MU Law detailed that Guidance Memo in September. 

This is great news for F, J, and M nonimmigrants, including those who trained under CPT and OPT.

NATIONAL NURSES WEEK

MU Law is pleased to recognize that this week is National Nurses Week.  National Nurses Week is a weeklong celebration of the significant contributions that nurses have and continue to make in America.  Nurse.com has a webpage specially dedicated to National Nurses Week. 

The special section focuses on the 200^th birthday of Florence Nightingale.  Beyond her heroic work in the Crimean War, Nightingale is credited with professionalizing the role of nurses. 

Beyond highlighting the work of Nightingale, the section has articles on nursing ethics, nursing academics, career development, and advocacy.  It is worth your time to spend a little while on the page. 

And to all the nurses who read this page.  THANK YOU for all that you do!

DOS: “CONTINUED AGGRESSIVE ADVANCEMENT” IN PHILIPPINE EB-3

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association.  Charlie 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.

In this month’s “Check In With Charlie,” Mr. Oppenheim discussed Philippine EB-3, saying that Beneficiaries “should expect continued aggressive advancement in this category for the foreseeable future.”  He noted that there has not been an increase in demand for these visas.  Because of this lack of demand, “retrogression is unlikely to happen this FY since there are numerous visa numbers available in this category and it is already the third quarter of the federal FY.”

Other notes of interest:

EB-1: there should be little or no movement in any EB-1 category.

EB-2 Worldwide: will continue to be Current for the foreseeable future.

EB-2 and EB-3 India: slow or little progressions of one week or less, although EB-3 could move a little faster.  There has not yet been a surge of EB-2s “downgrading” to EB-3.

EB-2 and EB-3 China:  EB-2 could advance several months at a time, while EB-3 will advance a few weeks at a time.

MAY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

May 2019 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	PHILIPPINES
EB-1	01MAR18	22FEB17	22FEB17	01MAR18
EB-2	C	15MAY16	16APR09	C
EB-3	C	22AUG15	22JUN09	01JUN18

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	PHILIPPINES
EB-1	01SEP18	01OCT17	01OCT17	01SEP18
EB-2	C	01SEP16	01JUN09	C
EB-3	C	01JAN16	01APR10	01OCT18

  

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

All Other: The EB-1 category moved one month.  We expect continued steady movement in this category for All Other.  We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

China: China EB-2 moved six weeks, moving about one year in 2019’s calendar months.  EB-3 moved ahead half as fast – about three weeks -- which reflects continued demand in EB-3, likely related to the many EB-3 “downgrades”.

India: There was very little movement in any of the Indian categories.  EB-1 will almost surely not move in FY 2019.  We are slightly more optimistic about India EB-3, which should continue to progress faster than EB-2.

Philippines: The EB-3 date showed great progress, improving three more months.  This continues a great year for EB3.  We expect continued accelerated progress in June’s Visa Bulletin.

USCIS RECEIVES 201,011 H-1B CAP PETITIONS

USCIS announced that it received 201,011 petitions during the filing period, including petitions filed for the advanced degree exemption.  This is notably more than the 190,000 H-1B petitions received during the April 2018 filing period).

USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 36% of their H-1B cap filings (non-US masters degrees) to be H-1B cap winners.  Based on prior years, we will receive H-1B lottery winner receipts throughout April and May.  Starting in June, we will receive the H-1B lottery loser petitions.  Traditionally if you do not receive a winner receipt notice by June 1, you have probably lost the H-1B lottery.

H-1B CAP 2019 HAS BEEN REACHED

As expected, USCIS has received more than 85,000 H-1B cap-subject petitions on the very first day of H-1B cap filings.  They did not specify how many H-1B cap-subject petitions were received.  We expect to know the overage within the next few weeks.  Last year, the announcement happened on April 13.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. USCIS will continue to accept and process petitions filed to:

   •  Extend the amount of time a current H-1B worker may remain in the

       United States;

   •  Change the terms of employment for current H-1B workers;
   •  Amend the H-1B petition to notify the USCIS of the filing of a new LCA  

      and/or geographic change in employment;

   •  Allow current H-1B workers to change employers; and
   •  Allow current H-1B workers to work concurrently in a second, 

      contemporaneous part-time H-1B position. 

SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

All H-1B cap cases must be filed by April 1, 2019.  In anticipation of that deadline, here are seven things to remember about the H-1B cap.

 

1. These types of cases are subject to the 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.

 

2. These types of cases that 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

·     MDs who have received a J-waiver of their 2 years foreign residency requirement.

·     H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

 

3.  Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs an H-B cap lottery, including all cases.  This is for the 65,000 H-1B regular cap slots.  Then, the USCIS runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. 

 

4.  Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

 

5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

 

6.  We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

 

7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible, the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.