VISA BULLETIN PROCESSING TIMES COULD SPEED UP IN 2018

NVC and Consular Processing green card processing times could speed up in 2018 due to an unintended consequence of the Trump administration’s new requirement that all I-485, Adjustment of Status candidates must now undergo a green card interview . 

Why? The USCIS will take longer to process Adjustments of Status in 2018 because of the new interview requirement.  Because of the elongated I-485 processing times, USCIS will be able to process fewer green card approvals in 2018.  As a result, more green card numbers will spill over into Consular Process queue.

We often see this phenomenon in the summer months, as we approach the end of a fiscal year.  The DOS accelerates the Visa Bulletin in order to ensure that it uses the full allotment of employment-based visa numbers.  We explained this phenomenon in a 2016 MU Law FAQ.

Unsurprisingly, Charlie Oppenheim, the DOS’ guru on immigrant visa number allocation, recognized that the new I-485 interview rule may delay I485 green cards during his October 2017 AILA “Check In With Charlie”.

MEMBER QUESTION #1: When does USCIS request and allocate a visa number to an individual case?

ANSWER #1: Per the agreed upon policy, USCIS will only request an immigrant visa number once all required processing is 100% complete, including conducting any required interview, receipt of a complete medical exam, all required clearances, etc.

MEMBER QUESTION #2: Could you please confirm that a visa number that gets allocated to each applicant who has successfully passed the interview should be preserved for that applicant unless the applicant becomes ineligible for permanent residence?

ANSWER #2: With regard to USCIS, though this is relatively rare, there are occasions in which USCIS requests a number, but before the adjustment of status application is fully processed, subsequent derogatory information comes to the officer’s attention which impacts eligibility. As another example, USCIS recently sent RFEs out on numerous EB-3 India cases which had been preadjudicated in anticipation that the final action date for this category would advance during August and September. Visa numbers were provided for those cases with the expectation that the applicants would respond to the RFEs in time to be approved before the end of the fiscal year. Unfortunately, hundreds of individuals did not respond in a timely manner, and USCIS determined that it would be unable to complete adjudication of those cases prior to September 30, 2017. Those cases were returned to “pending demand” status, and the visa numbers for those cases became available to other cases within FY 2017. USCIS was provided with a new number for each case once the requested evidence was received and successfully processed. As a result of new visa number requests for several hundred of these cases, the final action date for EB-3 India is not currently advancing. For consular processing cases, a visa number is allocated to a consular post for use during the month in which the visa applicant is originally scheduled for a visa interview. If the visa is not used during that month (i.e. the case is placed in administrative processing), the number is returned to the Visa Office at the end of the month.

SF CHRONICLE: TRUMP TO ELIMINATE H-4 EADs

The San Francisco Chronicle reports that the Trump administration plans to rescind the H-4 EAD rule.  The H-4 EAD rule, which has existed for 2+ years, allows H-4 spouses of H-1B workers to work, provided that the H-1B primary spouse has completed the I-140 stage of the green card process.  The Chronicle reports that 41,526 H-4 spouses earned work authorization through the program in the fiscal year through September 2016.

The recession of the H-4 EAD rule is being pressed because of a lawsuit that questions whether USCIS ever had the legal authority to create the 2015 enabling rule.  In a Motion made during the lawsuit, the administration hinted at the fact that they are in the processes of drafting a new rule that would rescind the H-4 EAD rule.

A new rule however would have to go through the notice-and-comment period, which would delay the implementation of the rule.  Notice and comment periods can take anywhere from a few months, to many years. 

DECEMBER 2017 VISA BULLETIN: ANALYSIS

The Department of State has just issued the December 2017 Visa Bulletin.  This is the third Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

December 2017 Visa Bulletin

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	C	C	C	C	C
EB-2	C	01JUL13	01NOV08	C	C
EB-3	C	08MAR14	15OCT06	C	15JAN16

MU Law Analysis

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.

China (mainland-born):  Both China EB-2 and EB-3 progressed about one month.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.

India:  India EB-2 progressed about one month, which is what we except the monthly progressions will be in FY 2018.  Unfortunately, India EB-3 did not move.  Recently, the DOS said that EB-3's progression will be "limited."  MU suspects that EB-3 will not progress at any notable rate until at least the India EB-3 date moves past the Visa Gate date of August 2007.

Mexico: Mirrors All Other in analysis.

Philippines: The Philippine EB-3 date stayed in January 2016, reflecting the fact that demand for the Philippine EB-3s recommenced heavy demand in 2016.  This increased demand will be the cause for slower progressions in the FY2018, progressing no more than 1-2 months per Visa Bulletin.

REUTERS: NURSING CRISIS STRAINS U.S. HOSPITALS

Reuters reports that health care facilities all across the US are facing dire nurse staffing shortages, which are leading to increased expenses related to staffing.  They interviewed over 20 hospitals across the US and found nearly universal concerns tied to a lack of nurses.  

Reuters cites a Staffing Industry Analysts report that says that the “cost nationwide for travel nurses alone nearly doubled over three years to $4.8 billion in 2017”.  For instance, “university-affiliated J.W. Ruby Memorial Hospital in Morgantown is spending $10.4 million in 2017 compared with $3.6 million a year earlier to hire and retain nurses.”

The article highlights the classic reason for the shortage, which have long been on the industry’s radar.  For instance:

Baby Boom Generation Demand.  The US Baby Boom generation, those born 1946-1964, has reached an age where they will increasingly demand nursing services.  As The Atlantic points out:

Today, there are more Americans over the age of 65 than at any other time in U.S. history. Between 2010 and 2030, the population of senior citizens will increase by 75 percent to 69 million, meaning one in five Americans will be a senior citizen; in 2050, an estimated 88.5 million people in the U.S. will be aged 65 and older.

Aging Nursing Workforce.  Out of the 3 million US nurses, one million are over age 50 and will be expected to retire in the next 10-15 years.

Few Nurse Educators.  Nursing Ph.D. programs have been unable to attract nursing faculty.  These nurses Ph.D’s have traditionally made up large numbers of nursing school faculty.  Part of the reason for this is that a Bachelor nursing graduate is usually offered a job at graduation, thus reducing that graduate’s incentive to seek out graduate nursing education.  Without a dramatic increase in nurse faculty, it will be impossible for the US to supply enough nurses to meet the demand.

Distribution Challenges.  Some of the American nursing problem stems from the lack of mobility ion the nursing force.  Nurses are often unwilling to leave their hometowns for jobs in rural areas or high-nurse demand areas, even if those positions pay better.

Lack of Foreign-Nurses.  Because of a terribly though-out US immigration policy, it takes a nurse from the Philippines many years to legally obtain a visa, in spite of the nursing shortage.  The Philippines has traditionally been the greatest supplier of US nurses.  The story is even worse for India, which would certainly be able to supply the US with many nurses if it did not take 10 years for a fully-qualified nurse to obtain a US visa.  As a result of the lack of US nursing visa options, foreign-trained nurses have declined sitting for the US licensing exams. 

DIVERSITY VISA LOTTERY PROGRAM

After the tragic terrorist attack in New York, President Trump recommended eliminating the Diversity Visa Lottery program (DV Lottery).  Many of our blog readers have likely not heard of the DV Lottery.  Here are some key points about the DV Lottery:

• The DV Lottery was established by an Act of Congress in 1990.  Fifty Thousand green cards are allocated to the DV Lottery and are reserved for countries with a historically low rate of immigration to the US. The DV Lottery countries are identified each year by the US Department of State.
• DV Lottery applicants must register on-line for the lottery.  There is no fee to register or apply for the DV Lottery.
• In addition to being a native of one of the named countries, DV Lottery applicants must meet certain educational or skilled work requirements. 
• In 2015, which is the last year for which we have statistics, close to 14.5 million people around the world applied for the 50,000 DV Lotter green cards.
• Those who are selected will be notified through the Entrant Status Check, E-DV Website.  DV Lottery winners are never notified by hard copy mail or email.  There is widespread fraud around the DV Lottery program, so applicants must ensure that their notification of lottery winning is in fact from the US Department of State.
• DV Lottery winners must still meet all eligibility requirements before obtaining a green card.  The requirements include the same security screening undergone by family-based and employment-based green card applicants before obtaining a green card. 
• In addition to the standard screening, all DV Lottery winners must appear for an in-person interview with an Immigration of Embassy Officer.
• If processing of the DV Lottery winner’s application cannot be completed before the end of the US government’s fiscal year, due to background checks, resource limitations, or other issues, the DV Lottery winner's application will be denied, and the opportunity to obtain the green card will be lost.