CISSNA’S FIRST ACT: CONTINUE ASSAULT ON BUSINESS IMMIGRATION

New USCIS Director L. Francis Cissna’s first act as USCIS Director is to rescind a 2004 Memorandum that had eased burdens on nonimmigrant extension petitions.  In its place, USCIS issued a Memorandum instructing officers to revisit all prior findings of fact and law in extension petitions.  USCIS says that this new policy is, “more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers.”

Accordingly, employers and employees should expect delays in the adjudication of extension petitions. This new Memorandum will be used as authority for increased RFE and denials. 

AFTER LONG DELAYS CISSNA SWORN IN AS DIRECTOR OF USCIS; NIELSEN NOMINATED FOR DHS

To little fanfare, L. Francis Cissna was finally sworn in as Director of the USCIS.  Pres. Trump originally nominated Cissna in April.  There was little news coming out of Washington explaining the delay in Cissna’s appointment.  The lack of information led to plenty of speculation about the delay.  Cissna served in various capacities within the Department of Homeland Security, most recently as the Director, Immigration Policy within the DHS Office of Policy,

Delayed appointments are nothing new for this administration.  The DHS has been without a leader since Secy. Kelly became Pres. Trump’s Chief of Staff in July.  The administration finally nominated Kirstjen Nielsen earlier in October, more than two months since Secy. Kelly’s promotion.

Axios did not have favorable reporting on Ms. Nielsen,

“Nielsen is not a beloved figure at DHS; just as she wasn't inside the White House. She has a very sharp-elbowed approach to doing business and doesn't command anywhere near the respect that her predecessor, Kelly, did, according to more than half a dozen sources who've worked with her.”

NOVEMBER 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

November 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	15JUN13	08OCT08	C	C
EB-3	C	01FEB14	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):  China EB-1 reverted to Current.  Our sense is that it will stay Current for much of the fiscal year.  Both China EB-2 and EB-3 progressed 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.  A few weeks ago, 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 number essentially cleaned out all of the 2010 through 2015 EB-3 visas in FY2017.  The demand for Philippines EB-3 numbers increased dramatically in 2016-17.  This increased demand will be the cause for slower progressions in the FY2018, probably progressing 1-2 months per Visa Bulletin.

NEW STREAMLINED PROCESS TO OBTAIN SIMULTANEOUS EAD AND SSN

Effective October 1, 2017, the US Citizenship and Immigration Service (USCIS) and the Social Security Administration (SSA) have instituted a new information-sharing partnership allowing foreign nationals to apply for an EAD (Employment Authorization Document) and a SSN (Social Security Number) at one time and on one form.

This should be helpful for those lawfully in the US and who are eligible for work authorization via an EAD, but who have previously not had social security numbers.  H-4/EAD, L-1/EADs, and spouses and children applying for I-485/EADs are some examples of people who will benefit from this new process.

EADs are documentation of the individual’s work authorization and can be shown to employers to satisfy the I-9 and e-verify tests.  EADs permit the foreign national to work for a finite period of time, listed on the EAD card.  SSNs are used to report wages to the government and to determine the individual’s eligibility for certain government benefits. 

Under the previous system, foreign nationals had to first obtain an EAD and then go to their local SSA Office and apply for an SSN separately.  The revised EAD Application (Form I-765) allows applicants to apply for an SSN or a replacement SSN card without visiting the SSA Office.  The USCIS will now transmit the SSN data to the SSA for processing.  Applicants will receive their EAD from the USCIS and their SSN card from the SSA within two weeks.

USCIS WILL RESUME PPS FOR ALL H-1B PETITIONS ON OCTOBER 3

AILA is reporting that USCIS will resume Premium Processing Service (PPS) for H-1B petitions, effective October 3.  Accordingly, PPS will again be allowed for H-1B transfers, amendments, and extensions.

USCIS previously restarted PPS for H-1B cap-subject petitions on September 18.  Earlier this summer, USCIS resumed PPS for H-1Bs for cap-exempt employers (e.g. research entities and universities), and H-1Bs for doctors.

USCIS allows an upgrade for previously filed a petition.  If you have filed an H-1B petition and would like your petitioned upgraded to PPS, please contact your MU attorney or staff member.

PRESIDENT TRUMP’S NEWEST TRAVEL BAN

On Sunday, September 24, 2017, President Trump made a Presidential Proclamation  regarding enhanced vetting for visa applicants from certain countries.  The Proclamation has been called the “Travel Ban 3.0” by reporters and commentators.  The Proclamation will go into effect on October 18, 2017 at 12:01 AM ET.

The Proclamation puts restrictions on the issuance of visas to nationals of certain countries until those countries meet the US government’s requirements for information sharing about visa applicants.  No visas will be revoked under the Proclamation.  The affected countries and visa types are:

·         No B1/B2 tourist visas will be issued to nationals of:

o   Yemen

o   Chad

o   Libya

·         B1/B2 tourist visas will not be issued Venezuelan government officials and their family members.

·         No visas will be issued to nationals of Iran, with the exception of F, M, and J visas which will only be issued after extra scrutiny. 

·         No immigrant visas (green cards) will be issued to individuals from Somalia.  Non-immigrant visas (i.e. F, J, H-1B, L-1) will be issued, but only with extra vetting. 

·         Lastly, no visas, of any type, will be issued to nationals from Syria or North Korea.

In response to the President’s Proclamation, the Supreme Court cancelled the oral argument on the earlier version of the travel ban, scheduled for October 10, 2017.  The Supreme Court asked the attorneys in the case to submit briefs as to whether the travel ban issue is now moot.  When a policy expires and a new policy is put in place, the challenge to the old policy can be “moot” meaning it is no longer debatable because the old policy has expired.  

VISA BULLETIN ANALYSIS, PREDICTIONS THROUGH 2017

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.

This month’s Check In With Charlie featured projections for EB2 and EB3, which are the most popular categories for readers of this Blog.  Here are some of this month’s highlights, along with our analysis:

EB-2 and EB-3 Worldwide.  These categories will remain current for the foreseeable future.

EB-2 India.  This category is expected to progress one month at a time.  It should move into 2009 sometime in early 2018.

EB-3 India.  This category will not progress in November because of heavy demand at the end of the last fiscal year.  It may slowly progress in December.

EB-3 Philippines.  In FY 2018, we will not see this category move nearly as fast as it did in FY 2017.  Phils EB-3 is expected to progress 1-2 months per Visa Bulletin in the future.

DOS NOW REQUIRES 90 DAYS BEFORE CHANGING OR ADJUSTING STATUS

The United States Department of State (US DOS) recently released a policy change to its Foreign Affairs Manual (FAM).  Going forward, any visa holder who engages in conduct inconsistent with the terms of his/her visa within 90 days of entrance to the US is presumed to have willfully misrepresented him or herself to the Consular Officer at the visa application interview and/or to the Border Officer when entering the US. 

Conduct that violates or is inconsistent with status, may include:

• Engaging in unauthorized employment
• Enrolling in a course of study if study was not authorized for that classification (e.g. Entering the US in B1/B2 status and taking classes before 90 days)
• Marrying a US Citizen or lawful permanent resident (green card holder) and taking up residence in the US.

Non-immigrant intent is required for most visas -- with a noted exception for those holding H-1B and L-1 status.  Individuals entering the US on other types of visas, for example an F-1 student visa, a TN or E work visa, or a B-1/B-2 tourist visa, must have the intent to return to their home country at the end of their authorized period of stay in the US.

Other than H-1B and L-1 visa holders, Individuals entering on a visa should wait at least 90 days after entrance to the US before taking any steps toward a green card application. 

The previous US DOS policy indicated actions inconsistent with status taken within 30 days of entry were presumed fraudulent and actions inconsistent with status taken between the 31^st and 60^th day after entry were presumed fraudulent, but the presumption could be overcome. 

We recommend that you consult with your MU attorney before making any international travel plans, no matter your status.

MU’S MARIA SCHNEIDER AUTHORS ALABAMA ASSOCIATION OF REALTORS NEWSLETTER ARTICLE

Maria Schneider, MU’s Senior Associate, recently authored an article for the Alabama Association of Realtors Newsletter. 

Schneider’s article focused on immigration updates under the Trump Administration pertinent to those buying and investing in real estate.   The article outlined recent legislative proposals and executive actions, and how these would affect real estate brokers, agents, buyers, and sellers.  Schneider closed the article by outlining visa options available for investors in the United States. 

The Alabama Association of Realtors is the largest statewide organization of real estate professionals in Alabama.  Members of the Association work as real estate professionals in the sale, lease, appraisal, and development of residential, rural, and resort properties throughout the state of Alabama.  The Association is the official voice and advocate of Alabama’s multi-faceted real estate industry and provides members continuing education, public policy advocacy, annual meetings and conferences, as well as several other services.

USCIS RESUMES PPS FOR H-1B CAP PETITIONS

USCIS has resumed Premium Processing Service (PPS) for H-1B cap-subject petitions.  Presently, H-1B cap-subject petitions, H-1Bs for cap-exempt employers (e.g. research entities and universities), and H-1Bs for doctors are the only H-1B petitions that may use PPS.  H-1B transfers, amendments, and extensions currently are prohibited from PPS.

USCIS’ press release said that it “plans to resume premium processing for all other remaining H‑1B petitions (i.e. H-1B transfers, amendments, and extensions) not subject to the FY 2018 cap, as agency workloads permit.”  The press release did not commit to a time frame for the resumption of PPS for these types of H-1B petitions.  However, in a June 2017 AILA Q & A, USCIS HQ indicated that it “anticipates” resuming H-1B PPS processing on or before October 4.  This comment did not delineate between H-1B cap petitions and other types of H-1B petitions, such as transfers, amendments, and extensions. 

The USCIS may have decided to prioritize H-1B cap-subject petitions in order to allow some F-1/OPT students to continue to work without work authorization beyond October 1.  Certain F-1/OPT students’ will lose work authorizing on October 1 if their H-1B cap-subject petition is not approved before October 1.  Please check with your MU attorney or staff member if you have questions.

OCTOBER 2017 VISA BULLETIN: ANALYSIS FOR 2017-2018

The Department of State has just issued the October 2017 Visa Bulletin.  This is the first Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.  The DOS has added some predication on future date movement.  We have encompassed those thoughts within our category comments.  

October 2017 Visa Bulletin

Applications with these dates may be approved for their Green Card (Permanent Residency card).

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	01JAN12	C	C	C
EB-2	C	22MAY13	15SEP08	C	C
EB-3	C	01JAN14	15OCT06	C	01DEC15

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression has long been effectively current, and is expected to remain current for the foreseeable future.

China (mainland-born):   The China EB-3 has again progressed faster than Chinese EB-2.  The DOS expects that EB-3 will progress at about 4 months per Visa Bulletin, while EB-2 will only progress one month per Visa Bulletin.

India:  The India progressions are steady, albeit slow.  EB-2 should progress one month per Visa Bulletin.  EB-3's progression will be "limited," in the words of the DOS.  MU suspects that EB-3 may finally breakout once the EB-3 date moves past the Visa Gate date of August 2007.

Mexico: Mirrors All Other in all aspects.

Philippines:    The Philippine EB-3 number essentially cleaned out all of the 2010 through 2015 EB-3 visas in FY2017.  Unfortunately the progressions will be considerable slower in FY2018, probably progressing 1-2 months per Visa Bulletin.  The demand for Philippines EB-3 numbers increased dramatically in 2016-17.  This increased demand will be the cause for the slower progressions in the FY2018.

USCIS MIND-NUMBINGLY TO REQUIRE IN PERSON INTERVIEWS FOR I-485s

The USCIS on Friday announced that all employment-based Adjustment of Status applicants (Form I-485) will now be subject to an in-person interview before the USCIS approves the green card.  Politico first reported the story.

This is a colossal waste of everyone’s time and money.  It shows this Presidential administration’s complete disregard for government efficiency when they have the option to pander to their base.  The USCIS is using “extreme vetting” as the rationale for this new in-person interview requirement.  In reality of course, his administration is anti-immigrant and uses any excuse it can muster to inconvenience and harass contributing immigrants.

How stupid is this policy change?  Employment-based I-485 applicants will have already been in the United States for years before this useless interview.  For instance, most Indian-born nationals average 10-15 years of US status before they are eligible to receive the green card.  Any damage that they wished upon the US would surely have happened in the 10-15 years before that interview.  Terrorists, as a class, are not the type of people who work at a gainful job for years, diligently file countless immigration papers, and have no criminal record, all of which is required before any such interview would happen.

The USCIS knows this, which is why they long-ago waived the interview requirement for employment-based immigrants.  Back then, USCIS recognized that in a government of scarce resources, its scarce resources could much better be used to find real threats to US.  This policy change reveals just how tone deaf the President is as to who actually contributes to the richness of American life and who are the actual threats. 

VISA BULLETIN: ANALYSIS FOR 2017-18

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.

This month’s Check In With Charlie featured projections for EB-2 and EB-3, which are the most popular categories for readers of this Blog.  Here are some of this month’s highlights, along with our analysis:

EB-2 Worldwide.  The Worldwide EB-2 should return to current in October and remain there for the rest of this calendar year.

EB-2 India.  This category is expected to use the full allotment of visas in September, which may result in the category becoming temporarily unavailable.  Charlie hopes to advance the final action date to December 2008 in the 1Q 2018.  It may advance into 2009 at some point in late FY2018.

EB-2 and EB-3 China. In FY2018, EB-2 and EB-3 will return to the prior inverted condition where China EB-3 has a smaller retrogression than China EB-3.  History tells us that this leads to China EB-3 “downgrades”.

EB-3 Worldwide.  This category will remain current or close to current for the foreseeable future.

EB-3 India.  This category will advance about one retrogress month by one real calendar month in FY 2018. 

EB-3 Philippines.   It is not expected that FY2018 will be as positive as FY2017 was to this category.  Charlie speculates, and Musillo Unkenholt can confirm based on our internal metrics, that progressions will slow in FY2018.  We expect an average of about a 1.5-2-year retrogression in FY 2018.  

MU’S MARIA SCHNEIDER TO SPEAK AT ALABAMA STATE BAR ASSOCIATION’S “LAWYER UNIVERSITY”

Senior Associate, Maria Schneider, will be speaking to attorneys in Birmingham on August 24, 2017 as a part of the Alabama State Bar Association’s Lawyer University.

Lawyer University is an initiative of the Alabama State Bar that monitors changing economic and technological trends affecting the state’s attorneys and helps the attorneys to obtain the practical skills needed to meet these challenges and trends.

Schneider will speak on the basics of business-based immigration and the shifting landscape under the Trump Administration.  Schneider will be joined by other lawyers, speaking on personal jurisdiction, cybersecurity, and electronic discovery.

SEPTEMBER 2017 VISA BULLETIN: ANALYSIS

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

NOTE: Please be sure to read our Post, "What does the August Visa Bulletin Mean?"

September 2017 Visa Bulletin

Applications with these dates may be approved for their Green Card (Permanent Residency card).

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	01JAN12	01JAN12	C	C
EB-2	01JAN16	15MAY13	22AUG08	01JAN16	01JAN16
EB-3	C	01JAN12	15OCT06	C	01NOV15

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The slight retrogression is temporary and will revert back to Current in October 2017.  The EB-3 progression has long been effectively current, and is, in fact, current in this Bulletin.

China (mainland-born):   The DOS instituted a retrogression for China EB-1 with the June Visa Bulletin, which remains.  The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017. 

The China EB-2 date again moved up, by about one month. The DOS recently noted that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date remains at January 2012, which is where it was in July.  It is now slower than China EB-2. 

India:  As with China, India EB-1 now is retrogressed.  It is expected that this EB-1 retrogression will last until October 2017. 

EB-2 India moved ahead by a month.  EB-3 India jumped into late 2006, which was a pleasant surprise.  The DOS is clearly trying to ensure that all visa numbers are used in FY2016. 

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead to November 2015!  This is yet another incredible  progression.   The Philippine EB-3 number essentially cleaned out all of the 2010 through 2015 EB-3 visas in less than one year.  This is even more positive than we expected.  

Our internal metrics see the Philippine EB-3 number continuing to progress at a rapid clip for the rest of 2017.

The retrogression of the EB-2 (Phils) number is nothing to be concerned about.  It will return to Current in October 2017.  Note that all EB-2s retrogressed, which reflects heavier demand than usual in the entirety of the EB-2 category.  

CINCINNATI IMMIGRATION CONFERENCE

Musillo Unkenholt Immigration Law is hosting a live in-person conference for business professionals in the Greater Cincinnati area on the topics of H-1Bs and immigration under the Trump Administration.

REGISTER HERE

This Cincinnati Immigration Seminar will feature these topics:

• ·         Business Immigration visas: H-1B, L-1, TN, OPT, F-1
• ·         Business Immigration Green Cards: PERM, I-140, I-485
• ·         Entrepreneur and investor options: EB-5, E-1, E-2
• ·         Immigration Compliance: I-9s, E-Verify, Public Access Files
• ·         Impact of Pres. Trump’s policies on business immigration
• ·         Legislative and Regulatory changes that may be on the horizon

The conversation will be led by MU's immigration lawyers who have a combined experience in immigration of over two decades.

The conference will begin at 8 AM and go to 10:30 AM. A courtesy continental breakfast will be provided at the beginning of the event.

Parking is available underneath the hotel in their parking garage, as well as on the streets surrounding the hotel.

Please do not hesitate to contact us via email with any more questions you may have regarding the presentation or our services.

WHAT IS GOING ON WITH THE CONFIRMATION OF THE NEW USCIS DIRECTOR?

In April Pres. Trump nominated Lee Francis Cissna to be the Director of the USCIS. USCIS is a sub-agency of the Department of Homeland Security. USCIS is tasked with processing immigration applications and petitions. The Director normally reports directly to the Secretary of the Department of Homeland Security. Because it is such an important position, any nomination for USCIS Director requires confirmation by the Senate.

Three months have now passed since the Cissna nomination. Although the President has complained loudly about Senate Democrats holding up confirmations, that does not seem to be the case with Mr. Cissna's nomination. 

In mid-May, Pro Publica reported that Mr. Cissna had spent much of the last few years ghost-writing letters on behalf of Sen. Grassley (R-IA).  These letters were aimed at dismantling much of Pres. Obama’s immigration policies. On May 31, Mr. Cissna testified in front of the Senate Judiciary Committee.  Three hundred immigration stakeholders have since pushed the administration to withdraw Mr. Cissna’s nomination.

Mr. Cissna’s confirmation hold-up does not entirely appear to be about the Cissna policies raised by Pro Publica. In fact, the confirmation hold-up was a leverage play by Sen. Thom Tillis (R-NC). Senate custom allows a single Senator to delay a confirmation. 

Why did Sen. Tills delay Cissna's confirmation?  Sen. Tillis wanted an increase of H-2B visas, which are temporary visas used in seasonal occupations. North Carolina uses more H-2B visas than 47 other states, trailing only Texas and Colorado. In mid-July, the President caved into Sen. Tillis’ demands and released an additional 15,000 H-2B visas. Only then did Sen. Tillis agree to lift his hold on the confirmation.

Yet Mr. Cissna’s confirmation continues to sit. Right-wing media, who are fans of Mr. Cissna’s views, are ramping up the pressure on the GOP Senate to move forward.

Because the Cissna nomination is still stuck, questions remain: Is Mr. Cissna going to be confirmed before the August recess? Is his delay more about him or more about the Senate’s packed schedule? Will the forthcoming DHS Secretary withdraw Mr. Cissna and want to appoint his own candidate? We should know a lot between now and the recess.

REGISTER FOR MU HEALTHCARE IMMIGRATION WEBINAR ON AUGUST 1

MU Law is pleased to announce a free healthcare immigration webinar on August 1, 2017 at 3PM ET for all clients and friend of the firm.  It is ideal for US employers, staffing companies, recruiters, and others interested in healthcare immigration.

Click here to REGISTER

 The Healthcare Immigration Seminar will feature these topics:

• Green card Immigration for Nurses and Physical Therapists (Schedule A occupations)
• Filing for Green card when you have an Unanticipated Worksite
• Visa Screens and Healthcare Worker Certificates
• FCCPT and the future of PT immigration
• H-1B visas for PTs, OTs, Med Techs, and other allied healthcare workers
• Managing Social Security Numbers and Licensure
• H-1B cap-exempt entities
• Immigration under the Trump administration
• Legislative and Regulatory changes that may be on the horizon

PORTING AN I-485 TO A NEW EMPLOYER

Last year the USCIS issued new guidance regarding when a foreign national can port his/her I-485.  Under the American Competitiveness in the Twenty-First Century Act (AC21) a foreign national can change his/her employer or job during the green card process once the I-485 has been pending for 180 day or more.

When changing positions, the green card applicant and their new employer, must file a form I-485(j) with the USCIS confirming the new employer is taking over the green card case, agrees to pay the prevailing wage, and that the new position is the same or similar to the position described in the green card application.

The USCIS will consider the totality of the circumstances when determining if the green card job and the new job are the same or similar.  Specifically, 2016 memo describes how Immigration Officers can review the occupation codes assigned to both jobs by the Department of Labor when determining if the two jobs are the same or similar.

Evidence that the positions are the same or similar can include:

• ·         The job duties of both positions;
• ·         The skills, expertise, education, training, licenses or certifications specifically required to perform each job;
• ·         The wages offered for each job; and
• ·         Any other material and credible evidence relevant to the determination.

Green card applicants can also port their I-485s when, in their new position, they are primarily responsible for managing the same or similar function of their original job.  For example, if a PT is promoted to Senior PT and supervises other PTs and PTAs.  It is also acceptable for the applicant to manage workers in a different occupation if the change in position is a normal career progression.  For instance, if an OT is promoted to Rehab Manager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs, and others.