DOS: NO EB-3 PROGRESSION UNTIL AT LEAST UNTIL MAY OR JUNE
February 25, 2020
TheDepartment of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthlymeetings with the American Immigration Lawyers Association. Mr. Oppenheim is the Department of State’sChief of the Control and Reporting Division. He is the officer who isresponsible for producing the Visa Bulletin each month.
Charlieoffered a number of interesting observations about the March Visa Bulletin,which resulted in aretrogression for EB-3.
-Becauseof the potential for USCIS to move resources to EB-1 and EB-2 and theunpredictability in processing times that will be caused by such a resourceallocation, Charlie does not expect any forward movement to the EB-3. The absolute earliest would be the May 2020or June 2020 Visa Bulletin, but EB-3 could remain at January 2017 until the endof the fiscal year. Charlie did assurereaders that
-Whileit is expected that the implementation of the public charge rules may slowUSCIS processing times, any potential slowdown at USCIS has not been factoredinto the March Visa Bulletin.
-DOSwas not surprised that the retrogression happened in March, in spite of theJanuary and February progression of dates in some EB-3 categories. DOS wanted to wait until it was certain thatthe increase in demand was not showing any signs of decline.
STRATEGIES FOR DEALING WITH THE EB-3 RETROGRESSION
February 21, 2020
The March2020 retrogression of EB-3 has significant consequences for those who arein the immigrant visa process. It isexpected that between March 1 and September 30 of this year, immigrantvisas/green cards will only be issued to immigrants who have a 2016 prioritydate or earlier. When the first bulletinof the next fiscal year is released in late September, we expect the Rest ofWorld EB-3 to return to current and the Philippines EB-3 to have a roughly 18-24-monthretrogression.
Below are strategies for EB-3immigrant applicants in various stages of the immigrant visa process:
Immigrants who will be adjustingstatus
USCIS has indicated that the dates forfiling chart can be used in March. This means that the I-485 can only be filedif the immigrant has a priority date earlier than January 1, 2019. This applies to both Filipino and Rest ofWorld immigrant applicants.
Immigrants currently at NVC phase withfee bill
If the applicant has already receivedfee bills, then the case can continue to be processed until the documentarilyqualified notification is received from NVC. An embassy interview will not be scheduled until the immigrant’spriority date is current under the final action chart which for March isJanuary 1, 2017. This applies to bothFilipino and Rest of World immigrants.
Immigrants with approved I-140 but nofee bill
Immigrants should only receive the feebill 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 prioritydates later than the dates of filing chart. Those immigrants with 2019 and 2020 priority dates will receive a letterfrom NVC explaining that the case cannot move forward and a fee bill issueduntil the priority date is current under the date for filing chart. Rest of World immigrants will continue toreceive fee bills and be able to proceed through the NVC process but will notbe able to receive an embassy interview until current under the final actionchart.
Immigrants with embassy interviewsscheduled for March
We expect these interviews will berescheduled by the Embassy or Consulate until the priority date is currentunder the final action chart.
WHAT DOES THE PHILIPPINE AND WORLDWIDE RETROGRESSION MEAN FOR EB-3 VISAS?
February 20, 2020
The March2020 retrogression of the EB-3 category means that the US government has"overshot" their usage of visas in Fiscal Year 2020 (Oct 2019 - Sept2020). In order to remedy this, thegovernment retrogresses the visas, which serves as a pause on the issuance ofnew visas. The Philippine EB-3 dateretrogressed because of increasing demand for Worldwide immigrant visas. The Worldwide cut-off date can never be lessfavorable than any other country’s date.
This happens every few years. Visa approvals will slow or stop starting inMarch, until the end of the fiscal year in September. In October 2020, new allotment 140,000 visasare released into the system. There is achance that more visas are released into the system before the end of theFiscal Year because, from time to time, the government's pause has its intendedeffect and more visas can be released before year-end.
If you are in any part of the visaprocess and you do not have your visa issued before March 1, 2020, your casewill be held in abeyance at the Embassy or NVC, unless you have a priority dateearlier than January 1, 2017 (Worldwide and Philippines).
MARCH 2020 VISA BULLETIN: RETROGRESSION FOR EB3
February 18, 2020
The Department of State has just issued the March 2020 Visa Bulletin. This is the sixth Visa Bulletin of Fiscal Year 2020. Thisblog post analyzes this month's Visa Bulletin.
March2020 Visa Bulletin
Table A: Final Action Dates -- Applications with these datesmay be approved for their Green Card (Permanent Residency card) or ImmigrantVisa appointment.
Employment- based | All Other | CHINA | INDIA | PHILIPPINES |
1st | 01MAR19 | 01JUN17 | 01MAR15 | 01MAR19 |
2nd | C | 15AUG15 | 22MAY09 | C |
3rd | 01JAN17 | 22MAR16 | 15JAN09 | 01JAN17 |
MU LawAnalysis
All Other: TheAll Other EB-1 had a four-month progression and the EB-2 category remainedcurrent. Both should stay in theircurrent ranges for the foreseeable future. The EB-3 is retrogressed backto Jan 2017. This retrogression occurredin all categories, except for China and India, where the retrogression isworse. No forward movement is expectedin EB3 for the rest of the fiscal year. Demand in All Other EB-3 Adjustment of Status cases is responsible forthe retrogression.
China: All Chinese EBsimproved slightly. Chinese EB-3 will notprogress 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 ineither category in future months.
H-1B CAP 2020: NEWS AND NOTES
February 13, 2020
The H-1B cap filing date will behere before you know it. New H-1Bs aresubject to the H-1B cap lottery and must be filed between March 1-20, 2020. The USCIS will notify us of H-1B cap lotterywinners by March 31, 2020. If you arepreparing to file an H-1B cap petition for 2020, please send MU the items onour checklist no later than March 10.
A variety of types of case aresubject to H-1B cap:
-International students working onan EAD card under an OPT or CPT program
after having attended a U.S. school;
after having attended a U.S. school;
-International employees working ona TN may need an H-1B filed for them in
order for them to pursue a permanentresidency (green card) case;
order for them to pursue a permanentresidency (green card) case;
-Prospective internationalemployees in another visa status e.g. H-4, L-2, J-1,
F-1; H-1B workers with acap exempt organization; and
F-1; H-1B workers with acap exempt organization; and
-Prospective internationalemployees currently living abroad.
These types of case are not subjectto H-1B cap:
-H-1B amendments/extensions/transfers
-When the employee has been in H-1Bstatus 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 researchorganization, or a government research organization.
nonprofit researchorganization, or a government research organization.
Please contact us if you have any questionsor are looking for representation in filing H-1B cap petitions.
TRAVEL BAN 4.0
February 5, 2020
On January 31,2020, the President issued a Presidential Proclamation expanding the existing travel ban toinclude the following countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria,Sudan, and Tanzania.
The new travel ban goes into effect February21, 2020 at midnight. Individuals fromcountries on the new travel ban who have received their visas before February21, 2020 can still enter the US. However, we recommend that individuals fromthe newly banned countries enter before the travel ban goes into effect onFebruary 21, 2020.
The government will be reviewing the bannedcountries on October 1, 2020, and annually thereafter. If the banned countriescomply with the US on information sharing, the country may be removed from thebanned list.
The full travelban now includes the following thirteen countries and different types of visasare 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 thebanned countries who are already present in the United States can file forextensions of status, changes of status, or for green cards (adjustment ofstatus).
US DEPARTMENT OF HOMELAND SECURITY IMPLEMENTS NEW “PUBLIC CHARGE” RULE
February 3, 2020
OnAugust 14, 2019 the Department of Homeland Security (DHS) announceda new “public charge” rule. The rule wasset to into effect on October 15, 2019, but was stopped by a nationwideinjunction. On January 27, 2020 the USSupreme Court liftedthe nationwide injunction. Note that aninjunction still remains in effect in Illinois. On February 24, 2020 the new public charge rule will go into effect.
Undera longstanding law and policy, if immigration authorities determine someone is“likely to become a public charge” the US can deny the applicant’s green cardor other visa to the US. A public chargeis someone who is dependent on the government, through benefits programs. The Trump Administration’s new rule changesthe standard by the DHS determines whether a foreign national is likely tobecome a public charge.
Underthe previous policy, DHS examined whether an intending immigrant was primarilydependent on public benefits. Under the newrule, immigration officers will examine whether immigrants are likely atany time to become a public charge, using a multi-factor test.
Publicbenefits under the new rule include:
1) Any federal, state, or local cash assistance,including:
a. Social Security Income (SSI)
b. Temporary Assistance for NeedyFamilies (TANF)
c. Government programs for incomemaintenance often called “general assistance”
2) Supplemental Nutrition AssistanceProgram (SNAP) also known as food stamps
3) Section 8 Housing Assistance
4) Medicaid, with certain exceptions
5) Public Housing under Section 9
Theimmigration officer will take into account a broad range of factors andconsider all of the following when making a determination if the foreignnational visa applicant is likely to become a pubic charge:
a. Receipt of a public benefit for morethan 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 financialstatus
This rule will apply to allapplicants for any type of visa, though it is expected that the immigrationofficers will look most closely at those applying for a green card. Employment-based visa applicants should betreated favorably because, by virtue of their employer-sponsor, they haveguaranteed employment and income in the United States. However, policy experts forecast that thisrule will likely be applied inconsistently and cause fewer legal immigrants toenter the United States.
VISA REFUSALS AT THE US EMBASSY IN MANILA
January 27, 2020
Musillo Unkenholt is aware that theUS Embassy in Manila has refused to approve almost any immigrant visa for thelast 3 weeks. The problem is,apparently, that the Embassy is mistakenly interpreting clauses in employmentcontracts between nurses and their US employers, perhaps based on some badinformation that was sent to the Embassy.
The problem seems to be localizedin Manila. Philippine nationalsprocessing for immigrant visas at other embassies around the world are beingissued their immigrant visas. Likewise,other embassies are also issuing immigrant visas to non-Philippinenationals.
We are working with clients, trade associations, andnurses to solve this problem. It maytake a little while to solve the problem but it is a fairly straightforwardproblem 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
January 23, 2020
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.
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!