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FEBRUARY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

TheDepartment of State has just issued the February2019 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year2019. This blog post analyzes this month’s Visa Bulletin.

February 2019 VisaBulletin

TableA: Final Action Dates — Applications with these dates may be approved fortheir Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB 
Class 
All Other  
CHINA       
INDIA     
PHILIPPINES    
EB-1
01DEC17
08FEB17
08FEB17
01DEC17
EB-2
C
01OCT15
06APR09 
C
EB-3
C
01JUL15
22APR09 
01AUG17    

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

EB 
Class 
All Other  
CHINA       
INDIA     
PHILIPPINES    
EB-1
01JUN18
01OCT17
01OCT17
01JUN18
EB-2
C
01NOV15
22MAY09 
C
EB-3
C 
01JAN16
01APR10 

01OCT17      

MULaw Analysis (all references are to Table A unless noted)

AllOther: As weexpected, the EB-1 category again moved several months.  We expect continued steady movement in thiscategory for All Other.  We do not seeany retrogression in the future for EB2 or EB3, other than the usualretrogression at the end of the Fiscal Year.

China: Likewise, the China EB-1 categoryprogressed several months. This category may not move as fast as All Other inthe next few Visa Bulletins.  China EB-2moved two months.  EB-3 only moved a fewweeks, reflecting continued high demand. Still, we expect EB-3 to slightly outpace EB-2 in the next few VisaBulletins.

India: India EB-2 moved by just one week. EB-3 progressed by six weeks.  Weexpect the slow/no progress to be standard for EB-2 in the first part of FY2019.  We are slightly more optimisticabout India EB-3, which could continue to progress faster than EB-2.

Philippines: The EB-3 date showed steadyprogress, improving by six weeks. Over the course of FY2019, we shouldeventually see the EB-3 priority date extend into FY2018.

H-1B COMMENT PERIOD CLOSED

Last month USCIS published two proposed rules to the H-1B cap process.  As we noted on December 5, 2018:

 The two rules are:

1.    Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2.    H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.  We previously explained this process on an earlier blog.

Now that the comment period has ended the USCIS must read and consider all of the comments, which were plentiful.  Many of the comments focused on the fact that rushing this proposal forward for the April 1, 2019 H-1B cap is a bad idea.  MU Law agrees that the USCIS is moving too fast with these recommendations.

The USCIS has not announced a timetable for a decision as to whether the proposed changes will be adopted and, if so, whether they will go into effect for April 2019.  It is however expected that they will make a decision by February.

DENIAL OF “ADVANCED PAROLE” TRAVEL PERMITS FOR ABANDONMENT

Duringthe annual Office of the Citizenship and Immigration Services (CIS) OmbudsmanConference, USCIS Director, Francis Cissna, stated it is the USCIS’s intentionto end the practice of denying pending Advanced Parole applications (travelpermits) in situations where the applicant travels overseas while the travelpermit application is pending. 
The USCIShas recently updated the “special instructions” section of their website regarding travel permits indicating individuals may travelwhen they have a pending travel permit application pending, provided they alsohave an approved travel permit that is valid for the entire time the individualis abroad. The pending travel permit will not be considered abandoned and sowill not be denied in this situation.
TheUSCIS website does not state that this change in policy applies to foreignnationals who travel abroad with a valid H or L visa.  Non-immigrant intent is required formost visas, with a noted exception for those holding H-1B or L-1 status.  Because of this exception, those traveling onH-1B or L-1 while their green cards are pending do not need a travel permit.

Travel permit applications are made most commonly when anindividual applies for a green card.  Atthe time the green card application is filed, an application for a work andtravel permit is also filed.  Unless thegreen card applicant holds H or L status, the green card applicant should nottravel abroad until the travel permit is issued.  Traveling abroad without a valid travelpermit while a green card application is pending will cause the denial of thegreen card application for abandonment.

JANUARY 2019 VISA BULLETIN

TheDepartment of State has just issued the January 2019 VisaBulletin. This is the fourth Visa Bulletin of Fiscal Year 2019. Thisblog post analyzes this month’s Visa Bulletin.


January2019 Visa Bulletin

Table A: Final Action Dates –Applications with these dates may be approved for their Green Card (PermanentResidency card) or Immigrant Visa appointment.
EB 
Class 
All Other  
CHINA       
INDIA     
PHILIPPINES    
EB-1
01OCT17
15DEC16
01DEC16
01OCT17
EB-2
C
01AUG15
01APR09 
C
EB-3
C
08JUN15
01MAR09 
22JUN17    

Table B: Dates for Filing — The DOS may work on applications with thesedates. But the Visa cannot be approved until the date is current perTable A.
EB 
Class 
All Other  
CHINA       
INDIA     
PHILIPPINES    
EB-1
01JUN18
01OCT17
01OCT17
01JUN18
EB-2
C
08SEP15
22MAY09 
C
EB-3
C 
01JAN16
01JAN10 

01AUG17      
MU LawAnalysis (all references are to Table A unless noted)

All Other,Mexico: As we expected, the EB-1 category again moved several months.  We expect continued steady movement in thiscategory for All Other.  We do not seeany retrogression in the future for EB2 or EB3, other than the usualretrogression at the end of the Fiscal Year.
China: Likewise,the China EB-1 category progressed several months. This category may not moveas fast as All Other in the next few Visa Bulletins. China EB-2 moved twomonths,
EB-3 didnot advance, reflecting high demand. Still, we expect EB-3 to slightly outpace EB-2 in the next few VisaBulletins.
India: IndiaEB-2 and EB-3 did not move. We expect the slow/no progress to be standard forEB-2 in the first part of FY 2019.  Weare slightly more optimistic about India EB-3.
Philippines: The EB-3date again also only moved up by week, which is slower than we would have likedto have seen.  While over the course ofFY2019, we should eventually see the EB-3 priority date extend into FY2018, wedo not expect too much movement in the next few Visa Bulletins.

TWO PROPOSED H-1B CAP MODIFICATIONS

The USCIS has publishedtwo proposed rules that will change H-1B cap processes.  While the USCIS hopes that these two rulesare finalized in time for the April 2019 H-1B cap, the USCIS has not yetcommitted to a timeline.  The public maycomment on the two proposed rules until January 2, 2019.

The two rules are:

1. Electronic pre-registration for the H-1Bcap.  This is a proposed rule that has beenconsidered by USCIS since 2011.  Underthe proposal, all H-1B lottery petitions will need to be electronically pre-registeredduring the H-1B pre-registration period from April 1-7.  After the pre-registration period hasconcluded, USCIS will run the H-1B lottery. All H-1B lottery winners will then have 60 days to submit the actualH-1B petition.  If implemented properly,this should save petitioners and the industry significant expense.

2. H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the waythat it conducts the H-1B lottery.  Theresult of the re-engineering should mean that a slightly greater number of H-1B petitionswill be approved for US Masters Degree H-1B Beneficiaries than under thecurrent H-1B lottery.  We previously explained this process on an earlier blog.

US DEPARTMENT OF LABOR (DOL) RELEASES NEW LABOR CONDITION APPLICATION (LCA)

EffectiveMonday, November 19, 2018, the DOL released a new LCA(Form ETA-9035) which must be used on all immigration filings going forward. Acertified LCA must be included in immigration filings for H-1B, H-1B1, and E-3 status.  The DOL generally certifies an LCAapproximately 7-10 days after submission of the LCA to the DOL.    
Certifiedand date-valid LCAs in the old format can still be used in immigration filings,provided the LCAs have unused slots in the appropriate filing category, e.g.new employment, continuation of employment without change, etc. 
Forall immigration filings, the new LCA requires the legal business name of theend-client(s) as well as the street address of the worksite(s) where theemployee will physically work.
ForH-1B masters cap petitions, the new LCA requires:
o  Thename of the institution that awarded the employee’s master’s degree;
o  Thefield of study in which the employee’s master’s degree was awarded;
o  Thedate on which the employee’s master’s degree was awarded; and
o  Documentationsubstantiating the employee’s master’s degree information.
MU’s employer checklists for H-1B, H-1B1, and E-3 filingshave been updated to request this information from employers at caseinitiation. 

DECEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the December 2018 VisaBulletin. This is the third Visa Bulletin ofFiscal Year 2019. This blog post analyzes this month’s Visa Bulletin.

December 2018 Visa Bulletin

Table A: Final Action Dates — Applications withthese dates may be approved for their Green Card (Permanent Residency card) orImmigrant Visa appointment.

EB 
Class 
All Other  
CHINA       
INDIA     
PHIL’PNES    
EB-1
01JUL17
01SEP16
01SEP16
01JUL17
EB-2
C
01JUL15
01APR09 
C
EB-3
C
08JUN15
01MAR09 
15JUN17    

Table B: Dates for Filing — The DOS may work on applications with thesedates. But the Visa cannot be approved until the date is current perTable A.
EB 
Class 
All Other  
CHINA       
INDIA     
PHIL’PNES    
EB-1
01JUN18
01OCT17
01OCT17
01JUN18
EB-2
C
08SEP15
22MAY09 
C
EB-3
C 
01DEC15
01JAN10 

01AUG17      

MU Law Analysis (all references are toTable A unless noted)

All Other, Mexico: As we expected, the EB-1 categorymoved several months. We expectcontinued steady movement in this category for All Other.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as AllOther in the next few Visa Bulletins. China EB-2 moved two months, although EB-3 only advanced one week. We expect EB-3 to slightly outpace EB-2 inthe next few Visa Bulletins.
India: The Indian EB-3date moved two months, which was more than expected. There is a chance that EB-3 continues to moveat this pace for the next few Visa Bulletins. We expect the slow/no progress tobe standard for EB-2 in the first part of FY 2019.
Philippines: The EB-3 date again also only moved up by week, which isslower than we would have liked to have seen. While over the course of FY2019, we should eventually see the EB-3priority date extend into CY2018, we do not expect too much movement inthe next few Visa Bulletins.


USCIS ANNOUNCES THE TERMINATION OF SELF-SCHEDULED INFOPASS APPOINTMENTS

In 2019, the USCIS plans to expand itsInformationServices Modernization Program throughout the US. This expansion will end self-scheduledInfoPass appointments and instead applicants will use the USCIS website to viewgeneral how-to information, access processing times, check case status, andother information about the processing of immigration cases.
The USCIS states that thetransition to the Information Services Modernization Program has alreadyimproved the delivery of emergency services which can only be provided inperson. USCIS surveys and data determinedthat most people scheduling InfoPass appointments could obtain the sameinformation by calling the USCIS or checking the USCIS website. 
Going forward, when the USCIS customerservice representative online or on the phone determines an in-person appointmentis necessary, the customer service representative will schedule theappointment for the applicant.  

USCIS MAY IMPROVE US MASTERS CHANCES AT H-1B LOTTERY

Bloombergreports that USCISis considering a proposal that will slightly improve the chances of US MasterDegree holders to win the H-1B lottery. If the proposed change had been in effect in April 2018 numbers, about2,700 more US Masters degree holders would have won the lottery, at the expenseof 2,700 regular H-1B cap winners (non-US Master’s degree).  USCIS selects 85,000 H-1B cap lottery winnerseach April.
USCIShas signaled that it wants to reorder the way that it runs the lottery.  Under the present lottery program, the USCISsegregates all of the H-1B beneficiaries who hold Masters degrees and runs a“Masters-only” lottery.  It then takesall of the Masters lottery-losers, combines them with the regular H-1Bbeneficiaries and runs the regular-cap lottery.
Theproposal calls for the USCIS to reverse the process.  The USCIS would run the regular lotteryfirst.  The regular lottery would includeboth regular cap petitions and Master’s degree holders.  Then, USCIS would take all Masters degreelosers and run a Masters lottery.  Asshown in the 2018 example, the result would be that slightly more Mastersdegree holders would win the lottery at the expense of slightly fewernon-Masters cap beneficiaries.

REMINDER: USCIS POLICY MEMOS WEBINAR NOV. 7

As a reminder, MU is hosting a free webinar on November 7. 

Over the last six months, the USCIS has issued several new policy memorandums. Join us for a webinar recapping these new memos and recent trends in adjudications. The webinar will cover: 
  • Denial Notices issued without an RFE/NOID
  • Notice to Appear (NTA) issuance 
  • OPT/F-1 updates (including unlawful presence and 3rd party work-sites on OPT)
  • H-1B 3rd party work-site and itinerary memo
  • Rescission of deference to previous approvals 

Please click the link below to register for the webinar. 


Should you have any questions regarding the event or our services, please do not hesitate to contact Chris Musillo. 


This webinar is for MU Law clients and friends of the firm. 

We look forward to speaking with you! 
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