U.S. Department of State Releases December 2018 Visa Bulletin

The December 2018 Visa Bulletin has been released. USCIS is again using the “Dates for Filing” chart to determine the availability of visas.

The EB-1 category has immigrant visas (green cards) available for foreign nationals of all countries with priority dates of June 1, 2018 with the exception of China and India (priority dates: October 1, 2017). It should be noted that this represents no movement since last month. All EB-2 category foreign nationals will have current priority dates except for nationals of China (priority date: September 8, 2015) and India (priority date: May 22, 2009). EB-3 category foreign nationals have current priority dates with the exception again of China (priority date: December 1, 2015), India (priority date: January 1, 2010) and the Philippines (priority date: August 1, 2017).

The F1 category (unmarried sons and daughters of U.S. citizens) remains relatively stagnant with a priority date of March 8, 2012 except for those with chargeability to Mexico which is at April 22, 1999 and the Philippines which is at February 15, 2008. The F2A category (spouses and children under 21 of lawful permanent residents) priority date is December 1, 2017 across all areas of chargeability. This represents no movement from last month. Despite a movement forward of about one year, the longest queue remains with the Philippines in the F4 category (brothers and sisters of U.S. citizens) with a priority date of April 22, 1997.

As seen this month, cut-off dates on the Visa Bulletin do not always progress forward in time. A visa retrogression can occur when more people apply for a visa in a particular category or from a particular country than there are visas available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category or per-country limitations.

The December Visa Bulletin can be accessed via the Department of State website:
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-december-2018.html

USCIS Validity Period Update For Form I-693, Report Of Medical Examination And Vaccination Record

USCIS is revising its policy guidance for Form I-693 Report of Medical Examination and Vaccination Record effective November 1, 2018.

Federal statutes and regulations do not prescribe the validity period of Form I-693. USCIS has historically established it and is now updating the validity period in order to enhance operational efficiencies and more closely tie the validity of the form to the underlying application. Officers still have the discretion to request a new I-693 if they have reason to believe an applicant may be inadmissible on health-related grounds.

Essentially this policy retains the two year policy that existed but recalculates the determination of the validity period. The old policy allowed a Form I-693 to be valid for one year from the date of the civil surgeon signing prior to the submission of the immigrant petition and then one year from the date of the filing of the immigration petition. With increasing processing times, the prior forms would become invalid during the adjudication period resulting in the request for a new Form and additional processing time.

The updated policy, effective November 1, 2018, will require applicants to submit a Form I-693 that is signed by a civil surgeon no more than 60 days prior to the filing of the underlying immigrant petition. The Form I-693 would then remain valid for two years following the date the civil surgeon signed it.

For those Form I-693s submitted to USCIS prior to November 1, 2018:
1) If the civil surgeon signed it more than 60 days but less than one year prior to its submission to USCIS, the validity period will be one year from the date of submission to USCIS.
2) If the civil surgeon signed it within 60 days of the filing of the underlying immigrant petition, the Form will be valid for two years from the date of civil surgeon’s signature.
3) If the form was submitted to USCIS after the filing of the immigrant petition, the Form will be valid for two years from the date of civil surgeon’s signature.

An applicant may submit Form I-693 concurrently with the adjustment of status (Form I-485) application or at any time after the filing of the adjustment of status application (Form I-485) with the USCIS, including bringing it to a USCIS interview or providing it upon the issuance of an RFE.

U.S Department of State Releases November 2018 Visa Bulletin

The November 2018 Visa Bulletin has been released.

Typically, the Final Action Dates chart is to be used when reading the Visa Bulletin. It should be noted that if the USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants, USCIS will declare that the Dates for Filing chart is to be used for a particular month rather than the Final Action Dates chart. The USCIS has determined that for the month of November, the Dates for Filing chart will be used.

The EB-1 category has moved forward. Visas are available for foreign nationals of all countries with a priority date of June 1, 2018 with the exception of mainland China and India (priority dates: October 1, 2017). The EB-2 category is current with the exception of mainland China (priority date: June 15, 2015) and India (priority date: May 22, 2009). EB-3 category foreign nationals are current with the exception of mainland China (priority date: August 8, 2015), India (priority date: October 1, 2009) and the Philippines (priority date: July 1, 2017)

The F2A category (spouses and children under 21 of lawful permanent residents) cut-off date has moved forward to December 1, 2017 for all areas of chargeability. All other family-based categories continue to experience significant backlogs despite movement forward. The longest queues again remain with the Philippines in both the F3 category (married sons and daughters of U.S. citizens) with a date of June 1, 1997 and F4 category (brothers and sisters of U.S. citizens) with a date of April 8, 1996.

Cut-off dates on the Visa Bulletin do not always progress forward in time. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category, or per-country limitations.

The November Visa Bulletin can be accessed via the U.S. Department of State website: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-november-2018.html

USCIS Updates Policy on RFE/NOID

In June 2013, the USCIS provided guidance to adjudicators on the USCIS policy on issuing RFEs and NOIDs when the evidence submitted at the time of filing does not establish eligibility. It stated that an adjudicator should issue an RFE unless there is no possibility that any additional evidence would cure the filing. This granted officers greater liberty to offer individuals a second chance instead of straight denial especially for those individuals who are not represented by immigration counsel and may have omitted documents in the filing. However, statutory denials were warranted where the benefit is not clearly there (i.e. Petitioner is a green card holder and is sponsoring his/her parent or sibling for a green card – no statutory basis for qualification).

The prior guidance limited an adjudicators ability to adjudicate based on the record. This opened the door for adjudicators to request documents to “cure” the application and afforded individuals the opportunity to provide additional evidence.

Effective September 11, 2018, USCIS guidance rescinds the “no possibility” rule and allows adjudicators to deny applications without first issuing an RFE or a NOID. The new policy is to discourage frivolous filings or incomplete filings and requires individuals/petitioners to ensure filings are complete. The new rule is not intended to penalize innocent mistakes or misunderstandings of evidentiary requirements. For example, if an H-1B is filed without a certified LCA, typically they would issue an RFE. Now under this guidance, the H-1B petition could be denied as an LCA could be considered “initial evidence”. Another example is where a green card filing requires a specific form and the supplemental form is not included (i.e. Form I-485J).

Therefore, the new rule is not so new, as USCIS has always had the ability to deny without an RFE. This announcement just confirms they will operate accordingly more often to save resources wasted by frivolous filings. This “new rule” does not affect the way companies or CPG files petitions with the USCIS as our petitions are complete. The USCIS will still continue to issue RFE’s for specialty occupation, Level 1, if new information is discovered from USCIS own internal checks, maintenance of status, etc.

The update is found here: https://www.uscis.gov/news/news-releases/uscis-updates-policy-guidance-certain-requests-evidence-and-notices-intent-deny

Premium Processing Fee Increasing from $1,225 to $1,410 starting on October 1, 2018

The Department of Homeland Security will be increasing the Premium Processing fee from $1,225 to $1,410 effective October 1, 2018.

Certain immigration petitions filed with USCIS are eligible for expedited processing in 15 calendar days by paying an extra amount. This can accelerate processing of a petition from 4 – 6 months to 15 calendar days. Petitions eligible for premium processing include non-immigrant petitions: H-1B (extension and cap exempt only starting September 11, 2018), L-1, E, O, and immigrant petitions: I-140 (based on extraordinary ability or a certified PERM).

For a complete list of eligible petitions, see https://www.uscis.gov/forms/how-do-i-use-premium-processing-service

Supreme Court Allows Travel Ban to Take Effect for Those Without Ties to the US

The Supreme Court issued a ruling yesterday, in which it (1) agreed to hear the case against the Trump Administration’s Muslim travel ban based on the second Executive Order that was issued, and (2) decided that, effective within 72 hours of the decision, the Trump Administration’s Muslim travel ban would ONLY apply to individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, who have no relationships with people or organizations in the United States. This travel ban is set to take effect the morning of Thursday, June 29, 2017 and will last 90 days.

Individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen WILL still be allowed to enter the US if they have a prior relationship to the US. A prior relationship is explained as follows:

• Relationship to Individuals: An individual from one of the noted countries with a close familial relationship should be permitted to enter the US, including someone who wishes to enter the United States to live with or visit a family member.

• Relationship to Entities: An individual from one of the noted countries must have a formal documented relationship with a US entity, which was formed in the ordinary course of business, and not just formed for the purpose of evading the executive order. Examples of bona fide relationships with entities may include a student with an approved I-20 or visa, an employee with an offer of employment or approved employment-based visa, or an individual scheduled to come lecture.

It is unclear at this time if other types of business travelers from the noted countries, such as a B-1 traveler, will be allowed to enter the US. It is expected that tourists, or individuals who formed bona fide relationships after June 26, 2017 will have trouble entering the US during the travel ban.

Complimentary Webinar: Changing Immigration Policy Under the Trump Administration

Register Now for a Complimentary Webinar Discussing Changing Immigration Policy Under the Trump Administration

Join CPG Immigration Law Group and the Law Office of Melissa Harms for a complimentary webinar on Wednesday, March 1, 2017 from 10:00 AM – 11:00 AM (Pacific Time). The webinar will address the recent laws and proposals shaping immigration policy under the Trump administration, including:

(1) executive orders issued by President Trump, such as the February 9 order on criminal enforcement and the January 27 temporary travel ban on admission from predominantly Muslim countries; and

(2) proposed bills in the U.S. Congress to modify the H-1B specialty occupation program and L-1 intra-company transfers.

Click here to register, or visit the registration URL at https://attendee.gotowebinar.com/register/6244905369072984323.

Temporary Restraining Order (TRO) Issued on Executive Order Suspending Entry from Non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen

On February 3, 2017, Judge James Robart from the United States District Court in Seattle, Washington issued a temporary restraining order (TRO) suspending the implementation of the January 27, 2017 executive order barring admission of non-immigrants from 7 predominantly Muslim countries. The TRO was issued as part of a lawsuit filed by the States of Washington and Minnesota on behalf of their constituents, challenging the constitutionality of the Trump administration’s executive order.

With the issuance of the TRO, U.S. Consulates and Embassies abroad reinstated the visas that were revoked per the Executive Order. Non-immigrants from the affected countries started reentering the United States on their restored visas. The U.S. Department of State resumed work to bring refugees that had completed the full screening process to the United States. However, news media continue to report the inconsistent implementation of the TRO across the country. U.S. Customs and Border Protection officers continue to deny entry to non-immigrants based on the executive order.

On February 4, 2017, the U.S. Department of Justice filed an emergency motion with the U.S. Ninth Circuit Court of Appeals to stop Judge Robart’s TRO. The Ninth Circuit heard oral argument on this issue from both the interim Attorney General from the Department of Justice and the Washington State Attorney General on February 7, 2017. A panel of three appellate judges asked both federal and state attorneys general questions regarding the legal, policy, and factual issues surrounding the case.

A decision from the Ninth Circuit panel on the emergency motion to stay the TRO is expected by the end of the week. But the broader lawsuit Judge Robart is presiding over on the constitutionality of the executive order continues to proceed in U.S. District Court in Seattle, Washington.

At this time, the travel ban has been lifted until a decision is rendered by the court.  We will continue to keep you updated.

Travel Warning – Citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

On January 27, 2017, President Trump signed an Executive Order suspending entry to non-immigrants, green card holders (lawful permanent residents) who are from certain designated countries for 90 days.  Furthermore, admission of individuals granted refugee status will be suspended for 120 days.

 

Designated countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  Passport holders, citizens, nationals, dual nationals of the designated countries should refrain from traveling outside the United States.

 

Federal courts all across the nation have been blocking the government from detaining green card holders, non-immigrants and refugees at airports.  The situation may change at any time so please continue to stay informed.

What’s New with Form I-9, Employment Eligibility Verification

Federal Register Notice: USCIS published a notice in the Federal Register on Nov. 24, 2015, to inform the public of proposed changes to Form I-9, Employment Eligibility Verification. The public may provide comments on the proposed changes until Jan. 25, 2016.  Please see the USCIS web alert for more information.

  • Answers for Student Visa Holders: F or M student visa holders sometimes are unsure if they can legally work in the United States. USCIS explains Form I-9 to foreign students in a three-part series of blog posts on the Study in the States website. 
  • I-9 Central Refresh: On Nov. 10, 2015, USCIS released an updated and improved version of I-9 Central, the website that nearly 6 million visitors a year rely on for official information about Form I-9 and verifying employment eligibility.

Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The current version is available at I-9 Central.

Subscribe to I-9 Central to receive updates and alerts.