Following the passage of several continuing resolutions, Congress now has until midnight tonight (January 19, 2018) to pass a spending bill or another continuing resolution to keep the Federal government funded. If Congress is not able to come to an agreement this would result in a government shutdown that would impact several government agencies responsible for administering parts of various immigration and visa programs. While the situation continues to develop, we outline below the impact of a government shutdown on the various Federal immigration functions should Congress fail to take action prior to the deadline:
Read MoreDepartment of State February 2018 Visa Bulletin Summary
The Department of State has released the February 2018 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates.
With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to October 1, 2013 and December 8, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed five months to September 15, 2014, EB-3 India, which has progressed one month to December 1, 2006, and EB-3 Philippines, which has progressed two weeks to March 1, 2016. Similarly, Other Workers remain unchanged across all areas of chargeability with the exceptions of China, which has progressed to February 1, 2007, India, which has progressed to December 1, 2006, and Philippines, which has progressed to March 1, 2016. EB-4 Mexico has progressed by less than a month to June 22, 2016. All other areas of chargeability remain unchanged. Certain Religious Workers remain unavailable across all areas of chargeability. EB-5 for both non-regional centers and regional centers remains unchanged.
Application Filing Dates for all categories and across all areas of chargeability are unchanged in February 2018, with the exception of EB-2 China, which has progressed one year to November 15, 2014, EB-3 China, which has progressed four months to January 1, 2016, and EB-5 China, which has retrogressed one month to September 1, 2014 for both regional centers and non-regional centers.
As of today, January 16, 2018, USCIS has not advised whether, in February 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.
Media Reports Suggest Changes to AC-21
1/9/2018 UPDATE: USCIS has confirmed with news sources that it is NOT currently considering changing its interpretation of AC-21.
Media reports have been circulating which suggested that new regulations eliminating H-1B extensions beyond the six-year limit under The American Competitiveness in the 21st Century Act (AC-21) may be proposed.
While D&S is closely monitoring the situation, it is important to stress that as today, January 8, 2018, these reports remain unsubstantiated. At this point, there has been no confirmation from the Department of Homeland Security (DHS) or any other government agency that the current administration is planning to take action to restrict or eliminate AC-21 benefits. Note that it would be unlikely and difficult for DHS to implement this change without going through the formal rulemaking process, which can take several months and requires a period of public notice and comment. Further, as of today, no rules have been proposed and no AC-21 related immigration rules appear on the agency’s recently-published regulatory agenda. Therefore, individuals with approved I-140 petitions or labor certifications filed more than one year before their final date in H-1B status continue to be eligible for H-1B extensions beyond the six-year limit at this time.
Again, D&S continues to review and monitor all actual proposed changes and will be updating clients in the coming days, weeks and months as any proposed immigration-related regulatory changes are introduced and reviewed.
USCIS Issues Policy Memo Limiting Use of TN Economist Classification
This week the United States Citizenship and Immigration Service (USCIS) announced the issuance of a new Policy Memorandum titled “TN Nonimmigrant Economists Are Defined by Qualifying Business Activity.” The memorandum is part of USCIS’s effort to align its adjudication practices with the directives of the President's "Buy American, Hire American" Executive Order and seeks to clarify, and limit, eligibility for TN nonimmigrant status under the occupational category for Economists. In particular, the memo states that, for purposes of TN classification, the profession of Economist must not primarily include the activity of other occupations, including, but not limited to, those performed by Financial Analysts, Market Research Analysts, or Marketing Specialists, and notes explicitly that those three specialties do not qualify for TN visa issuance.
Read MoreDepartment of State January 2018 Visa Bulletin Summary
The Department of State has released the January 2018 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates.
With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to August 8, 2013 and November 22, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed slightly to April 15, 2014. EB-3 India, which has progressed two weeks to November 1, 2006, and EB-3 Philippines, which has progressed one month to February 15, 2016. Similarly, Other Workers remain unchanged across all areas of chargeability with the exceptions of China, which has progressed to December 22, 2006, India, which has progressed to November 1, 2006, and the Philippines, which has progressed to
February 15, 2016. EB-4 El Salvador/Guatemala/Honduras has progressed less than a month to December 1, 2015 and EB-4 Mexico has progressed by less than two months to June 1, 2016. All other areas of chargeability remain unchanged. Certain Religious Workers are unavailable across all areas of chargeability. EB-5 for non-regional centers remain current across all areas of chargeability, with the exception of China, which has progressed slightly to July 22, 2014. EB-5 for regional centers are unavailable across all areas of chargeability at this time in light of the continuing resolution extending the availability of the regional center program only through December 22, 2017, until Congress passes more long-term legislation.
Application Filing Dates for all categories and across all areas of chargeability are unchanged in January 2018.
As of today, December 14, 2017, USCIS has not advised whether, in January 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.
Department of State December 2017 Visa Bulletin Summary
The Department of State has released the December 2017 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates.
With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to July 1, 2013 and November 1, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed slightly to March 8, 2014. Similarly, Other Workers China has progressed 3 months to July 1, 2006 while all other areas of chargeability remain unchanged. EB-4 also remains unchanged across all areas of chargeability, with the exceptions of EB-4 El Salvador/Guatemala/Honduras, which has progressed 7 days to November 8, 2015, and EB-4 Mexico, which has progressed 21 days to April 22, 2016. EB-5 for both regional centers and non-regional centers remains current across all areas of chargeability, with the exception of China, which has progressed slightly to July 15, 2014.
Application Filing Dates for all categories and across all areas of chargeability are unchanged in December 2017.
As of today, November 13, 2017, USCIS has not advised whether, in December 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.
USCIS Issues Policy Memorandum Rescinding Prior Guidance Directing That Deference Be Given To Prior Visa Approvals
This week United States Citizenship and Immigration Service (USCIS) issued a Policy Memorandum titled “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” which rescinds prior USCIS policy guidance permitting USCIS adjudicators to give deference to certain previously approved nonimmigrant visa petitions where the material facts underlying the petition remained unchanged. This policy had been in place since 2004 and was reaffirmed by USCIS in 2015.
Read MoreDepartment of State November 2017 Visa Bulletin Summary
The Department of State has released the November 2017 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates.
With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to June 15, 2013 and October 8, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed 1 month to February 1, 2014, and EB-3 Philippines, which has progressed 1.5 months to January 15, 2016. Similarly, Other Workers China has progressed 3 months to April 1, 2006 and Other Workers Philippines has progressed 1.5 months to January 15, 2016. All other areas of chargeability remain unchanged. EB-4 also remains unchanged across all areas of chargeability, with the exception of EB-4 Mexico, which has progressed 1 month to April 1, 2016. EB-5 for both regional centers and non-regional centers remains current across all areas of chargeability, with the exception of China, which has progressed slightly to July 1, 2014.
Application Filing Dates for all categories and across all areas of chargeability are unchanged in November 2017.
As of today, October 12, 2017, USCIS has not advised whether, in November 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.
Newest Trump Administration Travel Restrictions to Begin October 18th, 2017
On Sunday, September 24th, 2017, President Trump signed a new Proclamation entitled “Enhancing Vetting Capabilities And Processes For Detecting Attempted Entry Into The United States By Terrorists Or Other Public-Safety Threats” effectively revising his earlier Travel Ban, which expired earlier the same day. The Trump Administration’s prior Travel Ban is currently pending review by the Supreme Court, with oral argument scheduled for October.
Read MoreFY2019 Diversity Visa Lottery Opens at 12 noon (EDT) On Tuesday, October 3, 2017
WHAT'S HAPPENING
The Fiscal Year 2019 Diversity Visa lottery (DV-2019), which makes 50,000 green card numbers available each year to nationals of countries among six different geographic regions with low rates of immigration to the U.S., will be open for entries beginning noon Eastern Daylight Time (EDT) on Tuesday, October 3, 2017, and will close for entries at noon Eastern Standard Time (EST) on Tuesday, November 7, 2017. Eligible individuals who wish to participate in the program must apply in advance of the November 7th deadline and are encouraged to do as close to October 3rd as possible as heavy demand may result in website delays. No late entries or paper entries will be accepted.
Read MoreDepartment of State October 2017 Visa Bulletin Summary
The Department of State has released the October 2017 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates.
With respect to Final Action Dates, the EB-1 category is now current across all areas of chargeability. The EB-2 category is now current across all areas of chargeability, with the exception of EB-2 China, which has progressed 1 week to May 22, 2013, and EB-2 India, which has progressed by less than 1 month to September 15, 2008. There has been significant progression of 2 years for EB-3 China, while EB-3 India remains unchanged at October 15, 2006. EB-3 Philippines progressed mone month to December 1, 2015, while all other areas of chargeability remain unchanged. EB-4 India is now current and EB-4 Mexico progressed nearly 5 months to March 1, 2016. All other areas of chargeability are now current.
EB-5 for both regional centers and non-regional centers remains current, with the exception of China, which has progressed by 1 week to June 22, 2014.
Application Filing Dates for EB-1, EB-2 and EB-3 Worldwide are current, as are Application Filing Dates for EB-1 across all areas of chargeability. EB-2 China has progressed by 1.5 months to November 15, 2013 and EB-2 India has progressed by 1 week to February 2, 2009. All other categories remain current. EB-3 China remains unchanged at September 1, 2015 and EB-3 India, which has progressed by 1 year to January 1, 2008. EB-3 Philippines has progressed by 7 months to August 1, 2016, and all other areas of chargeability remain current. EB-4 El Salvador/Guatemala/Honduras retrogressed to April 15, 2016, while all other areas of chargeability are now current, and both regional center and non-regional center EB-5 remains current across all areas of chargeability with the exception of China, which has progressed 1 month to October 1, 2014.
As of today, September 12, 2017, USCIS has not advised whether, in October 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.
USCIS To Resume In-Person Interviews For Employment-Based AOS Applicants Starting October 1, 2017
On August 28, 2017, United States Citizenship and Immigration Service (USCIS) announced on its website that, starting October 1, 2017, the agency will require applicants for employment-based adjustment of status (“green cards”) to appear for an in-person interview at a local USCIS office as part of the green card adjudication process.
Read MoreDepartment of State September 2017 Visa Bulletin Summary
The Department of State has released the September 2017 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates. Application Filing Dates remain unchanged in all categories.
With respect to Final Action Dates, the EB-1 category remains unchanged across all areas of chargeability. The EB-2 worldwide category has progressed by nine months to January 1, 2016. EB-2 China has progressed slightly to May 15, 2013 and EB-2 India has progressed by one month to August 22, 2008. EB-2 El Salvador/Guatemala/Honduras and Mexico have both progressed by nine months to January 1, 2016. EB-3 worldwide and China remain unchanged. EB-3 India has progressed by three months to October 15, 2006 and EB-3 Philippines has progressed by five months to November 1, 2015. EB-4 India, El Salvador/Guatemala/Honduras and Mexico have all progressed slightly to October 22, 2015.
EB-5 for both regional centers and non-regional centers remains current, with the exception of China, which remains unchanged at June 15, 2014.
As of today, August 9, 2017, USCIS has not advised whether, in September 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.
The RAISE ACT (Reforming American Immigration for Strong Employment)
Today, August 2, 2017, Republican Senators Tom Cotton (Arkansas) and David Perdue (Georgia), with the support of President Trump, announced the Reforming American Immigration for Strong Employment (RAISE) Act, a bill which would amend the Immigration and Nationality Act and implement significant changes to the current U.S. immigration system.
The RAISE Act primarily focuses on significant reforms to the bases for immigrant visa (“green card”) eligibility. In addition to provisions eliminating the Diversity Immigrant Visa program and limiting the number of refugees admitted to the U.S. to 50,000 per year, the RAISE Act would replace the current employment-based preference system with a points-based system and would eliminate some of the current family-based green card categories.
Read MoreDepartment of State August 2017 Visa Bulletin Summary
The Department of State has released the August 2017 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates.
With respect to Final Action Dates, there is significant retrogression in the EB-2 worldwide category to April 1, 2015. EB-1 China and EB-1 India remain unchanged at January 1, 2012. EB-2 China progressed by one month to April 22, 2013 and EB-3 China remains unchanged at January 1, 2012. EB-2 India remains unchanged at July 22, 2008 and EB-3 India progressed by five months to July 15, 2006. EB-3 worldwide is current. EB-2 Mexico and Philippines have retrogressed to April 1, 2015 and EB-3 Mexico is now current. EB-3 Philippines has progressed one year to June 1, 2015.
EB-5 for both regional centers and non-regional centers remains current, with the exception of China, which has progressed by one week to June 15, 2014.
Application Filing Dates for EB-1, EB-2 and EB-3 Worldwide are current. Additionally, Application Filing Dates for China remain unchanged in both the EB-2 and EB-3 categories with EB-2 China at October 1, 2013 and EB-3 China at September 1, 2015. Similarly, Application Filing Dates for India in the EB-2 category remains unchanged at February 1, 2009. The EB-3 India category progressed by three months to January 1, 2007. Application Filing Dates for EB-3 Philippines progressed by six months to January 1, 2016. Application Filing Dates for EB-5 China remain unchanged at September 1, 2014.
USCIS has announced that both family-based and employment-based adjustment of status applicants must use the Final Action Dates chart in the Department of State Visa Bulletin for August 2017.
D&S Update: Delay of Effective Date of Final Rule on Parole for Start-Up Entrepreneurs
The Department of Homeland Security (DHS) has issued an update to the Federal Register postponing the effective date of the Final Rule on Parole for Start-Up Entrepreneurs until March 14, 2018.
Prior to the postponement, the rule was set to become effective next week, on July 17, 2017. Once effective, the rule would permit DHS to grant parole to qualified foreign entrepreneurs on a case-by-case basis where the entrepreneur can demonstrate, substantial and demonstrated potential for rapid business growth and job creation and that they would provide a significant public benefit to the United States.
According to DHS, this delay will provide an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to the Trump Administration's January 25, 2017 Executive Order, ‘‘Border Security and Immigration Enforcement".
Comments are due by August 10, 2017.
D&S Immigration Update: SCOTUS Partially Lifts Injunction on Trump Administration's Revised Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States”
Today, Monday, June 26, 2017, the U.S. Supreme Court announced that it will review the currently pending challenge to the Trump Administration’s Revised Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” this fall. In the interim, the Court announced that the current injunction on the travel ban is too broad and, thus, the Court is allowing the ban to go into effect for foreign nationals from the 6 majority Muslim countries who lack any bona fide relationship to a U.S. person or business interest.
Read MoreDepartment of State July 2017 Visa Bulletin Summary
The Department of State has now released the July 2017 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates. Application Filing Dates for EB-1, EB-2 and EB-3 Worldwide are current. Additionally, Application Filing Dates for China remain unchanged in both the EB-2 and EB-3 categories with EB-2 China at October 1, 2013 and EB-3 China at September 1, 2015. Application Filing Dates for EB-2 India remain unchanged at February 1, 2009 and EB-3 India progressed by nearly six months to October 1, 2006. Application Filing Dates for EB-3 Philippines remain progressed by one year to July 1, 2015. Application Filing Dates for EB-5 China remain unchanged at September 1, 2014.
With respect to Final Action Dates, EB-1 China and EB-1 India remain unchanged at January 1, 2012. EB-2 China advanced by 21 days to March 22, 2013, but EB-3 China retrogressed by about 2.5 years to January 1, 2012. Both EB-2 and EB-3 India progressed slightly to July 22, 2008 and February 15, 2006 respectively.
EB-2 Worldwide remains current, while EB-3 Worldwide progressed nearly two months to June 8, 2017. EB-3 Mexico progressed by approximately two months to June 8, 2017 and EB-3 Philippines advanced by one year to May 15, 2014. EB-5 for both regional centers and non-regional centers remains current, with the exception of EB-5 China, which remains unchanged at June 8, 2014.
As of today, June 13, 2017, USCIS has not advised whether, in July 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.
D&S Practice Pointer: Bona Fide Termination of H-1B Employees
Many employers are aware of the fact that they are responsible for the reasonable cost of a H-1B employee's return transportation home if they terminate an employee prior to the expiration of their H-1B petition. What many employers don't realize is that this requirement is also an important step in effecting a "bona fide" termination of an H-1B employee. In this post, D&S provides some additional information, details, and guidance on ensuring that H-1B employers effect a bona fide termination of an H-1B employee to reduce the risk that they could be subject to payment of back wages and penalties from the Department of Labor (DOL).
Read MoreDepartment of State June 2017 Visa Bulletin Summary
This week the Department of State released the June 2017 Visa Bulletin. D&S provides a Monthly Summary of the family and employment-based priority dates. Application Filing Dates for EB-1, EB-2 and EB-3 Worldwide are current. Additionally, Application Filing Dates for China remain unchanged in both the EB-2 and EB-3 categories with EB-2 China at October 1, 2013 and EB-3 China at September 1, 2015. Similarly, Application Filing Dates for India in both the EB-2 and EB-3 categories remain unchanged at February 1, 2009 and April 22, 2006 respectively. Application Filing Dates for EB-3 Philippines remain unchanged at July 1, 2014. Application Filing Dates for EB-5 China remain unchanged at September 1, 2014.
With respect to Final Action Dates, there was significant retrogression of nearly 5.5 years for EB-1 China and EB-1 India, with each category retrogressing to January 1, 2012. EB-2 China progressed one month to April 1, 2013 and EB-3 China remains unchanged at October 1, 2014. EB-2 India progressed slightly to July 1, 2008 and EB-3 India retrogressed by 10 days to May 15, 2005. EB-3 El Salvador progressed 1 month to April 15, 2017. Certain Religious Workers are once again current for all groups except Mexico and El Salvador, which are both retrogressed to July 15, 2015. EB-3 Philippines has progressed 4 months to May 1, 2013.
EB-2 Worldwide remains current and EB-3 Worldwide has progressed one month to April 15, 2017. EB-5 China progressed by one week to June 8, 2014.
As of today, May 9, 2017, USCIS has not advised whether, in June 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.