A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, December 8, 2016

Visa Appointments Suspended in Chennai Until December 8

DOS alert noting that the U.S. Consulate General in Chennai will continue to operate with reduced staffing on 12/7/16 and has temporarily suspended appointments for routine services for visa applicants. The Consulate plans to resume routine services on 12/8/16.  (AIlA Doc. No. 16120631)

Tuesday, December 6, 2016

PERM Labor Application Processing Time

DOL posted the following PERM labor certification processing times as of 12/3/2016 -



Analyst Reviews: 
September 2016
(About 4 months)
Audit Review: 
May 2016
(About 8 months)
Reconsideration Requests: 
November 2016
(2 month)




(Note: the dates represent initial filing dates)

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Wednesday, November 30, 2016

11 New Airports Selected For Possible U.S. Preclearance Expansion


DHS announced on November 4, 2016, that 11 airports were selected for possible preclearance expansion. The following is an except of the press release:

WASHINGTON—Secretary of Homeland Security Jeh Johnson announced today 11 new foreign airports, located in nine countries, selected for possible Preclearance expansion. If Preclearance operations are expanded to these airports, travelers would undergo immigration, customs, and agriculture inspection by U.S. Customs and Border Protection before boarding a flight to the United States rather than upon arrival. The homeland security benefits of Preclearance include preventing high-risk travelers from boarding aircraft bound for the United States. In addition to enhancing security preclearance generates the potential for significant economic benefits for the United States and our international partners by reducing wait times at domestic gateways, creating an overall increase in clearance capacity, facilitating quicker connections to U.S. domestic flights, and maximizing aircraft and gate utilization.

“Expanding Preclearance operations has been a priority of mine as Secretary. Preclearance allows DHS to screen individuals prior to boarding a flight, which means we are able to identify threats long before they arrive in the United States,” said Secretary Johnson. “I look forward to the opportunity to grow our Preclearance operations in the Western Hemisphere, particularly into South America where CBP does not currently operate a Preclearance location.”

The 11 airports identified for possible Preclearance locations include: El Dorado International Airport (BOG) in Bogota, Colombia; Ministro Pistarini International Airport (EZE) in Buenos Aires, Argentina; Edinburgh Airport (EDI) in Edinburgh, United Kingdom; Keflavik International Airport (KEF) in Iceland; Mexico City International Airport (MEX) in Mexico City, Mexico; Milan-Malpensa Airport (MXP) in Milan, Italy; Kansai International Airport (KIX) in Osaka, Japan; Rio de Janeiro-Galeão International Airport (GIG) in Rio de Janeiro, Brazil; Leonardo da Vinci-Fiumicino Airport (FCO) in Rome, Italy; São Paulo-Guarulhos International Airport (GRU) in Sao Paulo, Brazil; and Princess Juliana International Airport (SXM) in St. Maarten.

More than 10 million travelers fly to the United States from these airports each year.

The other 10 locations selected for preclearance during the first open season included: Stockholm Arlanda Airport; Brussels Airport, Belgium; Punta Cana Airport, Dominican Republic; Narita International Airport, Japan; Amsterdam Airport Schiphol, Netherlands; Oslo Airport, Norway; Madrid-Barajas Airport, Spain; Istanbul Ataturk Airport, Turkey; and London Heathrow Airport and Manchester Airport, United Kingdom. 

Monday, November 28, 2016

Visa Bulletin Predictions by Charles Oppenheim - December 2016 and Onward

Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim would provide his insights on the trends, movements, predictions, etc., regarding the usage of immigrant visa numbers.  The following are the highlights of his insights following the publication of the December 2016 Visa Bulletin:  

  • Charles predicts that EB-1 China and EB-1 India will be subject to a final action date “at some point," in the near future, probably early next year.  EB-1 India has already reached the country limit, China is also getting very close.
  • Charles predicts that EB-2 Worldwide, EB-2 Mexico and EB-2 Philippines will be subject to a cut-off date no later than July. 
  • A final action date is imposed for EB-4 Mexico.
  • EB-3 vs. EB-2 China:  EB-3 China is currently about ten months ahead of EB-2 China.  Charlie expects this gap to continue to close but is not certain about how fast the closing will be.  He is limiting the forward movement of EB-3 China to accommodate for an anticipated influx of cases from "downgrading" form EB-2 China.
  • EB-3 vs. EB-3 India:  EB-3 upgrades are putting significant pressure on the EB-2 India category. Charles hopes that EB-2 India's final action date will move into 2009 at some point this fiscal year, but Charlie is not sure about when that may happen.  Unlike the past few years, heavy demand for EB-2 Worldwide this year means means little or no visa numbers are left to reallocate to EB-2 India.   For EB-3 India, Charles expects that it would "move up to one week, hold for several months, then move one week, and then hold again."
  • EB-2 Worldwide/Mexico/Philippines:  Charlie speculates that a cut-off date will be imposed no later than July for these categories due to heavy demand.
  • EB-3 Worldwide:  Charlie continues his warning about increasing demand for this category but he is not sure whether "this demand will be sustained."  
  • Charles's reminds about the December 9, 2016 expiration date of the non-minister EB-4 special immigrant category and the immigrant investor pilot program (I5 and R5).
  • Lack of visibility regarding EB-4 El Salvador/Guatemala/Honduras over the next 12 months: "We are aware that there was a very large volume of EB-4 Mexico cases already processed with 2015 and 2016 priority dates, and this is why we imposed a cut-off date for December.... Despite the high demand, at this time we do not anticipate a retrogression of the EB-4 final action date for these four countries this fiscal year, but because of the lack of visibility into USCIS data, we will continue to monitor the situation closely."
  • EB-4 annual country limit for El Salvador, Guatemala, Honduras and Mexico: "None of these countries has reached the annual limit for this fiscal year yet, but we expect them to do so early in FY 2017."
(Source: AILA Doc. No. 14071401)

Monday, November 21, 2016

EB Rule Finalized: Grace Periods, Emergency I-140 EAD, 180-Day EAD Extension, and Much More


Hey foreign workers, you want grace periods?  Now you got them!

A final rule touching on many aspects of the U.S. employment-based non-immigrant and immigrant visa programs has been finalized recently.  In addition to grace periods,  the new rule allows emergency employment authorization for individuals with approved I-140 petitions, automatic 180-day EAD extension, job portability, H-1B extensions, and much more.   The main purpose of the new rule is to retain foreign high-skilled workers by creating flexibility for them to work in the U.S.  A draft proposal was published on December 31, 2015, the final rule goes into effect on January 17, 2017.

The following is a summary of the most important aspects of the new rule; 

10-Day and 60-Day Grace Periods
Foreign workers who are in E-1, E-2, E-3, L-1 and TN visa classifications may be granted grace periods of up to 10 days both before and after the visa validity period. Similar grace periods are currently available to nonimmigrants with H-1B, O, and P classifications.

Similarly, DHS may also grant foreign workers who are in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN classifications a one-time grace period of up to 60 consecutive days, or until the end of the validity period, whichever is shorter, during the validity period of the underlying petition.  The purpose of this grace period is to accord time to foreign workers to seek new employment if their current employment is terminated for whatever reason. However, the foreign worker may not work during this grace period.

I-140 EAD for Compelling Reasons
The new rule allows certain foreign workers to apply for employment authorization for one year if they meet four criteria: "(1) The individual is currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification; (3) the individual does not have an immigrant visa immediately available; and (4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization."

Compelling circumstances are not clearly defined, but may include the following:
- Serious Illness or Disability
- Employer dispute retaliation
- Substantial harm to the applicant
- Significant disruption to the employer

These EAD applications may be filed during the grace periods of the principal's visa status. Dependent family members are also eligible for th EAD.  Extensions are also allowed one two basis: (1) Compelling circumstances continue to exist and priority date remains not current, or (2) Principal's priority date is one year or less either before or after the Final Action cut-off date in the Department of State Visa Bulletin.

Automatic Extension of EAD
The new rule authorizes automatic extension of a worker's EAD for up to 180 days upon filing of an extension I-765 application prior to the expiration of the current EAD. The extension must be based on the existing authorization category and does not require adjudication of another application.  Some eligible categories include refugees, asylees, individuals granted withholding of removal, TPS recipients, individuals with pending I-485 applications, etc.  Ineligible categories include H-4 and L-2 beneficiaries, and also deferral of removal recipients.

I-140s Approved for 180 Days Remain Valid
Foreign workers' I-140 petitions that have been approved for more than 180 days will remain valid under the new rule.  The validity of I-140 can be used in H-1B extension petitions under AC-21 and also for retention of priority dates in subsequent visa petitions.  An I-140 petition will remain valid even if it is withdrawn or cancelled by the employer unless USCIS revokes the petition based on fraud, misrepresentation or material error.

Job Portability after 180 Days
The new rule codifies the current policy regarding foreign workers' ability to change jobs after their I-485 has been pending for 180 days. Specifically the new I-485 Supplement J was created to capture the information regarding the request for portability including the existence of a bona fide job offer that is in the same or similar job classification as the original one.

Three-Year H-1B Extensions
Section 104(c) of AC21 authorizes approval of H-1B status beyond the general 6-year maximum period if an immigrant visa is unavailable to the beneficiary due to per-country cap limits in the applicable visa category.  The new rule codifies this section and clarifies that extensions can be granted multiple times until an immigrant visa number becomes available to the beneficiary. Further, extensions can be granted regardless of whether the beneficiary is currently in H-1B status or physically present in the U.S. However, dependent beneficiaries are still not covered by the new rule.

One-Year H-1B Extensions
Section 106(b) of AC21 authorizes approval of 1-year extensions of H-1B status beyond the 6-year maximum period if 365 days have passed since the filing of labor application or immigrant visa petition by an employer on behalf of the beneficiary.  This current policy is codified in the new rule.   When an application has been denied but under appeal, it is still considered pending and can be used to support an extension request.  However, extensions would not be granted to expired labor applications.  Further, the applicant must file an I-485 adjustment of status application within one year of visa numbers becoming available. However, the one-year clock is reset if there is visa retrogression.  Failure to timely file the I-485 may be also excused by USCIS based on other valid reasons beyond the control of the beneficiary.

Licensing Requirements Relaxed for H-1B Employees
The new rule allows USCIS to review additional evidence when adjudicating H-1B positions which normally require a license.  For example, some states allow individuals without a full license to practice the occupation under the supervision of licensed professionals.  Sometimes a license is not granted not because of merits but because of a technical requirement such as lack of a social security number.  In short, USCIS will focus more on the substantive requirements of the license rather than the technical deficiencies.

Organizations that are Fee and/or Cap-Exempt
Certain organizations are exempt from the H-1B cap and/or filing fees.  The new rule provides more guidance in the qualifications of such organizations.  For example, an entity may claim exemption if it is "related or affiliated" with an institution of higher education.  Under the new rule, such an entity may claim exemption based on a formal written affiliation agreement with an institution of higher education, as long as "a fundamental activity" of the nonprofit entity is to directly benefit the mission of the institution of higher education.  Further, the new rule clarifies that shared ownership would not be a basis for denying exempt status.




Friday, November 18, 2016

December 2016 Visa Bulletin: EB-2 India, EB-2/EB-3 China Advance



In the December Visa Bulletin, EB-2 India advances 3 months.  EB-2 China and EB-3 China move forward 9 weeks and 2.5 months respectively.  

EB-3 China remains ahead of EB-2 China.  Therefore, downgrading of the I-140 remains an option for Chinese-born applicants.

EB-3 Philippines moves forward by 2 months.

Due to a large of number employment-based adjustment cases filed during late last winter, EB-1 India and China is expected to have a cutoff date (no longer current) later in the fiscal year. EB-3 India will only advance one week per month or not advance at all. 


Family First Preference advances 5.5 weeks for most countries.  Other family categories have small advancements. 

USE OF DATES FOR FILING APPLICATIONS BY USCIS -
USCIS has determined that applicants in the family-sponsored and employment-based, first through fourth preference categories may use the Dates for Filing Visa Applications chart in the DOS Visa Bulletin for December 2016. 
However, employment-based, fifth preference applicants must use the Application Final Action Dates chart in the December Visa Bulletin.



AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
12/01/2009
12/01/2009
12/01/2009
04/15/1995
09/15/2005
FD
01/01/2011
01/01/2011
01/01/2011
06/01/1995
05/01/2006
F2A
AD
02/22/2015
02/22/2015
02/22/2015
02/15/2015
02/22/2015
FD
11/22/2015
11/22/2015
11/22/2015
11/22/2015
11/22/2015
F2B
AD
05/08/2010
05/08/2010
05/08/2010
10/15/1995
03/01/2006
FD
02/08/2011
02/08/2011
02/08/2011
06/01/1996
02/01/2007
F3
AD
02/15/2005
02/15/2005
02/15/2005
12/08/1994
08/15/1994
FD
08/22/2005
08/22/2005
08/22/2005
05/01/1995
01/01/1995
F4
AD
12/22/2003
10/01/2003
04/01/2003
05/15/1997
05/22/1993
FD
07/01/2004
07/01/2004
05/01/2004
12/01/1997
04/01/1994
1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).


2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


Employment
Other Countries
China
El Salvador Guatemala Honduras
India
MexicoPhilippines
EB1
AD
C
C
C
C
C
C
FD
C
C
N/A
C
C
C
EB2
AD
C
09/22/2012
C
02/01/2008
C
C
FD
C
03/01/2013
N/A
04/22/2009
C
C
EB3
AD
07/01/2016
07/01/2013
07/01/2016
03/15/2005
07/01/2016
06/01/2011
FD
C
05/01/2014
N/A
07/01/2005
C
09/01/2013
Other Workers
AD
07/01/2016
11/01/2005
07/01/2016
03/15/2005
07/01/2016
06/01/2011
FD
C
08/01/2009
N/A
07/01/2005
C
09/01/2013
EB4
AD
C
C
07/15/2015
C
C
C
FD
C
C
N/A
C
C
C
EB5
AD
C
03/22/2014
C
C
C
C
FD
C
06/15/2014
N/A
C
C
C


1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers,outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

Wednesday, November 16, 2016

New I-9 Form Is Out!


Starting January 21, 2017, employers must use the new version of the Form I-9, Employment Eligibility Verification, recently published by USCIS.


These are some of the changes in the new version:


  • Employees only need to provide other last names used in Section 1. 
  • The certification in Section 1 for certain foreign nationals takes less time to complete.
  • There are additional spaces to enter multiple preparers and translators.
  • There is a dedicated area to enter additional information that employers have been required to notate in the margins of the form.


The electronic version of the form has also some added features to make it easier to complete and print out the form.

The I-9 form was created to assist employers verify new employees' eligibility to work legally in the U.S.  Failure to timely and properly complete the form can lead to substantial civil monetary fines. Knowing hiring of illegal workers may also lead to criminal charges.




Friday, November 11, 2016

President-Elect's Immigration Policy

Many people are nervous about the newly elected president's immigration policy.  The sentiment is understandable, given the strong rhetoric that we have been hearing since the beginning the presidential campaign.  However, it remains unclear how much of his immigration policy will actually be implemented after Mr. Trump takes office in January.  In fact, the President-elect has already softened his tone in his victory speech by emphasizing that he will be the president "for all of Americans" and will seek "common ground, not hostility; partnership, not conflict."   The following are the immigration-related items on his policy agenda within the first 100 days: 

Building a wall on the U.S.-Mexican border:  Among all the items on Mr. Trump's immigration agenda, this one is most likely to come to fruition.  Mr. Trump has repeatedly announced his intention to build a wall on our southern border to curtail illegal immigration.  However, the devil is always in the details. There will be a hose of logistical, technical, legal and financial issues involved regarding such a plan.  How long and tall should the wall be? What security and safety measures will be implemented?  Who is going to pay for it?  Mexico’s president already stated that his government is not willing to finance such a project.  Mr. Trump had suggested imposing some sort of tax when Mexican citizens send money to Mexico.

In a recent TV interview, Mr. Trump stated that fences will be installed instead of walls in certain regions of the border.

Suspending immigration from terror-prone regions:   To a certain extent this is already being done by the Obama administration.  Anybody with a questionable background is already being scrutinized by the U.S. government; many have already been refused visas to enter the U.S.

Renegotiating NAFTA or withdrawing from the agreement:   As some scholars already stated, it will not be easy for the U.S. to unilaterally back out of the agreement without tremendous rippling effects. The North American Free Trade Agreement (NAFTA) was negotiated and finalized by leaders of Canada, Mexico and the U.S. In fact, two U.S. presidents were involved in the process. The program was approved and ratified by Congress.  Tens of thousands of professionals are working in these three countries under NAFTA.  Killing it completely will definitely cause a lot of economic damage to many businesses.  Renegotiating and amending the terms of NAFTA is a more likely scenario.

Revoking existing programs such as DACA:  The President-elect has vowed to cancel every "unconstitutional executive action, memorandum and order issued by President Obama".  So this will likely include President Obama’s Deferred Action for Childhood Arrivals (DACA) program. This program allows individuals who were brought to the country as children to receive temporary protection from deportation and employment authorization. More than one million individuals have enrolled in the program.  Mr. Trump could stop the program when he takes office.  What remains unclear is how he is going to deal with the existing beneficiaries. 

Canceling all federal funding to Sanctuary Cities:  This action will have significant impact to the finances of many metropolitan areas.  Many major U.S. cities including Seattle, New York, Chicago, Los Angeles, Miami, etc., are Sanctuary Cities.  Cutting their funding will likely affect many social programs. 

Begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won't take them back:  Mr. Trump initially wanted to remove all illegal immigrants form the country.  Now his priority is to remove the 2 million criminal illegal immigrants first.  This is merely a continuation of what President Obama has been doing. Unbeknownst to many, record numbers of criminal aliens have been removed from the U.S. under the Obama Administration. As president, Mr. Trump certainly has the authority to direct his Secretary of State to cancel U.S. visas issued to the nationals of foreign countries - such as Iran, Zimbabe, Cuba, etc. - that have refused to accept the return of their nationals. 

Legal immigration and high-tech visas:   Legal immigration and high-tech visas are not on the 100-day agenda of Mr. Trump. His position on the H-1B Visa Program has changed before. Many observers, including CEOs from the Sillicon Valley, believe and hope that, given his business background, Mr. Trump is unlikely to take any drastic actions against the high-tech visa programs. Regarding legal immigration, Mr. Trump stated that he intends to modernize the existing programs to speed up legal immigration and improve efficiency.

For those who are nervous about their immigration status, they should take measures early on before any changes take place. Things to do now -  Apply for U.S. citizenship immediately if eligible;  start any visa or green card petitions, or any other benefit applications as early as possible; and stay in close contact with their immigration attorneys.