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, May 24, 2018

June 2018 Visa Bulletin






















In June's Visa Bulletin, a cut-off date of August 1, 2014 has been imposed for EB-5 Vietnam. EB-5 China advances half month to August 1, 2014. There is no other notable movement for June's Visa Bulletin. For Chinese born applicants, "downgrading" from EB-2 to EB-3 is still a way for them to speed up their immigration process. 


AD: Dates for Final Action (Approval)  FD : Dates for Filing Applications
      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
04/08/2011
04/08/2011
04/08/2011
06/01/1997
03/22/2006
FD
01/08/2012
01/08/2012
01/08/2012
07/15/1998
10/08/2007
F2A
AD
06/08/2016
06/08/2016
06/08/2016
05/22/2016
06/08/2016
FD
09/22/2017
09/22/2017
09/22/2017
09/22/2017
09/22/2017
F2B
AD
06/22/2011
06/22/2011
06/22/2011
02/15/1997
01/15/2007
FD
09/08/2011
09/08/2011
09/08/2011
05/22/1997
09/08/2007
F3
AD
03/15/2006
03/15/2006
03/15/2006
10/01/1995
04/08/1995
FD
09/08/2006
09/08/2006
09/08/2006
09/22/1998
07/22/1995
F4
AD
10/22/2004
10/22/2004
03/15/2004
01/08/1998
02/22/1995
FD
04/01/2005
04/01/2005
12/01/2004
05/08/1998
10/15/1995
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 Counties
China
El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1
AD
C
  01/01/2012
C
  01/01/2012
C
C
FD
C
C
C
C
C
C
EB2
AD
 C
09/01/2014
C
  12/26/2008
C
C
FD
C
02/01/2015
C
04/01/2009
C
C
EB3
AD
C
06/01/2015
C
05/01/2008
C
01/01/2017
FD
C
01/01/2016
C
09/01/2008
C
07/01/2017
Other Workers
AD
C
05/01/2007
C
05/01/2008
C
01/01/2017
FD
C
06/01/2008
C
09/01/2008
C
07/01/2017
EB4
AD
C
C
12/15/2015
C
10/22/2016
C
FD
C
C
04/15/2016
C
C
C
EB5
AD
C
08/01/2014
C
C
C
C
FD
C
09/01/2014
C
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)


Tuesday, May 22, 2018

Nepalese Must Re-Register for TPS between 05/22/2018 and 07/23/2018

USCIS made the following announcement today:

U.S. Citizenship and Immigration Services (USCIS) announced today that current beneficiaries of Temporary Protected Status (TPS) under Nepal’s designation who want to maintain their status through the effective termination date of June 24, 2019, must re-register between May 22, 2018, and July 23, 2018.

Re-registration procedures, including how to renew employment authorization documents (EADs), have been published in the Federal Register and on uscis.gov/tps.

All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an EAD by submitting a completed Form I-765, Application for Employment Authorization, at the time they file Form I-821, or separately at a later date. Both forms are free to download from the USCIS website at uscis.gov/tps.

USCIS will issue new EADs with a June 24, 2019 expiration date to eligible Nepali TPS beneficiaries who timely re-register and apply for EADs. Given the timeframes involved with processing TPS re-registration applications, however, USCIS recognizes that not all re-registrants will receive new EADs before their current EADs expire on June 24, 2018. Accordingly, USCIS has automatically extended the validity of EADs issued and currently valid under the TPS designation of Nepal for 180 days, through Dec. 21, 2018. 

Saturday, May 19, 2018

OPT Terminated If Student Changes School or Starts New Study Program

USCIS issued a reminder to F-1 foreign students that their OPT may end under two conditions. First, if they transfer to another school to study, their OPT will terminate.  Second, if they begin a study program at another educational level, then their OPT will also terminate.  The general rule is that a foreign student may only obtain one OPT employment for each educational level. For example, when a student completed her bachelor's degree, she is entitled to 12 months of OPT employment.  She must complete a new academic program (e.g., a master's degree) before she may apply for OPT employment again.   However, this policy should not stop foreign students from pursuing a higher degree if it makes sense to do so otherwise.

Thursday, May 10, 2018

Guidelines for DNA Evidence of Siblings to Prove Relations

When U.S. citizens or lawful permanent residents petition for a family member, the proper relationship must be proven to USCIS. Absent primary evidence such as birth and marriage certificates, the parties may submit secondary evidence like affidavits, school records, and medical records. DNA testing can also supplement evidence, usually through establishing parent-child relationships. If someone petitions for their sibling, their familial relationship must be proven to USCIS.

A sibling relationship is defined in INA §§ 101(b)(1) and (2) as two people who are “children of at least one common parent”. Full siblings share both parents while half siblings share one parent. When it is not possible to test common parents, sibling DNA tests can be used. A newly released USCIS policy memo allows for use of DNA testing for sibling relationships and explains the guidelines.

Results are interpreted through percentage probability of a true relation. The accepted standard is 90 percent probability of familial relationship for both full and half siblings. Both half and full sibling tests are inconclusive when between 9 and 89 percent probability. Below 9 percent means the full-sibling relationship does not exist. For a half sibling test, below 9 percent is inconclusive. 

Test Result - percent probability of true relationship
Full Sibling Relationship
Half Sibling Relationship
90% and higher
Relationship Exists
Relationship Exists
9% – 89%
Inconclusive
Inconclusive
Below 9%
Relationship Does Not Exist
Inconclusive

Source: DNA Evidence of Sibling Relationships. Policy Memorandum. USCIS. April 17, 2018.


Inconclusive and exclusionary results do not mean the petition will be denied. It means that the relationship hasn’t been established but can still be accepted if sufficiently supported with other forms of evidence. If other submitted evidence is sufficient, the relationship can be accepted as true by USCIS anyway.

The type of test used can affect results and how they are judged. The above standards are based on testing 20 loci (genetic markers). Officers must tell petitioners that they can test more loci if the result was below 90 percent probability but tested less than 20 loci. AABB labs also updated their standards to test at least 20 loci when previous results were below 90 percent probability.

Testing against other relatives is also used to provide evidence of sibling relationships. The tested people do not have to be named on the petition. This provides more information to work with and is encouraged by AABB standards.

While DNA tests are powerful evidence, the results are not sole determinants in an application. Half and full sibling tests are suggested by USCIS as an alternative to unavailable primary evidence. Adjudicators look at the petition and all supporting documents as a whole. It is important that the petitioner prepare each part of the application carefully.

Tuesday, May 8, 2018

Offsite STEM OPT Employment Severely Limited by New Restrictions

Consulting and staffing firms using STEM OPT workers are now faced with heavy restrictions. USCIS has inconspicuously updated the its STEM OPT web page with rules that make it much harder to legally employ STEM OPT workers offsite.

STEM OPT refers to the optional practical training (OPT) 24-month extension that STEM subject F-1 students can take. This is available to them after completion of their initial 12-month OPT. Employers that hire these students must follow certain rules themselves. They must enter the company information to the E-Verify database, allowing USCIS to keep track of employee immigration status. They also have to create and show an individualized training plan (form I-983) for the student, reporting any material changes to their designated school official (DSO).

Some companies, most notably IT consulting firms, hire these workers and assign them to work at offsite client locations. The recent changes strongly discourage this. They include:
  1. Training must be done in person, not through phone calls or e-mails.
  2. The mentor cannot be a third-party person (client of employer, employees or contractor of client)
  3. The mentor must be a senior employee (not another STEM OPT employee) in the same training location denoted in the I-983 plan.
  4. Training must take place where Immigration and Customs Enforcement (ICE) can access for site visits. This usually does not include third-party client work sites and places of business.   
  5. Training does not count if the trainee is assigned at work at an offsite location and visits the employer's site for training.
This makes it very difficult for companies that dispatch their employees to client locations to employ STEM OPT workers. Consulting and staffing companies are especially affected. STEM students should be careful when they apply for positions that would require them to work off-site at client locations. Prior consultation with an experienced employment immigration attorney is strongly recommended.

For example, when an employer located in New York assigns an employee to work at a client site in California, it would be impracticable for the employee to return to New York for training.  Similarly, ICE's authority to conduct onsite visits originates from the terms of the STEM OPT employment program. Third-party client businesses are not covered by the terms of the program.  Further, unless an employer happens to have more senior employee working at the same client job site as the STEM OPT employee, it would be very difficult if not impossible to comply with the supervision requirement under the I-983 training plan.