August 2018 Visa Bulletin: EB-1 Retrogression

In the August 2018 Visa Bulletin, all EB-1 categories have cut-off dates of 05/01/2016 except China and India which are cutoff at 01/01/2012.  This has never happened before. 

EB-2 and EB-3 China advance 3 months and 18 months respectively.  EB-2 and EB-3 India both advance 2 months.  EB-2 and EB-3 Philippines both advance 5 months.

For the first time, Vietnam has cutoff dates for EB-1 and EB-5.

Family immigration categories have moderate advancements.

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

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	05/08/2011	05/08/2011	05/08/2011	08/01/1997	08/01/2006
	FD	03/08/2012	03/08/2012	03/08/2012	09/01/1998	02/15/2008
F2A	AD	07/22/2016	07/22/2016	07/22/2016	07/01/2016	07/22/2016
	FD	12/01/2017	12/01/2017	12/01/2017	12/01/2017	12/01/2017
F2B	AD	10/22/2011	10/22/2011	10/22/2011	04/01/1997	02/15/2007
	FD	01/08/2012	01/08/2012	01/08/2012	06/08/1997	12/15/2007
F3	AD	06/15/2006	06/15/2006	06/15/2006	12/01/1995	05/01/1995
	FD	09/22/2006	09/22/2006	09/22/2006	10/08/1998	08/01/1995
F4	AD	12/22/2004	12/22/2004	03/22/2004	01/15/1998	04/22/1995
	FD	05/01/2005	05/01/2005	01/01/2005	06/01/1998	12/01/1995

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)

Employement		Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines
EB1	AD	05/01/2016	01/01/2012	05/01/2016	01/01/2012	05/01/2016	05/01/2016
	FD	C	C	C	C	C	C
EB2	AD	C	03/01/2015	C	03/15/2009	C	C
	FD	C	04/01/2015	C	05/22/2009	C	C
EB3	AD	C	07/01/2014	C	01/01/2009	C	06/01/2017
	FD	C	01/01/2016	C	05/01/2009	C	07/01/2017
Other Workers	AD	C	05/01/2007	C	01/01/2009	C	06/01/2017
	FD	C	06/01/2008	C	05/01/2009	C	07/01/2017
EB4	AD	C	C	02/08/2016	02/08/2016	02/08/2016	C
	FD	C	C	05/01/2016	C	C	C
EB5	AD	C	08/01/2014	C	C	C	C
	FD	C	10/01/2014	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)

Think Twice Before You File Any Immigration or Naturalization Application

The U.S. Citizenship and Immigration Services (USCIS) issued a recent policy guidance that indicates an expanded scope of power in issuing Notices to Appear (NTA). A Notice to Appear is a document that begins removal proceedings for a foreign national. It directs them to appear in immigration court in front of a judge and can end in deportation.

USCIS already has the authority under a previous guidance to issue NTAs in cases of national security concerns, cases where they are required to do so by statute or regulation, and in Temporary Protected Status and DACA cases. The recent policy update specifies that USCIS can issue an NTA on denied cases "for reasons other than fraud". This is a very broad definition, giving much leeway for USCIS to legally serve NTAs. There is a notable change in the scope of USCIS' authority between this new guidance and the previous one.

Furthermore, under the new guidance, after USCIS denies an immigration application, the applicant could be placed in removal proceedings if the person is unlawfully present in the U.S.  Currently, USCIS would issue a notice instructing an out-of-status applicant to leave the country after denial. 

Change of employers under H-1B status, for example, can become risky if the applicant leaves the initial employer before the petition to change employers is decided. A denial would result in the applicant becoming out of status.   Another example is a B1/B2 visitor applying for extension or change of status.  The current lengthy processing times mean that the applicant's authorized stay will almost certainly have ended when a decision is issued.  If her application is then denied, she is unlawfully in the country. The recent policy guidance gives the USCIS the authority to immediately issue an NTA in these circumstances. 

USCIS is also now able to serve NTAs to applicants charged or convicted of criminal offenses, regardless of whether the crime was related to the case. The policy guidance also writes that denial of N-400 applications on good moral character grounds because of criminal offenses can also result in an NTA. There is no specification on how old the charges or convictions need to be.

With these changes, the USCIS has become a powerful enforcer. The authority to serve NTAs under such broad definitions is substantial. It is not clear to what extent USCIS will exercise this new authority, especially given the huge backlog of removal cases already pending before the immigration court. Nonimmigrants must now plan very carefully when it comes to changing their immigration status. They should weigh the pros and cons before filing any petition with USCIS, as a denial could result in being placed in removal proceedings. An order of removal would make it very difficult for a foreigner to return to the U.S. in the future. 

Sessions Rescinds Asylum-Seekers Ability to Work

America has always opened its door to people who escape persecution from other countries.  The Statute of Liberty still stands tall in the New York Harbor and, at its base, is still ingrained with Emma Lazarus's words "Give me your tired, your poor/Your huddled masses yearning to breathe free." While these words are set in stone, our immigration policy is rather fluid and changes constantly based on our current politics, economics, and "general feelings" about foreigners.  Our present policy is clearly one of restriction, as demonstrated by the newest announcement by the Attorney General that asylum seekers' ability to work will be taken away.

Many refugees came to America because of political and religious persecution, while some others foreigners may come here for economic opportunities.  Regardless of their true intentions, when foreigners arrive at our shore and seek asylum, we always give them an opportunity to state their case. We would offer protection if they meet the legal standards. Otherwise we reject their applications. While they are waiting to have their cases heard, our policy has been to allow them to stay and work here temporarily. 

Recently, many Obama-era immigration guidances have been dropped through the authority of Attorney General Jeff Sessions. One of the notable scrapped guidances was issued in 2011 which allowed asylum-seekers to work indefinitely and have a social security number. The same guidance restricted employers from requesting specific ID and immigration documents as proof of employment eligibility. Another dropped guidance, from 2009, mandated that employers not discriminate by immigration status when hiring. These changes allow employers to make hiring decisions based on applicants' immigration status and documents. 

There is a historical context behind this issue. In the past few decades, applying for asylum was basically the only way for the undocumented foreigners to obtain employment authorization. Many of them were lured, sometimes unknowingly, to submit asylum applications so that they may obtain EADs. Abuse of the asylum system has compromised its integrity and buried legitimate cases. The number of people that applied for asylum peaked in 2016 at around 180,000.

On a similar note, the backlog of cases in immigration courts has grown immensely in the past decade. As of May 2018 it has peaked to over 700,000 cases and eliminating this backlog is among Sessions' top priorities. He is aiming to do this by diminishing the employment incentive for illegitimate applicants. There is now a 180-day waiting period between applying for asylum and getting an EAD, but rescinding of the 2011 guidance will remove the benefit altogether. 

With these changes, the benefits of asylum-seekers are severely limited. Losing the ability to work and equal employment opportunities in the U.S. would certainly discourage economic refugees from coming here, but it would also make it very difficult for legitimate asylum seekers to survive while waiting for their claims to be reviewed. 

Supreme Court Decision Changes Stop-time Rule For Cancellation of Removal

The Supreme Court of the United States issued their decision on Pereira v. Sessions on June 21, 2018. The outcome will impact many ongoing deportation cases by allowing more eligible applicants to apply for "cancellation of removal" to stay in the U.S.

Non-permanent residents who are illegally in the United States can be in "removal proceedings." This removal process is started when they receive a notice to appear (NTA) telling them to appear in court. There is one way to stop this process. If a non-permanent resident undergoing removal has lived in the United States for at least 10 years, he/she could be eligible for cancellation of removal and apply for permanent residence if they also meet other criteria. The accumulation of time toward these 10 years stops when an NTA is served -- this is called the "stop-time rule". This is mandated by section 1229(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The statute specifies certain requirements for the NTA to be valid, most notably that the NTA must include the time and place of the removal hearing.

Shortly after the above was passed, the Attorney General pushed a regulation that gave the DHS more authority to enforce NTAs and deportations. The rule adds that the time and place of the removal hearing will be provided "where practicable". Drawing authority from this regulation, the DHS has been serving these notices without an appointed time and place and invoking the stop-time rule based on the issuance of these NTAs. Typically, the immigration court would follow up with a hearing notice specifying the date, time and place for the deportation hearing to be held after a length of time that could have been critical to the respondent's accrual of the 10-year residence. 

Pereira v Sessions challenged this practice. Pereira came to the U.S. in 2000 and went out of status. He was served an initial NTA in 2006, and then was sent a hearing notice with the time and place of hearing in 2007, which he did not receive. Pereira claimed he is eligible for cancellation of removal in 2013 to the extent that the first NTA was deficient as it contained no time and place of hearing. The lower courts disagreed and the case went up to the U.S. Supreme Court. 

The Supreme Court held that a proper NTA must specify time and place. Otherwise, it is not a NTA as defined in legislation and does not trigger the stop-time rule. The majority opinion points out that section 1229(a) of the IIRIRA specifically reads that a NTA must provide time and place of the removal proceedings.  They also state that a "notice" to appear cannot sufficiently "notify" of the removal hearing if a time and place is not given.  A subsequent notice sent separately cannot cure this legal deficiency. 

Many non-permanent residents who have been served a NTA without a specific time and place will now be able to qualify for cancellation of removal as having lived in the country for 10 years. The Supreme Court decision clearly states that a valid NTA must contain the date and place of hearing.  The question then arises as to whether or not removal cases that were started by NTAs without the time and place of hearing may continue. DHS is arguing that this ruling only applies to the Stop-Time Rule.  More litigation is expected to clarify this important issue.

Finally, it is important to note that the 10 years of residence is only one of the requirements for applying for cancellation of removal.  There other legal requirements including proof that a close citizen or permanent resident family member must suffer from "exceptional and extremely unusual hardship" if the applicant is deported.  Generally speaking cancellation of removal is an extraordinary relief that is not granted frequently.  

AG Sessions: Domestic Violence Not Eligible for Asylum

U.S. Attorney General Jeff Sessions issued a decision Matter of A-B- on June 11, 2018, making it more difficult if not impossible for domestic violence victims to obtain asylum protection in America.  His decision reasserts the traditional view of what constitutes a particular social group for the purposes of applying for political asylum.

Those seeking asylum in the U.S. may do so if they suffer persecution based on race, religion, nationality, being in a particular social group, or political opinion. What constitutes a "particular social group" (referring to the asylum seeker's claimed persecuted group) has been a subject of controversy. Generally speaking, an applicant arguing that she is persecuted because she belongs to a particular social group must demonstrate that the group can be objectively defined by virtue of some "immutable traits" such as one's race or sexual orientation. Further, the group must be  recognizable in society.

The biggest point of contention in domestic violence cases is the term "particular social group". By traditional interpretations, people in privately violent cases do not qualify as asylum seekers. In 2014, however, a new precedent was set. The case Matter of A-R-C-G- presented a woman who had fled her abusive husband in Guatemala and sought asylum in the U.S. The Board of Immigration Appeals (BIA) ruled that “married women in Guatemala who are unable to leave their relationship” is a valid social group. The Board defined "married" as an immutable characteristic and "married", "women", and "unable to leave the relationship" as distinct statuses in Guatemala. Social distinction in Guatemala was also recognized  through a "culture of machismo and family violence". This was a controversial decision and cases involving domestic violence cases were decided inconsistently. Some cases continued to be denied because the applicant was not deemed part of a particular social group.

Sessions overrules A-R-C-G- in his decision, rejecting the broad interpretation of "particular social group". According to the A.G.'s decision, the social group “married women in Guatemala who are unable to leave their relationship” is not valid by definition of the Immigration and Nationality Act. This group, according to him, cannot be circularly defined by the victims' situation. The group needs to be defined independently of the inflicted harm.  It needs to be an existing, recognized segment of the applicant's society. Also, the husband did not specifically target the applicant because she was a Guatemalan woman unable to leave her relationship. The applicant was denied asylum because she did not establish her membership in a particular social group. Session also believes that there was insufficient evidence to prove that the Guatemalan government was unable or unwilling to stop the domestic abusive acts, another requirement for obtaining asylum.

Sessions applied the same rationale to Matter of A-B-, where the social group claimed was “El Salvadoran women who are unable to leave their domestic relationships where they have children in common”, and remanded the case to the Immigration Court for a new decision.

While the Attorney General's decision is binding on all immigration courts, the BIA, and asylum officers, his word is far from being final on this issue. Asylum law is constantly changing and developing. This issue will likely resurface in a different context soon.

DHS Proposes to Remove International Entrepeneur Rule

The Department of Homeland Security (DHS) is proposing to block foreign entrepreneurs from coming to the U.S. on parole status to create start-up businesses.  On May 29, 2018, DHS published a formal proposal to cancel the International Entrepreneur Rule (IE rule) created in 2017. 

The IE rule was originally formulated during the Obama administration. Its purpose is to encourage international entrepreneurs to start their businesses in the United States. It confers a temporary parole period of 2.5 years during which foreign investors may create and operate start-up businesses in the U.S.  The period can be extended for another 2.5 years if certain conditions are met. The purpose of the IE rule is to provide an opportunity for these new businesses to grow so that they may provide benefits to the public. 

Now, the DHS is proposing to completely remove the IE rule. It cites reasons of lacking protection for domestic shareholders and too broad an interpretation of "parole". In its proposal to scrape the IE rule, DHS also cites other other visa categories under which international entrepreneurs may apply to bring their start-up to America. 

E-2, EB-2 and EB-5 visas are possible alternatives to the IE rule but are not framed as favorably for entrepreneurs. Each of these visas have specific requirements.  The E-2 visa is only available if a trading treaty exists between the U.S. and the foreigner's nation. The EB-2 immigrant visa has strict eligibility requirements based on education, skills, and achievement.  Further, the EB-2 immigrant visa requires sponsorship by a U.S. employer unless a "national interest waver" is obtained. The adjudication standards for such a waiver are quite high. The other issue with EB-2 is that there is a huge backlog of applicants from certain countries. Larger countries with many applicants like China and India are subject to long waiting times. Entrepreneurs taking this route would therefore face much larger competition and longer waiting times.

The employment-based fifth preference visa is actually intended for entrepreneurs, granting them and their families permanent residence if certain requirements are met.  The EB-5 requirements are investing in domestic business and creating jobs for American workers. The main difference between EB-5 and the IE rule is that the former requires the foreigner to put up with a large sum of investment capital while the latter may receive investment capital form U.S. investors. The EB-5 visa application process is also long and complicated.

The public has 30 days to provide comments to the proposal.  DHS has received thus far 13 IE applications and has not yet approved any application.  These applications may be rejected or denied on the effective date of the new rule or may be granted an opportunity to establish that the applicants are eligible for parole under the traditional parole rule, i.e., for urgent humanitarian reasons or significant public benefits.