U.S. College and University Presidents Call on Congress to Support International Students
On June 24, thirty Michigan college and university presidents wrote a letter to the state’s congressional delegation expressing concerns with current U.S. immigration policy and practice and identifying actions Congress can take to help Michigan schools attract and welcome international students and faculty. This follows a similar letter sent in early May of this year from the presidents of more than two dozen New Jersey colleges and universities to members of its congressional delegation. NAFSA: Association of International Educators is aware of several similar letters that are being drafted to congressional delegations from other states.
These letters identify five actions that Congress can take to reinvigorate and streamline the foreign talent pipeline to our colleges and universities:
Preserve duration of status for foreign students and exchange visitors (F and J status): For decades, students and scholars have been granted immigration status that lasts for the period of time they are engaging in their studies or research, known as duration of status or D/S. Alarmingly, the Department of Homeland Security (DHS) included the elimination of D/S in its Unified Agenda of Regulatory and Deregulatory Actions published this spring. Maintaining D/S is necessary because the time for study or research can fluctuate given the changing goals and actions of the student or scholar. U.S. Citizenship and Immigration Services (USCIS) already struggles with long backlogs and delays, and it will be unable to timely adjudicate the filings that this change would generate. USCIS average processing times have increased by 46% over the past two fiscal years and 91% since fiscal year 2014. Ending D/S for students and scholars would exacerbate an existing problem by adding an enormous number of new application filings to extend status.
Protect experiential learning opportunities for foreign students: Optional Practical Training (OPT) permits foreign students studying in the U.S. to apply for “practical training” with a U.S. employer in a job directly related to their course of study. According to a 2019 report from the Niskanen Center, experiential learning opportunities like OPT for international students lead to increased innovation and higher average earnings, while not costing U.S. workers their jobs. The program allows students to supplement their education with valuable experiential learning and on-the-job-training as they start their careers. DHS included elimination of OPT in its Spring and Fall Unified Agenda of Regulatory and Deregulatory Actions last year. Experiential learning like OPT for international students is a key component of U.S. higher education. Access to this opportunity attracts international students; many competitor countries like Australia and Canada use their similar programs to attract students away from the United States.
Reduce administrative processing delays for entry visas: In a number of recent cases, graduate students and faculty members have been forced to miss or defer entire semesters because their entry visa applications were mired in “administrative processing” at the State Department. Administrative processing is the time period outside of “normal” processing times in which cases that appear to meet the basic eligibility requirements are referred for additional background checks. Applicants are generally not provided with any explanations, nor are they told how long the additional processing may last. This situation creates untenable uncertainty for the applicant, the university, and other affected parties, especially as anecdotal reports indicate an increase in the amount of time that cases are remaining in this category. This can be especially problematic for foreign students and academics, whose commitments in the U.S. align with an established academic calendar.
Mitigate processing delays for OPT: Unfortunately, processing times for OPT applications have increased from a previous maximum of 90 days in 2016 up to 5½ months today. Processing times of this length create an enormous burden for students. The consequence of these delays is that students are unable to begin their job or program on time and, in many instances, they may lose out on the position altogether. This harms not only the students, but also the employers seeking to hire qualified, U.S.-trained workers for a practical training opportunity.
Alleviate increased Requests for Evidence: Over the past year, employers seeking to hire foreign-born employees have seen a dramatic increase in the number of “Requests for Evidence” (RFEs) from USCIS, particularly for H-1B visas, which allow U.S. employers to hire highly-skilled foreign workers in specialty occupations. We understand that USCIS has a responsibility to ensure that it has necessary information about eligibility. The scope of the increase, however, is staggering. RFEs for H-1B visa petitions more than doubled between the third and fourth quarters of FY 2017. These requests delay the issuance of visas for employers by months and increase legal costs. Meanwhile, our professors and other employees are putting their lives on hold as they wait for start dates.
Plan to Improve the Naturalization Test
On July 23, 2019, U.S. Citizenship and Immigration Services (USCIS) announced it is revising the current naturalization test with improvements to ensure it continues to serve as an accurate measure of a naturalization applicant’s civics knowledge and that it reflects best practices in adult education assessments. USCIS reports the goal is to create a meaningful, uniform, and efficient test that will assess applicants’ knowledge and understanding of U.S. history, government and values.
This past December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group has been reviewing and updating the naturalization test questions. The working group will also assess potential changes to the speaking portion of the test. USCIS is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent. After careful analysis of the pilot, and thorough officer training, USCIS will set an implementation date in December 2020 or early 2021. USCIS is also formalizing a decennial revision process to allow for updates every 10 years. Critics have expressed concerns that the announcement is a continuation of efforts by USCIS to make naturalization more difficult, including dramatically slowing down the processing of naturalization applications.
An End to Certain Types of Expedited Processing
For years applicants with urgent priorities were given the option to request expediting of their application or were granted a courtesy expedite based on the principal applicant’s petition being premium processed for a fee. Like many other attempts to slow overall processing times and stifle customer service, USCIS is eliminating certain avenues for having a case expedited.
Courtesy Expedites for I-539 Applications:
In March 2019, U.S. Citizenship and Immigration Services (USCIS) revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. With the addition of the new biometric requirement for all I-539 applicants USCIS has reminded practitioners that its longstanding courtesy practice of premium processing I-539 applications filed concurrently with a qualifying I-129 petition could not be continued because it generally takes at least three weeks for the I-539 biometrics to be completed, such that USCIS cannot meet the 15-day premium processing timeframe. Rather, I-539 applications are now separated from the I-129 petition and follow the regular I-539 processing queue, which can take 3 to 7 months for adjudication.
Depending on timing, travel restrictions, visa processing issues, finances, etc., as an alternative to filing the I-539 application with USCIS, derivatives may opt, as the fastest option, to process for a nonimmigrant visa at a U.S. consulate abroad after the I-129 petition is approved, in order to avoid processing delays associated with the adjudication of Form I-539 by USCIS.
Expedite Requests for “Severe Financial Loss”:
In light of USCIS delays across the board from change of status to employment authorization petitions for certain non-immigrants including F-1 students, J-2 spouses, and H-4 spouses, immigration practitioners have gleaned insight on changes to expediting cases. USCIS has updated its Expedite Criteria on its website as related to expediting cases due to delays causing severe financial loss to a company or person. The specific wording on the website is as follows:
“Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to:
File the benefit request or the expedite request in a reasonable time frame, or
Respond to any requests for additional evidence in a reasonably timely manner…
All expedite requests claiming severe financial loss, regardless of the immigration benefit sought and regardless of whether the claimed loss is to a company or a person, must be documented to establish the loss and that the requestor is not able to withstand the temporary financial loss that is the natural result of normal processing times.”
With this update, anyone experiencing delays in employment petitions should be prepared to provide compelling factors, aside from the need for employment, that warrants expedited treatment. In addition, all applications should be submitted as early as possible, at least up to six months ahead of the expiration date. If you have questions about a specific situation, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
House Holds Hearing on USCIS Policy Changes, Processing Delays
On July 16, 2019, the House of Representatives held a hearing on policy changes and processing delays at U.S. Citizenship and Immigration Services (USCIS). Witnesses included representatives from USCIS, the American Immigration Lawyers Association (AILA), Catholic Legal Immigration Network (CLINIC), the Immigrant Legal Resource Center, and the Center for Immigration Studies. Statements were also submitted by various organizations.
Regarding policy changes, Jill Marie Bussey, CLINIC’s Director of Advocacy, cited the following changes: expansion of in-person interview requirements and related “extreme vetting;” new rules on requests for evidence and notices of intent to deny; elimination of the 90-day processing requirement for employment authorization documents; information services “modernization” that includes narrowing of the options and points of access for stakeholders to request information and services regarding their pending cases; the ending of self-scheduling of in-person InfoPass appointments at field offices; and diverting resources to enforcement-focused activities. All of these policy changes, she said, are contrary to USCIS’s mission, contribute to backlogs and inefficiencies, and create unnecessary barriers for applicants and their legal representatives, are not justified by data, and thus have contributed to significant consequences and cascading effects for employers, legal service providers, individuals and families, and USCIS and other agencies.
With respect to processing delays, Marketa Lindt, AILA President, testified that USCIS’s average case processing time surged by 46 percent from FY 2016 to FY 2018 and by 91 percent from FY 2014 to FY 2018. “[I]n FY 2018 the agency processed 94 percent of its benefit form types more slowly than in FY 2014. For many of these form types, processing times more than doubled in recent years, and some tripled. This past fiscal year, the agency’s overall backlog of delayed cases exceeded 5.69 million, a 69 percent increase over FY 2014.” Hearing testimony and statements are available for the public.
The Irish International Immigrant Center recognized
The American Immigration Lawyers Association (AILA) recently recognized the Irish International Immigrant Center (IIIC) of Boston, MA, with the 2019 Diversity and Inclusion Award for outstanding efforts in promoting diversity and inclusion excellence.
The IIIC empowers immigrants and refugees from more than 125 countries by providing the legal, wellness and educational support they need to build successful lives. Building on the Irish roots of welcoming others and social justice, they help newcomers find community and they stand up for immigration policies that are humane and just. America is a nation of immigrants, and despite the current political climate, they are proud to continue the tradition of welcoming immigrants to this country and working together to create a better future for all.
The IIIC was founded in 1989 to help immigrants make successful transitions to new lives in Greater Boston. They serve families from Haiti, Ireland, Central and South America, the Middle East, Africa, and beyond. Their attorneys, social workers, and teachers work alongside refugees fleeing persecution, young students who have lived in the US for most of their lives, homeless women and children, survivors of domestic abuse, and immigrant families who now call Boston their home.
IIIC dedicated staff and volunteers are passionate about creating a safe and vibrant welcome center, where families trust them and are able to avail of a range of free or low-cost programs. For example, a constituent seeking legal help gaining citizenship may also enroll in tutoring with IIIC's Citizenship instructors to better prepare for their naturalization exam. Anyone who is experiencing stress, trauma, fear, and anxiety is invited to meet with a licensed independent clinical social worker to problem-solve, to access further resources, and to receive counseling. By empowering families on a holistic level, they further our vision of a society where all are welcomed, valued, and enjoy equal opportunities and protections.
We also would like to honor and congratulate the IIIC for their dedication and leadership in the immigrant community.
Supreme Court Grants Certiorari to Consider DACA Rescission Issue
The Supreme Court granted certiorari to rule on whether Department of Homeland Security’s decision to rescind the DACA program is judicially reviewable, as well as whether the decision to rescind the program was lawful. The Court further consolidated two other DACA related cases, Trump v. NAACP and McAleenan v. Batalla Vidal, together with this case, DHS v. Regents of the University of California.
The Court set aside one hour for oral argument. There are no new changes to the DACA program at this time, it is still being implemented on the terms of the prior court rulings discussed below. However, the Court will be issuing a decision following oral arguments, likely sometime in the first half of 2020.
Given USCIS processing times and the Court’s cert grant, clients who want to renew their DACA should submit their applications to USCIS as soon as possible.
Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens (I-864s)
On May 23, 2019, the President issued a Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens. As part of USCIS’ implementation of this memorandum, USCIS officers will now be required to remind individuals at their adjustment of status interviews of their sponsors’ responsibilities under existing law and regulations. This new Memorandum is part of the President’s directive to enforce the public charge ground of inadmissibility.
As background, most family-based immigrants and some employment-based immigrants must submit Form I-864, Affidavit of Support Under Section 213A of the INA, when they apply for status as a lawful permanent resident. The individual executing the affidavit of support, whether sponsor, substitute sponsor, or joint sponsor, agrees to accept legal responsibility for financially supporting the intending immigrant who applies for an immigrant visa or adjustment of status to lawful permanent resident.
Since Dec. 19, 1997, federal law has required an immigrant’s sponsor to reimburse any benefit granting entity in the event the sponsored immigrant applies for or receives means-tested public benefits. The law also requires that, if a benefit-granting entity is notified that a sponsored immigrant is receiving a means-tested public benefit, the benefit-granting entity request reimbursement from the sponsor(s). The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 states that when an individual with an affidavit of support applies for a federal means-tested benefit, the income and resources of the sponsor and the sponsor’s spouse are deemed to be income and resources when determining the immigrant’s eligibility for the benefit.
Proposed H-1B Registration Fee Rule Pending Review at OMB
On May 22, 2019, Department of Homeland Security (DHS) published its Spring 2019 Fall Unified Agenda of Regulatory and Deregulatory Actions, which provides the public with an overview of anticipated federal regulatory activity. The regulations featured in the Unified Agenda and the timelines stated are aspirational and are not strictly adhered to by DHS.
Included in the agenda is a proposed H-1B Registration Fee, entitled "Fee for Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens." The proposed rule is described as follows:
The Department of Homeland Security (DHS) will propose to amend its regulations to require a fee for H-1B registrations required by 8 CFR 214.2(h)(8)(iii)(A)(1).
It is our understanding that USCIS will propose a nominal fee of approximately $10-20 for each registration that is submitted for an H-1B cap-subject petition. This small fee is in response to comments received on the Registration Requirement for Petitioner Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens Rule that took effect on April 1, 2019.
Given that the proposed H-1B Registration Fee rule was delivered to the OMB for review shortly after it was announced on the Spring Unified Agenda, we expect that this proposed rule will be published this summer and anticipate that USCIS will seek to finalize before the FY2021 H-1B cap filing period begins.
Check-in with Department of State’s Charlie Oppenheim regarding the July 2019 Visa Bulletin
General Trends and Observations: In the July 2019 Visa Bulletin, Charlie modifies previous projections for EB-1, EB-2 and EB-3 Worldwide, based on new data received from USCIS. This data reflects a rapid increase in actual demand across these categories that has materialized over the past month, and projections of continued higher levels of demand during the summer than had been experienced through mid-May.
EB-1:
The Final Action Date for EB-1 Worldwide remains the same at April 22, 2018. Furthermore, Charlie predicts that there will be retrogression in this category as early as August 2019. If demand trends allow, the goal is that the Final Action Date in this category will return to the current level (i.e., April 22, 2018) in October 2019.
The Final Action Date for EB-1 India remains the same at January 1, 2015. No further forward movement will occur in this category during FY2019. If possible, Charlie's goal is for EB-1 India to return to a Final Action Date of February 22, 2017 in October 2019.
EB-1 China will advance approximately two months to May 8, 2017 in July. No additional forward movement is expected in this category for the remainder of FY2019. This preference may also become subject to the corrective action that Charlie mentions above for EB-1 Worldwide. The reason why EB-1 China was able to advance in July is that, unlike India, China has otherwise unused numbers in the EB-4 category that "fall up" to EB-1 to allow additional number usage. In contrast, there is sufficient EB-4 India number usage which restricts the ability to have unused numbers "fall up" to EB-1 India.
Charlie expects that going forward EB-1 Worldwide, EB-1 China, and EB-1 India will have distinct Final Action Dates. He also expects that the Final Action Dates for EB-1 China and EB-1 India will differ, with both lagging behind the Final Action Date for EB-1 Worldwide.
EB-2:
The June 2019 pace of demand continues to be higher than earlier in FY2019. This is in combination with USCIS's projected high summer usage.
Based on this data, whereas Charlie previously believed EB-2 Worldwide might remain current through FY2019, this no longer remains the case. Charlie now anticipates that this category will have a Final Action Date imposed during FY19, and possibly as early as August 2019. At this time, he is unable to predict how far back the date imposed might be. As Charlie knows how many numbers remain available and how many USCIS predicts will materialize, he will continue to watch the demand in this category very closely. While it is possible that the Final Action Date for EB-2 Worldwide will hold in August 2019 and be limited to September 2019, AILA members are cautioned to file any current cases through the month of July 2019, as it is unclear whether these priority dates will still be current in August 2019. Charlie's goal is, if possible, to return the Final Action Date for this category to current in October 2019.
In July, EB-2 China advances three months to November 1, 2016. Charlie predicts that this category may share a Final Action Date with the EB-2 Worldwide category, if corrective action is required for EB-2 Worldwide in August 2019.
EB-2 India advances 5 days to April 24, 2009 in July. Charlie predicts that this category will continue to advance at a pace of up to one week until the limit is reached.
EB-3:
As with EB-2, Charlie is starting to see heavy demand in the EB-3 category, in addition to USCIS projections for additional demand. This demand is causing similar changes in the projections for this category.
Whereas Charlie had been predicting that EB-3 Worldwide seemed likely to remain current through FY2019, that is no longer the case. Charlie has now modified his prediction and expects retrogression at some point during this fiscal year, perhaps as early as August 2019.
EB-3 China advances 3.5 months to January 1, 2016 in July, and EB-3 China Other Workers advances about two months to November 22, 2007. Charlie continues to predict advancement of up to several months for the EB-3 category.
The Final Action Date for EB-3 India continues to hold at July 1, 2009, with little if any forward movement predicted in the immediate future. Last year, action on all of the pre-adjudicated EB-3 India numbers from the 2007 Adjustment of Status filings were finalized. Charlie's only visibility to the demand in this category comes from new filings, which are coming in at a steady pace. Part of the reason that this category was allowed to advance is that Charlie assumed that the rest of the world numbers would not be used, as had been the case for the past five fiscal years. However, this year there are no extra EB-3 numbers available from other countries to transfer to EB-3 India. Therefore, in order to limit future use of numbers, any required corrective action for EB-3 Worldwide will also impact the Final Action Date for EB-3 India.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
July Visa Bulletin
Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. For July 2019, there continues to be a worldwide backlog for all applicants for the EB-1 "Priority Worker" preference category. As in previous months, the final action dates remain steady. This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India in the EB-1 category is April 22, 2018. China and India are backlogged to May 8, 2017 and January 1, 2015, respectively, meaning that only those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved.
While, in the EB-2 preference category, there is currently no backlog for the worldwide numbers (except for China and India). China EB-2 numbers are backlogged to November 1, 2016 and India EB-2 is backlogged to April 24, 2009.
These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.