Latest On The Court Cases That Could Restrict Optional Practical Training (OPT) and ways to sign on to Amicus Brief against suit challenging OPT
A recent Forbes interview with former American Immigration Lawyers Association (AILA) President William Stock highlights two important lawsuits that may affect whether international students and the spouses of H-1B visa holders will continue to be permitted to work in the United States. According to Mr. Stock, "Based on the adverse impacts, eliminating [Optional Practical Training (OPT) for F-1 international students and H-4 work authorization] would be bad policy."
Mr. Stock elaborates that “Eliminating OPT work authorization would make U.S. universities much less attractive to foreign students. International students represent a $40 billion contribution to our economy from abroad, supporting over 450,000 U.S. jobs, according to NAFSA. Not only would world-class students begin to choose Canada, Australia or other countries over the United States for higher education in greater numbers, but high-tech industries would have no choice but to expand employment in other countries where the talent pool of highly qualified students doing cutting-edge research is located. Eliminating H-4 work authorization would stop about 90,000 highly skilled women from continuing to contribute to the economy, costing billions in lost tax revenue, without any net job creation for U.S. workers. Based on the adverse impacts, eliminating those two programs would be bad policy.”
The Presidents’ Alliance for Higher Education and Immigration and NAFSA: Association of International Educators are working to coordinate an amicus brief for higher education institutions to join, to be filed with the Court in support of OPT. The brief would outline the importance of OPT to institutions, their students, and higher education in this country, highlighting the value of OPT as an important educational component to a student’s program of study, as a key complement to the classroom experience, and as supplemental training and experiential learning. The deadline to join this amicus brief is October 11, 2019.
Institutions can learn more and express interest in joining the brief here.
Changes to filing address for certain H-1B petitions
USCIS announced that on September 1, 2019, the direct filing addresses for certain Forms I-129, Petition for a Nonimmigrant Worker has changed. Starting October 1, 2019, USCIS may reject Forms I-129 filed at the wrong service center. The changes apply to the following cap-exempt H-1B petitions (those counted against the Cap):
Continuing previously approved employment from the same employer;
Changing previously approved employment;
New concurrent employment;
Changing an employer;
Changing status to H-1B;
Notifying a U.S. consulate, port of entry, or pre-flight inspection; or
Amending a petition.
This excludes petitions:
Filed by cap-exempt petitioners or for cap-exempt entities;
That are cap-exempt based on a Conrad/Interested Government Agency waiver.
Please see the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page to determine where to file Forms I-129.
Possible Changes to Employment-Based Green Card Processing as House Passes Fairness for High-Skilled Immigrants Act
Current U.S. federal immigration law places a numerical cap on the total number of employment-based green cards issued each year. Of this annual quota, nationals of any single country can receive no more than 7% of the total number of available employment-based green cards. Under the present law, nationals of countries with high population numbers (particularly India and China) face green card waitlists that can be decades long because the demand from these countries far exceeds the available number of immigrant visas.
Representatives Zoe Lofgren (D-CA), Ken Buck (R-CO), and 112 bipartisan members introduced the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), which would among other things eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants from 7% to 15%. This means the wait time for national of India and China for employment-based green cards would go down but the wait time for all other countries worldwide would increase significantly. This past July, the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) by a vote of 365 to 65. Unfortunately, the House of Representatives never had a single hearing on the bill before it passed.
This bill has immigration practitioners split. The Fairness for High-Skilled Immigrants Act of 2019 is expected to increase costs, burdens and uncertainty for U.S. employers that rely on foreign workers to supplement labor shortages in the American workforce. Removing the numerical quote would appear fair on its face. However, employers that previously have not experienced substantial delays in the employment-based green card process should prepare for increased wait times. If enacted, the bill will force such employers to wait several years for a large number of sponsored employees to receive green cards.
Another bill, introduced by Senator Rand Paul, Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act, would also eliminate the per-country numerical limitation for employment-based immigrants, but also among other things increase the number of employment-based green cards available each year, exempt certain health care workers and certain spouses and children from counting against the worldwide limitation on the number of employment-based visas, and allow spouses and children of E, H, and L visa holders to pursue employment.
Since the BELIEVE Act would eliminate Employment Based per-country quotas just like H.R. 1044, hopefully the overwhelming majority of Representatives who voted for H.R. 1044 in the House would also support the bill.
USCIS Re-Opens Some Previously Pending Deferral Requests
Attorney Madeline Cronin of our firm appeared on MSNBC last Friday (see: https://www.youtube.com/watch?v=aBJ1qdOGqsU ) in support of our clients and in defense of the 40+ year old Federal “Deferred Action” program.
In conjunction with a Boston Hospital, Madeline had applied for Medical Deferred Action on behalf of a 5 year old Brazilian boy, Samuel Costa and his parents. The boy suffers from a life threatening disease which was treated by successive surgeries; he now has a central line delivering medicine and nutrients directly into a major heart artery, 12 hours per day.
Medical Deferred Action would allow Samuel to remain in the U.S. for continued, complex care and treatment - the type of treatment which is unavailable in Brazil. It would also permit Samuel’s parents to remain with him and to work legally.
Samuel and his mother and cousin appeared with Madeline on MSNBC.
On August 7, 2019, United States Citizenship and Immigration Services (USCIS) had abruptly announced it is no longer adjudicating requests for non-military, deferred action, including Medical Deferred Action. The Medical Deferred Action program is distinct from the "Deferred Action for Childhood Arrivals" (often called "DACA" or the “Dreamers” program) which is unaffected by this change.
USCIS, without warning, denied all pending applications and ordered Samuel, his parents and many others across the country to leave the U.S. within 33 days or face deportation.
Needless to say, this was devastating.
After significant public outrage, a letter to DHS from over 100 Senators and Congresspersons (see: attachment above) and widespread media attention, including from several Boston-based immigration attorneys, civil and immigrant rights organizations and hospitals, USCIS announced on September 3, 2019 that it will reopen non-military deferred action cases that were pending on August 7 and that consideration of such cases is ongoing. Thankfully, Samuel’s application is included in this change in USCIS policy.
However, it appears that USCIS will permit no new, non-military Medical Deferred Action applications nationwide. Future Samuel’s would have no access to critical medical care. The Administration seeks unlawfully to end this vital humanitarian program, without due process and without complying with the APA (the Administrative Procedures Act). A challenge to this change in policy was filed last week by the Irish International Immigrant Center in the Federal District Court in Massachusetts.
Federal Judge Blocks New Asylum Restriction
On July 24, 2019, a federal judge in California has blocked the Administration from enforcing new asylum restrictions for people crossing the U.S.-Mexico border. The ruling by U.S. District Judge Jon Tigar in San Francisco came hours after a judge in Washington decided to let the rules stand while lawsuits played out in court. Judge Tigar noted: "The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country. Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress. Congress has empowered the Attorney General to establish additional limitations and conditions by regulation, but only if such regulations are consistent with the existing immigration laws passed by Congress. This new Rule is likely invalid because it is inconsistent with the existing asylum laws."
Further to restricting asylum, the Administration has just signed on July 26, 2019, an agreement with Guatemala on that appears to allow the U.S. government to send certain asylum applicants to Guatemala, forcing them to seek asylum there. Immigration Impact has reported the this “Safe Third Country” agreement, will place thousands of asylum seekers at risk in a country ill-prepared to process a high volume of applications for protection and with safety problems of its own.
To avoid sending people back to a country where they could be seriously harmed, U.S. law allows any person who reaches the border to apply for asylum, with limited exceptions. Among those exceptions are individuals who could be removed to another country (Safe Third Country) where their life would not be endangered if the United States has an agreement with that country to receive them. This would not include people who are nationals of that country. The United States has only one Safe Third Country agreement – with Canada – in place since 2002. It requires asylum seekers who arrive at a port of entry along the U.S. northern border to return to the country they just passed through (the U.S. or Canada) and apply for protection there. The agreement was made with a general understanding that both nations were safe countries whose asylum systems were sufficiently robust to handle the processing of those claims.
But an arrangement of this nature with Guatemala is untenable. Currently, Guatemala is one of the leading countries from which people are fleeing to the United States due to pervasive violence, impunity, poverty, and food shortages. The U.S. Department of State advises travelers to reconsider travel to many parts of the country, noting that “violent crime, such as armed robbery and murder, is common.”
FAQ’s to Visa Retrogression-
1. WHAT IS THE “QUOTA BACKLOG”?
The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a "Priority Date." The priority date is the single, most important, factor in any immigration case.
2. WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?
Employment-Based First Preference (EB-1) Employment-Based Second Preference (EB-2) Employment-Based Third Preference (EB-3) Other Workers
3. WHAT DOES EB-1 MEAN?
Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.
4. WHAT DOES EB-2 MEAN?
Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.
5. WHAT DOES EB-3 MEAN?
Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.
6. WHAT DOES “OTHER WORKERS” MEAN?
Other Workers includes positions that require less than two years of experience.
7. WHAT IS THE “PRIORITY DATE”?
If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the State Workforce Agency. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the CIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.
8. WHY IS THE PRIORITY DATE IMPORTANT?
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.
9. CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?
There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.
10. THE I-140 FILED ON MY BEHALF WAS BASED ON A LABOR CERT SUBSTITUTION. WHAT IS MY PRIORITY DATE?
The Priority Date is determined by the CIS. We will know the Priority Date upon issuance of an I-140 Petition Approval Notice.
11. WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “ MM/DD/YY” (QUOTA BACKLOG)?
Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e. 07-01-02), it is considered to be the cut-off date, and that means that there is a “quota backlog”. Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.
12. WHAT DOES “C” MEAN?
“Current” – this means that there is no quota backlog in this category.
13. WHAT DOES IT MEAN TO BE “CURRENT”?
If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.
14. IF THE VISA BULLETIN SHOWS A DATE OF 6-1-18 AND MY PRIORITY DATE IS 6-1-18, IS MY PRIORITY DATE CURRENT?
No. In order for the priority date to be current, it must be a date prior to the date published in the visa bulletin.
15. HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. (i.e., on 9-12-18, the DOS released the dates effective as of 10-1-18). Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.
16. THE CUT-OFF DATE IS JANUARY 1, 2015. DOES THIS MEAN THAT IT WILL TAKE 5 YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?
No. It all depends on how many visas are used. Please see the answer to the above question.
17. I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?
You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.
18. VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OF CITIZENSHIP OR COUNTRY OF BIRTH?
Your country of birth is what determines your country of chargeability.
19. MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?
Your spouse’s country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.
20. BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT? CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?
No. You can use your spouse’s country of birth for eligibility. However, your child’s country of birth cannot be used.
21. I HAVE HEARD THAT ONLY THOSE INDIVIDUALS FROM INDIA AND CHINA ARE SUBJECT TO QUOTA BACKLOGS. I WAS NOT BORN IN ONE OF THOSE COUNTRIES. DO QUOTA BACKLOGS APPLY TO ME?
Yes. Quota backlogs can apply to everyone, regardless of where they are from.
22. MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?
No. The labor certification process is not affected by quota backlogs.
23. CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?
No. The visa category cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed. Also, since quota backlogs are based on the filing date, it is not in your interest to refile a case now and obtain a 2019 or later priority date.
24. THE LABOR CERTIFICATION FILED ON MY BEHALF WAS APPROVED. CAN THE COMPANY STILL FILE THE I-140 PETITION IF THE PRIORITY DATE IS NOT CURRENT?
Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.
25. MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?
Yes. Even through your case was approved, your dependent’s application is still based on your priority date. The CIS cannot approve the dependent’s application until the priority date is current.
26. THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES THE QUOTA BACKLOG AFFECT ME?
Yes. The CIS can work on the pending application. However, they cannot approve the application unless the priority date is current.
27. THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT CIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?
Yes. The CIS will continue to process the I-140 and it can be approved, regardless of the quota backlog.
28. CAN I INQUIRE REGARDING THE STATUS OF AN I-485 CURRENTLY PENDING AT CIS IF I AM SUBJECT TO A QUOTA BACKLOG?
No. Under CIS guidelines, inquiries may not be made on a case unless the priority date is current.
29. IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL CIS STILL ISSUE A BIOMETRICS NOTICE AND INTERVIEW DATE?
They may. CIS can still process the case but cannot approve it until the priority date is current. Therefore, you will still receive a biometrics notice and eventually an interview date. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for biometrics appointment and interview.
30. MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?
No. Even though the only issue may have been the security and background checks, the CIS cannot approve the case until the priority date is current.
31. DOESN’T CIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?
No. Immigrant visa numbers are not assigned to a case until right before approval.
32. CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?
Yes. As long as you have a pending I-485 application at CIS, you are eligible to apply for and receive EAD and AP documents.
33. MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E. CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?
No. In order to add a dependent to the pending application, the priority date must be current.
34. IF THE CASE IS PENDING AT CIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?
The CIS may ask for updated employment information. However, new photos and medical exams should not be required.
35. IF I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?
Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remains current.
36. I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?
The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended. If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one-year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.
37. IF I AM NOT ABLE TO FILE THE I-485 AND THEN I LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?
No. In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.
38. DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A US CITIZEN. I HAVE MINOR US CITIZEN CHILDREN. I HAVE A US CITIZEN SPOUSE. CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?
Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a US citizen child who is over 21 or a US citizen spouse, please contact us to discuss your options
Check-in with Department of State’s Charlie Oppenheim regarding the August 2019 Visa Bulletin
General Trends and Observations: Employment based demand has increased steadily since late May 2019 in the EB-1, EB-2, EB-3 and EB-3 Other Worker categories.
Whereas in past years, Charlie often predicted that employment-based preference categories which retrogressed towards the end of the fiscal year "would have a full recovery" in October (the beginning of the next fiscal year), his prediction in the August 2019 Visa Bulletin is much more guarded. Charlie merely indicates in Section D. of the August 2019 Visa Bulletin that "every effort will be made to return these final action dates to those which applied for July." This means that while Charlie hopes that he will be able to bring these dates back to where they were in July, demand levels are so high and unpredictable, practitioners should not automatically count on a return to the July Final Action Date levels at the start of FY2020.
Charlie cautions that an immediate cut-off in visa usage, similar to that for EB-3 and EB-3 Other Workers, could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high for these categories. No forward movement in these Final Action Dates should be expected before October for certain employment-based visa categories. Any potential movement in these preferences would be subject to a change in the current USCIS demand pattern, and a larger than expected return of unused July numbers by overseas posts.
EB-1:
As predicted last month, the Final Action Date for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) retrogresses in August 2019 almost two years to July 1, 2016. The Final Action Date for EB-1 China, which was May 8, 2017 in July, joins the rest of world countries in retrogressing to July 1, 2016 in August 2019. The Final Action Date for EB-1 India holds at January 1, 2015.
EB-2:
The week prior to Memorial Day, Charlie started receiving data from USCIS that was different than what he had received in the past. This data showed that demand in the employment-based categories started picking up, with the daily totals increasing quickly. For example, through May 21, 2019, 1,800 numbers were used in the EB-2 category. Between May 22nd and May 31st, another 1,300 numbers were used, with this high pace continuing into June. Not only is the actual demand high, but as mentioned earlier, USCIS's projected future usage also remains high relative to the monthly demand targets for number use.
As a result of this high demand, all countries are subject to a Final Action Date in August. EB-2 Worldwide (including EB-2 China and EB-2 for all countries except for India) will have a Final Action Date of January 1, 2017, while EB-2 India advances one week to May 2, 2009.
EB-3:
EB-3 China Other Workers holds at November 22, 2007.
The August 2019 Final Action Date for EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam remains at July 1, 2016. Charlie indicated that it is very difficult to say at this time whether these categories will become current again in October 2019. EB-3 India, which already had a Final Action Date, retrogresses further to January 1, 2006 in August.
Between April and May 2019, EB-3 demand increased over 25%. From May to June, the overall demand increased by more than 45%. During the first week of July 2019, EB-3 had already used 36% of the total numbers used during the entire month of June. This in turn necessitated immediate action to limit future number use by applicants with priority dates later than the Final Action Dates imposed for each country in the August 2019 Visa Bulletin. This is happening because number use is approaching the worldwide annual limit, and some countries have reached or are very close to reaching, their annual limits. USCIS interviews that were already scheduled may continue in USCIS's discretion. If the application is approvable, rather than receiving a visa number, USCIS's request for a visa number will be placed in Charlie's pending demand file and will be authorized for use once the applicant's priority date is once again "current". Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner.
Charlie cautions that an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high.
The fact that demand has increased so dramatically is not a surprise to Charlie. What is unexpected is that it is happening much sooner than expected. Prior to FY2018, if such corrective action was required, it normally occurred in September. In addition, the issues that arose in FY2018 were attributed to the changes in USCIS processing of employment cases.
At a macro level, the fact that it may be necessary to limit/cut-off future use of numbers means that all of the numbers available under the applicable annual limits will have been used. However, for applicants for which the ability to immediately file an I-485 adjustment of status application is critical to remaining in the U.S., the retrogression may have significant negative impact
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
August 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 August 2019, there is now a worldwide backlog for all applicants for the EB-1, EB-2, and EB-3 preference categories.
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 July 1, 2016. China and India are backlogged to July 1, 2016 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, the listed date for all countries other than China and India is January 1, 2017. China and India are backlogged to January 1, 2017 and May 2, 2009, respectively.
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.
Federal District Court on OPT error
On July 3, 2019, the District Court in Pennsylvania ruled on Dalgic v. Misericordia University (M.D. Pa. July 3, 2019), denying Defendant's Motion for Summary Judgment and granting Plaintiff's Cross-Motion for Summary Judgment.
Plaintiff, a Turkish-born former student in Misericordia University's (MU) Doctor of Physical Therapy Degree Program who was on an F-1 visa, alleged negligence and negligent interference with prospective contractual relations.
Plaintiff sought to remain in the United States after completing the Program for post-completion Optional Practical Training (OPT), which required a recommendation from MU under federal law. Once submitted, Plaintiff had to submit his OPT application within 30 days of the date the Designated School Official (DSO) entered the recommendation, the earliest time being 120 days before his graduation.
Plaintiff's OPT application was denied because MU's DSO prematurely submitted the OPT recommendation more than 120 days before Plaintiff's graduation. The court found that the undisputed material facts showed that MU's negligence in prematurely filing the recommendation without properly curing the early filing caused the denial of the OPT application, which entitled Plaintiff to summary judgment on both claims.
MU also was not entitled to summary judgment on the negligent interference claim because a special relationship existed between MU and Plaintiff. Plaintiff justifiably trusted MU and the DSO to guide him through OPT, which was one of the DSO's job responsibilities, and this trust is consistent with obligations imposed on MU under federal law to employ a DSO and the Department of Homeland Security's characterization of DSOs as the "biggest resource" for an M or F visa student. MU was also aware of Plaintiff's prospective contract for post-OPT employment and did not dispute that it acted negligently in handling his OPT application.
This case highlights the important role the DSO plays for both the student and the school.
STEM OPT site visits have started
A new provision in the STEM OPT rule allows Department of Homeland Security (DHS) to perform site visits to employer locations that train STEM OPT students.
Site visits ensure that STEM OPT students receive structured and guided work-based learning experiences and reduce the potential for abuses of the STEM OPT extension. During the site visit, DHS’s intent is to confirm that information reported on the student’s Form I-983 (Training Plan) concerning the training opportunity is accurate, while not placing an unnecessary burden on employers.
As part of a site visit, DHS may:
Confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program.
Ask employers to provide the evidence they used to assess wages of similarly situated U.S. workers.
It is important that supervisors and employees all know that the job is "training." If you have questions about a site visit, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).