Electronic Filing of LCA in FLAG System
Starting September 16, 2019, stakeholders were able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E, Labor Condition Application (LCA) for Nonimmigrant Workers in the Department of Labor's FLAG System. The FLAG System will not permit the submission of LCA applications until 12:00 PM Eastern Time on October 1, 2019.
The ability to submit LCA applications using the iCERT System will be deactivated at 12:00 PM Eastern Time on October 1, 2019. The Office of Foreign Labor Certification (OFLC) has confirmed, however, that it will process those LCA applications that are submitted through the iCERT system before the transition, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System.
Furthermore, the Department of Labor confirmed that, while nothing is being transferred from iCERT to FLAG, employers who are currently FEIN-verified in iCERT will be FEIN-verified in FLAG. In other words, currently verified employers will not need to re-verify FEINs on October 1, 2019, when the LCAs go live in the FLAG portal. As is standing policy, new employers who have not been FEIN-verified will have to undergo the verification system in the FLAG portal.
Iandoli Desai & Cronin P.C. News
Attorneys Richard Iandoli, Madeline Cronin, Mary Walsh and Alison Howard-Yilmaz will be speaking at the upcoming NAFSA: Association of International Educators Regional Conference in Worcester, MA between October 29-31, 2019. Attorney Iandoli will present on International Advising and the (Unauthorized) Practice of Law; Attorneys Cronin and Howard-Yilmaz will present on Department of Labor Issues; and Attorney Walsh will present two sessions, one on the Definition of “Work” & What Puts F-1 students at Risk and another on Avoiding and Responding to Requests for Evidence. If you will be attending the NAFSA Regional Conference, we look forward to seeing you at one of these sessions.
Attorney Iandoli will also be participating this October in an Immigration Town Hall at the Massachusetts Council for International Education’s Fall Meeting for all Massachusetts state colleges and universities.
Richard Iandoli, Prasant Desai, Madeline Cronin and Mary Walsh were recognized in The Best Lawyers in America©
Richard Iandoli, Prasant Desai, Madeline Cronin and Mary Walsh have been recognized in the 26th Edition of The Best Lawyers in America© for their high caliber work in Immigration Law. With this distinction they rank among the top 5 percent of private practice attorneys nationwide, as determined by peers. For more than three decades, Best Lawyers® has been regarded-by both the profession and the public- as the most credible measure of legal integrity in the United States. As such, recognition by Best Lawyers symbolizes excellence in practice.
More than Thirteen States File Lawsuit over Trump 'Public Charge' Rule
Starting on August 14, 2019 thirteen states, co-led by Washington State Attorney General Robert Ferguson and Virginia Attorney General Mark Herring filed a lawsuit over the DHS public charge final rule, arguing that the rule violates federal immigration statues and unlawfully expands the definition of “public charge.” (State of Washington, et. al., v. DHS, 8/14/19) The other attorneys general filing suit include those from Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island. Soon after, three more states, New York, Vermont and Connecticut, joined the suit.
From the complaint:
“The Department’s new definition of “public charge” is contrary to its longstanding meaning in the Immigration and Nationality Act.”
“The Rule is arbitrary, capricious, and an abuse of discretion because—among other reasons—it reverses a decades-old, consistent policy without reasoned analysis, offers an explanation for the Rule that runs counter to the overwhelming weight of evidence before the Department, and disingenuously promotes as its purpose self-sufficiency in the immigrant population when, as abundantly shown by the administrative record, its effect is precisely the opposite.”
USCIS Publishes Final Rule on Inadmissibility on Public Charge Grounds
On August 12, 2019 the Department of Homeland Security (DHS) announced a final rule regarding inadmissibility on public charge grounds. This final rule amends DHS regulations by prescribing how DHS will determine whether a foreign national is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future. The rule also makes nonimmigrant foreign nationals who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status.
DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean a foreign national who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).
The rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs. The regulation also excludes from the public benefits definition: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for foreign nationals under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.
This rule also makes certain nonimmigrant foreign nationals (i.e., F, J, H, L, O, TN, etc.) in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.
This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at midnight Eastern, October 15, 2019, 60 days from the date of publication in the Federal Register.
In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.
Iandoli Desai and Cronin, P.C. will continue to monitor and provide updates as they become available.
Check-in with Department of State’s Charlie Oppenheim regarding the September 2019 Visa Bulletin
The man in charge of the Visa Bulletin, Charlie Oppenheim, provides his insights each month of the state of immigrant visa numbers along with his projections for the upcoming month and fiscal year ending on September 30. Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide.
Charlie cautions that, similar to EB-3, 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 the level of demand results in those annual limits being reached prior to the end of the fiscal year.
At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.
EB-1:
Charlie would like to remind practitioners that they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October. While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover. However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.
In September 2019, EB-1 Worldwide advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.
In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category's ability to recover.
EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.
EB-2:
EB-2 Worldwide advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009. EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.
Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide) will be able to recover to current in either October or November 2019.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
September 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 September 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 October 1, 2017. China is backlogged to January 1, 2014 while India is unavailable, 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, 2018. China and India are backlogged to January 1, 2017 and May 8, 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.
Department of Homeland Security Launches E-Verify Video Resources Page
Department of Homeland Security (DHS) launched a new page containing video resources on E-Verify case processing, including how to create a new case, how to process and refer an E-Verify TNC case, and how to close a case, employee rights, and my E-Verify among others. The page can be accessed at: https://www.e-verify.gov/about-e-verify/e-verify-videos
Employers Should Continue Using Current Form I-9 Until Further Notice
USCIS has announced that until further notice, employers should continue using the Form I-9 currently available on I-9 Central, even after the expiration date of August 31, has passed.
Proposed H-1B Cap Registration Fee Rule
On September 3, 2019, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS. Public comments will be accepted from September 4 (when the proposed rule publishes in the Federal Register) through October 4.
This past January 2019, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. While DHS suspended the registration requirement for the fiscal year (FY) 2020 cap season, to complete required user testing of the new H-1B registration system and otherwise ensure the system and process work correctly, DHS has not announced whether that testing has been successful. American Immigration Lawyers Association (AILA) and other associations recently urged USCIS to confirm by September 15, 2019, whether use of the electronic registration system will be mandatory for the FY2021 H-1B cap filing season.
Iandoli Desai and Cronin, P.C. will provide H-1B updates as they become available.