Iandoli Desai & Cronin PC News
IDC attorneys are continuing to present post-graduation employment options at area colleges and universities. If your institution is interested in a presentation, please contact the attorneys of Iandoli, Desai & Cronin
Madeline Cronin and Alison Howard-Yilmaz served again as committee members for the annual New England American Immigration Lawyers Association (AILA) conference held at the end of February.
Mary Walsh will be speaking at the NAFSA Spring Immigration Workshop at WPI on March 9th.
Record Number of Conrad Waivers
The Conrad 30 Waiver program allows international medical graduates (IMGs) to apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program. The program addresses the shortage of qualified doctors in medically underserved areas.
In addition to each of the 50 States, the District of Columbia, Puerto Rico, and Guam offer the Conrad 30 program where they can sponsor up to 30 IMGs each year for a J1 waiver. There are both general and State-specific requirements in order to qualify for the Conrad 30 program.
This year, Massachusetts Department of Public Health received 39 Conrad waiver applications for FY 2020.
Revised Certification Expiration Date (CED) Notification Process
Effective March 1, 2020, the Student and Exchange Visitor Program (SEVP) will change the timeline for the recertification notification process. Any school that is certified or recertified after March 1, 2020, will receive its next recertification notice 180 days before the school’s certification expiration date (CED). As before, schools will receive their CED notification through an automatic Student and Exchange Visitor Information System (SEVIS)-generated email.
Previously, SEVP notified schools for recertification two years after the date of their certification or last recertification. SEVP then gave schools 180 days beyond the two-year mark to submit for recertification. Moving forward, SEVP will work to ensure all schools are notified and submit their complete recertification petition and supporting documentation within the 2-year timeframe, as recommended in the GAO audit and as required by the law.
As your institution’s CED approaches, read the Recertification Series on the Study in the States blog for information, reminders and helpful resources that you can reference during the recertification process.
STEM OPT Employer Site Visits
On February 14, 2020, Student Exchange Visitor Program (SEVP) issued a reminder message on STEM OPT Employer Site Visits noting that the March 2016 science, technology, engineering and mathematics (STEM) optional practical training (OPT) rule allows the U.S. Department of Homeland Security (DHS) to conduct site visits of employers that train STEM OPT students. These are routine visits that the Student and Exchange Visitor Program (SEVP) initiated shortly after the rule became effective in 2016.
The visits provide a mechanism for DHS to ensure that STEM OPT students are engaged in a structured, work-based learning experience that is consistent with the goals of practical training and with the information supplied on the student’s Form I-983, “Training Plan for STEM OPT Students.” DHS visits a cross-section of employers to obtain information about the mentoring process and assess how the program is working for students and employers.
Per the 2016 STEM OPT rule, employers will receive advanced notification prior to a site visit. Students and designated school officials (DSOs) can take steps to prepare for upcoming site visits. Students should make sure their employer information and home addresses are up-to-date by updating their information via the SEVP Portal or reporting updates to their school official. The employer address should be the address the student reports to for work. If working at a client site, which is different from the employer address, the client name and address should be listed along with the STEM OPT employer. DSOs should be prepared to provide the student’s Form I-983 if requested and should ensure the Form I-983 is up-to-date. DSOs are encouraged to use the upload evidence functionality in the Student and Exchange Visitor Information System (SEVIS).
In an effort to streamline the review process, DHS may request information concerning compliance by email or phone before conducting an inspection. Such a request may seek to confirm the work locations of STEM OPT students and their supervisors or may request documentation on the STEM OPT program to assist in assessing the commensurate wage or other regulatory requirements.
Permanent Injunction of Unlawful Presence for F-1 and J-1 Visa Holders
On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The court's order states:
"The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications."
On May 3, 2019, the same court had issued a preliminary injunction that temporarily halted enforcement of the 2018 policy while the underlying case was resolved. In the interim, USCIS returned to applying the prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit. The February 6, 2020 decision and order means that the 2009 policy will continue to be in place.
DHS reserves the right and might appeal the decision. Iandoli Desai & Cronin will continue to monitor any future appeals.
Check-in with Department of State’s Charlie Oppenheim regarding the March 2020 Visa Bulletin
The March 2020 Visa Bulletin calls out a key development. Consistent with Charlie’s prior predictions, a final action date of January 1, 2017 will be imposed in March for EB-3 Worldwide, as well as for the EB-3 (EW) Other Workers category for these countries.
No forward movement is expected in these categories in the foreseeable future. Charlie anticipates that USCIS could revert resources that were previously allocated to EB-3 processing to EB-2 and/or EB-1 processing, generating additional demand in those latter categories. Charlie will watch movements in these categories closely and will likely refrain from posting updated projections until either the May 2020 or June 2020 Visa Bulletin.
EB-1:
In March EB-1 Worldwide advances three months to March 1, 2019. It remains possible that this category could become current in the summer of 2020. If demand levels remain steady, there may be sizeable advancement in April in EB-1 Worldwide. However, it is also possible that this category could advance less quickly if USCIS shifts resources previously used to adjudicate EB-3 cases to EB-1 processing, thus increasing the demand.
After holding steady, the final action dates for EB-1 China and EB-1 India start to advance again in March, with EB-1 China advancing one week to June 1, 2017 and EB-1 India advancing two months to March 1, 2015.
EB-2:
EB-2 Worldwide remains current in March, but Charlie continues to monitor demand closely. Based on current demand patterns, retrogression in EB-2 Worldwide will be required no later than June 2020 and possibly as early as April 2020.
EB-2 China advances one month in March to August 15, 2015, and EB-2 India advances three days to May 22, 2009.
EB-3 and EB-3 (EW) Other Workers:
As noted above, a final action date of January 1, 2017 is being imposed in March for EB-3 Worldwide and EB-3 Other Workers Worldwide.
EB-3 China advances seven weeks to March 22, 2016 in March and EB-3 China Other Workers advances one month to June 1, 2008. This places EB-3 China’s final action date more than seven months ahead of EB-2 China. Charlie is starting to see some downgrades from EB-2 to EB-3, but not yet in large numbers.
EB-3 India and EB-3 India Other Workers advance one week to January 15, 2009 in March.
March 2020 Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.
For March 2020, USCIS has again indicated that the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions for all categories except for applicants in the Employment 3rd and Other Worker categories from all chargeability areas other than China, India, and the Philippines may file for adjustment of status using the Final Action Dates chart for March 2020. In March, the EB-1 preference category on the Dates of Filing Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140. China and India remain backlogged to October 1, 2017 and March 15, 2017, respectively.
The EB-2 preference category also remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to August 1, 2016 and July 1, 2009, respectively.
Because of the difference in dates on the two charts, I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now.
If you have questions about planning, please feel free to reach out and schedule a consultation contact the attorneys of Iandoli, Desai & Cronin.
H-1B Registration is Open March 1-20
H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor's degree (or the equivalent in education and experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
USCIS has opened an initial registration period from March 1 through March 20, 2020. The H-1B random lottery process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Given this advanced timeline for e-registration, employers must decide whether they will file H-1B petitions ASAP before the March 20 deadline.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin immediately with your questions about potential H-1B sponsorship.
Department of State Provides Information for Exchange Visitors Impacted by Coronavirus
The Department of State’s (DOS) Office of Academic Exchanges has provided information for exchange visitors whose travel may be affected by the Novel Coronavirus 2019 (COVID-19). In an email to sponsors, the office describes USCIS’s discretion to extend or change status, and in some cases provide student work authorization, for individuals who cannot depart the United States at the appropriate time due to extreme circumstances.
In the email, the DOS office reiterates that any exchange visitors subject to the home residency requirement will need a 212(e) waiver, but notes that expedited waiver processing may be requested for cases with urgent humanitarian need. Additionally, DOS notes that exchange visitors can request a “No Objection Statement” from their home country government and submit it as an update to their application once they have a waiver case number. For more information concerning applying for a J visa waiver, please review the information included here.
Public Charge Rule Implementation with both USCIS and Department of State
On February 22, 2020, USCIS confirmed that it will implement the Inadmissibility on Public Charge Grounds final rule on February 24, 2020, nationwide after the Supreme Court granted the government's motion for a stay of the Illinois-based injunction. USCIS will now determine whether a person is inadmissible to the United States based on the prospective “likelihood of becoming a public charge at any time in the future” and this includes a requirement that those seeking a nonimmigrant extension of stay or change of status “demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.”
At the same time, the Department of State (DOS) will implement the new public charge standards pursuant to the DOS Interim Final Rule for overseas applications on the same date, including the new DS-5540, DOS Public Charge Questionnaire. DOS has indicated that it may apply the DS-5540 to applicants who have previously been found documentarily qualified for a visa before February 24, 2020.
These polices apply to immigrants applying for immigrant visas abroad or green cards processed inside the United States, including green card holders that leave for 180 days or more and seek to reenter the US as well as those seeking a change of status or extension of nonimmigrant status (such as H-1B, F-1, J-1, O-1 visa status).
The following are additional resources regarding the public charge policy:
Supreme Court opinion issued February 21, 2020, including a dissent by Justice Sonia Sotomayor, https://www.supremecourt.gov/opinions/19pdf/19a905_7m48.pdf
Department of State’s interim final rule published in October 2019, https://www.federalregister.gov/documents/2019/10/11/2019-22399/visas-ineligibility-based-on-public-charge-grounds, and related announcement, https://travel.state.gov/content/travel/en/traveladvisories/ea/Information-on-Public-Charge.html
DS-5540, DOS Public Charge Questionnaire, https://eforms.state.gov/Forms/ds5540.pdf
Updated DOS Foreign Affairs Manual section on public charge, https://fam.state.gov/fam/09fam/09fam030208.html
USCIS revised forms and updated policy guidance, https://www.uscis.gov/news/alerts/public-charge-inadmissibility-final-rule-revised-forms-and-updated-policy-manual-guidance
USCIS policy alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20200205-PublicCharge.pdf
USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions
Immigrant Legal Resource Center, Public Charge Toolkit, including a “Totality of the Circumstances Worksheet” with ideas for positive evidence, https://www.ilrc.org/sites/default/files/resources/2019.12_public_charge_legal_toolkit-final-12.10.pdf
National Immigration Law Center, Protecting Immigrant Families page, https://protectingimmigrantfamilies.org/;summary of developments, https://www.nilc.org/issues/economic-support/pubcharge/
If you have received public benefits in the past or could require public assistance, we recommend that you contact Iandoli Desai & Cronin to schedule a consultation.