The Department of State just announced that the online registration period for the annual green card lottery will begin at 12 noon, Eastern Daylight Time (EDT) (GMT–4), Wednesday, October 2, 2019, and end at 12 noon, Eastern Standard Time (EST) (GMT–5), Tuesday, November 5, 2019. We recommend registering as soon as possible because the DOS website does slow down or freeze due to very heavy traffic towards the end of the registration period.
The publication of a proposed rule that would rescind the H-4 EAD has been delayed until at least spring 2020. In a letter submitted by the Department of Homeland Security (“DHS”) to the U.S. Court of Appeals for the District of Columbia last week, the agency confirmed that while it still plans on publishing a rule to repeal the H-4 EAD, the proposed rule is still undergoing interagency review. DHS also stated that the spring 2020 date was “aspirational.”
The Department of State (DOS) has issued its October 2019 Visa Bulletin. October 1 marks the start of the new fiscal year so all the visa categories benefit from new visa numbers. As a result, most categories see sizable movement. Employment-based (“EB”) category 1 for all nationals (except for India and China) advances by six months. EB-1 for China moves forward nearly three years and EB-1 India goes from unavailable to January 1, 2015. The EB-2 category for all nationals is now current, except for China, which, unfortunately, has a two-year retrogression, and India, which advances by four days. The EB-3 category is current for all nationals except for China, which moves forward nearly two years; India, which moves forward three and a half years, and the Philippines, which moves forward by fifteen months.
USCIS has proposed a $10 fee for each electronic registration submitted by a sponsoring employer for the upcoming H-1B lottery. USCIS will accept public comments on the proposed fee until October 4, 2019.
Although the most recent version of the Form I-9, Employment Eligibility Verification expired on August 31, 2019, the U.S. Citizenship and Immigration Services (USCIS) has advised employers to continue to use the July 17, 2017, version of the Form I-9 until an updated version is released. The revised version of Form I-9 is not expected to be significantly different from the current version.
The Department of State (DOS) has issued its September 2019 Visa Bulletin. Overall, most employment-based categories this month had little advancement or retrogressed. Employment-based category 1 (EB-1) for most nationals advanced by a little over a year, while for Chinese nationals it retrogressed by two and a half years, and for Indian nationals the EB-1 category is now unavailable. For the employment-based category 2 (EB-2), most nationals advanced by one year, while Chinese nationals had no advancement, and Indian nationals advanced by only six days. Lastly, the employment-based category 3 (EB-3) for most nationals saw no advancement. Chinese nationals retrogressed by 2 years and a half, Indian nationals retrogressed by six months, and Filipino nationals had no advancement. In fact, the DOS has indicated that the EB-3 category for all nationals other than India and China is unavailable for the rest of the fiscal year.
Earlier this week, the Department of Homeland Security (“DHS”) published a final rule concerning the “public charge” grounds under the immigration statute for denying admission, extension of status, and permanent residence to foreign nationals. The rule will take effect after 60 days, on October 15, 2019, unless litigation prevents its implementation.
USCIS’s fee proposal for employers to complete the online registration process for next year’s H-1B visa lottery has been approved by the Office of Management and Budget (“OMB”). The amount of the fee, which would be paid in addition to the filing, training, and anti-fraud fees for each H-1B petition, has not yet been announced. Publication of the proposed rule in the Federal Register is anticipated in the coming days.
The Department of Homeland Security has decided to extend Temporary Protected Status (“TPS”) for nationals of Syria for a period of eighteen months. TPS designation for Syria was scheduled to end on September 30, 2019. The DHS decision will extend it through March 31, 2021.
People often ask me about the “million dollar green card.” Established nearly thirty years ago by Congress, the EB-5 Immigrant Investor Program grants lawful permanent residence (“green card”) to individuals who invest US$1 million in a business in the U.S. (or $500,000 in high unemployment areas), and create (or, in some cases, preserve) 10 permanent full-time jobs for U.S. workers. Today, USCIS published a final rule that contains major changes to the EB-5 Program. These changes will take effect on November 21, 2019.
U.S. Citizenship and Immigration Services (USCIS) has announced that it is revising the civics test for the naturalization application, which was last done in 2009. According to USCIS, the purpose of the revision is to ensure that it continues to accurately test the applicant’s knowledge and understanding of U.S. history, government, principles, and values.
Earlier this week, a federal court in Washington, DC, upheld U.S. Citizenship and Immigration Services’ (“USCIS”) denial of an H-1B petition for a Quality Assurance Analyst (“QA Analyst”), finding that the agency’s analysis of the regulations defining a “specialty occupation” was not contrary to law. This decision provides important insights into 1) how the degree requirement should be worded so that a position qualifies as a “specialty occupation”; 2) how to strengthen expert statements and job postings of similar positions; 3) the need for descriptions of job duties that communicate complexity while being comprehensible; and that 4) federal court litigation may not be the solution for overcoming H-1B denials because the standard of review for overturning these decisions is tough. Speaking from my own experience as a staff attorney at the Ninth Circuit for five years, the federal courts generally will defer to an agency’s decision unless the agency clearly failed to consider relevant evidence in the record or disregarded applicable case-law.
The U.S. House of Representatives passed legislation last week that seeks to end the backlogs for green cards by eliminating the per-country cap for employment-based immigrants and raising the existing per-country cap from 7% to 15% for family-based immigrants. The elimination of per-country caps would benefit Chinese and Indian nationals in particular, who face three to ten year delays in obtaining green cards based on employment.
The Department of State (DOS) has issued its August 2019 Visa Bulletin. Overall, there was significant retrogression in most categories this month. Employment-based category 1 (EB-1) for most nationals retrogressed by nearly two months, while for Chinese nationals it retrogressed by ten months, and there was no movement for Indian nationals. For the employment-based category 2 (EB-2), most nationals retrogressed by nearly two and a half years, while Chinese nationals advanced by two months, and Indian nationals advanced by only eight days. Lastly, the employment-based category 3 (EB-3) for most nationals retrogressed by nearly three years; Indian nationals retrogressed by three years and six months, but Chinese nationals moved forward by six months.
USCIS announced this week that it will begin redistributing pending naturalization and permanent residence applications from heavily back-logged field offices, such as San Francisco, Los Angeles, and New York, to field offices with smaller backlogs in order to minimize the wide disparity in processing times among the USCIS field offices. This means you could be called in for your interview at an office that is outside your area of residence.
The Department of State (DOS) has issued its July 2019 Visa Bulletin. Overall, there was little movement in most categories this month. For the EB-1 category, Chinese nationals advanced by 75 days while there was no advancement for EB-1 Worldwide and Indian nationals. For the EB-2 category, Chinese nationals advanced by three months while Indian nationals advanced by only five days. Lastly, EB-3 for Chinese nationals moved forward by three months and 17 days, while Indian nationals did not advance, and Philippine nationals are now current.
Beginning May 31, 2019, individuals applying for either nonimmigrant or immigrant visas to the United States will need to provide information on their social media accounts for the last five years. This includes their user names or handle for each platform, but not their passwords.
Effective June 5, 2019, applicants for the annual Green Card lottery will be required to provide information from a valid, unexpired passport on their electronic visa entry form. The new passport requirement only applies to the principal applicanton the entry form, and not to his or her accompanying dependents. Failure to provide accurate information on the application form will result in disqualification from the lottery.
USCIS announced earlier this week that data entry for all H-1B cap-subject petitions selected in this year’s lottery has been completed. USCIS will now begin returning all H-1B cap-subject petitions that were not selected and will issue an announcement once it has finished returned all H-1B petitions. USCIS declined to provide a definite time frame for returning unselected petitions.
The recent transfer of more than 700 border agents from the US-Canada border to the US-Mexico border means travelers between Canada and the US should be ready for delays at immigration inspections. The Department of Homeland Security announced that the temporary transfer of border agents from the northern to the southern border is to assist with the influx of asylum-seekers from Central America.
The Department of State (DOS) has issued its June 2019 Visa Bulletin. Overall, there was a little movement in most categories this month. EB-1 for most nationals advanced by 52 days while there was no movement for Chinese nationals. EB-1 for Indian nationals retrogressed by a little over two years.
For the EB-2 category, Chinese nationals advanced by 78 days while Indian nationals advanced by only three days. Lastly, EB-3 for Chinese nationals moved forward by 24 days, while Indian nationals did not advance, and Philippine nationals advanced by five months.
The Department of Homeland Security will not be enforcing the termination of Temporary Protected Status (“TPS”) for nationals of Nepal and Honduras until further notice, following a court appeal similar to the case that challenged the terminations of TPS for Sudan, Nicaragua, Haiti, and El Salvador.
Each year, the U.S. Department of State releases statistics on visa refusal rates by country. It lists every country in the world in alphabetical order with its visa refusal rate. In reviewing the refusal rate for visitor visas (B-1/B-2) last year, I reorganized the information so that the countries are listed by highest to lowest rates of refusal. You can find the list here.
President Trump’s newest immigration initiative targets foreign nationals who overstay their visas with a focus on visitors who enter the United States on the B-1/B-2 visa and the Visa Waiver Program. In a memo released on Monday, he has proposed reducing the amount of time foreign nationals are allowed to stay in the United States, requiring additional documentation, and imposing admission bonds that would be refunded upon departure from the U.S.
USCIS has issued policy guidance, clarifying that the use of marijuana or working in the cannabis industry could be a basis for denying naturalization applications, even where such conduct would not be an offense under state law.
The Social Security Administration (SSA) has re-started its practice of issuing “no match” letters to employers this past month. Also known as “Employer Correction Requests,” these letters inform an employer when an employee’s W-2 information such as their name and Social Security do not match the SSA’s records. If employers receive such a notice, they should investigate and take the appropriate corrective action.
The U.S. Embassy in Israel has confirmed that Israeli citizens will be eligible for the E-2 Treaty Investor Visa effective May 1, 2019. This development opens new possibilities for Israel’s robust start-up culture.
The Department of State (DOS) has issued its May 2019 Visa Bulletin. Overall, there was very little movement in most categories this month. EB-1 for most nationals advanced by one month while there was no movement for Chinese and Indian nationals. For the EB-2 category, Chinese nationals advanced by forty-four days while Indian nationals advanced by only three days. Lastly, EB-3 for Chinese nationals moved forward by twenty-one days, while Indian nationals advanced by nine days, and Philippine nationals advanced by three months.
In a strange reversal of long-standing practice, Customs and Border Patrol (“CBP”) has started refusing to adjudicate subsequent L-1 petitions presented by Canadians at certain ports of entry and preclearance locations along the US-Canada border. CBP says that amendment and extension petitions now need to be filed with US Citizenship and Immigration Services (“USCIS”). This new policy affects both individual and blanket L petitions.
USCIS announced yesterday that it received 201,011 H-1B petitions the first week of April, and had reached the 65,000 limit for H-1B regular petitions and the 20,000 limit for the U.S. advanced degree H-1B petitions for fiscal year 2020. Despite the surge in Requests for Evidence, denials, and processing times over the past year, the number of H1B petitions filed this year increased slightly from 199,000 last year. USCIS also announced that, on April 10, it had completed the random lottery for the selection of the 65,000 regular H-1B petitions and 20,000 U.S. advanced degree petitions.