Update on the new 90 Day Rule and USCIS

Immigration Lawyer in Houston New State Department 90-Day RuleBack in.    we wrote an article about the Department of State adopting a new rule on inadmissibility called the 90-day rule.  This replaced their previous 30/60 rule.  For a full rundown on the change in the regulation and what it means, see the article we wrote here.  Basically, the 90-day rule means that any activity contrary to non-immigrant intent done within 90 days of entry on any visa that requires such intent will be evidence of fraud (i.e. that you did not have non-immigrant intent when you were admitted to the United States).  At the time, we were not certain what USCIS’ stance on the new rule would be.  Now, we know.

Just recently USCIS amended it’s Adjudicator’s Handbook to include the following:

3. The U.S Department of State’s 90-Day Rule

The U.S. Department of State (DOS) developed ​a​ 90-day rule ​to​ assist consular officers in evaluating misrepresentation in cases involving ​a person who ​​violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her​ intentions at the time of the visa application or to the immigration officer at the port of entry​.​

The 90-day rule is not a “rule” in the sense of being a binding principle or decision​. ​The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Securityaccording to existing procedures.

While at first blush this may look like they are not adopting this rule, closer examination shows us that this is not necessarily the case.  The language used above is the SAME language that USCIS used to explain the previous 30/60 day rule.  So it seems that USCIS will now use the 90-day rule (albeit as a guiding principle more than as a rule).  However, as decisions by USCIS can be appealed to both the Administrative as well as the Civil Courts, it is important to remember that the rule is more nuanced if you are in the US rather than outside the US (where the DOS can make any decision they feel fit and there is no appeal).

While there have been no cases yet on the 90-day rule, there have been many on the 30/60-day rule.  Thos cases may help demonstrate what the Administrative Courts (at least) are going to do.  First, the Administrative Courts have fairly consistently found that the application of such a rule, although not required, CAN be done because they were persuaded by the Department of State’s reasoning in developing the rule.  They have found in many cases that the application of the rule does create the presumption of a misrepresentation, but have also found in certain cases, that the evidence submitted by the petitioner has overcome that presumption.  The Courts have also found (fairly consistently) that the marriage to a US Citizen and subsequent filing of a green card application, even if done within the 30/60 day time period, in and of itself, is not enough to find a misrepresentation or fraud.  In other words, the positives of being married to a US Citizen outweigh any negatives in this type of case – so unless there are other negatives, such cases should not be denied solely based upon the activities related to the marriage and immigration process that were conducted within 30 or 60 days of entry.

While we cannot know what will happen until cases are actually decided by the Administrative Courts specifically on the application of the 90-day rule, I think it is prudent to continue to follow past rulings in this area and to assume that the Courts will allow USCIS to use this rule as a guideline.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

 

Case Processing Times are Rising as Number of Cases being Processed Drops

Arrows-Up-Down-2Many of you have probably noticed the increase in processing times at USCIS lately – I-140s are taking a long time, H-1Bs and other changes of status applications are talking almost a year to process, and I-485s are now well over a year to process as well. Well, the American Immigration Lawyer’s Association has reviewed the processing statistics released by USCIS and come up with some startling conclusions.

First, in terms of how long it is taking USCIS to adjudicate applications, it appears that, overall, processing times have increased 19% in fiscal 2018 alone (that is October 1, 2017 through September 30, 2018). This does not include the tremendous growth in processing times throughout 2017 either. Since this time, USCIS has released further statistics showing that, in the first quarter of 2019 alone, processing times have grown another 11-25% depending on the application type. This is affecting individuals and businesses alike.

Now, one would think that such increases would be matched by increases in the number of cases filed with USCIS. However, if one made that assumption they would be wrong. In fiscal year 2018 the number of cases filed actually dropped almost 13%, from 8,530,722 in fiscal year 2017 to 7,527,851 in fiscal year 2018.

So, to summarize, the number of cases USCIS is dealing with dropped almost 13% BUT processing times increased an average of 11%. It appears that agency policies such as requiring interviews on all employment based adjustment of status applications and the removal of the policy allowing deference to certain prior case determinations have adversely affected the ability of USCIS to adjudicate cases in a timely manner. Imagine if USCIS had to deal with the same volume of cases it had received in 2017, or more. Case processing times would probably have risen at an even steeper level than they have.

If the above practices actually made us safer, that would be one thing. However the reality is that they are just window dressing, things that can be used politically to show the administration is cracking down, when, in reality they do little to actually combat fraud or help catch immigration violators or criminals. Hopefully thinks will change and these delays will start reversing.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

March 2019 Visa Bulletin Released

UnknownRecently, the Department of State and Charlie Oppenheim released the new March 2019 Visa Bulletin.  Below is a summary of the movement in each category.

Family-Based cases:

 

F1: Final Action dates moved forward to about a month for most countries – October 22, 2011 for All Other Areas, China and India.  Mexico had no movement and stayed at August 1, 1997.  The Philippines moved forward about two weeks to April 1, 2007. Dates for Filing move to April 22, 2012 for All Areas, China and India, and stayed at September 22, 1999 for Mexico and moved to April 1, 2008 for the Philippines.

F2A: Final Action dates moved forward to a little over a month for most countries – January 8, 2017 for All Areas except Mexico, which moved to December 15, 2016. Dates for Filing moved forward slightly to December 8, 2017 for All Areas.

F2B: Final Action dates for most areas moved forward about three months – All Other Areas, China and India all moved to August 1, 2012. Mexico moved forward two months to September 22, 1997 and the Philippines only moved forward 3 weeks to July 22, 2007. Dates For Filing stayed at June 22, 2014 for All Other Areas, China and India.  Mexico moved forward about 4 months to February 8, 1998, and the Philippines moved forward about one week to January 22, 2008.

F3: Final Action dates moved forward only about 2 weeks for All Other Areas, India and China to September 8, 2006. Mexico moved forward about 3 weeks to January 15, 1996 and the Philippines moved forward almost 4.5 months to January 1, 1996. Dates for Filing moved forward about 1 month for All Other Areas, China and India to March 1, 2007. For Mexico, it stayed at June 8, 2000, and the Philippines moved forward 1 month to September 1, 1997.

F4: Final Action Dates moved forward 3 months to September 22, 2005 for All Other Areas and China. It moved forward about 2 weeks to July 8, 2004 for India. Mexico had no movement and stayed at February 8, 1998. The Philippines moved forward about 3 months to January 1, 1996. Dates for Filing mostly moved forward about 1 week (to June 22, 2006 for All Other Areas and China, to February 8, 2005 for India and to November 8, 1998 for Mexico). The Philippines moved forward about 1 month to January 8, 1997.

Employment-Based Categories

(Please note, because USCIS has consitently stated that employment-based categories will use Final Action Dates we will not discuss the Dates for Filing)

EB1: Moved forward about 1 month – to January 1, 2018 for most countries except India and China which moved to February 22, 2017.

EB2: Stayed Current for most countries except China (moved 3 months to January 1, 2016) and India (moved 3 days to April 9, 2009).

EB3: Stayed Current for most countries except China (moved about 1 week to July 8, 2015) and India (moved forward 1 month to May 22, 2009 – remaining ahead of the EB-2 date for India).  The Philippines moved forward 4 months to December 1, 2017.

Next month there should be another update from Charlie Oppenheim on future movement in all categories.  Please do contact me with any questions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer, not a blog. Thank you.

 

Want an appointment at a local office? Soon you may not be able to make one.

USCIS announced that it is phasing out InfoPass appointments at local offices (self-scheduled appointments) except on a limited basis. Basically they will allow appointments on an emergency basis and to deliver documents to the local office only. USCIS stated that their research showed that for the vast majority of people who make appointments at local offices, the questions they asked could be answered using the on-line resources at USCIS.com or calling the 1-800 number. In addition to the limited on-line appointments, if you call the 1-800 number and they determine that an appointment at the local office is needed, they will schedule it directly for you. There are certainly pluses and minuses to this new policy.

In the plus category, this should allow officers to spend more time interviewing people and adjudicating cases, thus bringing timelines for family and employment based green cards down.

In the minus category, it will make it much harder to find out exactly what is going on with a case once it is at the local office. Most local offices use to have special emails that immigration attorney’s could contact if there were issues. In addition, attorney’s (as well as immigrants themselves) could make appointments with the local office to find out what was happening with a case. Now, all that is available is calling the 1-800 number to try and find out what is going on. The only result of this is that it will be much harder to actually get the status of a case.

Currently the new policy is only in place in a limited number of states. However it should be rolled out nationwide by the new year. We will keep you updated as more information becomes available.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

May Visa Bulletin and Update from Charlie Oppenheim

UnknownRecently Charlie Oppenheim once again spoke with AILA and updated us on immigrant visa usage numbers.  This update also encompasses the updates in the May Visa Bulletin so there will be no separate post about that.  Below are the highlights of that update.

 

Employment Based Categories

In the April Bulletin Charlie moved forward several employment based categories quite a bit.  This was done to spur filings and usage of immigrant visas.  However, due to the longer timeframes now for adjudicating such cases, it will be months before the usage starts to affect visa numbers.  Therefore, for most categories, including EB-1 for China and India, EB-2 India, and EB-3 for China and the Philippines, the dates will hold steady in May.  Several other categories will see some forward movement:

EB-2 China will move forward 1 month to September 1, 2014

EB-2 India will move forward 3 months to May 8, 2008

EB-3 Other Workers – China will move forward about 1 month to May 1, 2007

EB-3 Other Workers – India will move forward about 3 month to May 1, 2008

For the future, it is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July. What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS. The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

Specifically looking at EB-1 China and India:  It is now too early to know whether the high worldwide EB-1 demand seen over the past few months is the result of a processing glut or sustained demand. Because of this, it is likely that EB-1 China and India will hold for at least another month, but Charlie is closely watching  demand to determine whether any advancements may be possible.

Lastly, Charlie is hopeful that the advancements made in April to EB-2 China will be sufficient to exhaust the visa numbers in this category, however he continues to monitor China EB-3 downgrades and is likely to hold the final action dates in these categories for at least another month. Despite this, there still remains the possibility of some advancement later this fiscal year if the anticipated demand does not materialize.

Family Based Categories

Below are the Dates for Filing (not the final action dates)  for family based categories:

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES 
F1 08JAN12 08JAN12 08JAN12 15JUL98 08OCT07
F2A 22SEP17 22SEP17 22SEP17 22SEP17 22SEP17
F2B 08SEP11 08SEP11 08SEP11 22MAY97 08SEP07
F3 08SEP06 08SEP06 08SEP06 22SEP98 22JUL95
F4 01APR05 01APR05 01DEC04 08MAY98 15OCT95

As we have pointed out before, unlike employment based applications, most family-based preference petitions are processed through the National Visa Center and U.S. consulates abroad, which accept applications based on the “filing date” rather than the final action date. As a result, Charlie has excellent visibility into demand in these categories, enabling a slow and steady progression of the final action dates with much less volatility than is seen in the employment-based preference categories.

Final action dates advance modestly in May for all family-based preference categories, except F-1 China, India and Worldwide, which hold at the April dates. There is no retrogression in any of the family-based preference categories in May.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

EB-1 for China and India Backlogged come April 1

Charlie Oppenheimer and the Department of State have determined that, because of increased usage of the EB-1 immigration visas that, come April 1 they will have to backlog this category for both India and China. Both have been backlogged to January 1, 2012 (a date for which there will be no demand). This action was taken to make sure that worldwide usage for this category stays within the numbers allowed.

Charlie did say that, if worldwide usage declines over the coming months he may be able to move these dates forward at some point this fiscal year. While the category will move forward, and may even come current, at the beginning of the next fiscal year (October 1, 2018), it is most likely that both India and China will continue to use their allotted share of EB-1 visas each year and there may end up being a more consistent backlog as there is for the EB-2 and EB-3 categories for India and China.

We will update you as soon as we receive any additional information.

Update on H-4 EAD’s

UnknownIt appears that USCIS is preparing to release a new rule by June, 2018 to remove the provision that allows certain H-4 spouses of H-1B visa holders to apply for work authorization.  If you have been following this issue, you know that the new administration has been looking at revoking these rules since it came into power.  It appears now that they are getting ready to act.  According to the administration, allowing such people work authorization is taking away potential jobs from US Citizens.  In further of this view, USCIS just released a report on the H-4 EAD process, including statistics on the number of cases, etc.  According to this report, there are over 104,000 people taking advantage of this law.

While we cannot be certain that the new rule will actually be published (or when it will be published) until it is actually published, it appears that it is now in sight, and will be implemented by the end of this year.  If you are currently using such an EAD, it would be beneficial to discuss other options with your attorney.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Check in With Charlie Oppenheim on Immigrant Visa Movement

UnknownCharlie Oppenheim has released some more information on how he sees immigrant visa usage heading this year.

Overall his  predictions are largely positive, with forward movement predicted in most categories.  However, it should be noted that the new USCIS policy requiring transfer of employment-based I-485s to field offices for interview is expected to increase volatility in final action date movement in employment-based categories. These categories may actually see faster advancement of certain final action dates in the near term because fewer cases will be adjudicated, though once the transition is complete and the USCIS adjudications process has stabilized, there may be slower movement or retrogression in certain categories depending on usage.

In addition, if there are delayed adjudications, this would  mean less visibility in demand for the State Department, which may result in more rapid forward movement (if Charlie does not know of pending cases, or projected usage, he cannot account for it in setting dates in the visa bulletin). The timeliness of the sharing of demand data by USCIS may also be impacted, as data will need to be pulled from multiple offices, as opposed to a more centralized approach to adjudications and data collection in the past.

The total number of visas used by USCIS as a whole during this fiscal year (or, at least, the first quarter of the fiscal year (October through December, 2017)) has decreased by several thousand as compared to FY2017. Charlie plans to advance categories as needed to generate sufficient demand to ensure usage of all available visa numbers, while trying not to do so too rapidly to avoid retrogression or unavailability.

In terms of specific categories:

Employment-Based Categories

EB-1 India and EB-1 China:  The imposition of a final action date for EB-1 China and EB-1 India in July/August/September of 2017, created pent up demand which was largely adjudicated in October, November and December of 2017. However, so far, this fiscal year, EB-1 India and EB-1 China have already used 7,000 and 4,500 visa numbers, respectively. Charlie expects these categories to remain current for the coming months, but the imposition of a final action date in the summer remains likely if the current rate of demand continues. This could, however, be delayed if the transition of I-485s to USCIS Field Offices results in slowed processing of EB-1 China and EB-1 India cases in the coming months.

EB-2 Worldwide: This category should remain current for the foreseeable future.

EB-2 and EB-3 China:  As stated in my last post, EB-2 China will advance just under two months to October 1, 2013, and EB-3 China will advance five months to September 15, 2014 in the February Visa Bulletin. According to Charlie this category will continue to  advance at a rate of two to three months each bulletin, and may progress at a faster pace to generate demand. EB-3 China is predicted to advance at a pace of “(u)p to five months.” Charlie advised that EB-3 China will likely continue to advance at a faster pace than EB-2 China.

However, this may “flip” around, and EB-2 China may start progressing at. Faster rate.   It is unclear whether this “flip” will occur in FY18 due to a combination of factors, including the availability of otherwise unused family-based preference numbers for China, and uncertainty as to how the transfer of employment-based I-485s to USCIS Field Offices will impact the speed of adjudications and the processing of upgrade and downgrade requests.

EB-2 India:  Again, as stated in my previous post, EB-2 India will advance by less than one month in February from November 22, 2008, to December 8, 2008. Given heavy demand, the February Visa Bulletin predicts modest forward movement for EB-2 India at a rate of “(u)p to two weeks.”

EB-3 India:  The final action date for EB-3 India will advance one month to December 1, 2006. The February Visa Bulletin predicts forward movement in this category at a pace of one to three months. Once the final action date advances beyond August 2007, Charlie will have very little visibility into demand. Once this occurs, there is the potential for rapid movement of the EB-3 India final action date to generate new demand. This may happen either late this fiscal year (August or September of this year) or next fiscal year.

EB-3 Philippines:  This category will advance two weeks to March 1, 2016, in February. Demand in this category is comfortable, but not extremely high, which means there is less room to advance this date significantly. Charlie is watching this category closely since there have been spikes in demand, and he does not want to advance the final action date too quickly to avoid future retrogression. At this time, demand in this category is heavily weighted toward consular processing, but it is expected that USCIS filings could increase significantly in the coming months.

Family Based Categories

Final action date movement tends to be less erratic and more predictable in the family-based categories since Charlie has greater visibility into demand patterns based on the fact that these cases are primarily adjudicated at consular posts rather than domestically by USCIS. Charlie predicts FB-1 Worldwide advancing at a pace of up to one month, FB-2A Worldwide advancing three to five weeks, FB-3 Worldwide advancing up to five weeks, and FB-4 worldwide advancing up to three weeks.

FB-1 Philippines and FB-2B Philippines, which had retrogressed in December, will advance seven months and 21 days in February, respectively. Charlie will continue to monitor demand carefully in these categories over the next several months. Recent volatility is attributable to the lack of visibility of rescheduled appointments made by applicants through the Department of State’s Global Support System (GSS). Charlie is working closely with the post in Manila to obtain more accurate demand data, and he hopes that as a result, these dates will slowly advance and recover.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

February 2018 Visa Bulletin Released

UnknownUSCIS has released the February 2018 Visa Bulletin. While there is certainly some movement forward, the guidance given by Mr. Oppenheim last month is still in effect and has not changed. Relevant changes are listed below.

Employment Based Immigrant Visas:

EB-1A: Still current for all Countries

EB-2: Current for Worldwide. China is at October 1, 2013, a jump of almost two months. India is at December 8, 2008, forward movement of approximately 2 weeks.

EB-3: Current for Worldwide. China is at September 15, 2014 a jump of about 5 months. India is at December 1, 2006, forward movement of one month.

Family Based Immigrant Visas:

FB-1: Worldwide, China and India are at March 15, 2011. Mexico moved forward about 2 months to July 1, 1996. The Philippines moved forward about 7 months to August 1, 2005.

FB-2A: Worldwide, India, China and the Philippines moved forward 1 month to March 1, 2016. Mexico also moved forward about 1 month to February 1, 2016.

FB-2B: Worldwide, China and India all moved forward about one and half months to January 15, 2011. Mexico and the Philippines each moved forward about 2-3 weeks to September 8, 1996 and July 22, 2006 respectively.

FB-3: Worldwide, China and India all moved forward about 5 weeks to November 15, 2005. Mexico moved forward about 1 week to June 22, 1995 and the Philippines did not move, but stayed at March 15, 1995.

FB-4: Worldwide and China moved forward 1 month to July 22, 2004. India moved forward about 3 weeks to January 8, 2004. Mexico only moved forward 1 week to November 8, 1997. The Philippines moved forward about 1 month to October 1, 1994.

The above summarizes the movements for the mentioned categories. If you are interested in another category, please feel free to contact me directly.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

January 2018 Visa Bulletin and Update from Charlie Oppenheim

UnknownThere have been some movements on the immigrant visa front, and some setbacks.  Below is an update on where things are and where they may be going.

Employment Based Immigration Visas:

EB-1:  Current across the Board for now, however according to Charlie, India and China may backlog by summer.

EB-2:  Current for Wordwide.  China progressed more than 1 month to August 8, 2013 and India progressed less than 1 month to November 22, 2008.  According to Charlie, China should continue to progress, but India will not move forward significantly in the near future, not even progressing into 2009 before the summer of 2018.

EB-3:  Current for Worldwide.  China moved forward more than 1 month to April 15, 2014.  India moved forward a couple of weeks to November 1, 2006.  The large demand in EB-3 for India has lessened somewhat so Charlie is hopeful that this category will continue to progress at the same rate over the upcoming months.  The Philippines moved forward about 1 month to February 15, 2016.  The large demand that had surfaced last month for the Philippines has lessened so, as with India, Charlie is hopeful of continued movement but will be monitoring demand closely.

Family Based Immigration Visas:

FB-1:  Most countries moved forward about 1 month to March 15, 2011.  The exceptions are Mexico (in 1996) and the Philippines (which is in 2005).  According to Charlie the Philippines, which recently had a large retrogression, will not be moving forward anytime soon.  Apparently already 40% of their immigration visas in this category are gone, whereas by the end of March they are usually at 54%.  Because they are already so close to that number, Charlie has had to slow down visa usage for them in this category (and the FB-2B category as well).  Because of movement forward in this category for worldwide number, Charlie is monitoring increased usage very closely.

FB-2A: Most Countries moved forward just over 1 month to February 1, 2016.  The only exception was Mexico which is at January 1, 2016.

FB-2B:  Most Countries moved forward just a couple weeks to December 1, 2010.  The only exceptions are the Philippines, which is in 2006 (see FB-1 for explanation) and Mexico which is in 1996.

FB-3:  Most Countries moved forward about 1 month to October 8, 2005. The only exceptions were Mexico and the Philippines, both of which are in 1995.

FB-4:  Most Countries moved forward a couple weeks to June 22, 2004.  India also moved forward a couple weeks to December 15, 2003.  Mexico is in 1997 and the Philippines is in 1994.  As India is moving forward in this category, Charlie is monitoring usage very closely in case increased demand surfaces.