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.

The New STEM OPT Training Plan: What Do I need to know?

Screen Shot 2016-07-08 at 10.05.15 AM.pngUnder the new rules that went in effect on May 10, 2016, all students seeking STEM extensions for additional OPT time must have a training plan that is developed by them and their employer.  Below are some important points to keep in mind about the new training plan requirement

1.    Plan is Collaborative in Nature

Unknown.jpegFirst, employers and students must develop the plan together.  It is a collaborative process that, as stated below, must take into account the students education, and how the employer can help enhance that education through training and working.

However, that being said, there are certain parts that just the employer needs to complete and certain parts that just the student needs to complete.

2.     Intent of the Plan

 

Unknown-1.jpegThe intent of the plan is to show how the program the employer has developed for the student will help he student “achieve” their objectives for work-based learning.  Basically showing how the work is related to the STEM major of the student and how it will help them get real world experience in that area.  Each plan will be different as it is based on the Student’s major and future plans as well as by the employer’s business and the position that the student will be placed in.

It is important to also note that one of the attestations made by the employer and student is that the training opportunity is directly related to the STEM degree that qualifies the student for the OPT extension.

3.    Progress Evaluations

Unknown-2.jpegThere must be a mechanism in place to evaluate the progress of the student in meeting the goals of the training plan.  The student prepares a self-assessment and the employer must sign off on this assessment.  The assessment must then be given to the DSO within the applicable timelines (10 days of the deadline).  An evaluation must be done at the 12 month mark in the training and the 24 month mark of the training.

Part of the training plan (and the attestations made by the employer) includes having a person designated as supervisor/trainer for the student.  Most likely it would be this person who would sign off on the plan as they can best testify to the fact that the student has been meeting the goals of the plan.

4.  Changes to the Training Program

Unknown-3.jpegPart of the application process requires the employer and student to affirm under oath that they will alert the DSO to any material change in the training plan or material deviation from the training plan as soon as possible.  What would this include?  Changing the position or duties of the trainee most likely would fall within this definition as would changes to compensation, and changes in the employer or employer structure.  There are certainly other changes that would be considered material (as well as deviations) in general this may be an area in which it is better to inform the DSO of a chance rather than trying to explain after the fact why you feel it was not a material change.

5.  Conclusion

The training plan is an important piece of the OPT extension.  While there has been no announcement as of yet I am sure that USCIS will start enforcement actions around this requirement.  Perhaps they will send out officers to review the plan, visit the work site and ensure the student is doing what is required and the correct resources have been allocated.  It behoves employers and students to ensure that the training plans they develop meet the requirements of the law and regulations.  Please let us know if we can provide any assistance in that regard.

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.

Updates on Court Cases against USCIS

Unknown.jpegThere are two relevant updates to discuss.

First, in terms of the STEM OPT court fight, the District Court this week dismissed the action against USCIS for the STEM OPT rules.  The Court found that USCIS had fixed the necessary issues and did not agree that USCIS overstepped its bounds with OPT.  However, it is still possible, and very probable, that this decision will be appealed to the Circuit Court.

Second, the court action against USCIS for the sudden changes in the October 2015 visa bulletin was dismissed.  As you may recall, USCIS and DOS retrogressed dates mid-month because USCIS had failed to properly inform DOS of the expected demand if the dates were not retrogressed.   The Court dismissed this suit saying that the Visa Bulletin is not a final rule that can be challenged in court.

If you have any questions leave a comment below or send me an email.  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.

STEM OPT: The Fight is Not Over Yet

UnknownWith the publishing of the new STEP OPT rule just last month, many thought that this could be the end of the lawsuit brought against USCIS over this issue.  The Court overseeing this case found that USCIS had violated procedures surrounding the rule making of that last OPT extension, which lead to USCIS redoing the rule making process and the new rules.

Unfortunately, the group that brought the lawsuit Washington Alliance of Technology Workers (Washtech), through their attorneys from the Immigration Reform Law Institute (ISLI), is still appealing the ruling of the lower Court which ruled that the ISLI only had jurisdiction to sue over the STEM OPT rule and not all OPT as well as the part of the ruling that agreed with USCIS that the definition of student could include those not in school any more at the time (without the benefit of such a definition USCIS could not implement any OPT rules).  Washtech and ISLI maintain that all OPT rules were developed to circumvent protecting for the US workforce required for such visas as the H-1B (payment of a prevailing wage, no lockouts or strikes, etc.).  They also maintain that OPT hurts US workers, especially recent US graduates.

Before discussing the impact of the continuation of the law suit, I would like to state that the allegations that OPT or other immigration programs hurt US workers or graduates is disproved by all research in this area.  All research shows that areas with higher level of immigrants who are working create more jobs, have a lower unemployment rate and a better economy that those with less immigrations.  (See this article for example).

If the appeals court agrees with Washtech it could call into question all OPT Rules and lead to USCIS having to stop issuing OPT documents unless and until the US Congress changes the statute. Considering the divided nature of the current congress, the chances of them getting together on this issue is very small, which means if the Court rules that the OPT laws are no longer valid, that ruling will not be changed by legislation anytime in the near future. This would hurt not just foreign graduates, but the US economy as well, as fewer students would come to the US and many fewer students would stay after their studies. As discussed above, this decrease in immigration would actually act to hurt our economy.

Hopefully the Appeals court will uphold the lower court ruling and the OPT rules will remain in place.  We will, of course, update you as news develops in this case.

STEM OPT Transition Information

Unknown.jpegFor those who are wondering about the new STEM rules, and how the old rules will be stopped and the new rules will be implemented, keep reading.

If My Application Was Filed On Or Before May 9, 2016, Under Which Rules Will It Be Adjudicated?

USCIS will transition into the new rules as seamlessly as possible.  First, all current and pending OPT requests will continue to be processed as 17 month extensions up until May 10, 2016 (so through May 9, 2016).  Any 17 month extensions already granted, or granted from the date the new rule was published through May 9, 2016 will remain valid as of May 10, 2016 and beyond for their full term (i.e. until the date listed on the EAD).  These 17 month EADs will not be affected by the new rules in any way.

However, any application for a 17 month extension filed before May 9, 2016 that remains pending as of May 10, 2016 (and, of course, any application filed on or after May 10, 2016) will fall under the new rules.  In other words, filing the application  before May 10, 2016 does not guarantee your application will fall outside the new rules.  Any application pending on May 10, 2016 will be converted to a request for a 24 month extension, and, in due course, a Request for Evidence will be issued for the new I-983 training plan and other additional documentation needed to process a request for the 24 month extension

What If I File My Opt Request And Ask For 24 Months, But I File Prior To May 10, 2016?

If you file a request under the new rules, but send in the filing early, USCIS will automatically convert your request to a 17 month extension request.  Of course, per the above, if that application remains pending on May 10, 2016, it will be converted back into a 24 month request.

If I Have A 17 Month Opt Card Can I File An Extension To Get The Extra 7 Months?

Yes.  Those who received 17 months of OPT, if you qualify for the 24 months under the new rules, can file a request to extend their OPT for the extra 7 months.  You will need to file the extension request with all the required documents for a normal 24 months OPT request, including the training plan, etc.  This is not an automatic extension, you must file for the extension and be approved under the new rules.  This is important to remember especially in context of deciding whether to withdraw a current OPT request so that you fall under the new  rules.  

There are many inherent dangers to withdrawing an OPT request, especially in terms of the strict timelines in which to file the OPT request (which are not reset if you withdraw your initial request) and you should discuss this with your school and immigration attorney before making a decision.  In most cases, just continuing on with the current application and filing a request down the road may be the safest, and only, option.

 

UPDATE on new STEM OPT Rule

The new STEM OPT rule that we discussed here, is in final review by USCIS.  Expectations are that it should be published by March 10, 2016 with an effective date no later than May 10th, the last day of the hold issued by the Court.

At this point we do not know if any changes will be made to the rule as we described it previously, but as soon as the final rule is published we will make sure to let you know the final parameters of the new rule.

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.

2015 Legislative Update

There are two updates regarding current legislation that would affect immigration programs. Please note, these are just bills that were introduced but not yet passed.  While the content of the bills is worrisome, to say the least, there is no indication at this point that they will actually get enough votes to pass and become law.

Senator McCain’s Bill

First, Senator McCain has introduced a bill that would require the U.S. Department of Homeland Security to probe “all public records” to determine whether foreigners applying for admission would have something in their backgrounds that could make them inadmissible under the Immigration and Nationality Act. This would include all social media. The house judiciary committee has also started markup on a similar bill that would require that the agencies responsible for vetting the visa applicant check his or her employment and educational history as well as review open source information, such as social media accounts, to learn more about the person seeking to come to the U.S. according to Rep. Goodlatte.

Senator Cruz’ Bill

Second, Sen. Cruz has also introduced a bill. His would make three main changes to immigration law:

  1. The bill would get rid of all OPT.  OPT would no longer be allowed for any student in F status
  2. The bill would impose a 2 year “cool-off” period on all companies that have had furloughs, lay-offs or strikes. During this two year period, the company could not use the H-1B program.
  3. The bill would basically create a minimum salary under the program of $110,000 (it mandates the higher of the actual wage paid over the last year or $110,000).

 

Again, we wish to point out that these bills have not been signed into law, nor have they even been passed by either the House or the Senate.  They are just bills.  However, it is clear, that Congress is intent on using the recent tragedies to try and re-write immigration law to meet their views.   Hopefully cooler head will prevail and this legislation will not pass.  We will certainly keep everyone updated.

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.