Update on USCIS, DOS, SEVP and Covid-19

This is just an update on what is and is not happening with USCIS, DOS and SEVP during the Covid-19 pandemic. First, it is important to remember that things are changing so current USCIS policy may change very soon. To keep updated with current policies, you can go to the USCIS homepage at http://www.uscis.gov.

USCIS

Field Offices:

All USCIS field offices are closed to the public. This means that no biometrics appointments or interviews are being made at this time. This is in force through at least May 3, 2020 (we do not yet know if USCIS will extend this or not).

However, USCIS has made two important concessions during this period. First, they are allowing offices to reuse old biometrics for those who have applied to renew their EAD and AP status (Employment Authorization Documents and Advanced Parole). Second, USCIS has extended the time allowed to respond to Requests for Evidence (RFEs), Notices of Intent to Deny, Notices of Intent to Revoke, as well as the time to appeal decisions (this applies to all such notices with an issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020, inclusive.). USCIS policy now states:

Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken. Any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.

Service Centers:

USCIS service centers are open and adjudicating cases. Currently all service centers are open. However, it should be noted that some centers have closed temporarily in the past when a suspected case of Covid-19 has appeared in one of the employees. However, they have reopened the service centers within days.

Any applications that require biometrics appointments or interviews are on hold, however as the field offices are closed to the public (as are the biometrics centers). The only exception are EAD and AP applications for those who have had biometrics in the past. USCIS has issued a policy allowing those applications to go forward based upon the previous biometrics.

As stated above, USCIS has automatically extended the time to respond to requests for evidence, etc. for an additional 60 days after the due date.

Overseas Offices

Currently overseas offices are being closed on an as needed basis. Offices in Rome and Nairobi are currently closed, other offices are open if the Embassy itself is open. However, as most embassies are closed to the Public, so to are the USCIS offices at such embassies. They will continue to work and adjudicate cases as they can as long as in person interviews are not needed.

Department of State

Embassies

The Department of State has suspended routine immigrant and non-immigrant visa services at all Embassies and Consulates until further notice (No specific date was given). Here is a copy of their announcement:

A. Suspension of Routine Visa Services.

– In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State is temporarily suspending routine visa services at all U.S. Embassies and Consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments as of March 20, 2020. As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Our overseas missions will resume routine visa services as soon as possible but are unable to provide a specific date at this time.

– In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State is temporarily suspending routine visa services at all U.S. Embassies and Consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments as of March 20, 2020. As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Our overseas missions will resume routine visa services as soon as possible but are unable to provide a specific date at this time.

This does not affect the Visa Waiver Program. See https://esta.cbp.dhs.gov/faq?focusedTopic=Schengen%20Travel%20Proclamation for more information.

– Although all routine immigrant and nonimmigrant visa appointments are cancelled, the Machine Readable Visa (MRV) fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the date of payment.

We are aware of the importance of the H-2 program to the economy and food security of the United States and intend to continue processing H-2 cases as much as possible.  For further information about the H-2 program, please visit: https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html

– Applicants with an urgent matter and need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment. Examples of an urgent matter include air and sea crew, and medical personnel, particularly those working to treat or mitigate the effects of COVID-19.

J-1 Program

DOS has extended (automatically) the end date for certain J-1 non-immigrants in the United States. According to their memo DOS:

will now push a two-month extension to program end dates in SEVIS on active records with a program end date between April 1 – May 31, 2020 in order to provide exchange visitors the opportunity to complete either their educational or training programs, or continue to finalize travel plans to return home.”

Please remember this ONLY applies to programs with end dates between April 1 and May 31, 2020.

ICE AND SEVP (F-1 and M-1)

Here is a Link to SEVP policies for students at schools that have closed/moved to online coursework.

In summary, they have loosened rules in this regard to protect the status of those on F-1 and M-1 visas in the US whose schools have closed or are now just offering online classes. SEVP has stated that, under the circumstances outlines in the linked document, the status of such students will remain current and active as long as the procedures are followed. We urge you to review their guidance carefully if you are in such a situation.

As more changes are made we will update you as soon as possible.

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.

National Interest Waiver: Not just for Scientists

jobs-and-occupations.jpgA big question that many people have, before even asking if they would qualify for a National Interest Waiver application, is can I even file one considering that I am a [fill in the blank with your profession].  You may be surprised that, for the most part, the answer is “Yes, people in that profession can apply for a National Interest Waiver”.  Business people, engineers, researchers, some computer people as well – all these professions (and many more) can work with the National Interest Waiver.

First, before discussing how they qualify, let me explain what the National Interest Waiver is and why people want to file that application.  The National Interest Waiver is what is called a self-sponsored application – that is an application in which the beneficiary (the foreign national) is also the petitioner.  This means NO employer or family member is needed to sponsor you.  To qualify, a foreign national must show that their proposed endeavor (the work they want to do in the US) is of substantial merit and national importance.  The must also show that they are well positioned to carry out the proposed endeavor and that it would be beneficial to the National Interest to waive the job requirement.

As you can see from the requirements, a business person who can show that their past business activities helped the US economy or helped employ people, or affected how other businesses operate can show that they meet all three categories as listed above (please note, I did not say that it is guaranteed that they can meet the three categories, just that such a position has the potential of meeting all three categories.  It always will come down to that actual evidence the person is able to get).  The same holds true for other areas as well.  Even engineers and computer personnel who may not publish their work may still be able to make a good case for the National Interest Waiver.  Under the new standard, it is not only research and discoveries that are looked at but entrepreneurship is also looked at for its ability to help our economy and lower unemployment.

There are some limitation, however.  For example, a chef working at a 5 star restaurant, regardless of their renown, etc. would have a hard time showing that their work is in the National Interest.  A painter/artist would similarly have a hard time showing that they qualify for a National Interest Waiver, as would a programmer for a company with 50 other programmers who does not do anything special at that company. What it comes down to is that it is what you do in your occupation rather than the occupation you are in that matters for the National Interest Waiver. That means that people in ANY occupation COULD qualify.  For example, an artist who starts to work in art therapy and publishes on the techniques they use, or who opens up a business and hires US Citizens, etc.  This is really the same for any occupation – because, as stated above, any occupation can do activities that would fit within the National Interest framework – it is just not quite as straight forward or easy for certain occupations.  If you have any question, or wish us to review your CV to see if you could qualify in this category, please do not hesitate to call or email me.

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.

Immigrant Visa Backlogs and Congress: Can They Fix the Problem?

UnknownNot everyone realizes but there are huge backlogs of cases for employment based immigrant visas.  For about 1 year now the EB-1 category (Extra-ordinary Ability, Outstanding Professor and Researchers and Intra-Company Transferees) category has been backlogged about 1 year for most of the world and several years for China and about 4-5 years for India.  The EB-2 category, while current for most of the world, has been backlogged about 4 years for China and about 10 years for India.  The same is true of the EB-3 category.  For those from India and China especially, the requirement of having to wait 10 years or more for a green card is hard on the family.  It can cause children, who may be 2 or 3 when they arrive in the US, to age out before a green card can be obtained – forcing these now grown Children to either go home or get their own visas and begin their own processes.  Furthermore, the employees are working for years without hope of major pay increases or promotions, for fear of being fired (if they ask and are denied) and loosing their place in line.

Congress has been looking at ways of fixing this.  The most popular bill currently, that almost passed the Senate, would alleviate the issue by removing the per country limitations currently in place for employment based immigrant visas.  Currently, all employment based immigrant visas are divided among all countries in the world evenly. While the Department of State can reallocate some visas based upon usage patterns, no country can get more than 7% of the immigrant visas in any given category.  That means, for example, for EB-1 visas India can only get about 3,000 visas per year (and that includes visas for all dependents of the primary applicant (spouses and children).  The bill in congress would remove those limitation in steps and would put in place protections so those from other countries who already applied in the employment categories when the bill was filed, would not loose their place in line.  However, the effect of this bill would hit people from EVERY country.

Within 4-9 years all countries would be facing major backlogs in all categories.  While the current backlog would be cleaned out by then, there would still be significant delays for everyone.   Another bill, in addition to removing the per country limitations would also remove dependents from the visa count.  This means a family of 6 or a family of 4 would be counted as just one immigrant visa against the quota.  This would greatly help to reduce the backlog and would go a long way towards ameliorating the issues caused by just removing the per country cap.  This bill, however, would also raise the number of employment based immigrant visas, a portion of the bill that is unlikely to pass this Congress or, even if it were, to be signed by this President.  There are currently other Senators working at removing the increase in immigrant visas from the bill to try to make it more passable.

Overall, while all these bills try to tackle this issue, the problems with our current immigration system are fairly widespread.  Our immigration laws were written over 30 years ago now in many cases, and longer in some.   Many things have changed since then and a major overhaul is certainly in order.  However, because of the current polarization of our political system, it is doubtful that any such major reform could be passed anytime soon.  Therefore, smaller fixes are all we can hope for in the near term.  Hopefully congress can get together and put together a bill that will help everyone and help prevent the current backlogs we have.

Those interested in this issue can read a good article in The Washington Post here.

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.

Potential EB-2 Backlog starting as early as January 2020

box-turtle-wildlife-animal-reptile-159758_1.jpegFor those who may have missed this in my last blog post (See here), there is a potential that the EB-2 category, which includes the National Interest Waiver may no longer be current for ANY country come January 2020.  What does this mean?

In order to file the I-485 application, there must be an immigrant visa number available in the category in which you are filing.  The Department of State puts out what is called the Visa Bulletin every month.  This Bulletin lists each category for a green card (each category that has a limited number of visas, that is) and lists a date for each category.  That date signifies that cases filed BEFORE that date are now eligible to receive an immigrant visa number.  If, instead of a date, there is a C, that denotes that the category is current, and all applications are eligible for visa numbers.  To explain with an example, let us say the date for EB-2 (which includes the NIW) is 2/1/2019 – this would mean that those cases in which the I-140 (NIW) application was filed PRIOR to 2/1/2019 could now file the I-485 application.  If the date were C it would mean that even someone filing their I-140 today would be able to file the I-485 with that I-140.

In addition to the above, the date listed in the visa bulletin also must be current for a given case in order for the I-485 to be approved.  Again, using the example above, let us say we filed the I-140 on 1/1/2019 with the I-485, and our interview is scheduled for 1/15/2020.  On 12/15/2019 a new visa bulletin comes out that says the new date for EB-2 is 12/30/2018.  Our case is no longer current, therefore even though we have an interview scheduled, the I-485 cannot be approved (to be fully clear, it is possible that USCIS requested the visa number PRIOR to the backlog, so it could still be approved because a visa number was allocated, but lets assume that did not happen).

In general, China and India have had backlogs in the EB-2 category for many years now.  The catch-all listing for all other countries is generally current (listed as a C).  However, in most fiscal years, towards the end of the year (the year ends on September 30, so around July or August) the catch-all listing will backlog as USCIS has used all the immigrant visas in that category.  However, at the beginning of the next fiscal year (October 1) it will come current again.  If, in fact, the EB-2 category does backlog for the catch-all listing, then this could mean that it will remain backlogged for the foreseeable future.  This just happened for the EB-1 category less than 1 year ago – it became backlogged early in the fiscal year and has remained backlogged about 1 to 1.5 years for the catch-all listing since that time.

However, it is important to realize we do not know yet if it will backlog in January, or February or later.  Much will depend on the usage statistics for November (and December).  We will know more around December 15, when the January visa bulletin is released.  We will update you then.

If you are thinking of filing the I-140 and I-485 simultaneously, then you would need to immediately begin getting all documents together as you may no longer be able to do that come January 1, 2020.  Call us with any questions.

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.

USCS Raising Fees

USCIS just released a proposed rule that would increase most fees for USCIS benefits, some by quite a bit.  I will go through some of the proposals below.

I-485: Adjustment of Status

Currently, there is a general fee for the I-485 that covers filing the I-485, and the filing of the I-765 and I-131 applications.  Added to this is a fee for biometrics.  The I-140 fee is $1140 and the biometrics fee is $85.  The total fee is $1225, which is reduced to $750 for children under 14 who file with a parent.

The new proposed fee would be $1120 for the I-485 (including the biometrics fee.  However, the I-765 and the I-131 would no longer be included in the filing fee.  So those needing the I-765 and I-131 would have to pay an additional $490 (up from $410) and $585 (up from $575), raising the total fee to $2195.  In addition, any need for a renewal of the I-765 and/or I-131 would require another payment of $490 and $585, raising the total fees for a pending I-485 much higher than today.  In addition, there would be no discount in fees for those under the age of 14 filing with a parent.

I-129:  Temporary Petition for Foreign Workers

Currently, all applicatons that require the use of this form, file the same form – the I-129, and attach various addendums as needed.  The filing fee for the I-126 is $460 and there are various other fees for certain applications that USCIS has no control over (fraud prevention fee, training fee, etc.).

USCIS has proposed making separate forms for each visa type (or group type) and having a separate filing fee for each group.  There will be a separate form for E and TN visas, H-1B visas, H-2A visas, H-2B visas, L Visas, O visas, CNMI petitions, and one for H-3, P, Q or R visas.  The proposed fees are as follows:  E and TN application, CNMI Application and H-3, P, Q and R Application: $705; H-1: $560; O Application: $715; L Application: $815; H-2A Application: $860 (named), and $425 (unnamed); H-2B: $725 (named), $395 (unnamed).   As can be seen, the increase is anywhere fro about $100 to almost $400.

I-907: Premium Processing Fee

The current fee for this service is $1410.  In return, USCIS will adjudicate the application within 15 calendar days.  The proposal would increase the fee to $1440 AND change the counting of the 15 days to 15 calendar days.

N-400 and N-600:  Naturalization

The current fee for the N-400 is $640 and the current fee for the N-600 is $1170.  Under the new proposal, the N-400 fee would rise to $1170 and the fee for the N-600 would be $1015.  That would be over an 80% increase in the N-400 fee and a drop of about 13%.

I-140: Petition for Foreign Worker

The currnet fee for this application is $700.  The proposal would cut this fee to $545.

Asylum and DACA

Asylum and DACA have both had no filing fee for the actual application.  The proposal adds a $50 fee to file for Asylum and a fee of $275 for DACA applications.

The above is not exhaustive.  If you would like to see all the fee changes and USCIS’ justifcations, please click here.

Please remember this blog does not attempt to provide legal advice or to analyze any specific case.  If you need legal advice, ask a lawyer, not a blog.  Thank you.

November Visa Bulletin and an Update From Charlie Oppenheim

UnknownBefore discussing the visa bulletin for November, I just wish to apologize for the absence of posts in the last couple of months.  In the future I shall make sure that there are no more long pauses such as the one that occurred and will ensure that I am able to get out relevant information to all my readers in a timely manner.  Thank you.

The November Bulletin had some movement (mostly) in both Family and Employment Categories.  Let’s take a look at employment categories first.  Please do note that were dates are given for “All Other Countries” this includes not just that general category, but all other individually listed countries that are at the same dates (such as El Salvador, Guatemala and Honduras – which are listed out separately but track with All Other Countries in most instances).

Employment Based Cases

EB-1: This category moved from April 22, 2018 to June 1, 2018 for All Other Countries.  For China, it moved forward from November 1, 2016 to February 1, 2017 (quite a jump) and for India there was no movement as it stayed at January 1, 2015.  According to USCIS Dates for Filing may be used for this category – this means that those in the US may file their I-485 if the priority date of the I-140 is before July 1, 2019 for All Other Countries, September 1, 2017 for China and March 15, 2017 for India.

EB-2: This category remained Current for All Other Countries.  China moved forward from January 1, 2015 to March 15, 2015.  India went from May 12, 2009 to May 13, 2009. According to USCIS Dates for Filing may be used for this category – this means that those in the US may file their I-485 if the priority date of the I-140 is before August 1, 2016 for China and July 1, 2009 for India.

EB-3: This category remained current for All Other Countries.  China and India both had no movement – China staying at November 1, 2015 and India staying at January 1, 2009. According to USCIS Dates for Filing may be used for this category – this means that those in the US may file their I-485 if the priority date of the I-140 is before  March 1, 2017 for China and February 1, 2010 for India.

Family Based Cases

FB-1: This category moved forward from January 15, 2013 to March 1, 2013 for All Other Areas.  Mexico stayed at August 8, 1997 and the Philippines moved froward from July 1, 2008 to September 15, 2008. 

FB-2A: This category remained Current for ALL Countries.

FB-2B: This category moved forward from June 1, 2014 to July 8, 2014 for All Other Countries.  Mexico moved forward from August 1, 1998 to August 22, 1998.  The Philippines moved forward from September 1, 2008 to October 1, 2008.

FB-3: This category moved forward from September 15, 2007 to October 15, 2007 for All Other Countries.  Mexico had no movement, staying at February 22, 1996 and the Philippines moved forward from April 1, 1998 to June 1, 1998.

FB-4: This category moved forward from November 22, 2006 to January 1, 2007 for All Other Countries.  India moved forward slightly from October 1, 2004 to October 15, 2004 while Mexico had no movement, staying at December 15, 1997.  The Philippines moved forward from July 8, 1998 to September 1, 1998.

According to USCIS Dates for Filing should be used for all categories EXCEPT for FB-2A (which is current under Final Action Dates, but actually has a cut-off for Dates for Filing).  The Dates for Filing are generally a couple months ahead of the dates listed above (which are the Final Action Dates).  Please contact us if you have any questions in this regard.

UPDATE FROM CHARLIE OPPENHEIM

Family Based Cases

For family based cases, the F2A Final Action Date, which became current in July 2019, remains current across all countries for November. This trend has been surprising because Charlie expected that there would be a surge in demand which would have required imposition of a Final Action Date no later than January. The demand for F2A across countries remains extremely low, with applicants not responding to the agent of choice letters, and at this time there is no indication that a date will need to be imposed in the near future.

Employment Based Cases

EB-1:  You should expect to see the EB-1 categories advance at up to three months for Worldwide  and China, and little if any forward movement for India.  India will not advance for some time since there is already significant number use and pending demand in that category (17% usage already for Q1).    Overall usage in this category (For Worldwide numbers), however, shows lower demand than previous years.  If this low demand trend continues, then EB-1 (for All Countries other than India and China) could return to Current at some point later in the year.

EB-2:  EB-2 Worldwide remains current for November and is expected to remain current for the foreseeable future.   Charlie is starting to see an increase in upgrades from EB-3 India to EB-2 India, with the numbers requested so far in October most likely being attributable to upgrade requests.

Given that the Final Action Date for EB-3 China (November 1, 2015) is eight months ahead of EB-2 China, it is likely to prompt downgrades which could take the pressure off of EB-2 China demand, causing that category to advance.

EB-3:  The EB-3 category bears watching as we continue to move into Q2 of the fiscal year and beyond. Charlie is very surprised at the high level of numbers used in this category this fiscal year as well as pending demand for this category, noting that it is significantly higher than it has been in the past to the tune of thousands. Nevertheless, Charlie still expects EB-3 Worldwide to remain current through at least January.  EB-3 China is receiving a high level of downgrade requests, with 300 requests in October alone.  If this trend continues it will limit the advancement of EB-3 China while potentially increasing the rate of advancement for EB-2 China.  Expect little to no movement for EB-3 India.

 

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. 

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.

 

 

Do Workers Hired on the H-1B Visa Displace US Workers?

OUTSOURCE2When looking specifically at the H-1B visa, there have been many news stories over the last two years – some claiming that the H-1B is primarily used to displace US workers (especially in the IT area), and that it is used to artificially keep wages lower.  Others claim the exact opposite, that the H-1B compliments US workers, and does not depress wages (and may even help expand the number of jobs available to US workers).  So who is right?  What is accurate?

While not an easy question, the evidence clearly shows that, in most cases, the H-1B is not used to displace US workers.  A study by the Kellogg School of Management at Northwestern University looked at this issue and found that, in the majority of cases, H-1B workers are taking jobs that US workers do NOT want.  In addition, because of the increased costs associated with getting an H-1B visa, most employers only use the H-1B route when they are unable to find US workers to fill the jobs.  However, there are a subset of H-1Bs that are harder to explain.  Specifically companies such as Walt Disney, etc. who have outsourced their IT work to companies that primarily hire H-1B workers and, in general, pay them less than US Workers would make working at these companies directly.

While we certainly cannot dispute that this is happening, I think the flaw in the argument that this is displacing US workers is that these companies could have just as easily outsourced these jobs overseas, so no one in the US is getting these jobs, and no US taxes are being paid.  Would that be a better outcome?  Is it really the H-1B that is displacing the US workers, or is it the desire of these companies to pay as little as possible?  I can guarantee that Disney is NOT hiring new IT workers in droves and is mostly outsourcing those jobs overseas at this time.

An article in “Daily Caller” discusses this and talks with industry experts.  Basically, those companies in the US who hire H-1B tech workers are NOT the end source of outsourcing. Usually they are hired and brought in as an intermediary step – have those companies take over parts of the IT business, then send it ALL overseas.  In fact, most experts agree that if you got rid of the H-1B program today, that would not slow down or affect outsourcing overseas.  For most companies, the push to outsource is to stop doing things in-house that have nothing to do with the core competency of the company.  If they company is producing media, do you really need to hire people to maintain your website in-house?  Most companies answer that as a no – and outsource to save time and money.

As can be seen above, the H-1B visa program mostly helps US companies fill jobs that would otherwise remain unfilled.  It does not displace US workers, nor does it depress wages.  While those issues do exist, it is because companies are outsourcing overseas, not because they are outsourcing using the H-1B visa program.  In fact, the increased visa scrutiny, according to this article, is actually leading MORE companies to outsource overseas, not less.  Hopefully Congress and the current administration will see this and act accordingly.

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.