Immigration Briefs

Second Phase of Premium Processing Expansion to begin August 1, 2022

USCIS will be implementing the second phase of its planned expansion of its premium processing service starting August 1, 2022. For those who are unaware, Premium processing is a service provided by USCIS that allows you to pay an extra fee to get your application adjudicated quicker (in many cases within 15 business days, but some may be 2 or 3 months). While this service is currently available for most I-140s and certain I-129 applications, it’s not available for all statuses as of yet.

Phase 1 of the expansion allowed those with an EB-1C, Application for Intracompany transferee pending one or before January 1, 2021, and those with an EB-2 National Interest Waiver application filed on or before June 1, 2021, to utilize premium processing – this phase began on June 1, 2022, for EB-1C applications and July 1, 2022, for EB-2 NIW cases.

Phase 2 will begin on August 1, 2022, and will allow those with an EB-1C application filed on or before June 1, 2021, and those with an EB-2 NIW filed on or before August 1, 2022, to utilize premium processing.

Hopefully, USCIS will begin moving a little quicker on its implementation of premium processing in the near future. We will update you as USCIS updates us.

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.

USCIS Gives Implementation Date for Some Expansion of Premium Processing

Today USCIS announced implementation dates for the expansion of premium processing to the EB-2 NIW and EB-1 Multinational Professional categories. However, before giving the implementation date, it is important to remember that this will ONLY apply to EB-2 NIW filed with USCIS BEFORE June 1, 2021, and EB-1C cases filed with USICS BEFORE January 1, 2021.

USCIS will expand premium to the above eligible EB-1C cases on June 1, 2022 and to the above eligible EB-2 NIW cases on July 1, 2022.

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.

Breaking: USCIS extends automatic extension of EADs from 180 days to 540 days

USCIS will issue a temporary final rule providing that the automatic extension period applicable to expiring EADs for certain renewal applicants who have filed Form I-765 will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs.

This increase will be available to eligible renewal applicants (all renewal applicants who could take advantage of the 180 day period can also take advantage of the new 540 day period) with pending Forms I-765 as of 5/4/22, including those applicants whose employment authorization may have lapsed following the initial 180-day extension period, and any eligible applicant who files a renewal Form I-765 during the 540-day period beginning on or after 5/4/22, and ending 10/26/23. The temporary final rule will be published in the Federal Register on 5/4/22. Comments will be accepted through 7/5/22.

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 2022 Visa Bulletin Released – Not Much Movement

The biggest take away from this months Visa Bulletin is that there was little, if any movement for any category, except some forward movement for India EB–2 cases. See Below for details.

Family Based Visa Dates

FB1 – Adult Children (unmarried) of US Citizens: This category stayed at Dec 1, 2014 for All Other Areas, China and India. It stayed at January 1, 2000 for Mexico and March 1, 2012 for the Philippines

FB2A– Spouses and children of US Permanent Residents: This category remained current for all areas of the world.

FB2B – Adult Children (unmarried) of US Permanent Residents: This category stayed at September 22, 2015 for All Other Areas, India and China. It stayed at January 1, 2001 for Mexico and October 22, 2011 for the Philippines.

FB3 – Adult Children (married) of US Citizens: This category stayed at November 22, 2008 for All other Areas, China and India. It stayed at September 15, 1997 for Mexico and at June 8 2002 for the Philippines.

FB4 – Siblings of US Citizens: This category stayed at March 22, 2007 for All Other Areas, China and India. It stayed at January 1, 2000 for Mexico and at August 22, 2002 for the Philippines

Employment Based Visa Dates

EB–1: Remained Current for the entire world

EB–2: The Final Action Dates remained Current for Everywhere, and remained at March 1, 2019 for China. The final action date progressed from July 8, 2013 to September 1, 2013 for India. The Dates for Filing (which may be used) for China remained at April 1, 2019 for China and progressed from September 1, 2014 to December 1, 2014 for India. Despite the fears that India may retrogress, India, in fact, moved its dates forward. However, this category could retrogress for India at any time.

EB–3: For Final Action Dates, there was no movement anywhere – most of the world remained Current, China remained at March 22, 2018 and India remained at January 15, 2012. Likewise, for the Dates for Filing (which may be used) everything remained the same, April 1, 2018 for China and January 22, 2012 for India.

Unfortunately there was no guidance from Charlie Oppenheim on the projections for what the dates will do in the future. If that is forthcoming we will let you know as soon as we hear.

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.

USCIS transferring almost ALL EB I-485s from TSC and NSC to the National Benefits Center

USCIS has majorly reconfigured how it is handling I-485s based upon I-140s. For all I-485s based upon I-140s EXCEPT Employment Based Category 4 cases (religious workers and some other special immigrants), USCIS is transferring the I-485 cases from the Texas Service Center and the Nebraska Service Center, where they are currently handled, to the National Benefits Center.

Here is what AILA has learned of the process:

EB Form I-485 cases already with officers will continue to be adjudicated at the NSC and TSC, as will Requests for Evidence (RFEs) that have already been issued. NSC management has not provided a timeframe for how quickly individual cases will be transferred to NBC, but they informally indicated that approximately a thousand cases per week are already being shipped and that the number is expected to rise sharply. Members are reporting that they have started to receive transfer notices for their clients’ I-485 applications followed by the online case status update. This is described as a long-term jurisdictional change directed by USCIS-HQ, and NSC, TSC and NBC are all in the process of implementing it.
AILA Practice Alert: AILA Doc. No. 22040104 | Dated April 1, 2022

Will this actually work to bring down processing backlogs and shorten the time frames for cases? Certainly it should help with I-140 timeframes, as it frees up TSC and NSC to adjudicate more of those cases. In terms of the I-485 cases, that will remain to be seen – but it is a hopeful move that they are consolidating these cases, both for the speed of adjudication and for consistency in adjudication. However we will need to wait and see what happens. We will keep you 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.

USCIS Adds 22 New Fields to the STEM OPT list

AILA today reported that USCIS has added 22 new files of study to the STEM designated degree program list. AILA stated:

On January 21, 2022, the Department of Homeland Security announced that it updated the STEM Designated Degree Program List to add 22 qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each. This announcement was one of several new actions announced on January 21, 2022, by DHS and the Department of State (DOS) relating to attracting and retaining international STEM talent in the United States.
The STEM Designated Degree Program List is used to determine whether a degree obtained by certain F-1 nonimmigrant students qualifies as a science, technology, engineering, or mathematics (STEM) degree, as required for the F-1 student to be eligible to apply for a STEM optional practical training (OPT) extension. The STEM OPT extension is a 24-month extension of OPT available to F-1 nonimmigrant students who have completed 12 months of OPT and received a degree in an approved STEM field of study as designated by the STEM list. The updated list includes the following additional 22 fields of study:
Bioenergy (03.0210)
Forestry, General (03.0501)
Forest Resources Production and Management (03.0510)
Human-Centered Technology Design (11.0105)
Cloud Computing (11.0902)
Anthrozoology (30.3401)
Climate Science (30.3501)
Earth Systems Science (30.3801)
Economics and Computer Science (30.3901)
Environmental Geosciences (30.4101)
Geobiology (30.4301)
Geography and Environmental Studies (30.4401)
Mathematical Economics (30.4901)
Mathematics and Atmospheric/Oceanic Science (30.5001)
Data Science, General (30.7001)
Data Analytics, General (30.7101)
Business Analytics (30.7102)
Data Visualization (30.7103)
Financial Analytics (30.7104)
Data Analytics, Other (30.7199)
Industrial and Organizational Psychology (42.2804)
Social Sciences, Research Methodology and Quantitative Methods (45.0102)
DHS will continue to accept for consideration suggested additions or deletions to the STEM list going forward. Members of the public may nominate a field of study to be included on or removed from the list by emailing the Student and Exchange Visitor Program (SEVP) at SEVP@ice.dhs.gov, subject line “Attention: STEM CIP Code nomination.” SEVP evaluates nominations to determine whether the nominated degree is generally considered to be a STEM degree by recognized authorities, including input from educational institutions, government entities and non-governmental organizations. SEVP also reviews the National Center for Education Statistics (NCES) definition of the CIP code and the supporting material submitted by the nominator.
AILA

This means that those graduating with a degree in those areas on an F visa can now get the 24 months STEM extension.

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.

Is Immigration Reform Possible Soon?

Is there a possibility that congress may be able to pass immigration reform soon? Democrats are making a big push to do so, but there margin is extremely slim (1 Senator), so how can they get this done? What the Democrats are trying to do is using the budget process to enact this far reaching legislation.

Budget Reconciliation

In general, most legislation in congress requires a 60 member majority to enact. However, an exception to this is the reconciliation process for the budget (where the house and Senate get together and hash out their bill) – for this a only a simple majority is needed. Democrats have been trying to utilize this process to get some type of immigration reform passed, however they have run into a road block – the Senate Parliamentarian. You see, in order for non-budget provision to be included, the budget effects of the legislation are suppose to outweigh the actual statutory changes. It is the Parliamentarian that determines if this balancing act has been achieved and advises the Senate on whether a provision should be included. In terms of the proposed Democratic Immigration provisions, the Parliamentarian has stated that they should NOT be included as the statutory changes outweigh the suggested economic benefits that the Democrats indicated.

The next logical question is – Is the approval of the Parliamentarian needed to enact this legislation? The answer is no, the approval of the Parliamentarian is NOT REQUIRED. However, it is commonly sought, and the advice is usually followed. The last change that was made that went against what the Parliamentarian advised was just a couple years ago when Republicans removed the required 60 votes needed to approve a Supreme Court justice. And in this case, where the Democrats only have a 1 vote majority in the Senate, and where some Senators stated they would most likely not vote against the Parliamentarian, they are very eager to get that approval.

So what does this mean for the chances of passing some reform? The biggest obstacle that the Parliamentarian pointed out was the provisions that would allow those in the US without status to adjust. It appears that if Democrats are willing to pare back their ambitions in that area (and I do understand why they wish to pass this, and agree that it is needed) and submit a smaller bill, that the Parliamentarian may well approve of the addition. So, overall, I would say that there is a good chance that some immigration provisions will be included and passed, the only question is how much and which provision.

Local USCIS Office Personnel being pulled out to help Afghan Refugees

USCIS has indicated that some local USCIS office personnel are being pulled out of the local offices to go to US Military bases to help process the incoming Afghan Refugees. In the local DC Field Office all September (or, at least, many) appointments have been cancelled so that personnel can help with the refugees, and the same may be true in other field offices. If you received a cancellation notice recently, this very well may the reason.

It is also likely that, at least those cases that require an interview, such as family based cases, may take a little longer to have those interviews scheduled because of this need, so keep that in mind as well.

In other news, Immigration Briefs now has a podcast as well. You can find us under the name Immigration Briefs on iTunes, Spotify or in other podcast feeds. If you cannot find it in your favorite podcast player, let me know via info@immigrationbriefs.com. Thank you.

Summary of President Biden’s Immigration Reform Bill

While President Biden submitted his legislation to overhaul the US Immigration system to Congress on his first day in office, the actual text of the bill was not released initially primarily because Congress has not actually introduced the bill in Congress as of yet. At this time, even thought the bill has still not been introduced, there is some more information about what some of the provisions will contain, and I will try to summarize those for you. However please do remember that, while the bill may contain certain provisions, that does not mean that the final bill approved by Congress and signed by the president will contain the same provisions.

First, the bill will provide a method for those in the Country without documentation to become permanent residents and, eventually, citizens of the US. This will apply to all person in the US without Documentation as of January 1, 2021. Under the process, most immigrations would gain temporary status for 5 years, then they would be able to file for Permanent Resident (green card) status after that. An exception for those in the DACA, TPS and Agricultural Worker programs exists so that they can apply for Permanent Residence immediately.

Second, the bill would overhaul the family and employment based immigrant programs. In terms of the family program, it would increase the per country limits (but not get rid of them) and would allow those with approved I–130’s to get a temporary visa to be in the US while awaiting the opportunity to file for permanent residence. It would tighten protections for LGTBQ+ families as well as families of those who fought along with the US military in WW II. In addition it would re-instate the Central American Minors Program, allowing family reunification for those with approved I–130s. It would also eliminate the 3 and 10 year bars for those who were in the US without documentation for over 6 months or over 1 year.

For employment based green cards, the bill seeks to grow the U.S. economy by “clear[ing] employment-based visa backlogs, recapture[ing] unused visas, reduc[ing] lengthy wait times, and eliminate[ing] per-country visa caps.” The legislation would create a program to “stimulate regional economic development, give[] the [U.S. Department of Homeland Security] the authority to adjust green cards based on macroeconomic conditions, and incentivize[] higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.” It would also prevent children from “aging out” of the system. Currently, children who turn 21 years old may no longer qualify for immigration benefits as a dependent of their parents’ permanent residency applications. The Child Status Protection Act currently provides some exceptions to permit children who turn 21 years old to continue to qualify for immigration benefits. The proposed bill would expand upon these protections. We do not know the specifics of these proposals as of yet.

In addition, the proposed bill would increase the opportunities for dependents of H–1B visa holders to obtain work authorization. This is an expansion of the current H–4 Employment Authorization Document (EAD) guidelines, which do not allow dependent children to obtain work authorization.

The above is a rough summary of what the bill contains. Once the bill is introduced into Congress and we have a better idea of what Congress will do with the bill and how they will amend it, we will update you with more details.

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.

How Trump Officials Tried to end the H-1B Visa Program

For those interested in the difficulties that companies and individuals went through over the past 4 years in terms of getting and renewing H-1Bs, a good article has come out on Forbes Magazine and on its website (link here).

First, why are H-1Bs important and how do they help the US. According to the article:

Research has concluded high-skilled foreign nationals on H-1B temporary visas contribute to America in many ways, including by increasing productivity, which is essential to improving the standard of living. “When we aggregate at the national level, inflows of foreign STEM [science, technology, engineering and math] workers explain between 30% and 50% of the aggregate productivity growth that took place in the United States between 1990 and 2010,” according to economists Giovanni Peri (UC, Davis), Kevin Shih (RPI) and Chad Sparber (Colgate University). Research by economist Britta Glennon found rather than saving jobs, H-1B restrictions “have the unintended consequence of encouraging firms to offshore jobs abroad.”
Stuart Anderson, Forbes Magazine

The article then turns to the “memos” released by USCIS purportedly just “clarifying” existing standards. This includes the memo released on March 31, 2017 that rescinded the previous memo on Computer related positions, the memo on March 23, 2017 changing the standards and when and when not to issue RFE’s for H-1Bs and the July 17, 2017 memo revising the denial standards for H-1bs. According to the article:

“What the documents do not say is more important than what they say,” Jonathan Wasden, a partner with Wasden Banias LLC, said in an interview when the USCIS material became public in September 2019. “You see that the noncontroversial matters are all supported by citation to statute and regulation. However, their most controversial policies lack any such support. It appears that the agency made dramatic changes to H-1B policy without grounding those changes in any law. Attorneys have known this is happening in practice, but to see they don’t even attempt to create a facade of statutory support is shocking.
Stuart Anderson, Forbes Magazine

After these memos, another memo was released that basically stated that USCIS would no longer give deference to previously approved applications when adjudicating extensions or status. These changes lead to increased RFEs – the rate climbed from 17% in August of 2017 to 38% in September to 56% in December to 66% by November 2018. That is a huge increase and leads to delays for companies to get people here, delays for those seeking to renew applications and continue working, and hurts our economy.

In terms of the denial rates the article also discusses how those skyrocketed during the last administration – and how their argument that they were weeding out fraud does not hold water. All the above, in addition to other policies they pushed forward such as trying to reduce approvals for some cases to just one year, etc. were all aimed not at weeding out fraud (which does exist and should be weeded out, but is actually not as rampant as claimed) but at halting the use of the H-1B program and halting those immigrants from being able to work and live in the US. The whole idea was that it would open up more jobs for US workers, which, as shown via much research, is exactly the opposite of what happens when you close off immigration. It should be noted that many of these policies were ultimately overturned by the Courts because of the way they were pushed through without proper rule-making. However, there is still a lot of work that needs to be done to fix these systems and ensure that they are serving the purpose they were intended to serve – to help US employers and to spur the creation of more jobs for US workers.

Any one interested in what happened with a part of the immigration process during the last administration should read this whole article – it is very interesting.

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.