New Executive Order and Possible Furloughs at USCIS

executive_order__1_The US President issued a new executive order on Monday evening.  The order did several things.  First, it extended the April 22, 2020 order limiting the ability for those overseas to get immigrant visas.  Second, it expanded that order to include certain non-immigrant visas as well.  Lastly, it required USCIS and DOL to review processes and procedures regarding EB-2 and EB-3 cases.    Before providing a summary of the provisions, there are a couple points to highlight.

First, and most importantly, the non-immigrant visa suspensions affect only those NOT IN THE United States.  This is also true of the immigrant visa suspension.  Second, the J-1 visa suspension does NOT include all categories of J visas.  For example, the Research Scholar category, and the Visiting Scholar categories are NOT included in the suspension.  Lastly, those outside the US with a currently VALID H-1B visa may still be able to return on that visa as the suspension only halts the issuance of new visas.  Here is a slightly more expansive summary of the provisions:

On June 20, 2020, President Trump has issued a proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

This Proclamation also extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020 which suspended the entry of certain immigrants into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

  • H-1B visa and any foreign national accompanying or following to join them;
  • H-2B visa and any foreign national accompanying or following to join them;
  • J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they are:

  • Outside the United States on the effective date of the Proclamation;
  • Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and;
  • Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

Exemptions:

The Proclamation will not apply to the following individuals:

  • lawful permanent residents;
  • spouse or child of a U.S. citizen;
  • any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
  • any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

  • are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
  • are necessary to facilitate the immediate and continued economic recovery of the United States; or
  • are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

Discretion: The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Asylum Seekers: Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Fraud: Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Additional Review: Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

COVID-19 Prevention: The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.

Additional Measures:

  • Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.

 

In addition to the above, USCIS announced that their revenues are down over 50% and that, unless Congress allocates more funding to the agency they will be required to furlough almost 70% of their staff, causing huge delays in adjudications if it were to occur.

If you have any questions, or wish to discuss the above, please do not hesitate to call or email me. And 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 does the new Proclamation from the President Affect you?

On April 22, 2020. President Trump issued a proclamation “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

This proclamation is effective at 11:59 pm (ET) on April 23, 2020. The proclamation will expire 60 days from its effective date and may be continued.

Per the proclamation, the suspension and limitation on entry pursuant to section 1 of this proclamation applies to individuals who:

  1. are outside the United States on the effective date of this proclamation;
  2. do not have an immigrant visa that is valid on the effective date of this proclamation; and
  3. do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Exclusions include:

(b) The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

(i) any lawful permanent resident of the United States;

(ii) any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

(iv) any alien who is the spouse of a United States citizen;

(v) any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi) any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

(viii) any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

By the above terms, the proclamation only affects those coming to the US as “immigrants”, not those coming as non-immigrants.  It also only affects those not in the United States, so it does not affect the adjustment of status process either.

We are happy to answer any additional questions about the application of the above, but please do understand, as of this writing, no formal guidance has been released so we can only base our answers on what is written in the above proclamation, and that may change once USICS, DOS and ICE issue their guidance documents.

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.

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.

President Issues New Travel Restrictions

imagesOn September 24, 2017, the President issued a new Executive Order (“EO”) entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public Safety Threats”.  This new EO builds upon the last order, which was only valid for 90 days.  However, part of the old EO directed DHS to do a worldwide review to determine what additional information is needed from each foreign country to assess whether foreign nationals who seek to enter the United States pose a security or safety threat.  DHS completed that review and gave the President a list of seven countries that had “inadequate” information sharing practices.  The new EO implements certain types of restrictions against nationals of these seven countries (plus one additional country that the President felt posed security risks) in terms of their ability to get certain visas.

Who Does the Ban Affect?

The countries that are part of this new Executive Order are:

  1. Chad
  2. Libya
  3. Iran
  4. North Korea
  5. Syria
  6. Venezuela
  7. Yemen
  8. Somalia

As stated, the restrictions are not uniform for all the above countries.  The following table lays out what restrictions are placed on immigrant and non-immigrant visas for each country:

Country Non-Immigrant Visas Immigrant Visas
Chad No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Iran No non-immigrant visas except the F, M and J student visas No Immigrant or diversity visas

 

 

Libya No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

North Korea No nonimmigrant visas No Immigrant or diversity lottery visas

 

Syria No nonimmigrant visas No Immigrant or diversity lottery visas

 

Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and, the People’s Power Ministry of Foreign Affairs, and their immediate family members.

 

No Restrictions

 

Yemen No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Somalia No nonimmigrant visas No Immigrant or diversity lottery visas

 

Dual Nationals:  Dual nationals can still travel and get visas based upon another nationality besides the ones listed above (So, for example, a national of both Iran and Canada can still get any nonimmigrant visa or immigrant visa based upon their Canadian Nationality).

Those in the US at the time the travel ban takes effect:  They are not affected by the travel ban as they are already in the US.

Those Outside the US with valid visas:  Exempt from the restrictions

Permanent Residents of the US:  These people are exempt from the Travel Ban

There are other certain exemptions as well, please make an appointment if you feel you may be affected by the travel ban and we can review the waivers and exemptions with you.

When will the Ban take effect?

From 3:30 pm on September 24, 2017, until 12:01 am on October 18, 2017, Nationals of Iran, Libya, Syria Yemen and Somalia will remain under the previous Travel Ban (i.e. only those with close family ties can get visas).  Sudanese national will no longer be subject to any ban as of that date and time.

From 12:01 am on October 18, 2017, forward the above travel restrictions will be in force and will replace the previous Executive Order Travel Ban.

If you feel you may be affected by the new travel ban, please do call our office.  We can assess your case and let you know if the travel ban does affect you, and if you are eligible for any of the waiver/exemptions.

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.

October Visa Bulletin Released

Today, USCIS released the October Visa Bulletin. The big changes are the EB1 coming current (as well as EB2 Worldwide) and a big jump forward in the F4 (siblings of a US Citizen) category for Worldwide, China and, to a lesser extent, India. Below is a summary of the developments this month:

Employment Based:

EB1: As predicted, the EB1 category went current across the Board, including for India and China.

EB2: The Worldwide category went current as well. EB-2 for China is now at May 22, 2013 and India is at September 15, 2008. China only moved forward about 1 week and India moved forward about 3 weeks.

EB3: Worldwide remained Current. India stayed at October 15, 2006. China, on the other hand jumped up to January 1, 2014.

Family Based:

F1: Worldwide, China and India all jumped to December 22, 2010. Mexico moved forward one month to March 1, 1996 and the Philippines remained at January 1, 2007.

F2A: Worldwide, India, China and the Philippines moved forward about 3 weeks to October 22, 2015. Mexico also moved forward about 3 weeks to October 15, 2015.

F2B:Worldwide, China and India moved forward about 1 week to November 9, 2010. Mexico moved forward about 1 week as well to July 15, 1996 and the Philippines staid at January 1, 2007.

F3:Worldwide, China and India moved forward about 2 weeks to July 22, 2005. Mexico moved forward about 2 weeks to April 22, 1995 and the Philippines moved forward about 1 week to February 22, 1995.

F4:Worldwide and China jumped forward about 2 years to May 8, 2004. India jumped a little less (about 1 year) to October 1, 2003. Mexico moved forward about 2 weeks to October 1, 1997 and the Philippines staid at June 1, 1994.

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 Finishes Data Entry for ALL 2018 Cap Subject H-1Bs

USCIS announced on Wednesday that it has finished data entry for all cap subject applications it has accepted for the 2018 fiscal year.  USCIS will now begin sending back those applications not selected and will be transferring cases from Vermont to California to even the H-1B case load between the service centers.  While not all receipts have been received by everyone as of yet, if your check has not yet been cashed, or you do not receive the receipt in the next several days, most likely your case was not accepted into the Cap.

Hopefully USCIS will be able to update us within 1-2 months on how quickly they are getting through the H-1B cap cases and current backlog to give everyone a better idea of how long it will take for them to get through all the cap cases (i.e. will they complete this before October 1, 2017 or not).  We will update you as soon as we receive any additional information.

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 2017 Visa Bulletin Released

unknownThe February 2017 visa bulletin was released by the Department of State yesterday.  Below is a summary of the changes.

Family Based Application:

F1:  Most countries moved forward about 1 month to 1.5 months (except the Philippines, which moved forward about 2 months).  This means that most countries are now at February 22, 2010. The exceptions are Mexico (May 8, 1995) and the Philippines (December 1, 2005).

F2A: This category actually retrogressed one month across the board.  All countries are now at April 15, 2015 except Mexico which is at April 1, 2015.

F2B: Most countries moved forward about 1 month to July 8, 2010.  Mexico moved forward only about 3 weeks to May 8, 1995. The Philippines stayed at April 9, 2006 (no movement forward or backward).

F3: Most countries moved forward about 2.5 weeks to March 22, 2005.  Mexico stayed at December 15, 1994 (no movement) and the Philippines moved forward only 1 week to September 8, 1994.

F4: There was movement forward for all countries in varying degrees.  China had the biggest movement forward (2 months) to January 22, 2004.  India moved forward about 1 month to June 15, 2003.  Mexico had the smallest movement (1 week) to May 22, 1997.  The Philippines moved forward about 2 weeks to June 22, 1993.  All other areas moved forward about 2 weeks to February 8, 2004.

Employment Based Application:

EB-1:  Still current across the board.  NOTE: Charles Oppenheim has stated that there is increased usage for this category and he may have to retrogress some countries (China and India) in the near future.

EB-2:  Current for all countries except India and China.  India did not have any movement staying at April 15, 2008.  China moved forward 1 month to November 15, 2012.  NOTE:  Charles Oppenheim did indicate increased usage across the board (especially for China and India) and did indicate there may be a need to retrogress ALL countries in the coming months.

EB-3:  Most countries moved forward to October 1, 2016.  The exceptions were China, which moved forward about 3 weeks to October 1, 2013, India, which moved forward about 1 week to March 22, 2005 and the Philippines, which moved forward almost 3 months to October 15, 2011.  NOTE:  Again, Charles Oppenheim did indicate increased usage and the possibilities of retrogression.

 

We will update you when the next visa bulletin is released or if Charles Oppenheim updates his predictions as to the movement of these visa categories.  Please contact 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.

Confusion over New USCIS Forms and Acceptance of Old Forms Resolved

Unknown-1.jpegOn December 23, 2016 USCIS issued new versions for many, many of its form, including the I-129, I-140, etc.  Unfortunately, USCIS also stated that as of that date it would no longer accept prior versions of ANY of the new forms.  This is despite the fact that no notice was given prior to the 23rd that there were to be new versions or that old versions would not be accepted.

After much protest by Immigration Attorneys and others, USCIS has finally relented.  USCIS will accept old versions of ALL forms EXCEPT the N-400 (that form was first published on December 12, 2016, so some prior notice was given) until February 21, 2017.

It is certainly good to see USCIS correct this grave error.  However, it would have been even better had USCIS realized the fundamental unfairness of this type of edict to begin with.

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.

October 2016 VIsa Bulletin: Forward Movement for All

unknownThe Department of State released the visa bulletin for October 2016 recently. Below is a summary of movement and changes.

Family Based Immigrant Visa Numbers

F1 – Unmarried Sons and Daughters of US Citizens: This category moved forward about 1 week to September 22, 2090 for every country except Mexico (which moved forward 1 week to April 1, 1995 and the Philippines (which moved forward 1 week to August 1, 1995).

F2A – Spouses and children of Permanent Residents: All countries moved forward around 1 month, Mexico moved forward about 3 months to December 1, 2014. And the rest of the World moved forward about 5 weeks to December 22, 2014

F2B – Unmarried Sons and Daughters of Permanent Residents: Most of the world moved forward about 5 weeks to March 15, 2010. Mexico moved forward only 2 weeks to October 1, 1995 and the Philippines moved forward 1 month to January 1, 2006

F3 – Married Sons and Daughters of US Citizens: Most of the world moved forward about 3 weeks to December 22, 2004. Mexico moved forward about 1 week to November 22, 1994 and the Philippines moved forward about 3 weeks to July 8, 1994

F4 – Brothers and Sisters of US Citizens: China moved forward 4 months to May 1, 2003. India jumped just over 1 year to December 1, 2002. Mexico moved forward a couple weeks to May 1, 1997. The Philippines moved forward about 6 weeks to April 15, 1993. The rest of the world moved forward about 1 month to November 1, 2003

Predictions for coming months:

There should be forward movement on all categories in the next several months of about 2-6 weeks.

Employment Based Immigrant Visas

EB-1: As stated previously, this became current for everyone for October.

EB-2: Again, as we stated previously this became current for Worldwide numbers, Mexico and the Philippines. It moved forward to February 15, 2012 for China and to January 15, 2007 for India.

EB-3: Moved forward 1 month for Worldwide and Mexico to June 1, 2016. China jumped forward to January 22, 2013 (putting the EB-3 category ahead of the EB-2 for China). India Moved forward about 1 month to March 1, 2005 and the Philippines moved forward about 5 months to December 1, 2010.

Predictions for the Coming Months:

For EB-2s the Department of State sees China and India moving forward about 3 months (maybe 4 months for India) in the coming months. Worldwide and Mexico should remain current.

For EB-3s, they still feel that for the Worldwide numbers, demand may cause them to backlog (however this did not occur at all last year, and they thought it would then as well), but we will have to see. For China, EB-3 should move forward about 3 months. It will move forward only about 1 week for India and about 3 weeks for the Philippines.