EB1 for China and India Backlogging in June, 2017

Unknown.jpegThe June, 2017 Visa Bulletin was released and the biggest change is that both India and China are now backlogged in EB-1 category.  Below are all the changes and further information about this new backlog.  We are also including updates from Charlie Oppenheim from the Department of State on projected future movements for the various immigrant visa categories.

Employment Based Immigrant Visas

EB1:  India and China Backlogged to January 1, 2012.  All other countries Current.  The reason for this backlog are several fold.  First, India and China have already used up about one half of ALL immigrant visas for the EB1 category already.  Second, there has been high usage in EB-4 and EB-5 categories.  Normally, all left over visas from EB-4 and EB-5 will roll over to the EB-1 category (and down to EB-2 if applicable.  However, because of the high usage in those categories, there are no visas to roll over.  Lastly, there has been significantly high demand in the EB-2 category for India and China, which prompts more people from those countries to file EB-1 applications if they can.  At this point, Charlie is very hopeful that India and China will go Current in this category again come October 1, 2017, the beginning of the new fiscal year.

EB2:  China moved forward about a month to March 1, 2013 and India moved forward a little more than 1 week to July 1, 2008.  All other countries are Current.  Right now India and China are both limited to their per country allocation in this category (approximately 2, 810 immigrant visas).  Both are expected to use up their allocations by the end of the fiscal year.  Additionally, worldwide EB2 will backlog by July or August (at the latest) but note, it will go current again come October 1, 2017.

EB3: China held steady at October 1, 2014, India moved forward about 2 months to May 15, 2005 and the Philippines moved forward about four months to May 1, 2013.  All other countries moved forward 1 month to April 15, 2017.  For China, Charlie is keeping it steady on October 1, 2014 for as long as possible.  China may backlog at some point, but Charlie is not certain.  Worldwide demand in this area is fairly steady so it should keep up as it has all year.  India is expected to move forward steadily in this category as long as Worldwide demand, and especially Mexico demand remains as low as it has been.

Family Immigrant Visas

Not much to say here, most categories moved forward about 1 week to 1 month, no more than that.  The only indications that Charlie gave were that F4 (Brothers and Sisters of Citizens) may move forward more significantly this fiscal year.  If you are waiting for that category keep an eye on it in the coming months.

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.


New Presidential Executive Order “Buy American, Hire American”

Many of you know that yesterday President Trump signed a new executive order.  The idea of this order was to ensure that Federal grants and procurements go, first and foremost, to American companies and that the government focuses on ensuring that qualified Americans are hired prior to foreigners.  In terms of Immigration consequences, the executive order says the following:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most- skilled or highest-paid petition beneficiaries.

In other words, at this time there is no effect on the H-1B program.  However, in the future, after the proposed suggested changes are given to the President, there is the possibility that some changes could be made.

It is important to keep in mind, however, that most changes would require congressional approval, meaning that it could take a while, if they are approved at all.  Changed that do not require congressional approval would need to go through the rule making process, meaning that they would take several months  for those to be sent out and to go through the rule making process.  We will keep you updated on any proposed changes.

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.

NIW Adjudications on Hold

Unknown-1.jpegA couple of weeks ago we informed you that the AAO decided a case in which they changed the standard for adjudicating NIW cases (See this blog post).  USCIS has confirmed today that ALL pending NIW cases are on hold pending training for officers on the new standard.  USCIS did indicate, however, that processing of these cases should resume by the end of February of this year.

What does this mean for your case?  The chances are that USCIS has not adjudicated any cases since the decision was handed down, more than 1.5 months ago.  The backlog created by this stoppage will take some time to clear out, and will probably delay adjudications by up to 2 months. We will update you if additional information is made available.

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

Travelling in and Out of the US


Unknown.jpegGenerally those with valid visas, permanent residency and citizens should not have problems travelling in and out of the US.  However, considering the issues we have seen recently, I think it is worthwhile to keep certain things in mind if you are going to travel (and remember, the below is just general information about travelling and is not specific to any case).

First, for those from countries affected by the travel ban.   If you are currently a US Citizen or permanent resident you should have no problem travelling.  You may face extra scrutiny (by all accounts, they are doing more searches, especially of electronic devices (phones and computers)), but the current orders do not affect your travel.  Those on temporary visas are taking a chance by travelling.  Even though the travel ban has been suspended, the Court could remove the temporary stoppage order at any time, we just do not know.  Alternatively, Trump could issue a new executive order that is more narrowly focused, we just do not know.  You just need to weigh the potential risks and benefits of travelling.

For those from countries not affected by the travel ban.  Currently, there are no restrictions on your travel.  As stated above, there could be extra scrutiny and additional searchers, but whether you have a temporary visa or permanent residence, the current orders do not affect your travel at all.

Remember, the specific facts of your case may also affect your ability to travel so always check with an attorney before travelling to make sure that it will ok for your particular case.


More Explanation of the Executive Order of January 27, 2017

What_Is_An_Executive_Order__0_7133975_ver1.0_640_360.jpgOn Friday, January 27, 2017 President Trump signed an executive order on immigration restricting travel to the United States from citizens of seven countries – namely, Iraq, Iran, Syria, Yemen, Sudan, Somalia & Libya. The initial interpretation and implementation of this order led to confusion among U.S. border agents and others placed with admitting individuals to the United States. This included a period of time over the weekend when returning permanent residents (green card holders) were subject to the order, denying them admission to the United States. There are now lawsuits that have been filed and we are hopeful that there will be additional judicial review and clarification of this order in due course.

In the short term, here are some points to consider:

  1. On Sunday night (January 29, 2017), the Secretary of the Department of Homeland Security, General John Kelly, confirmed that “I hereby deem the entry of lawful permanent residents to be in the national interest.” This statement means that green card holders are now (absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare), exempt from the travel ban and can be admitted.  However, keep in mind that they will still put you in secondary and you will still need additional time at the airport.
  2. If you are from one of the seven countries affected and are residing in the United States in a temporary (or non-immigrant status) you should not currently make plans to travel outside the United States even if you hold a valid visa in your passport.  (there are some exceptions to this, but they are narrow.  Please contact us if you have questions).
  3. There seem to be conflicting reports as to how this affects dual nationals (so if you are in fact a dual national of a country other than the United States and of one of the seven countries) you should probably err on the side of caution until this is clarified.
  4. Individuals from countries other than those listed (Iraq, Iran, Syria, Yemen, Sudan, Somalia & Libya) are eligible to continue to travel, obtain visas and reenter the United States.
  5. This does not affect the current and ongoing status of individuals from the seven countries listed who are currently inside the United States in a valid non-immigrant status.
  6. With regards to social media postings, The Department of Homeland Security has a wide amount of discretion in terms of what they review and how they interpret that information in terms of a person’s eligibility for admission to the United States. Remember – a valid visa essentially provides you with the opportunity to be reviewed and admitted. It does not guarantee admission, so political postings and similar information could be reviewed and utilized by DHS in the context of a person’s admission to the United States.

As this is a fluid and changing situation we will continue to monitor this and provide updated relevant information as needed.

President Trump’s First Two Executive Orders Regarding Immigration: What do They Mean For You?

what_is_an_executive_order__0_7133975_ver1-0_640_360While the Executive Order President Trump signed on January 27, 2017 affecting refugees and those from certain countries has come front and center, there were two other Executive Orders that Trump signed earlier last week.


Border Security and Enforcement Improvements

The first of these, the Border Security and Enforcement Improvements focuses on two things:

  1. Building a wall between the US and Mexico:  While the law states that all available funding should be put towards this (that is, all funding that can be re-allocated according to law), it will take an act of Congress to allocate the funds necessary to finish its construction.
  2. In conjunction with the above the Executive Order also requires the building of additional detention facilities and the allocation of additional asylum officers and immigration Judges to the Border.  Again, this will certainly require additional resources from Congress as the current number of asylum officers and immigration Judges is inadequate for the current number of detainees.
  3. Terminate Catch and Release:  This refers to a policy that was already stopped by the Obama administration of releasing those caught at the Border instead of keeping them in detention facilities.  As this practice was already stopped, except for those qualifying for certain relief, it should have little impact.
  4. State Partnerships:  The Order also tries to push the expansion of state assistance in enforcing immigration laws
  5. Parole and Asylum:  The Order tightens expectations for asylum review and parole reviews at the Border.  It basically pushes the officers at the Border to use available expedited procedures when applicable.  Likewise, Parole should only be given when statutory standards are met.

While there are some other provisions, the above are the main provisions of this order.

Enhancing Public Safety In the Interior of the United States

The second order is called Enhancing Public Safety In the Interior of the United States. This Order focuses on:

  1. So-called “Sanctuary Jurisdictions”:  Sanctuary Jurisdictions are those jurisdictions that actively do not cooperate with the Federal Government in the enforcement of Immigration Issues and will not share or collect immigration information about persons who utilize local and/or state government services.  The Order seeks to force these jurisdictions to comply and provide such information or face a cessation of all Federal Aid (except for law enforcement).  This section appears to violate several Court cases that require any such cessation of aid to be tied closely to the purpose of the statute.
  2. The Order also re-institutes the so-called “Secure Communities” enforcement model.  This model is based upon local and state authorities helping with immigration enforcement.  However, it should be noted that much of that program was decreed unconstitutional by the Courts already.
  3. Enforcement Priorities:  The Order also sets enforcement priorities, which focuses on criminal conduct,  but includes in that criminal conduct, those who have violated immigration laws, which basically includes everyone in the US illegally.  We have to wait and see how this is interpreted by officers to see what it will mean in practice.
  4. Recalcitrant Countries:  The Order also seeks to negotiate with Countries that refuse to take their citizens that we try to deport to get them to accept such persons.
  5. Additional Immigration Officers:  The Order also states that 10,000 new immigration officers should be hired – again, this will require additional allocations by Congress.
  6. Civil Fines and Penalties:  The Order requires officers to try and get all fines and penalties allowed under the INA for immigration violations.
  7. Office for Victims of Crimes Committed by Removable Aliens:  The Order also requires USCIS to start keeping track of crimes committed by removable aliens and to release such reports to the public.
  8. Privacy Act:  The Order requires all agencies to ensure that only US Citizens and Permanent Residents are included in Privacy Acts – removing both illegal aliens AND those in the US on temporary visas.  For those people, their personally identifiable information will not longer be covered by any Federal Privacy policy.

I have tried to give you an idea of what all the major provisions of both orders are, but have just summarized them.  If you have any questions, please let me know.