​Reports out of Washington, D.C. suggest an increasing likelihood that the Federal government will shut down on January 20, 2018, due to a budget stalemate. Any shutdown will necessarily affect immigration processing, since many of the agencies involved in the immigration process are funded entirely or primarily through Congressional appropriations. Following is a brief overview of the expected impact of a shutdown on immigration processing at various agencies:

• Department of Labor - During a shutdown, the Office of Foreign Labor Certification (OFLC) within the DOL will not accept or process any applications or related materials. This will include Labor Condition Applications (LCA) for H-1B petitions, Applications for Prevailing Wage Determination for PERM applications, Applications for Temporary Employment Certification for H-2A and H-2B visas, or Applications for Permanent Employment Certification (PERM) for permanent residence. OFLC's web site, including the iCERT Visa Portal System, will remain static and users, including attorneys, will be unable to submit any requests or access their iCERT accounts. Any applications or requests submitted prior to the shutdown and that were still pending as of midnight January 19, will not be processed and will be held in abeyance until the department resumes operations.
• U.S. Citizenship & Immigration Services - Because USCIS is funded primarily through application fees, most USCIS operations will continue normally through a shutdown. Applications and petitions submitted prior to and during a shutdown will be processed. However, as noted above, applications or petitions that require any certification from DOL, such as H-1B petitions and I-140 petitions supported by PERM labor certifications cannot be filed.
• E-Verify - The E-Verify system will be unavailable, and users will not be able to access their E-Verify accounts for any purpose. Although we do not know at this point what actions USCIS will take, in the past, the agency has implemented to following policies for E-Verify employers during a shutdown:
  • The “three-day rule” is suspended during the shutdown. USCIS will provide additional guidance upon resuming E-Verify operations. The rule suspension affects E-Verify only and DOES NOT change an employer’s obligations under the I-9 employment eligibility verification process.
  • The eight federal working day period to resolve tentative nonconfirmations (TNCs) is extended. USCIS will provide additional guidance upon resuming E-Verify operations.
  • Employers MAY NOT take any adverse action against an employee with an unresolved case status during a shutdown.
• Department of State – The Department of State (DOS) will likely continue operations as normally as possible.  However, visa applicants should expect delays in securing visa appointments or receiving visas following interviews at U.S. consulates. Some delays in visa issuance may be significant since all visa applicants must undergo a security clearance by agencies outside of DOS and those agencies may be reducing resources dedicated to such clearances.
• Executive Office for Immigration Review – During a shutdown Immigration Courts will be closed and ICE Trial Attorneys will work only limited dockets. Individuals in removal proceedings with hearings scheduled during a shutdown will receive new hearing dates.
• U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection – ICE detention and removal operations will continue, as will CBP immigration screening and exterior enforcement operations.

We will keep clients updated on any changes that might affect immigration processing. Meanwhile, if you have any questions about how a shutdown might affect specific cases, please do not hesitate to contact us.

The State Department has released the December 2017 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

There again will be small but consistent advances in the “Application Final Action Dates” in most of the family-based categories, but there are two major retrogressions. Each of the family-based categories will advance between one week and two months except for the first-preference (F1), third-preference (F3), and fourth preference (F4) for nationals of Mexico, which will not advance.  The retrogressions will hit the first-preference (F1) and third-preference (F3) for nationals of the Philippines: The F-1 category will retrogress two full years to January 1, 2005, while the F3 category will retrogress six months to July 1, 2006.

In the “Application Final Action Dates” for the employment-based categories, the EB-1 category remains current for all countries after becoming current across the board in October. There will be minor advancement in the other categories, although EB-3 India and Philippines will remain stagnant.

There will be no movement in the “Dates for Filing” in the either the family-based or employment-based categories.

Finally, the December Visa Bulletin also reminds that the non-minister special immigrant program and the Employment Fifth Preference Categories (I5 and R5) are set to expire on December 8, 2017, at which time visas in those categories will become unavailable unless Congress acts to extend them further.

As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart or the “Application Final Action Dates” chart in the visa bulletin. USCIS has not yet determined which chart may be used for adjustment of status filings in December 2017. The agency will post that information on its website.

You can view the visa bulletin in its entirety below. Please contact us with any questions.

The State Department has released the November 2017 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

There again will be small but consistent advances in the “Application Final Action Dates” in most of the family-based categories. Each of the family-based categories will advance between one week and two months except for the first-preference (F1) and second preference (F2B) for nationals of the Philippines.

In the “Application Final Action Dates” for the employment-based categories, the EB-1 category remains current for all countries after becoming current across the board in October. There will be some advancement in the other categories of between three weeks (EB-2 India) and six weeks (EB-3 Philippines), although EB-3 India will remain at October 15, 2006. The priority dates in EB-2 and EB-3 for China each will advance approximately one month.

There will be no movement in the “Dates for Filing” in the either the family-based or employment-based categories.

As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart or the “Application Final Action Dates” chart in the visa bulletin. USCIS has determined that applicants must use the Dates for Filing chart for family-based cases and the Final Action Dates chart for employment-based cases in November 2017.
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You can view the visa bulletin in its entirety below. Please contact us with any questions

After suspending the Premium Processing service for all H-1B petitions on April 3, 2017, USCIS has resumed premium processing for certain categories of H-1B petitions.

Yesterday, USCIS announced that it will now accept premium processing requests for H-1B petitions that are subject to the FY 2018 cap, including both regular cap and advanced degree cap cases. This is an especially important development for F-1 students who are in the "cap gap" period of employment authorization, which would otherwise end on September 30, 2017. These individuals may now request premium processing for their H-1B petitions in the hope of having the petition approved before October 1, 2017, to avoid any lapse in employment authorization.

USCIS had previously resumed premium processing for two very limited types of H-1B petitions: those for J-1 physicians requesting a waiver of the two-year home residence requirement through the Conrad 30 program or other interested government agencies and those filed by cap exempt employers or that are cap exempt because the beneficiary is employed at a cap exempt institution.

At this time, premium processing remains suspended for all other H-1B petitions, including extension of stay, change of employer, and amended petitions.

If you have any questions, please do not hesitate to contact us.

On September 5, 2017, the Trump Administration announced that it will end the Deferred Action for Childhood Arrivals (“DACA”) program. Following a determination by Attorney General Jeff Sessions that the DACA program likely would be found unconstitutional following a threatened legal challenge, Department of Homeland Security (“DHS”) Acting Secretary Elaine Duke issued a memorandum formally rescinding the program.

Launched in 2012 under President Obama, DACA has provided temporary, discretionary relief from deportation and work authorization for nearly one million people who were brought to the U.S. illegally as children. With the termination of the program by the Trump Administration, those individuals will be subject to deportation unless Congress passes and the president signs legislation offering a path to legalization.

In the rescission memo, DHS indicated that the DACA program would end in six months and established an orderly wind down of the program, as follows:

• No new, initial applications for DACA protection will be accepted after September 5, 2017. Initial applications and renewal applications that were properly filed and pending on September 5, 2017, will be adjudicated to completion.
• Renewal applications for current DACA beneficiaries whose deferred action grants and associated work authorization expire on or before March 5, 2018, must be filed before October 5, 2017. After October 5, 2017, no applications for DACA protection or associated work authorization will be accepted.
• Current DACA beneficiaries and those whose initial or renewal applications are approved as outlined above will be permitted to keep their deferred action grants and associated work authorization until they expire.
• DHS will accept applications to replace lost, stolen, or destroyed EAD cards based on a grant of DACA protection.
• After September 5, 2017, DHS will not grant any new Advance Parole documents based on DACA. Any currently pending applications for Advance Parole will be administratively closed and USCIS will refund the filing fee. DHS will honor the validity period of previously issued DACA Advance Parole documents, however, CBP, as a matter of discretion, may refuse to parole a person with such a document into the U.S.

Assuming there is no legislative solution, current and previous DACA beneficiaries without another basis for relief will be subject to deportation. In the FAQ’s accompanying the rescission memo, DHS stated that information provided in DACA applications “will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings” unless the applicant falls within one of the priority removal categories outlined in previous DHS guidance on enforcement priorities. Those priorities include individuals who pose threats to national security or public safety, individuals arrested for or convicted of a crime, and individuals suspected of committing immigration fraud. However, there has been a significant increase in enforcement actions against individuals who do not fall within the priority removal categories, and we expect the administration to continue its policy of increased interior enforcement.

What This Means for DACA Beneficiaries
It is important to reinforce the point that existing grants of deferred action and work authorization under the DACA program and any future grants based on requests filed under the guidelines above will remain valid until they expire. Once the DACA grant and associated work authorization expires, beneficiaries will no longer be authorized to work and, unless Congress acts, will not be protected from deportation.

Beneficiaries should understand that despite the end of the DACA program, they still have certain rights and are entitled to challenge any deportation action before an immigration judge. The American Civil Liberties Union ("ACLU") provides useful resources explaining how individuals can protect and exercise their rights in various situations.

DACA beneficiaries should consult with competent immigration counsel that can assist them in determining whether they are eligible for any other form of temporary or permanent relief from deportation.

What This Means for Employers
Again, existing grants of deferred action and work authorization based on the DACA program remain valid until they expire. Employers are not required to take and should not take any adverse employment action against an employee with DACA-based work authorization based solely on the rescission of the program. Doing so based on an assumption about continuing work authorization could subject the employer to a charge of discrimination.

Employers must, as always, be sure to reverify all I-9 forms as necessary. If any employee’s work authorization is expiring (not only a DACA beneficiary), the employee must present a new document confirming work authorization no later than the expiration date of the previous document.

Employers who would like to assist any DACA beneficiary employee could explore options for green card sponsorship, employment transfer overseas, access to qualified counsel, etc.

If you or someone you know is affected by the end of the DACA program and would like to explore alternatives, please contact us to schedule a consultation.

The State Department has released the September 2017 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

As of September 1, 2017, retrogressions will hit the “Final Action Dates” in the family-based first (F1) and fourth (F4) categories. The F1 priority date for nationals of all countries except Mexico and the Philippines will retrogress seven months to May 1, 2010. Worse, the F4 worldwide (WW), China, and India priority dates will retrogress approximately two years to January 1, 2002. When the new fiscal year begins in October 2017, the state department expects the F1 priority date to return to December 22, 2010, and the F4 priority date to return to the cutoff dates established in the August 2017 visa bulletin.

On the positive side, the family-based second preference priority date for spouses and children of Lawful Permanent Residents (F2A) will advance a few weeks for all countries, and nationals of the Philippines will see advances of at least a few weeks in each family-based category.

There will be no advance in the family-based “Dates for Filing” except for a one month advance in the family-based third preference (F3) priority date for the Philippines.

On the employment-based side, following last month’s retrogression the EB-2 “Final Action Date” for all countries except China and India, will advance nine months to January 1, 2016. For China and India, the EB-2 priority date will advance one month. The department expects this category to become current again when the new fiscal year begins in October 2017, for all countries except China and India.

The employment-based “Final Action Dates” in the EB-3 category will advance five months for nationals of the Philippines and three months for nationals of India, but will remain stagnant for nationals of China. EB-3 “worldwide” and Mexico will remain “current.”

There will be no movement in the “Dates for Filing” in the employment-based categories.

As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS makes a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart or the “Final Action Dates” chart in the visa bulletin. USCIS has determined that the “Final Action Dates” chart must be used for both family-based and employment-based adjustment of status filings in September 2017.

You can view the visa bulletin in its entirety below. Please contact us with any questions.

U.S. Citizenship and Immigration Services (USCIS) has published a revised version of Form I-9, Employment Eligibility Verification. Between now and September 18, 2017, employers may choose to use either the current version (dated 11/14/2016) or the new version (dated 07/17/2017). Beginning September 18, 2017, employers must use the new version for all new hires and for reverifications.

Employers must complete a Form I-9 within three (3) days of hire to verify the identity and work authorization of all newly-hired employees, and to re-verify the work authorization of employees whose present work authorization will expire. Employers must use the version of Form I-9 that is current at the time of hire or reverification. Using an expired or invalid version of the form can result in penalties for noncompliance.

As always, please contact us with any questions.

The State Department has released the August 2017 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

As of August 1, 2017, most of the “Final Action Dates” in the family-based categories will remain stagnant, although the family-based second category for spouses and children of Lawful Permanent Residents (F2A) will advance from one to four weeks for all countries. In addition, for nationals of Mexico and the Philippines the “Final Action Dates” in each category will advance from two to six weeks.

As predicted last month, the EB-2 “Final Action Date” for all countries (except China and India) will retrogress significantly to April 1, 2015, and will remain backlogged for the rest of the fiscal year. The department expects this category to become current again when the new fiscal year begins in October 2017.

On the bright side, there will be continued forward movement in the employment-based “Final Action Dates” in the EB-3 category, highlighted by a one year advance for nationals of the Philippines. The EB-3 date for “worldwide” and Mexico will become “current” in August and EB-3 India will advance three months. However, the EB-3 date for Chinese nationals in the “other workers” sub-category (for positions requiring less than two years of experience) will retrogress to nearly three years to January 1, 2014.

With regard to the “Dates for Filing,” there will be no movement in the family-based categories. In the employment-based categories, EB-3 India will advance three months and EB-3 Philippines will advance seven months.

As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS  makes a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart or the “Final Action Dates” chart in the visa bulletin. USCIS has determined that the “Final Action Dates” chart must be used for both family-based and employment-based adjustment of status filings in August 2017.
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You can view the visa bulletin in its entirety below. Please contact us with any questions.

The State Department has released the July 2017 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

As predicted last month, continued heavy demand has caused the State Department to retrogress the EB-3 category for Chinese nationals. As of July 1, 2017, the “Final Action Dates” in the EB-3 category for nationals of China will retrogress to January 1, 2012. The State Department expects that the EB-3 China “Final Action Date” will return to October 1, 2014, in October when fiscal year 2018 visas may be issued.

On the bright side, there will be rather substantial forward movement in the employment-based “Final Action Dates” in the EB-3 category for nationals of all other countries, highlighted by a nine month advance to February 15, 2006, for nationals of India, and a one year advance to May 15, 2014, for nationals of the Philippines.

In addition, most of the “Final Action Dates” in the family-based categories will advance at least a few weeks.
 
There is also some advancement in the employment-based “Dates for Filing,” specifically, EB-3 India will advance six months to October 1, 2006, and EB-3 Philippines will advance one year to July 1, 2015. In the family-based categories, the “Dates for Filing” will not advance in June.

As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS  makes a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart or the “Final Action Dates” chart in the visa bulletin. USCIS has determined that the “Final Action Dates” chart must be used for both family-based and employment-based adjustment of status filings in July 2017.

In his monthly “check in” with the American Immigration Lawyers Association (AILA), the State Department’s Charles Oppenheim provided the following look at what is likely to happen over the next few months:

• The EB-1 retrogression for India and China will likely hold through September before becoming current again in October.
• Although EB-2 Worldwide remained current in July, a cut-off will be imposed in August, but the category will become current again in October.
• EB-2 India will continue to advance slowly through September.
• EB-3 India is expected to continue to advance.

You can view the visa bulletin in its entirety below. Please contact us with any questions.

The State Department has released the June 2017 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

As predicted last month, continued heavy demand has caused the State Department to establish cutoff dates in the EB-1 category for nationals of India and China. A similar situation occurred last year, but not until August, indicating that overall demand is higher this year. As of June 1, 2017, the “Final Action Dates” in the EB-1 category for nationals of India and China will retrogress to January 1, 2012. There will be very slight forward movement in the employment-based “Final Action Dates” in the EB-3 category, except for nationals of China.

The State Department expects that the EB-1 India and China “Final Action Dates” will become current again in October when fiscal year 2018 visas may be issued. The Department expects continued heavy demand for EB-3 China due to applicants downgrading from EB-2. If this demand materializes, the Department will likely retrogress the EB-3 category for Chinese nationals.

The news is better for family-based applicants as most of the “Final Action Dates” in the family-based categories will advance at least a few weeks.

There is no change in the employment-based “Dates for Filing,” where the priority dates remain current for all countries EB-1 category and in all categories for those not from India, China, or the Philippines. In the family-based categories, the “Dates for Filing” will not advance in June.
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You can view the visa bulletin in its entirety below. Please contact us with any questions.