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The American Immigration Council (AIC) reports that U.S. Citizenship and Immigration Services (USCIS) is issuing Requests for Evidence (RFEs) and Denials at increased rates for H-1B and L-1 petitions.

The RFE rate for H-1B petitions has increased to almost 40% in the first three quarters of FY 2019 compared to 22 and 21% in FYs 2015 and 2016.  The RFE rate for L-1 petitions is even higher, nearing 54% in the first three quarters of FY 2019. By comparison, the L-1 RFE rate was just 34% in FY 2015.

USCIS uses RFEs to request for additional documents to confirm the validity of petitions. RFEs often add months to the H-1B and L-1 process and even when petitioners respond with additional information, increasingly USCIS issues denials. In FY 2019 (as of June), only 63% of H-1B petitions were approved after an RFE was issued, compared to 83% in FY 2015.  Only about 50% of L-1 petitions were approved after an RFE was issued since FY 2017.

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On May 31, 2019, The U.S. Department of State added new questions to Forms DS-160/DS-156 Nonimmigrant Visa Application and the Form DS-260 Immigrant Visa Application. The new versions of these forms require foreign national visa applicants to disclose information about their social media history. Applicants must disclose all the social media platforms they have used within the previous five years, as well as provide their username(s) for each platform.

This increased information gathering is a result of President Trump’s March 2017 executive order 13780, which requires the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop “screening and vetting standards and procedures” for all immigration programs.

Think Immigration  suggests that the addition of social media questions on visa applications will increase processing times while the ACLU has suggested that the new requirement infringes on the rights of immigrants and U.S. citizens.

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The visa bulletin is out at this link: July 2019

The level of Employment-based demand, primarily for USCIS adjustment of status applicants, has been steadily increasing in recent weeks. For example, there has been no forward movement for India and China under the EB-1 employment based category. The Department of State expects the EB-1 final action date for India will move forward to February 22, 2017 in October 2019.

Employment-based petitions must use the Final Action Dates chart. The employment-based categories are as follows: EB-1 is at April 22, 2018 for all countries except China (May 8, 2017) and India (January 1, 2015); EB-2 is current for all countries except China (November 1, 2016) and India (April 24, 2009); EB-3 is current for all countries except China (January 1, 2016), India (July 1, 2009);  EB-3 other workers is current for all countries except China (November 22, 2007), India (July 1, 2009); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, Honduras and Mexico (July 1, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014), India (May 1, 2017) and Vietnam (October 1, 2016).  Family based petitions must use the Dates for Filing chart.  Family based petitions are backlogged, with the most recent date at March 8, 2019 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Philippines F4 (brothers and sisters of U.S. Citizens) at July 1, 1998.

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The H-1B court case ITServe Alliance v. USCIS consolidates several cases of information technology (IT) companies whose H-1B applications have been denied or approved with short validity periods.  Judge Collyer’s ruling for this case could carry major implications for how U.S. Citizenship and Immigration Services (USCIS) directs adjudicators to decide H-1B cases.

According to Forbes, Judge Collyer addressed three key issues in the lawsuit.  “First, the government has yet to provide a good explanation for the disparate outcomes and adjudication processes for different types of employers—those with H-1B employees who perform work on customer sites and those who do not.  The denial rates for initial H-1B petitions in [fiscal year] (FY) 2018 were 1% for large technology companies and 34% to 80% for companies that place H-1B [petition] holders at third-party sites.”

“Second, USCIS has to explain why it must require specific work assignments stretching out for three years for contractors even though the law permits H-1B professionals to be in ‘nonproductive’ time so long as they are paid.”  “Third, Judge Collyer will decide whether discovery is warranted to find out what is behind the changes in USCIS adjudications of H-1B petitions.”

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The American Immigration Lawyers Association (AILA), the national association of more than 15,000 attorneys and law professors who practice and teach immigration law, provides insight to the systemic nature of U.S. Citizenship and Immigration Services (USCIS) processing delays, and lists concrete steps you and the millions of other affected individuals and businesses can take in the face of USCIS backlogs.

Please contact our office at immigrationinfo@cornerlaw.com and refer to AILA’s handout for more information about processing delays.

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U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character (GMC) for naturalization even where that conduct would not be an offense under state law.

Background 

Since 1996, several states have enacted laws to decriminalize the cultivation, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their jurisdictions. However, Federal law continues to classify marijuana as a “Schedule I” controlled substance whose manufacture, cultivation, possession, or distribution may lead to criminal[1] and immigration consequences.  This guidance, contained in Volume 12 of the Policy Manual, is controlling and supersedes any prior guidance on the topic.

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The visa bulletin is out at this link: May 2019

Employment-based petitions must use the Final Action Dates chart. The employment-based categories are as follows: EB-1 is at March 1, 2018 for all countries except China and India (February 22, 2017); EB-2 is current for all countries except China (May 15, 2016) and India (April 16, 2009); EB-3 is current for all countries except China (August 22, 2015), India (July 1, 2009) and the Philippines (June 1, 2018);  EB-3 other workers is current for all countries except China (September 1, 2007), India (July 1, 2009) and the Philippines (June 1, 2018); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, and Honduras (March 8, 2016) and Mexico (August 1, 2018); and EB-5 non-regional centers and regional centers are current for all countries except China (September 22, 2014) and Vietnam (September 22, 2016).  Family based petitions must use the Dates for Filing chart.  Family based petitions are backlogged, with the most recent date at January 8, 2018 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Philippines F4 (brothers and sisters of U.S. Citizens) at February 15, 1998.

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The visa bulletin is out at this link: April 2019

Employment-based petitions must use the Final Action Dates chart. The employment-based categories are as follows: EB-1 is at February 1, 2018 for all countries except China and India (February 22, 2017); EB-2 is current for all countries except China (April 1, 2016) and India (April 12, 2009); EB-3 is current for all countries except China (August 1, 2015), India (June 22, 2009) and the Philippines (March 1, 2018);  EB-3 other workers is current for all countries except China (August 22, 2007), India (June 22, 2009) and the Philippines (March 1, 2018); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, and Honduras (March 8, 2016) and Mexico (April 1, 2018); and EB-5 non-regional centers and regional centers are current for all countries except China (September 15, 2014) and Vietnam (August 22, 2016).  Family based petitions must use the Dates for Filing chart.  Family based petitions are backlogged, with the most recent date at December 15, 2017 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Philippines F4 (brothers and sisters of U.S. Citizens) at January 15, 1998.

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The American Immigration Council (AIC), a nonprofit immigration advocacy group, published fact sheets and resources with key data points, historical information, and background on hot topics in immigration.  These publications highlight various aspects of economic contributions immigrants, such as H-1B and Temporary Protected Status workers, provide to the U.S.

H-1B

H-1B is a temporary (nonimmigrant) classification that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent.

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The American Immigration Lawyers Association (AILA), the national association of more than 15,000 attorneys and law professors who practice and teach immigration law, released a policy brief analysis about U.S. Citizenship and Immigration Services’ (USCIS) case processing delays.

Forbes reports the analysis found that USCIS’ average time to process a case increased by 46% over the past two fiscal years and 91% since fiscal year 2014.  Although case receipt volume appeared to have decreased, case processing times increased substantially in fiscal year 2018.

Because of the delays, tech workers are finding the process of applying for and getting H-1Bs increasingly difficult, according to the Los Angeles Times.  The article notes that AILA Vice President Jennifer Minear said, “[USCIS] delays have reached a crisis level and are the result of policies that inhibit efficiency.”