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The visa bulletin is out at this link: January 2018 Visa Bulletin

For the Application Final Action Dates, employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India (November 22, 2008) and China (August 8, 2013); EB-3 is current for all countries except India (November 1, 2006), China (April 15, 2014), and the Philippines (February 15, 2016); EB-3 other workers is current for all countries except India (November 1, 2006), China (December 22, 2006), and the Philippines (February 15, 2016); EB-4 are current for all countries except El Salvador, Guatemala, and Honduras (December 1, 2015) and Mexico (June 1, 2016); Religious Worker visas are presently unauthorized for all countries. EB-5 non-regional centers are current for all countries except China (July 22, 2014).  EB-5 regional centers are presently unauthorized for all countries.  Family based petitions are backlogged, with the most recent date at February 1, 2016 for F2A (spouses and children under 21 of lawful permanent residents), and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) is September 1, 1994.

For the Date for Filing, employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India (February 8, 2009) and China (November 15, 2013); EB-3 is current for all countries except India (January 1, 2008), China (September 1, 2015), and the Philippines (August 1, 2016); EB-3 other workers is current for all countries except India (January 1, 2008), China (June 1, 2008), and the Philippines (August 1, 2016); EB-4 and religious workers are all current except for El Salvador, Guatemala, and Honduras (April 15, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014).  Family based petitions are backlogged, with the most recent date at November 1, 2016 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of March 1, 1995.

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US Citizenship and Immigration Services has adopted new policy guidelines for adjudicating Function Manager visa petitions based upon a recent case ruling from the Administrative Appeals Office (AAO). The Immigration and Nationality Act (INA) provides both temporary (L-1A) and permanent (EB-1C) visa categories for multinational executives or managers. The INA recognizes two different types of managers that qualify in both categories: personnel managers, who supervise and control the work of personnel, and function managers, who manage an organizational function. The AAO clarified that, in order to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: 1) the function is a clearly defined activity; 2) the function is “essential,” i.e., core to the organization; 3) the beneficiary will primarily manage, as opposed to perform, the function; 4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and 5) the beneficiary will exercise discretion over the function’s day-to-day operations. Persons interested in applying under this category should keep in mind they will need to furnish supporting evidence addressing these eligibility factors, such as organizational charts and letters from other company managers or executives detailing the “essential function,” including the impact that function has on the company and the authority the beneficiary has over that function.

Please contact us if you have any questions or need additional information.

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As of January 2017, USICS requires supplemental information for certain employment-based Form I-485 Application for Adjustment of Status applicants. For this purpose, USCIS introduced a new form, the I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability.

Who Has to File the J Supplement?

Applicants filing adjustment of status applications based upon a separately filed, pending or approved, I-140 immigrant petition must submit Supplement J with the Form I-485. Persons filing Forms I-140 and I-485 concurrently are not required to file the Supplement J. Persons filing Form I-485 based upon a national interest waiver (NIW) Form I-140 and in the first preference (EB1) extraordinary ability category also do not need to file Supplement J.

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The visa bulletin is out at this link: December 2017 Visa Bulletin

For the Application Final Action Dates, employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India (November 1, 2008) and China (July 1, 2013); EB-3 is current for all countries except India (October 15, 2006), China (March 8, 2014), and the Philippines (January 15, 2016); EB-3 other workers is current for all countries except India (October 15, 2006), China (July 1, 2006), and the Philippines (January 15, 2016); EB-4 and religious workers are current for all countries except El Salvador, Guatemala, and Honduras (November 8, 2015) and Mexico (April 22, 2016); EB-5 non-regional and regional centers are current for all countries except China (July 15, 2014). Family based petitions are backlogged, with the most recent date at December 22, 2015 for F2A (spouses and children under 21 of lawful permanent residents), and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) is August 1, 1994.

For the Date for Filing, employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India (February 8, 2009) and China (November 15, 2013); EB-3 is current for all countries except India (January 1, 2008), China (September 1, 2015), and the Philippines (August 1, 2016); EB-3 other workers is current for all countries except India (January 1, 2008), China (June 1, 2008), and the Philippines (August 1, 2016); EB-4 and religious workers are current for all countries except for El Salvador, Guatemala, and Honduras (April 15, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014).  Family based petitions are backlogged, with the most recent date at November 1, 2016 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of March 1, 1995.

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On October 23, 2017, U.S. Citizenship and Immigration Services (USCIS) published a new Policy Memorandum, rescinding a former memo from April 23, 2004, which instructed adjudication officers to defer to an original petition’s finding of eligibility when reviewing requests for extension of already approved nonimmigrant status, unless significant material changes in circumstances had arisen since the original petition was approved.  Based on the 2004 memo, extensions of H-1B or L-1B petitions have been granted readily and with minimal requirements for additional documentation.

The new memo instructs adjudication officers to review each petition for extension of nonimmigrant status as if it were an entirely new petition, subjecting it to the level of scrutiny applied to an initial petition.  While the memo acknowledges that, under U.S. regulations, the evidence required for extension of nonimmigrant status is less than that required for an initial petition, it asserts USCIS’ discretionary authority to request additional evidence, and instructs adjudicating officers to exercise that authority without constraint when reviewing extension of status petitions.

Recent months have seen a sharp increase in the number of requests for evidence made by USCIS in connection with new nonimmigrant petitions, resulting in delays in approving petitions.  Under the new policy governing extension petitions, it is likely that they, too, will now see an increase in requests for evidence and resultant delays.

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U.S. Citizenship and Immigration Services (USCIS) announced that they would expand in-person interviews for applicants for adjustment of status to permanent residence for all applications based upon employment and refugee/asylee relative petitions.  In-person interviews have seldom been required for these categories.

Under the new policy, all employment-based applications for permanent residence filed after March 6, 2017 will be required to undergo an in-person interview.  Applications filed prior to March 6 will be subject to in-person interviews under exceptional circumstances, amounting to between 5% and 10% of applications filed.

It is unclear how USCIS will accommodate the added workload, and slower processing times are a likely consequence, but USCIS states it will prioritize employment-based interviews with the goal of allocating all available visas authorized for each fiscal year.  Although interviewing officers have been instructed to not re-adjudicate the underlying approved I-140 Petition for Immigrant Worker, they have been instructed to evaluate whether documentation submitted in support of the I-140 is accurate, bona fide, and credible.  USCIS advises that interviewees should expect to be questioned regarding their admissibility and eligibility, including where they will work, what they are going to do, their educational background and experience, whether the employer still intends to employ the applicant, and whether the applicant still intends to take up employment.

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On September 1, 2017, the U.S. Department of State amended its Foreign Affairs Manual (FAM), with a new directive regarding “misrepresentation” as it relates to foreign nationals in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to Department of Homeland Security when applying for admission or for an immigration benefit.”  The conduct most commonly deemed “inconsistent with representations made to consular officers” is filing for adjustment of status to permanent residency shortly after arriving in the U.S. under a nonimmigrant visa, but also includes other conduct not authorized by one’s nonimmigrant visa, such as engaging in unauthorized study or employment, application for certain benefits, or marrying a U.S. citizen or permanent resident.

The new subsection in FAM instructs adjudicating officers: “If a [foreign national] violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry . . . you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.” This 90-Day Rule replaces the previous rule which held that, if a foreign national engaged in “conduct inconsistent with representations” (for example, applying for adjustment of status) within the first 30 days after entering the U.S. under a nonimmigrant status, the presumption would be that the foreign national had willfully misrepresented their intention when applying for a nonimmigrant visa.  However, if the “inconsistent conduct” occurred more than 30 days but less than 60 days after the foreign national’s arrival, there would be no presumption either for or against a supposition of willful misrepresentation, and, if the conduct occurred more than 60 days after arrival, it would be presumed that there had been no willful misrepresentation. Under the new rule, “conduct inconsistent” within 90 days of arrival invokes an automatic presumption that the foreign national willfully misrepresented him or herself in obtaining his or her nonimmigrant visa.

This constitutes a major change in the regulations governing perceived misrepresentation with far reaching potential effects.  Per 212(a)(6)(C) of the Immigration and Nationality Act, a foreign national found to have willfully misrepresented him/herself for the purpose of gaining a visa or admission to the U.S. is subject to a permanent ban on entry into the U.S. Although applicants are permitted to rebut a presumption of misrepresentation, the burden of proof falls upon the applicant to “establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

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The visa bulletin is out at this link: November 2017 Visa Bulletin

For the Application Final Action Dates, employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India (October 8, 2008) and China (June 15, 2013); EB-3 is current for all countries except India (October 15, 2006), China (February 1, 2014), and the Philippines (January 15, 2016); EB-3 other workers is current for all countries except India (October 15, 2006), China (April 1, 2006), and the Philippines (January 15, 2016); EB-4 and religious workers are current for all countries except El Salvador, Guatemala, and Honduras (November 1, 2015) and Mexico (April 1, 2016); EB-5 non-regional and regional centers are current for all countries except China (July 1, 2014). Family based petitions are backlogged, with the most recent date at November 15, 2015 for F2A (spouses and children under 21 of lawful permanent residents), and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) is June 8, 1994.

For the Date for Filing, employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India (February 8, 2009) and China (November 15, 2013); EB-3 is current for all countries except India (January 1, 2008), China (September 1, 2015), and the Philippines (August 1, 2016); EB-3 other workers is current for all countries except India (January 1, 2008), China (June 1, 2008), and the Philippines (August 1, 2016); EB-4 and religious workers are all current except for El Salvador, Guatemala, and Honduras (April 15, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014). Family based petitions are backlogged, with the most recent date at November 1, 2016 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of March 1, 1995.

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On September 24, 2017, the Trump administration announced details of a revised and expanded travel ban upon nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  The ban immediately impacts nationals of Iran, Libya, Somalia, Syria, and Yemen with no bona fide relationship to a U.S. person or entity, and will take effect for all other impacted nationals of those countries, as well as nationals of Chad, North Korea, and Venezuela, on October 18, 2017.

The original travel ban has been the subject of numerous legal challenges which blocked implementation of the ban until June, when the U.S. Supreme Court permitted a more narrowly focused version of the ban to go into effect until the Court could ultimately rule on its constitutionality, with oral arguments scheduled for October 10, 2017.

In contrast to the original ban, which temporarily suspended travel to the U.S. by nationals of the designated countries for a period of ninety days, the new ban applies indefinitely. The new rules do not apply to legal permanent residents, nor do they apply to current nonimmigrant visa holders already in the U.S.  This means that students from the banned countries may remain and finish their studies, and business employees may stay for as long as their present visas are valid. Once their existing visas expire however, they will be subject to the travel ban.

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Effective October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B extension of stay petitions.  Premium processing is now available for all types of H-1B petitions.

When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time.  If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

Please contact us if you are interested in requesting premium processing, or if you have any questions.