As mentioned in our December Visa Bulletin post, the employment-based first preference (EB-1) category remains backlogged for all countries. Despite previous expectations, it appears that the backlog is here to stay. The Department of State’s Charlie Oppenheim recently told the American Immigration Lawyers Association (AILA) that the Final Action dates for the EB-1 category would reach June 1, 2018 (for all countries except China and India) within the next eight to twelve months. If this prediction proves true, the EB-1 category will never become current this fiscal year. Such a prolonged backlog is not only unprecedented, but alarming, as the employment-based second and third preference categories (EB-2 and EB-3) are current (for all but those born in China, India or the Philippines). This means that a foreign born Nobel Prize winning scientist or a chief executive at a multinational corporation will now wait years to receive a green card, while an entry-level worker could receive a green card much sooner.

The main culprit for such a lengthy backlog in the EB-1 category appears to be higher than usual demand in the employment-based fourth and fifth preference categories (EB-4 and EB-5). In the past, both the EB-4 and EB-5 categories rarely met their congressionally mandated limits and the extra visa numbers “spilled over” to the EB-1 category. This year, the EB-4 subcategories of Religious Workers and Special Immigrant Juveniles, as well as EB-5 investors, are all exceeding supply. In addition, there is increased usage of the EB-1 multinational executive/manager subcategory as many seek to avoid the traditional backlogs of the EB-2 and EB-3 categories. Overall demand for immigrant visas has also increased as growing uncertainty over changing immigration policies has led many to seek permanent residence while they still can.

In practice, the EB-1 backlog means that those that qualify for the category (Aliens of Extraordinary Ability, Outstanding Professors/Researchers and Multinational Executives/Managers) will not be able to submit applications for the last step of the green card process, the I-485 application to adjust status, until their priority date becomes current. In addition, they and their family members, will not be able to take advantage of the concurrent applications for employment and travel authorization. Because of these new delays, anyone wishing to apply in the EB-1 category should lock in their priority date as soon as possible by submitting a stand-alone I-140 immigrant petition to the US Citizenship and Immigration Services. In certain situations, other avenues for obtaining permanent residence may be more attractive, such as filing a PERM application or an EB-2 National Interest Waiver petition. For assistance with these issues, contact a Hunton Andrews Kurth immigration attorney.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the December Visa Bulletin, including Final Action Dates and changes from the previous month. Contrary to projections announced in the September Visa Bulletin, the EB-1 category will NOT return to current in December. In fact, despite some insignificant forward movement, unprecedented backlogs will continue in this category for all countries. The December Visa Bulletin does not include the customary note to explain this deviation.

  • China: EB-1 advances slightly to September 1, 2016, EB-2 advances another six weeks to July 1, 2015, and EB-3 creeps forward seven days to at June 8, 2015
  • India: EB-1 moves ahead three months to September 1, 2016, EB-2 advances six days to April 1, 2009, and EB-3 jumps forward two months to March 1, 2009
  • Philippines: EB-1 advances three months to July 1, 2017, EB-2 remains current, and EB-3 creeps forward one week to June 15, 2017
  • All Other Countries: EB-1 moves ahead three months to July 1, 2017, EB-2 and EB-3-remain current

NOTE: USCIS has not yet announced if it will accept I-485 applications in December based on the Department of State’s Dates for Filing chart.  However, the trend over the last several months has been to accept employment based I-485 applications based on the Date for Filing chart.

The US Department of Labor (USDOL) has published its statistics for fiscal year 2018, which ended on September 30, 2018. The USDOL certified the majority of the 119,776 labor certification (PERM) applications processed in the last fiscal year. Of the 24,052 applications still in process with the USDOL as of the end of the fiscal year, 64% were still in analyst review and 25% were in audit review. The majority of PERM applications were for: computer and mathematics occupations; positions in California and Texas; positions in the Professional, Scientific and Technical Services or manufacturing industries; and positions requiring at least a bachelor’s degree or higher.  The high rate of certification reflects the low national unemployment rate and tight labor market that employers are facing.  However, American Immigration Lawyers Association members are also reporting an increase in extensive requests for evidence for immigrant worker petitions (I-140) from the US Citizenship & Immigration Services (USCIS), following PERM certification.  At times, these include requests for PERM recruitment documents.  The process for employment-based permanent residence continues to be long and arduous both for nonimmigrants and for their employers.

UPDATE: In November, USCIS will accept EB I-485 applications based on the Department of State’s Dates for Filing chart.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the November Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 freezes at June 1, 2016, EB-2 advances six weeks to May 15, 2015, and EB-3 halts at June 1, 2015
  • India: EB-1 remains at June 1, 2016, EB-2 stalls at March 26, 2009, and EB-3 freezes at January 1, 2009
  • Philippines: EB-1 stalls at April 1, 2017, EB-2 remains current, and EB-3 slowly creeps forward, advancing seven days to June 8, 2017
  • All Other Countries: EB-1 remains backlogged to April 1, 2017, EB-2 and EB-3-remain current

NOTE: USCIS has not yet announced if it will accept I-485 applications in November based on the Department of State’s Dates for Filing chart.

On October 3, 2018, California U.S. District Judge Edward Chen granted a preliminary injunction in the case of Ramos v. Nielsen, preventing the Department of Homeland Security from terminating Temporary Protected Status for El Salvador (scheduled to end on 9/9/19), Haiti (7/22/19), Nicaragua (1/5/19), and Sudan (11/2/18).  The injunction remains in place until the Court lifts it or the lawsuit ends. Continue Reading California Court Temporarily Enjoins Administration from Ending Temporary Protected Status; Other TPS Lawsuits Proceed

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the October Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 jumps forward more than four years to June 1, 2016, EB-2 rebounds to April 1, 2015, and EB-3 continues to speed past EB-2 and moves to June 1, 2015
  • India: EB-1 jumps forward more than four years to June 1, 2016, EB-2 moves ahead two years to March 26, 2009, and EB-3 returns to the July 2018 date, advancing six years to January 1, 2009
  • Philippines: EB-1 moves ahead ten months to April 1, 2017, EB-2 returns to current, and EB-3 creeps forward seven months to June 1, 2017
  • All Other Countries: EB-1 remains backlogged, but advances ten months to April 1, 2017, EB-2 and EB-3-both return to current

NOTE: USCIS has not yet announced if it will accept I-485 applications in October based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

Earlier this year, the Department of Homeland Security (DHS) announced that it will terminate the temporary protected status (TPS) program for nationals of El Salvador on September 9, 2019.  Employment authorization documents (EADs) held by qualifying individuals that expired on March 9, 2018, were automatically extended through September 5, 2018, providing applicants time to apply for new EADs valid through the termination date.

Because the USCIS has been unable to process EAD extension applications in a timely manner, DHS has further extended the expired EADs through March 4, 2019, provided that:

  • The EAD has a marked expiration date of March 9, 2018, and the individual applied for a new EAD after January 18, 2018; or
  • The EAD has a marked expiration date of September 9, 2016, and the individual applied for a new EAD on or after July 8, 2016.

USCIS states that it will mail a Notice of Continued Evidence of Work Authorization to eligible individuals to present to their employers for I-9 verification purposes.  Those who have not received their notices by September 4, 2018, must contact USCIS at (202) 272-8377.  In the interim, nationals of El Salvador can show employers the USCIS web page to continue working lawfully while awaiting their letters.  The web page can be found at this link.

The United States Citizenship and Immigration Services (“USCIS”) has announced that the suspension of premium processing for FY2019 H‑1B cap cases, announced on March 21, 2018, has been extended until possibly February 2019.

USCIS also announced that effective September 11, 2018, premium processing will be suspended for H‑1B cases filed at the Vermont and California Service Centers, except for:

  1. H-1B petitions filed by cap-exempt petitioners or by petitioners who will be employing beneficiaries at qualifying cap-exempt institutions, entities, or organizations; or
  2. H-1B petitions filed at the Nebraska Service Center by petitioners requesting either an extension of a beneficiary’s H-1B status or requesting consular notification based on the continuation of the beneficiary’s previously approved employment without change with the same petitioner

In its announcement, USCIS explained that because of the recent increase in H-1B petitions filed requesting premium processing, USCIS has been unable to process long-pending H-1B petitions. Therefore, the expanded suspension of premium processing was required to allow USCIS personnel to focus on reducing the current backlog of pending H-1B petitions.

USCIS will continue to accept premium processing requests for H-1B cases until September 10, 2018. However, if a case is not adjudicated within the required fifteen calendar day timeframe, USCIS will refund the fee for premium processing and the case will be processed under regular processing.

We will update this post as soon as the suspension is lifted.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the September Visa Bulletin, including Final Action Dates and changes from the previous month:

China: EB-1 remains stalled at January 1, 2012, EB-2 retrogresses to January 1, 2013, and EB-3 continues to move forward – advancing four months to November 1, 2014

India: EB-1 remains at January 1, 2012, EB-2 falls behind nearly two years to January 1, 2007, and EB-3 moves back six years to January 1, 2003

Philippines: EB-1 moves ahead one month to June 1, 2016, EB-2 retrogresses to January 1, 2013, and EB-3 moves to November 1, 2016

All Other Countries: EB-1 moves forward one month to June 1, 2016, EB-2 retrogresses to January 1, 2013 and EB-3 falls to November 1, 2016

The September Visa Bulletin includes the following important projections for future movement:

China:  

  • EB-1 backlogs are expected to remain until December, with “limited, if any forward movement” in October and November
  • EB-2 is expected to return to March 1, 2015 in October and move ahead slowly each month after that,
  • EB-3 is expected to return to July 1, 2014 in October and move forward approximately three weeks each month starting in November

India:   

  • EB-1 backlogs are expected to remain until December, with “limited, if any forward movement” in October and November
  • EB-2 is expected to return to March 15, 2009 in October and move forward “up to two weeks” per month beginning in November
  • EB-3 is expected to return to January 1, 2009 in October and may move ahead slowly each month after that

Philippines:       

  • EB-1 backlogs are expected to remain until December, with “limited, if any forward movement” in October and November
  • EB-2 is expected to become current in October and remain current for subsequent months
  • EB-3 is expected to return to June 1, 2017 in October, with “minimal” forward movement after October

All Other Countries:      

  • EB-1 backlogs are expected to remain until December, with “limited, if any forward movement” in October and November
  • EB-2 and EB-3 are expected to become current in October and remain current for subsequent months

NOTE: USCIS has not yet announced if it will accept I-485 applications in September based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

The New York Times features Suzan Kern in an interview with María, a woman who was sexually assaulted by a Corrections Corporation of America guard while under the custody of ICE, following her release on bond from the Hutto detention center in Texas. CCA violated the terms of its contract with ICE, which mandated that female detainees be transferred with at least one female guard. Instead, CCA’s male guard, Donald Dunn, who assaulted María, transported women alone 77 times in less than a year. “When he let her out of the van at the Austin airport, she ran,” Suzan, María’s pro bono immigration attorney, says in the video. “The guard there at the airport asked her what was wrong and she immediately told him what had happened.” María courageously explains, “I think this happened not only to me but to several people.” Eight women came forward to testify against Dunn, who was convicted and served prison time. Suzan, who also represents another of Dunn’s victims pro bono, believes there were even more, “because these were the women who could be tracked down and who were willing to speak.”

The full article can be found here (for the best viewing experience, please copy and paste the article link into Google Chrome).