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 August Visa Bulletin, including Final Action Dates and changes from the previous month.
- China: EB-1 retrogresses to July 1, 2016; EB-2 advances two months to January 1, 2017; and EB-3 moves forward six months to July 1, 2016
- India: EB-1 remains stalled at January 1, 2015; EB-2 crawls ahead eight days to May 2, 2009; and EB-3 falls back more than three years to January 1, 2006
- Philippines: EB-1 recedes two years to July 1, 2016; EB-2 retrogresses to January 1, 2017; and EB-3 reverts back to July 1, 2016
- All Other Countries: EB-1 retrogresses two years to July 1, 2016; EB-2 falls back to January 1, 2017; and EB-3 retrogresses to July 1, 2016
NOTE 1: The August Visa Bulletin includes a veiled warning that dates for the All Other Countries group will not immediately return to current in October.
NOTE 2: USCIS has not yet announced if they will accept I-485 applications in August based on the Department of State’s Dates for Filing chart.
Sunday as the country watched the US women cruise to victory over the Dutch, some immigration lawyers were wondering:
How many of the players are immigrants?
We know soccer teams draw their stars from around the world. For example:
- the current Manchester United F.C. first-team squad features players from 14 different countries,
- the current D.C. United MLS team features players from 10 countries, and
- the Washington Spirit, DC’s local women’s professional team that includes Rose Lavelle who scored a beautiful goal in the World Cup Final, features players from 3 countries.
This has even been true in international competition. As recently as the 2018 men’s World Cup, teams were notably diverse. The Moroccan team had the greatest percentage of foreign-born players, with 61% born outside of Morocco, and many other teams had a large percentage of players from migrant backgrounds.
However, that diversity is not present in the international women’s game. The vast majority of players on the US and Dutch teams from this weekend’s final were native born. This may be due to the fact that the women’s game is still relatively young, or due to FIFA’s National Team Eligibility Rules. Whatever it is, of the 46 players capped for the final, only one player was not born in the country she represented – Liza Estafany van de Most, a Dutch defender, was born in Colombia and adopted by a Dutch family as an infant.
So where are the immigrants at the World Cup? Look to the sidelines.
While countries are restricted to fielding just citizen players in the World Cup, those same rules do not apply to coaching staff. As many companies know, sometimes the search for the best person for the job is an international search, and companies who want the best talent often end up going abroad to find it.
So too do soccer teams, and in this year’s World Cup, twenty-five percent of head coaches were not native-born citizens of the country whose team they managed.
This includes Team USA’s Coach Jill Ellis, who was born in the United Kingdom and immigrated to the United States in her youth. Other non-native-born coaches include Canada’s Danish coach Kenneth Heiner-Moller, and the coaches of Nigeria and Norway, both of whom are from Sweden.
The number of international coaches is even more notable in men’s soccer. In the 2018 men’s World Cup, 13 of the 32 teams competing had non-native-born coaches. 40 percent! Some of the coaches have coached multiple international teams during their career. For example, Carlos Queiroz, who coached the Iranian team during the 2018 World Cup, has had quite the immigration story. He was born a Portuguese citizen in what is now Mozambique. He never appeared in an international match as a player, but has coached the national teams of Portugal, the UAE, and South Africa, and also coached club teams in the United States, Japan, the United Kingdom, and Spain. He is currently the coach for the Colombian national team.
We know businesses like those involved in financial services, information technology, and healthcare are increasingly crossing borders in search of needed talent, and that workers are willing to change countries in pursuit of opportunities. Looking at the World Cup, we see the business of sports reflecting the same immigration trends.
Where are the immigrants? Everywhere.
While employment-based green card applicants are seeing unprecedented backlogs in their priority dates, notably in the EB-1 category reserved for “priority workers”, family-sponsored green card applicants are seeing their priority dates advance at a pace not seen in the last few years.
This development is happening almost unnoticed in the shadow of the media’s focus on the southern border and other aspects of preference-based immigration such as the administration’s proposal for a point-based system and a proposal in Congress to eliminate per-country limitations for employment-based green cards.
What are priority dates?
A “priority date” is, essentially, an individual’s “place in line” to apply for a green card. An individual can determine how close they are to the front of the line by comparing their priority date to the dates for their category and country listed in the visa bulletin. Additional information about visa availability and priority dates can be found on the USCIS website. In general, for family-sponsored categories, the wait to apply for a green card ranges from a few years to over twenty years.
Who is eligible for a green card under the family-sponsored eligibility categories?
Each year, the number of family-sponsored immigrant visas is subject to a quota of between 226,000 and 480,000 as determined by a calculation based on the prior year’s family-based immigration statistics. Immediate relatives (spouses, unmarried minor children, and parents of US Citizens) are exempt from this quota. The annual quota is divided across five categories of eligible family-sponsored individuals: (F1) unmarried adult sons and daughters of US citizens, (F2A) spouses and children of permanent residents, (F2B) unmarried sons and daughters (21 years of age or older) of permanent residents, (F3) married sons and daughters of US citizens, and (F4) brothers and sisters of adult US citizens.
Why are the advances in the family-sponsored categories significant?
Historically, family-based categories other than immediate relatives have seen multi-year long backlogs that advance by just a few weeks with each new visa bulletin and often stall during the summer. Not this year. For the past year, most family-sponsored categories have been advancing by several weeks or months with each new visa bulletin. This culminated with the F2A category becoming “current” (available) on July 1, 2019 for all individuals.
These advances are significant because it means that family-sponsored applicants now have shorter wait times to apply for their green cards. This is even more significant for individuals who are seeking a green card under the F2A category because they are now able to pursue a green card application without delay, similar to spouses, unmarried minor children, and parents of adult US Citizens.
What does this mean for applicants waiting for employment-based green cards?
Unfortunately, nothing. Theoretically, if overall demand for family-based green cards across all categories is lower than the overall quota for family-based visas, unused visas could be reallocated to employment-based categories. However, in reality, even when one family-based category is current, demand in other family-based categories will absorb the remaining visas, with none flowing over to employment-based categories.
Why are priority dates for family-sponsored categories advancing faster than for employment-based categories?
The advancement of priority dates and related availability of visas is determined by Department of State officials who compare the supply of visas available for the fiscal year to demand for visas in specific categories. Priority dates are “current” when the authorities expect actual demand will be lower than supply. As an example, according to the notes for the July 2019 Visa Bulletin, for the F2A category, “[d]espite the large amount of registered F2A demand, currently there are not enough applicants who are actively pursuing final action on their case to fully utilize all of the available numbers under the annual limit.” In other words, while there are many people who have taken the preliminary steps to get a green card by filing petitions, for some reason, they aren’t actually taking the final steps to apply for green cards.
One can only speculate as to what is causing this low level of demand. Can it be that individuals are simply giving up on applying for green cards through family ties due to the previously lengthy wait periods? Are individuals finding other ways of immigrating to the United States? Is the United States increasingly less attractive compared to other developed nations? Are individuals perhaps now “immediate relatives” of newly naturalized US Citizens? Whatever the case may be, this is good news for all individuals who have been and continue to patiently wait to apply for a green card based on their family ties.
It is important to note that should the Department of State see a change in this trend and see demand start to increase across family-based categories, the advances that we have seen in the last year could “retrogress” quickly and at any time.
Bottom line: If you are eligible to file a family-sponsored green card application, specifically under the F2B category, now is the time to seek advice from a qualified immigration practitioner regarding your options.
Since March 2019, all applicants who file Form I-539 Application To Extend or Change Nonimmigrant Status have been required to appear for biometrics appointments so that US Citizenship & Immigration Services (USCIS) can compare their biometric data against their identity documents and forward the data to the FBI for security screenings.
Why Is USCIS Taking Fingerprints from Applicants for Temporary Status? According to USCIS, this new biometric requirement is to aid in identifying threats to public safety and national security, and to protect the integrity of the immigration system under President Trump’s Protecting the Nation From Foreign Terrorist Entry into the United States executive order. There are no exemptions: minors, including infants, and the elderly are required to comply.
What Impact Will This Have on Processing Times? Many nonimmigrants use Form I‑539 to change or extend status without having to leave the US, including the spouses and children of professional workers in H-1B or L-1 status. Within certain criteria, these H-4 and L-2 spouses are eligible to apply for Employment Authorization Documents (EADs) that are valid for up to two years at a time. Spouses frequently file their EAD applications along with their Forms I-539 in order to extend both status and employment authorization at the same time. The new biometrics requirement has added months of processing time to both types of applications because:
- USCIS no longer extends its prior courtesy of adjudicating dependent applications within 15 days when an employer filed its own petition requesting premium processing on behalf of the H‑1B or L‑1 worker; and
- Adjudication is now dependent on security screenings conducted by an outside agency (the FBI). As a result, what once took 15 days is now taking 3 months, and counting.
Because the biometrics requirement is relatively new, processing data is insufficient to get a good sense of how much longer than 3 months these applications may take. However, USCIS Service Centers are currently reporting processing times of 2.5 to 8.5 months. Whether this broad time range will match actual practice remains to be seen.
How Will Dependents Show Ongoing Status and Employment Authorization to Driver’s License Offices and Employers? If logistics or finances are not a consideration, it may become more appealing for dependents to renew their visas abroad, based on the principal worker’s already extended status, rather than filing extension applications with USCIS. The majority of visa applications at U.S. consulates are processed within 2 weeks, and when dependents return to the US with their new visas, their status is automatically extended on admission. However, in a relatively small – but growing – number of cases, “administrative processing” may delay visa issuance for up to 6 weeks or longer.
Even with quick visa issuance, it is not clear whether a spouse’s EAD renewal application, which must still be filed with USCIS after the spouse re-enters the US, will be processed any faster than if the spouse simply remained in the US and filed both EAD and extension applications with USCIS. Therefore, H-4 and L-2 nonimmigrant spouses who are considering this alternative should consult with an immigration attorney to determine the best strategy to accomplish their desired outcome.
While TSA pre-check may get you through US security faster, expediting departure, there are also benefits available on the other end of the trip through a variety of other programs that expedite international arrival processes.
Collectively known as Trusted Traveler Programs, most of these programs feature:
- Fast-track lanes and streamlined entry processes
- Facial recognition software and other technologies used to screen passengers
- Eligibility limited to a specific list of nationalities that vary by program
- A pre-approval process that includes a background check and biometrics
- An enrollment fee of up to US$200
- Availability at a limited set of airports
While these programs do not completely replace standard visas, they can still result in major time savings for frequent travelers. An overview of some of the most popular programs are below. If you have specific questions about your eligibility, contact your immigration advisors.
Global Entry with Reciprocal Benefits
Global Entry is the most popular program for US citizens and one of the best known trusted traveler programs in the world. Eligibility is limited to US citizens, permanent residents, and citizens of 11 other countries, including India. It does not replace a visa though and members must maintain updated visa information with CBP.
Through reciprocal agreements, US citizen Global Entry members may also use expedited processes to enter Australia (SmartGate), Canada (Nexus), New Zealand (dedicated lane), Panama (Global Pass), Republic of Korea (Smart Entry Service), and the UK (Registered Traveller).
APEC Business Travel Card
The Asia Pacific Economic Cooperation Business Travel Card (ABTC) facilitates travel to 21 countries on the Pacific Rim, including the US, Australia, and Canada. Eligibility is limited to citizens of APEC countries who travel frequently for business and have no criminal convictions. Applicants apply through their home country which assesses the application before forwarding it for review by other participating countries who each make individual determinations. It is possible to get approval by only a subset of countries, all of which will be listed on the issued card.
Unlike Global Entry, the ABTC also serves as a visa for some countries. For example, pre-approval from China serves as a multi-entry visitor visa.
Single Country Options
For those not eligible for Global Entry or an ABTC, but who travel frequently to a specific country, there are many country-specific programs that can help get you through the airport faster. They include:
- Australia (SmartGate): A fast lane open to citizens of 15 countries. Pre-registration is not required.
- Canada (Nexus): Available to citizens of the US and Mexico, as well as some permanent residents of those countries. An application process is required for those not already enrolled in Global Entry.
- Germany (EasyPass): A fast lane available to citizens of the EU, Switzerland, Hong Kong SAR, Republic of Korea, and the US. An application is required.
- Mexico (Viajero Confiable): A fast lane open to Mexicans and permanent residents of Mexico who are citizens of the US or Canada. An application is required.
- Panama (Global Pass): Open to US citizens and permanent residents. An application is required.
- Republic of Korea (Smart Entry Service): Open to Koreans and residents of the US, Hong Kong SAR, Macao SAR, Taiwan, and Germany. Prior registration is required.
- United Kingdom (Registered Traveller): Open to citizens of 33 countries who either have a current visa/entry clearance or who frequently visit the UK. An application is required.
Given the variety of programs out there, finding the best fit for a specific need can be challenging. If you have questions, contact your immigration team who can provide guidance tailored to your situation.
In October 2017, the Department of Homeland Security implemented Trump’s Executive Order, “Protecting the Nation From Foreign Terrorist Entry,” by requiring all applicants sponsored for green cards by their employers to be interviewed in person at a US Citizenship & Immigration Services office. The first batch of interviews were scheduled quickly, but over the last year, wait times have skyrocketed, now reaching 1 to 2 years in large metro areas. Waits for family-based applicants (who have always been interviewed) have steadily climbed also, as a result of the growing workload at local USCIS field offices.
The chart below, compiled from data at USCIS’s Processing Times web site, shows current wait times in ten major cities:
|City||Wait Time for Green Card Interview|
|Atlanta||10.5 to 25 months||11 to 17 months|
|Dallas||10.5 to 25 months||15.5 to 21 months|
|Houston||11 to 21.5 months||17 to 27 months|
|Los Angeles||10.5 to 25 months||10.5 to 17.5 months|
|Miami||10.5 to 25 months||11 to 23.5 months|
|New York City||12.5 to 22 months||20.5 to 31.5 months|
|Raleigh||10.5 to 25 months||7 to 24.5 months|
|San Diego||10.5 to 25 months||7.5 to 18.5 months|
|Seattle||10.5 to 17 months||11 to 23.5 months|
|Washington DC||10.5 to 25 months||10 to 22 months|
This week, USCIS announced a plan to shorten these long waits by equalizing field office workloads and interviewing applicants outside their normal USCIS jurisdiction. USCIS has published no details on how far applicants might be required to travel or how much wait times are expected to rise at smaller field offices as a result of the redistribution.
For example, depending on their zip codes, residents of South Florida are now required to interview in Miami, Hialeah, Kendall or Oakland Park. All four of those offices have wait times of up to 2 years for both family- and employment-based interviews. Those Floridians may now have to travel 70 miles to West Palm Beach or 150 miles to Fort Myers to be interviewed, yet that shift will shorten their waits by only a few months, according to USCIS’s Processing Times website.
The same is true in the New York metro area, where green card applicants now are interviewed at field offices in New York City, Queens, Brooklyn, or Long Island – all with up to 2-year waits. Nearby field offices in New Jersey have similar wait times. New Yorkers may have to go as far as Rhode Island or Vermont, perhaps only to shave a few months off wait times.
While Trump’s DHS has prioritized a surge in hiring for its investigation and enforcement branches, the service side of the agency enjoys far less support. In its FY2020 budget proposal, DHS seeks $5 billion for building border walls, $2.7 billion for housing detainees, $550 million for removing detainees, and $470 million for hiring law enforcement and Border Patrol agents. A full 53 percent of its total FY2020 budget authority is allocated to its enforcement arms: ICE, Customs & Border Protection, US Coast Guard and TSA.
USCIS’s allocation is only 5 percent, and its total budget request only $120 million. About 10 percent of that amount is earmarked for Operations and Support, which would include hiring and training new officers to adjudicate applications and interview applicants. While it is true that USCIS operations are largely funded by filing fees paid by the public, DHS this year plans to rob Peter to pay Paul. Some $207 million of USCIS’s filing fees will be transferred to ICE to fund its investigation and enforcement activities. With these priorities, we are unlikely to see green card wait times substantially reduced any time soon.
US Immigration and Customs Enforcement (ICE) has broad authority to investigate and enforce Form I-9 compliance, but employers have rights and responsibilities, too. Understanding these rights and responsibilities is critical to surviving an ICE worksite enforcement investigation.
Employers cannot hire workers who are unauthorized to work in the United States and must verify the identity and employment eligibility of employees through the Form I-9 verification process. Forms I-9 must be retained for three years after hiring or one year after the employee’s last day of work, whichever is later. Employers must also make their Forms I-9 available for inspection by ICE or other government agencies upon proper notification.
We received a Notice of Inspection (NOI) from ICE – what happens next?
ICE initiates an I-9 audit by serving an NOI on the employer. The employer has three business days to produce its Forms I-9 along with payroll records and supporting documentation. The employer may waive the three-day period; however, this period allows the employer to contact immigration counsel and prepare for the audit. The employer should copy all documents turned over to ICE.
ICE agents review the documents, identify any technical and/or substantive violations, and provide the audit results. ICE must allow the employer ten business days to correct technical violations and may issue monetary fines for substantive and uncorrected technical violations. Additional civil and criminal charges may be brought against the employer if ICE finds a pattern or practice of noncompliance or the knowing employment of unauthorized workers.
The ICE I-9 audit did not go well – will ICE be back?
The I-9 audit process can be used by ICE to collect evidence of knowing employment of unauthorized workers, among other violations. ICE often uses this evidence to support a raid, in which armed ICE agents arrive unannounced at the employer’s worksite to arrest unauthorized workers and, potentially, company managers or executives who had knowledge of unauthorized employment.
The consequences of an ICE raid can damage a company’s reputation, cost millions of dollars in fines and penalties, and/or result in civil and criminal arrests. Knowing your rights, seeking advice from experienced immigration counsel, and preparing adequately are critical to surviving an ICE raid.
ICE is at the door – what are my rights and responsibilities as an employer?
ICE agents are free to enter any public area in your workplace, but they cannot enter private areas without consent or a valid judicial warrant. A judicial warrant is not the same as an administrative warrant, so be certain to read it and understand its scope.
A judicial warrant will:
- contain the signature of a federal or state judge and the date;
- include a timeframe for the search; and
- describe the premises and items to be searched.
The employer may accept the warrant but not consent to the search. ICE will still execute the warrant, but the employer may have grounds to challenge the search at a later date.
If you receive a judicial warrant, you should immediately call immigration counsel. Even if counsel is out of state, he or she may be able to speak by phone with the ICE agent in charge and provide valuable advice to the employer.
During an ICE raid employers should:
- record the names of the ICE supervising agent and US attorney assigned to the case;
- assign company representatives to accompany each ICE agent as they move around your workplace;
- provide ICE agents access to your facility in accordance with the warrant;
- object to any searches that are outside the scope of the warrant and ask the ICE agent to make note of it;
- protect privileged documents to the extent possible; and
- obtain a list of items seized during the search.
During an ICE raid employers should not:
- block or interfere with the ICE agents in their work;
- hide employees or assist them in leaving the workplace; or
- provide false or misleading information.
In an era of heightened enforcement, any employer is at risk of an ICE enforcement action, but knowledge is power. Informed employers who are working with experienced immigration compliance attorneys are best positioned to maintain order during an audit or raid and to protect their workers and workplace.
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 July Visa Bulletin, including Final Action Dates and changes from the previous month.
- China: After four months of non-activity, EB-1 leaps forward more than ten weeks to May 8, 2017; EB-2 advances three months to November 1, 2016; and EB-3 jumps ahead three and a half months to January 1, 2016
- India: EB-1 freezes at January 1, 2015; EB-2 creeps forward five days to April 24, 2009; and EB-3 remains stalled at July 1, 2009
- Philippines: EB-1 freezes at April 22, 2018; EB-2 remains current; and EB-3 becomes current for the first time since December 2004
- All Other Countries: EB-1 stalls at April 22, 2018; EB-2 and EB-3 remain current
NOTE 1: The July Visa Bulletin includes a note warning of little to no forward movement for all EB-1 categories in the coming months, with likely retrogression in September.
NOTE 2: USCIS will not accept I-485 applications in July based on the Department of State’s Dates for Filing chart. Applicants must use the Final Action Dates chart.
With H-1B Cap premium processing winding down, employers will soon start to get back petitions that were not selected in the lottery. Employees who have other statuses, such as F-1 OPT or L-1, can just keep working and their employers can try again next year. For others, however, if the FY2020 cap was their only option until FY2021, employers may need to make other plans. Before you part ways with a stellar nonimmigrant employee, give a thought to global options.
Return Home: Having your employee work remotely from their home country is the easiest option from an immigration perspective. While this may have labor law, digital security, and tax implications for US employers, an employee who is living in their country of citizenship can work for any employer, anywhere in the world, without the need for sponsorship or immigration processes. This may not be a viable long-term solution, given time zones or other considerations, but it can be a short-term tactic while pursuing other alternatives in the US or elsewhere in the world.
Work in Other Countries: Companies that wish to transfer employees outside the US have some great options, including the following:
Canada: Our northern neighbor is attractive for several reasons. In Canada, employees can work in the same time zones as the US. In addition, companies with Canadian branches can transfer current employees to Canada through the “Intra-Company Transfer Work Permit.” Similar to the US L-1 visa, the ICT permit requires that the worker have at least one year of employment with the sending company, as well as specialized knowledge or managerial duties.
Mexico: Heading south of the border can also be a good option for employees who can be hosted by a Mexican company while remaining on the US payroll because Mexico has a relatively simple “Temporary Resident Process” for assignees who are paid outside of Mexico.
United Kingdom: Ideal for EU citizens, the UK is also an option for citizens of non-EU countries who have been with a US employer for a year and can be assigned to a UK branch. Unlike the US L-1B visa or the Canadian ICT permit, the UK does not require that an employee have specialized knowledge.
Depending on the company and employee, Ireland, the Netherlands or Singapore may be other viable alternatives.
Act Quickly: Immigration processes outside the US usually take at least 6 to 12 weeks. While this is faster than many US processes, it still takes time. We encourage employers to act quickly in considering alternatives, and we will be happy to advise on individual situations.
Not ready to send your employee overseas? Our next article will cover US alternatives to the H‑1B.