Immigration Newsletter
August 2017  |  Volume 9, Issue 3
Greetings!
 
Immigration law and policies continue to be the subject of scrutiny under the Trump Administration. In the enforcement arena, arrests by Immigration and Customs Enforcement (ICE) have increased, with a significantly broader net being cast. This is primarily the result of a shift in policy regarding enforcement priorities. Under the Obama Administration, ICE prioritized the arrest and deportation of individuals who posed a potential threat to national security, public safety, or border security, generally those individuals who were engaged in or suspected of terrorism or espionage, those with criminal convictions, and those apprehended at the border while trying to unlawfully enter the U.S. (or apprehended later after an unlawful entry into the U.S. after January 1, 2014). Those priorities have now been eliminated and ICE is targeting all individuals who are in the United States without authorization, without regard for their contributions to society or the impact of their arrest / deportation on U.S. citizen dependents.
 
On the employment front, there has also been a shift in legal immigration priorities. Many bills have been introduced in Congress seeking to restrict legal immigration, and the Administration is placing limits on discretion in the adjudication of immigration benefits, while also implementing stricter adjudications. Although no official policy changes have been announced, we are seeing adjudication trends that seem to mark a shift from previous policy.  These recent developments, together with the suspension of premium  processing for H-1B petitions and an increase in H-1B Requests for Evidence and denials, seem to signify the Administration's intent to discourage employers from taking advantage of the various employment-based immigration programs, without the need to change the existing laws through Congress.
 
Below is some information about recent immigration-related developments. Please note that our newsletter is primarily distributed to our employer clients, so we encourage you to share this information with your employees.
Change to Advance Parole Processing
 
In an unannounced policy shift, USCIS is now denying Applications for Advance Parole (travel authorization while a green card application is pending) where the applicant has traveled abroad while the application was pending.  This policy change runs contrary to the agency's discretionary practice over many years. 

As a result of this change in practice, permanent resident applicants who wish to obtain Advance Parole (AP) for travel outside the U.S. will need to remain in the United States from the time the application is filed until the travel documents are received (typically about 3 months later).  Applicants with pending AP applications who have traveled since the application was filed should anticipate those applications being denied on the grounds of abandonment due to international travel.  RSST Law Group will monitor all pending cases and advise on a case-by-case basis regarding the need to file a new application for AP. 

Recent RFE Trend for H-1Bs
 
We have recently seen a troubling trend in Requests for Evidence (RFEs) from USCIS for H-1B petitions. It appears that USCIS is challenging whether a Level 1 prevailing wage can be used for H-1B specialty occupation petitions. In the RFEs, USCIS relies on Department of Labor (DOL) guidance to observe that Level 1 wages should only be used for beginning level employees who have only a basic understanding of the occupation, perform routine tasks that require limited exercise of judgment, and work under close supervision. As a result, USCIS is challenging the use of a Level 1 prevailing wage for H-1B specialty occupations, which are those that require the "highly specialized knowledge" typically acquired through attainment of a Bachelor's degree or higher. This contention goes against long-standing interpretation of DOL's prevailing wage guidance, which is grounded in statute.
 
The widespread issuance of RFEs on the issue indicate an apparent policy change. We will continue to advise on a case-by-case basis as necessary.
Immigration Reform Proposals
 
Each year, numerous immigration-related reform bills are introduced in Congress, and the majority do not make it past committee hearings. Because of this, we generally do not report on pending bills. However, at times a particularly bill becomes newsworthy despite unlikely prospects for success. T he Reforming American Immigration for a Strong Economy (RAISE) Act is one such bill. It was introduced by Senators Tom Cotton (R-Arkansas) and David Perdue (R-Georgia) and is supported by President Trump. The RAISE Act proposes a new Skills-Based Points System to replace the current preference category-based green card system. The skills-based system, similar to systems in Canada and Australia, would prioritize immigrants who, based on the metrics, would be expected to succeed in the United States and expand the economy. The metrics include age, English language ability, education levels, and job skills. It would also eliminate the annual Diversity Visa Lottery, which allows a path to green card for those who might not otherwise be eligible, and reduce the number of refugees eligible for green cards. Furthermore, the bill would dramatically pare down green card options for families, eliminating the preference categories for extended and adult family members, and significantly reducing the annual number of green cards available based on a family relationship.
 
If passed, the RAISE Act would make the path to permanent residence much more difficult for immigrants to the United States, and would be problematic for U.S. employers who would no longer be able to sponsor select employees for permanent residence. Should any immigration reform bills advance to a vote, we will provide information on the anticipated impact on our clients.

Form I-9 Updated (Again!)
 
USCIS has again released a new version of Form I-9.  Prior versions may be used until September 17, 2017. The new form must be used for all employment verifications and re-verifications completed on or after September 18, 2017.  The form contains only minor changes, including some adjustments to the List of Acceptable Documents.

Emails from [email protected] are Legitimate
 
The American Immigration Lawyers Association recently confirmed that the Department of State has retained a contractor to contact employment-based nonimmigrant or immigrant visa petitioners via [email protected] to request confirmation that a beneficiary will be providing services at the company. Some employers questioned the legitimacy of these emails. Please be assured that this is a legitimate State Department email address and you should respond to any requests received.

Update on Suspension of H-1B Premium Processing
 
As you know, USCIS temporarily suspended premium processing service for all H-1B petitions beginning April 3. Since that time, premium processing has resumed for select petitions - those filed based on the Conrad 30 J Waiver program (for individuals working in a medically-underserved area) and most recently for petitions filed by cap-exempt employers. USCIS has not indicated when premium processing will resume for other petitions, aside from stating that it will resume "as workloads permit". 
 
With the unavailability of premium processing, employers may elect to request discretionary expedited processing for certain H-1B petitions. The expedite criteria apply to a limited number of petitions where the employer or employee would experience significant hardship without prompt adjudication. For more information about the premium processing suspension and expedite options, please see our News Flash.

SCOTUS to Review Travel Ban
 
As summarized in our June 27 News Flash, the Supreme Court will hear the government's appeal of two cases challenging President Trump's "travel ban" when it reconvenes in October. In the meantime, the Court issued a temporary stay on parts of the injunction which has prevented implementation of the ban. The Supreme Court allowed partial implementation of the 90-day travel ban against foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen, primarily impacting travelers seeking to enter the U.S. as visitors, but who have no ties to the U.S.  

Suspension of International Entrepreneur Rule
 
On January 17, USCIS published a new rule to help international entrepreneurs work in the U.S. for up to five years as 'parolees'. The rule was scheduled to take effect on July 17, but the Trump Administration has delayed implementation until March 2018 to allow time for the publication of a new Federal Register notice rescinding the rule.

Travel Guidance
 
To assist clients in planning for international travel, please click to access our Fact Sheet on international travel, along with some information regarding administrative processing of visa applications. 

Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State provides periodic analyses of current trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of September 2017:
  • EB-1 China and India: A Final Action Date was established for both of these categories effective June 1. The date for these categories will likely become current in October 2017.       A final action date is expected to be imposed again in the summer of 2018.

  • EB-2 Worldwide, Mexico, Philippines, El Salvador, Guatemala, Honduras: A Final Action Date was established for these categories effective August 1. The date will advance is September, and is expected to become current again in October 2017 and remain current for the foreseeable future.
     
  • EB-2 India: This category will advance one month in September, and additional slow movement of a few weeks at a time is expected in the new Fiscal Year. There is some possibility that the final action date could advance to 2009 in the second half of FY 2018.

  • EB-2 and EB-3 China: EB-2 China will advance slightly in September, and is expected to advance by three to six weeks per month in the new Fiscal Year. EB-3 China is expected to return to October 1, 2014 in October, which will put it ahead of EB-2, once again allowing for downgrades from EB-2 to EB-3.
     
  • EB-3 India: This category continues to benefit from otherwise unused numbers from other EB-3 countries, a trend which could recur at the end of FY 2018 if EB-3 Worldwide demand remains relatively low. For the start of the Fiscal Year, the category is expected to advance by several weeks at a time each month.
There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers.  For purposes of this newsletter, we are including only the categories most applicable to our business clients.  For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website. 

Employment-Based Preference Categories
  • First (EB-1):  Priority Workers.  Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
     
  • Second (EB-2):  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.  Also includes National Interest Waiver (NIW) applicants.
     
  • Third (EB-3):  Skilled Workers, Professionals, and Other Workers.
Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below.  "C" means current, i.e., numbers are available for all qualified applicants.    

Following are the relevant Visa Bulletin Final Action Dates for February 2017 (i.e. dates that allow an application to be adjudicated):
  
Employment-Based
All Chargeability Areas Except Those Listed
China - mainland born
India
Philippines
1st
C
01JAN12
01JAN12
C
2nd
01JAN16
15MAY13
22AUG08
01JAN16
3rd
C
01JAN12
15OCT06
01NOV15
Other Workers
C
01JAN04
15OCT06
01NOV15
  
  
Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
Family-Sponsored
All Chargeability Areas Except Those Listed
Mexico
F2A
15OCT15
22SEPT15

Processing Times

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received.  Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions:  

Application /
Petition Type
Current Reported
Processing Times
H-1B
CSC: 4 - 6 months
VSC: 4 - 12 months
NSC: 3 - 6 months
PERM
3 - 4 months
PERM Prevailing
Wage Requests
3 - 5 months
PERM audits
7 - 8 months from
initial date of filing
I-140
5 - 7 months
I-485
7 - 9 months
EAD
3 - 4 months
Advance Parole
3 - 4 months

Please keep in mind that these are average processing times, and there are always some outliers (i.e. cases that are approved more quickly, and some which take longer).  
In the News: What's Happening at RSST Law Group
  • All of the Firm's partners, Howard Silverman, Heidi Snyder, and Rhonda Tietjen, have again been listed in The Best Lawyers in America  in the area of Immigration Law for 2018 and Howard Silverman has been named the Best Lawyers 2018 Boston Immigration Law "Lawyer of the Year," his second time receiving this honor .
Please Note that this newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.
  RSST Law Group
50 Congress Street, Suite 200, Boston, MA  02109  |  (617) 542-5111 | www.rsstlawgroup.com