Immigration Newsletter
May 2017  |  Volume 9, Issue 2
Greetings!
 
USCIS seems busier than ever as processing times for nearly all application types have slowed. USCIS has implemented new practices in an attempt to address backlogs. Below are more details on this and other recent immigration-related developments. Please note that our newsletter is primarily distributed to our employer clients, so we would appreciate if you would share this information with your employees.
H-1B Premium Processing Suspended
 
Beginning April 3, USCIS temporarily suspended premium processing service for all H-1B petitions; the suspension is expected to last until September. Premium processing requests were honored for those H-1B petitions which were received by the USCIS California and Vermont Service Centers prior to April 3. However, USCIS was unable to complete some premium processing requests filed with the Nebraska Service Center in late March. For these petitions, USCIS returned the premium processing fee and continued to prioritize adjudication as quickly as possible.
 
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.

FY2018 H-1B Cap Season Concluded
 
The annual H-1B cap was once again met in the first week of April, with 199,000 total petitions filed. This constituted significantly fewer filings than the past two years (236,000 in FY2017 and 233,000 in FY2016).
 
On May 3, USCIS announced that data entry for the selected cap petitions had been completed. The petitions filed by RSST had a 48% selection rate, which was slightly higher than the national average. Those petitions not yet receipted are presumed not to have been selected and USCIS will return the rejected filing. In past years, the return of rejected filings can take several months. RSST has already reached out to clients in cases where we have not received a receipt notice, and we will confirm with those clients when we receive the rejected filings back over the coming weeks.
"Buy American, Hire American" Executive Order
 
On April 18, President Trump signed a new Executive Order directing various federal agencies to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. The Order also directed federal agencies to review all nonimmigrant and immigrant visa programs and propose new policies to guard against fraud and abuse in order to protect U.S. workers.
 
This Order has no immediate impact on H-1Bs or any other visa category. Any changes to USCIS policies or regulations will require further Congressional or regulatory action. As always, RSST will notify our clients of any pertinent changes as soon as they are announced.

Continued Suspension of Travel Ban
 
On March 6, President Trump signed a revised Executive Order titled, "Protecting the Nation from Foreign Terrorist Entry into the United States" which sought, among other things, to limit travel to the U.S. by certain nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen, though on a more limited scale than the original travel ban. The State of Hawaii brought a civil action challenging the Order, and on March 15, a temporary restraining order was issued to halt enforcement of the travel ban. The travel ban currently remains suspended nationwide.

Eligibility Categories for Automatic EAD Extensions
 
On January 17, a new USCIS rule took effect which, among other things, grants an automatic extension of employment authorization to certain holders of Employment Authorization Documents (EAD cards) when a renewal application is timely filed. Employers should note that only certain categories of EAD holders are eligible for continued work authorization while an EAD renewal application is pending. A common category which is eligible is (c)(9), for those employees with pending I-485 Adjustment of Status applications. Please note that EAD holders who are not eligible for the automatic extension include those in H-4, L-2 or J-2 status. A list of the eligible categories can be found on the USCIS website .
 
Individuals who are eligible will receive an I-765 receipt notice indicating that their previous EAD card has been extended for 180 days while the renewal request remains pending, and that receipt notice can be used for I-9 reverification purposes. Individuals who are not eligible for the automatic extension will need to receive their new EAD card before the current card expires, for I-9 reverification purposes. Applicants should be aware of whether they are eligible for the extension, and should time the filing of their renewal applications accordingly.

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 June 2017:
  • Increased Employment-Based Demand: FY2017 has brought increased demand across all employment based preference categories, which has significantly decreased the redistribution of "otherwise unused numbers".  In past years, that redistribution has allowed for increased allocations to EB-1, particularly for India and China, and sometimes to EB-2.  Absent these additional numbers, the EB-1 and EB-2 categories are using their numbers more quickly and are therefore retrogressing or may retrogress. 
     
  • EB-1 China and India: A Final Action Date has been established for both of these categories effective June 1. The date for these categories may become current in October 2017.
     
  • EB-2 Worldwide, Mexico, Philippines, El Salvador, Guatemala, Honduras: These categories are expected to become oversubscribed no later than August 2017, and possibly in July. It is possible there could be some forward movement of the Final Action Date in September. The date for these categories is expected to become current in October 2017.
     
  • EB-2 and EB-3 China: Due to an extremely large increase in demand in April (primarily as a result of "downgrading" by EB-2 applicants, EB-3 China is not expected to advance further this year, and continued heavy demand will require retrogression. EB-2 China is expected to continue to advance slowly.
     
  • EB-3 India: This category is benefiting from otherwise unused numbers from other EB-3 countries, and therefore showed significant movement in June.  Continued movement to October 2005 is possible later this summer. 
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
Mexico
Philippines
1st
C
01JAN12
01JAN12
C
C
2nd
C
01MAR13
01JUL08
C
C
3rd
15APR17
01OCT14
15MAY05
15APR17
01MAY13
Other Workers
15APR17
15JUL06
15MAY05
15APR17
01MAY13
  
  
Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
Family-Sponsored
All Chargeability Areas Except Those Listed
China - mainland born
India
Mexico
Philippines
F2A
15AUG15
15AUG15
15AUG15
22JUL15
15AUG15

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: 6-9   months
VSC: 6-12   months
NSC: 6-10 months
PERM
2-4 months
PERM Prevailing
Wage Requests
3-5 months
PERM audits
8 months from
initial date of filing
I-140
6 months
I-485
6-8 months
EAD
3-4 months
Advance Parole
2-3 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
  • RSST Law Group congratulates Attorney Ellen Driver on the birth of her daughter, Irene, on May 22.
  • In May, AILA New England is honoring the attorneys who volunteered in the crisis response efforts following the issuance of President Trump's Executive Orders and travel ban in January.  Because of her efforts helping to coordinate coverage at Logan Airport, Ellen Driver is one of several AILA attorneys accepting a pro bono champion award on behalf of all the attorneys who participated in the efforts at the airport and in the litigation to obtain a temporary injunction of the Executive Order in the Federal Court in Boston.    
     
  • Heidi Snyder will be speaking at the Builders and Remodelers Association of Great Boston on June 21.  
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