Immigration Newsletter
September 2018  |  Volume 10, Issue 3
Greetings!

The U.S. Government agencies involved with immigration have been busy this summer. New practices and policies are springing up at a rapid pace, making the navigation of immigration issues ever more complex. USCIS is restricting the flexibility of long-standing immigration practices by reducing the availability of premium processing and increasing discretion for the denial of petitions. In turn, ICE is increasing worksite investigations to ensure employer compliance with federal regulations. The Attorneys at RSST Law Group are committed to working closely with our clients to devise the best strategies for businesses and individuals alike, with consideration to the increased scrutiny and ever-changing landscape in U.S. immigration law.
 
Below are summaries of the most 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.
Suspension of Premium Processing for Certain H-1B Petitions

On August 28 USCIS announced that it would be extending and expanding the previously-announced temporary suspension of premium processing service for cap-subject H-1B petitions. For the past two cap seasons, USCIS has precluded employers from requesting premium processing for H-1B cap petitions submitted in April, usually lifting the suspension in September. However, this year USCIS is extending the suspension through February 19, 2019, and is applying the suspension to other H-1B petitions as well.

Effective September 11, 2018, the following types of H-1B petitions may no longer be premium processed until at least February 19, 2019:
  • All change of status, change of employer, amendment (including amendment / extension) and other cap-exempt petitions, such as concurrent employment, filed with the USCIS Vermont Service Center; and
     
  • All change of status, change of employer, amendment (including amendment / extension), and concurrent employment petitions filed with the USCIS California Service Center.
The following H-1B petitions remain eligible for premium processing requests:
  • Extension of status petitions filed with the USCIS Nebraska Service Center requesting a 'continuation of previously approved employment without change with the same employer'; and
     
  • Petitions filed by cap-exempt petitioners with the USCIS California Service Center, such as institutions of higher education and non-profit organizations affiliated with institutions of higher education.
USCIS has stated that the reason for expanding the categories of H-1B petitions subject to the suspension is to redirect focus away from an ever-growing number of premium processed petitions in order to more efficiently adjudicate long-pending petitions. Petitioners and/or beneficiaries may submit expedite requests for H-1B petitions which cannot be premium processed if they meet one or more of USCIS' discretionary Expedite Criteria.
Premium Processing Filing Fee Increases
 
Even as premium processing services become more limited, USCIS will increase the filing fee from $1,225 to $1,410 effective October 1.  USCIS indicates that this fee adjustment will allow them "to more effectively adjudicate petitions and maintain effective service to petitioners." According to the press release, "USCIS intends to hire additional staff and make investments in information technology systems with the premium funds that are generated by the fee increase. This will allow the agency to provide premium processing service with less disruption while improving adjudications and operational processes."
New Policy Memorandum on the Issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)
 
On July 13, USCIS issued a policy memorandum which provides new guidance to USCIS adjudicators regarding their discretion to deny applications and petitions without first issuing an RFE or NOID, leaving petitioners and applicants with no opportunity to respond to and correct perceived deficiencies. The memorandum states that such denial without notice should be used when a petition/application does not include basic initial evidence or fails to establish eligibility for the benefit requested.

Previous guidance for USCIS officers, last updated in June 2013, stated that officers should issue RFEs for nearly all perceived deficiencies in petitions/applications, and should only exercise discretion to deny the petition/application without notice when there was "no possibility" that the deficiency could be cured with additional evidence. The new memorandum, which took effect on September 11, greatly expands the discretion of USCIS officers to deny petitions and applications based upon perceived deficiencies, with no opportunity for the petitioner or applicant to respond.

USCIS has justified this policy change as one that will discourage frivolous, meritless or substantially incomplete filings, including those filed as 'placeholders' and/or filed by employers with illegitimate immigration practices. USCIS Director L. Francis Cissna anticipates that the outright denial of these types of requests will free up USCIS time and resources to decrease processing times and give more priority to filings from legitimate employers.
New Notice to Appear (NTA) Policy

USCIS announced on September 26 that its new Notice to Appear policy, initially published via Policy Memorandum on June 28, will be implemented incrementally beginning October 1.  Implementation was previously postponed on July 30 pending further operational guidance, which has now been issued.

Yesterday's announcement is significant to our employment-based practice, as it indicates that the Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time.  However, USCIS may issue NTAs on other denied status-impacting applications, including but not limited to Forms I-485 (Application for Permanent Residence) and I-539 (Application to Extend or Change Nonimmigrant Status).  In those instances, USCIS indicates that it will send denial letters which ensure adequate notice of the denial of a benefit.  If the applicant is no longer in a period of authorized stay and does not depart the United States, then USCIS may issue an NTA.  Applicants will be provided with information regarding how to review their period of authorized stay, check travel compliance, and validate their departure from the U.S.

RSST attorneys will work closely with any clients who may be affected by this policy change to discuss how it may impact decisions made on their cases. 
ICE Delivers Promised Increase in Form I-9 Audits

As reported in our June 2018 newsletter, Immigration and Customs Enforcement (ICE)'s Homeland Security Investigations (HSI) unit planned to greatly increase employer I-9 audits beginning in 2018, with a goal of opening as many as 15,000 audits each year to ensure compliance with federal laws and penalize unauthorized employment.

ICE appears to be delivering on their promise. In July, ICE issued a news release detailing HSI's increased worksite enforcement efforts. Between October 1, 2017 and July 20, 2018, HSI conducted over 6,000 worksite investigations, a 255% increase over the 1,700 investigations launched in FY2017. Over 5,200 investigations have been launched so far in 2018, rolled out in periodic phases in February, March and July. HSI initiates an I-9 audit by issuing a notice of inspection (NOI) to employers who must then produce their I-9 records within three business days before undergoing a compliance inspection.

Employers who receive an I-9 audit notification from ICE should contact an attorney at RSST Law Group. RSST attorneys are also available to conduct employer I-9 self-audits and other compliance services.
Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS) provides periodic analyses of current immigrant visa 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 2018: 
  • General Notes: For October 2018, USCIS has announced that it will accept I-485 applications filed based on the "Dates for Filing" chart rather than the "Final Action Dates" chart.  The Dates for Filing are traditionally used by the State Department to initiate the immigrant visa interview process, with the expectation that those dates will become current (i.e. be listed on the Final Action Dates chart) within the next 8 to 12 months. With USCIS' announcement, individuals whose priority date is current based on the Dates for Filing chart may file their I-485 applications (with associated applications for EAD and Advance Parole) in October, but I-485s will not be adjudicated until the priority date becomes current on the Final Action Dates chart.
  • EB-1: Demand for EB-1 visas remains very high. Although the priority dates did advance some with the start of the new Fiscal Year in October, EB-1 worldwide will likely not advance further until at least January 2019.  It is too early to determine whether EB-1 worldwide will become current in FY2019, but DOS has indicated it is almost guaranteed that EB-1 India and EB-1 China will not. 
  • EB-2 and EB-3 Worldwide: These categories will once again be current beginning in October, and are expected to remain current for the foreseeable future. 
  • EB-2 and EB-3 China: EB-3 China availability remains ahead of EB-2.  This allows for "downgrade" petitions (i.e. individuals with EB-2 petitions can file new petitions under EB-3 to benefit from the availability of EB-3 visa numbers). If downgrade demand does not materialize, EB-3 could advance more rapidly, but initial movement may be modest since this demand cannot be monitored in advance.
  • EB-2 and EB-3 India: The October dates for India put EB-3 less than 3 months behind EB-2.  Depending on the level of demand, it is possible that EB-3 India may surpass EB-2 at some point during this fiscal year, leading to the possibility of downgrade petitions. 
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 October 2018 (i.e. dates that allow an application to be adjudicated):

Employment-Based
All Chargeability 
Areas Except Those Listed
China - mainland born
India
Philippines
1st
01APR17
01JUN16
01JUN16
01APR17
2nd
C
01APR15
26MAR09
C
3rd
C
01JUN15
01JAN09
01JUN17
Other Workers
C
01MAY07
01JAN09
01JUN17

 

Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
Family-Sponsored
All Other Chargeability 
Areas
Mexico
F2A
22AUG16
01AUG16

Following are the relevant Visa Bulletin Dates for Filing for October 2018 (i.e. dates that allow an application to be filed with USCIS):

Employment-Based
All Chargeability Areas Except Those Listed
China - mainland born
India
Philippines
1st
01APR17
01JUN16
01JUN16
01APR17
2nd
C
01APR15
26MAR09
C
3rd
C
01JUN15
01JAN09
01JUN17
Other Workers
C
01MAY07
01JAN09
01JUN17

Family-Based Preference Category FB-2A, Spouses and Children of Permanent Residents:
01DEC17 for all countries.
 
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: 5 - 8 months
VSC: 3 - 5 months
NSC: 2 - 4 months
PERM
2 - 4 months
PERM Prevailing
Wage Requests
2 - 3 months
PERM audits
7 - 8 months from
initial date of filing
I-140
4 - 6 months
I-485
10 - 18 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.
     
  • On September 27, Howard Silverman is being honored by Open Avenues Foundation, the Center for Refugee Health & Human Rights at Boston Medical Center, and Catholic Charities of Boston for his humanitarian efforts with regard to immigrants' rights. 
     
  • On October 30, Rhonda Tietjen and Heidi Snyder will participate in a Business Immigration Law panel hosted by the Boston University School of Law's Immigration Law and Policy Society.
     
  • The firm welcomes two new babies, born to our team members this summer - Jackson Hugh, son of Firm Administrator Sally Penney, and Amelia Zuri, daughter of Associate Sela Stockley.
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.
Attorneys at RSST Law Group:
Howard A. Silverman  |  Heidi L. Snyder  |  Rhonda A. Tietjen | 
  RSST Law Group
50 Congress Street, Suite 200, Boston, MA  02109  |  (617) 542-5111 | www.rsstlawgroup.com