VISA BULLETIN UPDATE – OCTOBER 2018

Every month, the Department of State releases a new Visa Bulletin that dictates the date a foreign national can submit the final step of the green card process.

Here are the updates from the newly-released October 2018 Visa Bulletin:

EB-1 is not current for any country. The Final Action Date for those born in China and India is June 1, 2016. This date has moved forward more than four years for both China and India compared to the last Visa Bulletin. The Final Action Date for those from all other countries is April 1, 2017. This date has moved forward ten months compared to the last Visa Bulletin.

EB-2 is now current for all people who are not from India and China. The Final Action Date for those from India is now March 26, 2009, while the Final Action Date for those from China is now April 1, 2015. These dates have each moved forward more than two years compared to the previous Visa Bulletin.

USCIS EXPANDS DISCRETION OF ADJUDICATORS TO ISSUE A CASE DENIAL WITHOUT FIRST ISSUING A RFE OR NOID

Since 2013, USCIS adjudicators have been instructed to issue a Request For Evidence (RFE) or Notice Of Intent to Deny (NOID) if the evidence submitted for a case was lacking or fell short of the applicable standard of proof. If a case receives a RFE or NOID, the petitioner is then able to submit additional evidence as requested by the adjudicator.

However, in July of this year, the USCIS announced new guidance regarding the issuing of RFEs and NOIDs. The new guidance rescinds the previous policy and grants adjudicators more discretion in denying a case outright without first issuing a RFE or NOID. This is problematic because if a case is denied and the petitioner is not given the opportunity to provide additional evidence related to their case, they may have to take extra time to resubmit their case entirely, including paying the filing fee for a second time.

This new policy goes into effect on September 11, 2018, and the USCIS has stated that all cases filed on September 12, 2018 or later will be subject to the new guidelines. However, if a case was filed prior to this date, it will still be adjudicated under the previous standards related to issuing a RFE or NOID.

However, in a teleconference last week, the Ombudsman’s Office of the USCIS stated that the goal of this new policy is not to punish innocent mistakes or misunderstandings, such as forgetting to submit a document, but rather to reduce frivolous filings, placeholder filings, and incomplete filings. The USCIS has stated that it intends to publish checklists of required initial evidence for various affected petition types on their website on September 11. Ostensibly, if all of the required initial evidence is submitted at the time of filing, the adjudicator should not issue an outright denial without first issuing a RFE or NOID. Given the above, we don't have too much fear about the new policy given the expected explicit details of what is "required" to make a prima facia showing here. In short, we don't believe this new policy will alter much in terms of practice for the vast majority of clients.

USCIS Amends Previous Position and Now Allows F-1 STEM OPT Employees to Work at Third-Party Sites

Several months ago, the USCIS revised its website to state that F-1 STEM (science, technology, engineering, and mathematics) graduates on an OPT (optional practical training) extension were no longer able to work at third-party sites. Specifically, the USCIS expressed concern that an F-1 STEM OPT employee should not receive training experience at any third-party site, such as at the location of one of the employer’s clients, since U.S. Immigration and Customs Enforcement (ICE) would be unable to visit such a site to ensure that all training obligations were being met.

The STEM OPT extension allows graduates with STEM degrees to work in the U.S. for up to three years after they graduate as long as they meet training requirements, including the development and submission of a Training Plan along with a confirmation from the employer that a valid “employer-employee” relationship exists between themselves and the STEM OPT employee. Therefore, a STEM OPT employee should be able to work at a third-party site as long as these restrictions were met. However, the revision to the USCIS website implies that even if a valid employer-employee relationship does exist for an employee working at a third-party site, this type of arrangement is prohibited due to ICE’s inability to visit the site in order to confirm that the employer is meeting the necessary requirements. Ultimately, this rule change would limit the ability of F-1 STEM OPT workers to receive valuable professional training.

As this revision was unannounced, this change created a great deal of confusion for both employers and employees who were impacted. In order to address this concern, the American Immigration Lawyers Association (AILA) contacted the Department of Homeland Security to receive clarification about this change. On August 17, the USCIS responded, amending its previous position. The USCIS has now confirmed that third-party placements for F-1 STEM OPT employees are allowed as long as the training requirements are met and as long as a bona fide employer-employee relationship is maintained.

Increase in I-907 Premium Processing Fee from $1225 to $1410

Multiple outlets are reporting that the Department of Homeland Security will publish a notice tomorrow announcing the increase in the I-907 premium processing fee from $1225 to $1410. The I-907 premium processing option allows for petitioners to request a faster processing time of 15 days for certain I-129 and I-140 petitions. This fee increase is expected to be effective on September 30, 2018.

For more information, please refer to the following notice from the DHS: https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-19108.pdf

USCIS plan to rescind work authorization for H-4 spouses

In 2015, the Obama administration granted work authorization to H-4 visa holders whose spouses are in line to obtain their green cards. To date, over 100,000 work permits have been approved for H-4 visa holders since 2015. The majority of these work permits are held by educated Indian women whose husbands are working in the United States on H-1B visas.

However, in December of 2017, President Trump signed the “Buy American and Hire American” executive order. In light of this executive order, the Department of Homeland Security announced a plan to issue a new proposed rule in June of 2018 to rescind the ability of these H-4 holders to obtain work authorization on the premise that these H-4 work authorizations deprive American workers of jobs. Since that time, the publication of the new rule has been postponed twice. The USCIS has explained that it still intends to proceed with the rescission of work authorization for these H-4 visa holders but that it is currently focused on solving other issues.

After the DHS does propose a new rule regarding work authorization for eligible H-4 visa holders, there will be a 60-day public comment period during which time members of the public are able to submit their comments regarding the new rule. In addition, it is possible that any new rule on this topic issued by the Trump administration may face a court challenge from a district court issuing an injunction to stop the implementation of the new rule.

Currently, the rule allowing work authorization for eligible H-4 visa holders remains unchanged. As such, these H-4 spouses are still able to apply for and renew these work authorizations. Nevertheless, the USCIS has confirmed its intent to eventually propose a new rule regarding this topic, and as such any eligible H-4 visa holders should consider alternatives in the event that a new rule may prevent them from working in the future.

EB-2 and EB-2/NIW Retrogression Imminent Worldwide

Breaking news: The Department of State has recently noted just minutes ago that the 2nd preference category for employment-based petitions will retrogress at the end of the month of August. This means that anyone wishing to adjust their status for the remainder of the fiscal year must file their I-485 before this time.

Furthermore, it seems that the EB1 category will now NOT return to current on October 1st, 2018 but rather remain retrogressed worldwide until December 2018 at the earliest.

We will keep you posted about further developments.