October 2017 Visa Bulletin Predictions

September 26th, 2017

The October 2017 Visa Bulletin issued by the US Department of State (DOS) contains predictions on the future movement of visa number availability for the upcoming fiscal year. A foreign national may not file for, or have an application for legal permanent residency or an immigrant visa approved (if pending) until a visa number is available.

Employment-Based Preference Categories:

EB-1 China and EB-1 India: In October 2017, these categories will once again become current and they are expected to remain current for the foreseeable future. The EB-1 category includes the EB-1B outstanding researcher/professor and the EB-1A extraordinary ability aliens.

EB-2 Worldwide: This category will become current again on October 1st and should remain current for the foreseeable future.

EB-2 India: In October 2017, the final action date will be September 15, 2008, and is expected to advanced of up to one month at a time. Upgrades from EB-3 to EB-2 continue to impact the advance of the EB-2 category.

EB-3 India: In October 2017, the final action date will remain at October 15, 2006, and should remain there, although there is some possible advance in December.

EB-2 China and EB-3 China: EB-3 China will for October will have a final action date of January 1, 2014, which is ahead of EB-2 China’s final action date of May 22, 2013.

EB-3 Worldwide: In October 2017, the final action date will remain current and is expected to remain current for the foreseeable future.

EB-3 Philippines: In October 2017, the final action date will advance one month to December 1, 2015, and may advance up to two months at a time as we enter the new fiscal year.

President Trumps New Order on Travel Restrictions

September 26th, 2017

President Trump has issued a new order imposing severe restrictions on travelers from eight countries to the US, ranging from a total ban to more targeted limits. The new rules, which will affect the citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, will go into effect on October 18, 2017, and be indefinite.

The new set of restrictions replaces the contentious travel ban that President Trump issued in March, parts of which were blocked in court and which expired Sunday, September 24th. The Supreme Court may determine that it will not hear arguments, otherwise scheduled for October 10th , on whether the earlier travel ban violated the Constitution.

The US government will not revoke any existing visas and people currently allowed to travel to the US will not be affected. Also, the restrictions will not apply to US legal permanent residents or dual nationals who hold a passport from a nonrestricted country.

The restrictions will vary from country to country with foreign nationals from Syria and North Korea facing al almost complete travel ban. Iranians would be allowed to enter the US as students, which Chad, Libya, Somalia and Yemen would not be allowed to do. Also, Venezuelan government officials and their family would be virtually banned from the US. Iraqis would not be subject to the ban but would face additional scrutiny to determine whether they are a risk to national security or public safety.

USCIS Adjustment of Status Visa Bulletin Filing Dates for October 2017

September 20th, 2017

USCIS has announced that for October 2017, the priority dates from the Filing chart must be used for family-based preference filings and the priority dates from the Final Action Dates chart must be used for employment-based preference filings.

USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas

September 18th, 2017

On September 18, 2017, USCIS reinstated premium processing for all H-B petitions subject to the fiscal year 2018 cap, including the 20,000 additional petitions for foreign workers with a US master’s degree or higher educational degree. Previously, USCIS had resumed the premium processing of H-1B petitions filed on behalf of physicians under the Conrad 30 program as well as interested government agency waivers and certain other H-1Bs that are not subject to the cap.

Premium processing remains suspended for all other H-1B petition, such as extensions of stay and changes of employer. Beneficiaries of pending H-1B extension petitions are granted up to 240 days of employment authorization past the end date on their current/prior petition. Once this period expires, they may remain in the US but they cannot work. Beneficiaries of H-1B petitions to change employers may start working for the new employer once its H-1B petition is filed (portability).

October 2017 Visa Bulletin: EB2 Worldwide Category Current

September 14th, 2017

The U.S. Department of State (DOS) released the October 2017 Visa Bulletin showing that the employment-based second preference EB2 worldwide category is now current. This category regressed under the August 2017 Visa Bulletin. Under the Final Action Dates chart, EB2 category for India is at September 15, 2008, and for China May 22, 2013. The EB1 category also became current again for those chargeable to India and China and the EB1 worldwide category remains current. The EB3 worldwide category remains current and the EB3 category for China is at January 1, 2014, and at October 15, 2006, for India.

USCIS has not yet announced whether the Final Actions Dates chart or the Filing Date chart will govern when foreign nationals can apply to adjust their status. Recently, USCIS has allowed foreign nationals to use the Final Action Dates chart and those who have had a priority date earlier than the date in the ‘Final Action Dates for Employment-based Preference Cases’ chart may file their Forms I-485. Applicants for immigrant visas may use the ‘Dates for Filing of Employment-based Visa Applications’ chart.

Supreme Court Stays Court’s Mandate Preventing Exclusion of Refugees Under Trump Travel Ban

September 14th, 2017

The Supreme Court issued an order staying the Ninth Circuit’s mandate with respect to refugees covered by a formal assurance. (Trump v. Hawaii, 9/12/17). On September 7, 2017, the Ninth Circuit Court of Appeals affirmed the district court’s July 13, 2017, order modifying its preliminary injunction against Sections 2 and 6 of Executive Order 13780 to prevent the government from applying the executive order to exclude:
• Grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and
• Refugees who have a formal assurance from a resettlement agency in the United States or who are part of the Lautenberg Program.

Parent Company Not Part of H-1B ACWIA Filing Fee Determination

September 11th, 2017

The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) created a filing fee that certain petitioners must pay when filing an H-1B petition with US Citizenship and Immigration Services (USCIS). This fee is $1,500 for each such petition, except that the fee is half the amount where the petitioner has no more than 25 full-time equivalent (FTE) employees who are employed in the US (determined by including any affiliate or subsidiary of such employer). The terms “affiliate” and “subsidiary” were not defined at the time of ACWIA’s passage. In a policy memo dated August 9, 2017 (“Definition of “Affiliate” or Subsidiary” for Purposes of Determining the H-1B ACWIA Fee) USCIS provides definitions “affiliate” and “subsidiary”to determine the appropriate ACWIA fee.
What is most notable about this formula is that USCIS is no longer considering the FTE employees of the parent company when determining the amount of the ACWIA fee. The policy memo states:

“When determining the appropriate amount of the ACWIA fee, officers should count FTE employees of the petitioning employer and the petitioning employer’s affiliates and subsidiaries, . . . . Officers should not include FTEs employees from the petitioning employer’s parent company or the parent(s) of any affiliates. In other words, officers should count down and horizontally, including the petitioning employer’s other affiliates and subsidiaries, but not up toward its parent or its affiliates’ parent(s).”

DACA Rescinded as of March 5, 2017

September 5th, 2017

The Trump administration has terminated Deferred Action for Childhood Arrivals (DACA) as of March 5, 2017. It will reject all new applications for DACA status as of today but will process applications that have been filed as of today (the date of the official USCIS memo).

USCIS’s official “Memorandum on Rescission of Deferred Action for Childhood Arrivals” dated March 5, 2017, states that effective as of today, USCIS will do the following:

•Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
•Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
•Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
•Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
•Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
•Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
•Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
•Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.