Monique Kornfeld, Immagration Lawyer

USCIS Announces Adjustment of Status Filing Dates for September 2019

August 23rd, 2019

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for September 2019. Applicants in the F-2A category of family-based cases (spouses and children under 21 of legal permanent residents)  may use the “Final Action Dates” chart for August 2019.  For all other family-based cases (beneficiaries of the approved Form I-130 immigrant visa petition) should refer to the “Dates for Filing” chart in the Department of State Visa Bulletin for September 2019.  Employment-based preference filings must us the “Final Action Dates” chart for September 2019.

However, the EB-3 category has become unavailable across all categories through the end of this fiscal year (September 30, 2019).

The following information is the for the “Final Action Dates” chart for the other employment-based visas. The EB-1 category remains backlogged and is at October 1, 2017, for the worldwide category, January 1, 2014, for China and unavailable for India. The EB-2 worldwide category has regressed to January 1, 2018, for China is at January 1, 2017, and for India at May 8, 2009.

Applicants for adjustment of status and immigrant visas who have a priority date earlier than the date in the July Visa Bulletin chart for their category may either file their case (as with the family-based cases using the filing dates chart (except for F-2A) or have their cases approved (as with the employment-based cases that are assigned the final action dates chart).

In Defense of Pluralism and How to Fight Hate

August 7th, 2019

In the wake of another terrorist attack, I highly recommend David Brooks’ editorial “The Ideology of Hate and How to Fight It” in August 7th’s NY Times. It is one of the best explanations of the strength of pluralism and inspires me to continue to promote diversity through my immigration law practice.  He writes:

 

We pluralists do not believe that human beings can be reduced to a single racial label. Each person is a symphony of identities. Our lives are rich because each of us contains multitudes.

Pluralists believe in integration, not separation. We treasure precisely the integration that sends the antipluralists into panic fits. A half century ago, few marriages crossed a color line. Now, 17 percent of American marriages are interracial.

Pluralists are always expanding the definition of “us,” not constricting it. Eighty years ago, Protestants, Catholics and Jews did not get along, so a new category was created, Judeo-Christian, which brought formerly feuding people into a new “us.” Thirty years ago, rivalries were developing between blacks and Hispanics, and so the category “people of color” was used to create a wider “us.”

Pluralists believe that culture mixing has always been and should be the human condition. All cultures define and renew themselves through encounter. A pure culture is a dead culture while an amalgam culture is a creative culture. The very civilization the white separatists seek to preserve was itself a product of earlier immigration waves.

Finally, pluralism is the adventure of life. Pluralism is not just having diverse people coexist in one place. It’s going out and getting into each other’s lives. It’s a constant dialogue that has no end because there is no single answer to how we should live.

Life in a pluralistic society is an ever-moving spiral. There are the enemies of pluralism ripping it apart and the weavers of community binding it together. There is no resting spot. It’s change, fluidity and movement all the way down.

The terrorists dream of a pure, static world. But the only thing that’s static is death, which is why they are so pathologically drawn to death. Pluralism is about movement, interdependence and life. The struggle ahead is about competing values as much as it is about controlling guns and healing damaged psyches. Pluralism thrives when we name what the terrorists hate about us, and live it out.

USCIS Announces Adjustment of Status Filing Dates for July 2019

June 28th, 2019

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for July 2019. Applicants in the F-2A category of family-based cases (spouses and children under 21 of legal permanent residents)  may use the “Final Action Dates” chart.  For all other family-based cases (beneficiaries of the approved Form I-130 immigrant visa petition) should refer to the “Dates for Filing” chart in the Department of State Visa Bulletin for February 2019.  Employment-based preference filings must us the “Final Action Dates” chart.

The following information is the for the “Final Action Dates” chart for employment-based visas. The EB-1 category remains backlogged and is at April 22, 2018, for the worldwide category and May 8, 2017, for China and January 1, 2015, for India. The EB-2 worldwide category is current and China has a priority date of November 1, 2016, and India’s is at April 24, 2009. The EB-3 worldwide category is current and is backlogged at January 1, 2016, for China and July 1, 2009, for India.

Applicants for adjustment of status and immigrant visas who have a priority date earlier than the date in the July Visa Bulletin chart for their category may either file their case (as with the family-based cases using the filing dates chart (except for F-2A) or have their cases approved (as with the employment-based cases that are assigned the final action dates chart).

July 2019 Visa Bulletin Immigrant Visa Number Predictions for Green Card Status

June 24th, 2019

On June 21, 2019, Department of State’s Charlie Oppenheim provided predictions for movements of immigrant visa numbers, which were published in the July 2019 Visa Bulletin.  The following are the projections for the family-based and employment-based preference filings.

Family-Based Worldwide Categories:

The F-2A category advanced to “current” across the board in the July 2019 Visa Bulletin.  However, although the Final Action Date for this category is current, the Date for Filing is March 8, 2019.  This was done to prevent a deluge of consular filings in this category.  The “current” status of the F-2A category is not expected to have any impact on the number usage for fiscal year 2019 (this year).

Employment-Based Preference Categories:

Employment First (EB-1):
The Final Action Date for EB-1 Worldwide remains at April 22, 2018.  The DOS predicts that this category will retrogress as early as August 2019.  However, if the demand rate allows, the goals is the Final Action Date will return to April 22, 2018, in October 2019.

The Final Action Date for EB-1 India remains at January 1, 2015.  No forward movement is anticipated for fiscal year 2019.  The goal is to return to a Final Action Date of February 22, 2017, in October 2019.

The Final Action Date for EB-1 China will advance approximately two months to May 8, 2017, in July 2019.

It is anticipated that the Final Action Dates for EB-1 China and India will continue to lag behind that for the EB-1 Worldwide category.

Employment Second (EB-2):
The EB-2 Worldwide category’s Final Action Date will most likely backlog as early as August 2019 and it is unknown how much it will regress.  The goal is return the Final Actin Date to current in October 2019.
For July 2019, the Final Action Date for EB-2 China advanced to November 1, 2016.  China’s Final Action Date may mirror the Worldwide category’s date if corrective action is required for EB-2 Worldwide in August 2019.

For EB-2 India in July 2019, the Final Action Date advances five days to April 24, 2009, and it should continue to advance of up to one day per week until the limit is reached.

Employment Third (EB-3):
For July 2019, visa numbers for the Worldwide EB-3 category are predicted to regress as early as August 2019.
The EB-3 China category advanced to January 1, 2016 in the July 2019 Visa Bulletin and the EB-3 China Other Workers advanced to November 22, 2007.  The EB-3 category for China will most likely advance several months.
The Final Action Date for EB-3 India remains at July 1, 2009, with little advancement predicted for the near future.
Employment Fourth (EB-4):
For the EB-4 Worldwide category and India for July 2019, visa numbers should remain current, with the exception of El Salvador, Guatemala, Honduras and Mexico, which advance to July 1, 2016.
Employment Fifth (EB-5):
In July 2019, EB-5 India has a Final Action Date of May 1, 2017, and it is anticipated that there will continue to be a Final Action Date moving forward. The EB-5 China Final Action date remains at October 1, 2014, and EB-5 Vietnam’s Final Action Date remains at October 1, 2016. All other countries remain current for this category. In August and September 2019, EB-5 India and EB-5 Vietnam are expected to have the same Final Action Date as EB-5 China.

 

June 2019 Visa Bulletin Issued – No Relief for India

May 15th, 2019

The Department of State (DOS) posted the Visa Bulletin for June 2019, which provides the visa number availability for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. USCIS has not yet announced whether in June 2019 it will accept adjustment of status applications based on the filing dates or the final action dates charts for family-based and employment-based cases, but it expects to release in a few weeks.  Since USCIS has been using the final action dates chart for employment-based cases, I have provided the relevant information for this chart.

For the employment-based final action dates chart, the EB1 worldwide category is at April 22, 2018, and is at February 22, 2017 for China (the same as last month) and at January 1, 2015 for India, actually regressing a couple of years. The EB2 worldwide category remains current and for India is at April 19, 2009, and for China is at August 1, 2016. The EB3 worldwide category remains current and the EB3 category for China is at September 15, 2015, and at July 1, 2009, for India. This is unusual that the EB3 and EB2 dates are the same for India.

Avoiding a Gap in F-1 OPT Employment While H-1B Pending

April 28th, 2019

USCIS is starting to issue H-1B receipts for petitions that won a lottery number.  These receipts will allow those F-1 foreign students working pursuant to their optional practical training (OPT) employment authorization document (EAD) that will expire before October 1, 2019, to extend their EAD until October 1st, unless their petition is denied before then.  This is based on the cap-gap F-1 EAD extension for those students whose H-1B petitions were filed requesting a change of status and before their EADs expired.

For these F-1 foreign students and their employers, it is very important that they try to obtain an H-1B approval by October 1st.  In the slight chance that the petition is not approved by October 1st, and the EAD expires or the F-1 student cannot file for a STEM extension before then, then the gap cap work authorization stops, although the F-1 student may remain in the US while the petition is pending.  The employers must then remove these F-1 students from payroll.   To avoid this gap in the F-1 students’ employment, the employers should seek to convert these cases to premium processing by mid-August by filing the Form I-907.

May 2019 Visa Bulletin and EB-1 Remains Backlogged

April 28th, 2019

The Department of State (DOS) posted the Visa Bulletin for May 2019, which provides the visa number availability for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. USCIS has not announced that in May 2019 it will accept adjustment of status applications based on the filing dates chart for family-based cases and the final action dates chart for employment-based cases.

The following information is the for the final action dates chart. The EB1 worldwide category is at March 1, 2018 and is at February 22, 2017 for China and India. The EB2 worldwide category remains current and for India is at April 16, 2009, and for China is at May 15, 2016. The EB3 worldwide category remains current and the EB3 category for China is at August 22, 2015, and at July 1, 2009, for India. This is unusual that the EB3 date for India is more current than the EB2 date, but it is not recommended that those from India attempt to downgrade their Form I-140 immigrant visa petitions to the EB3 category yet.

The Consequences of International Travel for F-1 Students on OPT with Pending H-1B Cap Cases

February 11th, 2019

Are you an F-1 student on optional practical training (OPT) with the employment authorization document (EAD) who would like to travel abroad during a pending H-1B cap case? Then it is very important that you be aware of how such travel could affect your H-1B petition, since international travel could result in a denial of your change of status request or even cause you to be barred from entering the US until after October 1st.

Under the cap-gap rule, if your H-1B petition is filed before your EAD expires, then your work authorization from your EAD will be automatically extended until October 1, 2019.  You will need to have your international student advisor annotate your Form I-20 to reflect this automatic extension.  If your petition is not approved by October 1, 2019, then your work authorization will terminate, although you will be allowed to remain in the US.  If you do not receive a decision from USCIS by mid-August, then if possible, the case should be converted to premium processing, which requires USCIS to make a decision within 15 days or to request additional evidence.

If you do not plan on traveling outside the US between April and October 2019 before the H-1B petition is approved, then the petitioner can request a change of status to H-1B and you will not need to depart the US to trigger your H-1B status. You should not depart the US while the petition is pending, since it will cause your change of status request to be abandoned, and then you would have to depart and reenter the US after it is approved and before October 1, 2019, to start working in H-1B status.  Also, after the petition is approved, if you depart the US then you must reenter before your EAD expires.  Otherwise, you will be barred from reentering the US until the later of October 1, 2019, or the approval of your petition to work in H-1B status.

Further, if you depart the US while the H-1B petition is pending but reenter before your EAD expires, then you will lose the cap-gap extension of your EAD through October 1st.  You may still be eligible for the 60-day grace period if you have not violated the terms of your status.  You must also depart and reenter the US to trigger H-1B status.

If you would like to travel in and out of the US between April and October 2019 and your EAD will does not expire before the approval of your H-1B petition, then the petitioner should request that approval start upon your entering in H-1B status after October 1st (or later if the petition is approved later).  This will entail obtaining an H-1B visa at a US Consulate abroad (with certain exceptions for Canadian citizens and those taking advantage of automatic revalidation).

If you do not obtain an H-1B receipt notice by the time your EAD expires, and you are still waiting to determine if you won a number pursuant to the lottery, then you should be removed from payroll until you get the receipt number.

Please note that you should also check with your international student officer about obtaining an STEM-based extension of your optional practical training.  You should file for that extension, unless you have already received an H-1B approval.  You can file for the STEM OPT extension while the H-1B is pending.

DHS Publishes H-1B Pre-Registration Rule for the H-B Cap

January 31st, 2019

The Department of Homeland Security (DHS) released a final rule that revises regulations governing the selection of H‑1B petitions filed under the H‑1B cap. This new electronic, pre-registration process will be suspended for the FY2020 H‑1B cap filing season, which is April 1, 2019. The final rule becomes effective on April 1, 2019, but will be applied to next year’s lottery.

This registration process will cover H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). The proposed rule also reverses the current order of selection under the H-1B cap and advanced degree exemption, which will most likely result in H-1B numbers being assigned to more H-1B beneficiaries with a master’s degree or higher.

The H-1B visa is for specialty occupation or professional positions, which are defined as requiring the theoretical and practical application of specialized knowledge that at least a bachelor’s degree normally provides. There are 65,000 visa numbers made available each year, along with an additional 20,000 for those with an advanced degree from a US institution.  Once more petitions are received than there are H-1B visa numbers available, USCIS conducts a random computerized lottery.  In the recent past, USCIS has allowed for filing of H-1B petitions pursuant to the lottery for the first five days after April 1st.

Under the current lottery system, when both the H-1B cap and advanced degree exemption are reached within the first five days, the advanced degree exemption cases are selected prior to the petitions subject to the regular H-1B cap. The proposed rule reverses this selection and counts all petitions towards the anticipated number projected to reach the H-1B cap first.  Once this cap has been reached, then USCIS would select petitions towards the advanced degree exemption.  Such procedure would increase the likelihood that advanced degree exemption petitions are accorded a number.  USCIS has calculated that there would be an approximate 16 percent increase in petitions based on a master’s degree or higher.

 

Resumption of Premium Processing for Fiscal Year 2019 H-1B Cap Cases

January 26th, 2019

USCIS announced that it will resume premium processing on Monday, January 28, 2019, for all FY2019 H‑1B cap petitions, including those filed under the master’s cap. However, the temporary suspension of premium processing remains in effect for all other categories of H‑1B petitions to which it applied.

Pending H-1B cap cases, especially those with outstanding requests for evidence, may now be converted to premium processing by filing Form I-907 with the filing fee of $1,410.