Updated Again: For October 2020 Visa Bulletin USCIS Previously Indicated that it would accept EB AOS Applications based on “Final Action Dates” but now the same website indicates it will accept “Dates for Filing”
DOS has posted the October 2020 visa bulletin. In addition to final action dates and dates for filing for family and employment-based petitions, it contains notes on the DV category, the DV category rank cut-offs which will apply in November, movement of the October final action and application filing dates, visa availability in the coming months, and the scheduled expiration of two employment categories, including the employment fourth preference certain religious workers (SR) and employment fifth preference categories (I5 and R5). The FY2021 annual limit for employment-based visas is approximately 261,500.
For EB India in particular, the October 2020 visa bulletin notes the following advancements:
Final Action Dates:
EB1 India: June 1, 2018
EB2 India: September 1, 2009
EB3 India: January 15, 2010
EB1 India: September 1, 2020
EB2 India: May 15, 2011
EB3 India: January 1, 2015
Update: Late afternoon on 09/24/2020, USCIS indicated that it will accept adjustment of status applications for employment-based petitions based on the Final Action dates, but around 3:13pm CST the same webpage appears to have been updated to now indicate that “Dates for Filing” are to be used.
At present, this material change remains unexplained and is generating significant confusion. It goes without saying that the delivery of accurate and consistent information by USCIS is extremely critical, particularly in this case, where “Dates for Filing” = 5+ years less wait time for EB3 India.
Reminder: Effective today, March 20, 2020, USCIS will not accept any new requests for Premium Processing
U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.
USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
This temporary suspension includes petitions filed for the following categories:
- I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
- I-140: EB-1, EB-2 and EB-3.
This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.
Ashwin Sharma quoted in the Times of India’s Article on S.386 & the New Grassley Amendment, Implications on the Fairness For High Skilled Immigrants Act
“Over the last decade, various bills to remove this per country cap, have failed to become law. S. 386 has been rescued from the fate of its predecessors through appeasement, specifically, by agreeing to amendments that would allow further restrictions on merit-based non-immigrant visas, particularly with regards to the H-1B programme. However, it is interesting to note that many of these so-called ‘new’ restrictions already exist in one form or another,” Florida based immigration attorney, Ashwin Sharma, told TOI.
For instance, even currently, H-1B sponsoring employers have to certify + that they are not favouring immigrant workers over American workers. They have to indicate how they calculated the prevailing wages they are offering to H-1B workers (but these records are to be made available only on specific request of the concerned authorities), explained Sharma.”
EB-1. For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017.
EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year.
EB-2 China and EB-3 China. While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015. It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand. If there are not as many downgrades, EB-3 China could advance more rapidly than expected.
EB-2 India and EB-3 India. EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009. Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.
EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Only minimal movements expected during the first quarter of the fiscal year.
EB-4. EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October. There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1.
EB-4 India. It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.
EB-5 Non-Regional Center for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.
EB-5 China. Demand remains high, not much movement in this category throughout the fiscal year. EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.
Jonathan Withington, chief of media relations for USCIS indicated to mcclatchydc.com that, “…USCIS is not considering a regulatory change that would force H-1B visaholders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6-year limit…Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”
USCIS Clarifies Definition of “Functional Manager” in EB-1 / L-1A Cases by Designating Matter of G-., Inc as an Adopted Decision
Matter of G-. involved a multinational technology-based product development corporation that had filed an an EB-1 I-140 (Multinational Manager) petition for an employee who would be engaged as a “Functional Manager”, in other words, one who would be primarily managing an essential function as opposed to managing personnel. The employer’s I-140 was denied by the Director of the Nebraska Service Center on the basis that the employer had not established that it would employ the Beneficiary in a managerial capacity.
The employer appealed the decision, indicating that the Director had erroneously misstated facts and abused his discretion in denying the petition. The appeal was sustained by the Administrative Appeals Office (AAO), which held that the employer had indeed sufficiently established that its employee would be engaged a qualifying “managerial capacity” and that he would be primarily managing an “essential function” within the organization.
The AAO’s decision was adopted in a USCIS policy memorandum and will be used to clarify the somewhat imprecise definition of a “Functional Manager” in EB-1 cases (and likely L-1A as well). In summary, the decision indicates that:
(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.
(2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.
The decision’s clarification ought to be somewhat helpful to employers and beneficiaries, but it is too early to say, given that every change/update to “Merit Based” immigration this year has been substantially negative.
Matter of G- Inc (PDF)
How the Trump Admin’s ‘Merit-Based’ Immigration System actually works: Kill or Handicap the H-1B Visa
Reuters has a great piece on how Trump’s infamous ‘Merit-Based’ Immigration System actually works – issue a record # of queries, delays and denials on US companies’ petitions filed for their professional employees: Doctors, Engineers, IT and others. That these substantial changes impeding and eliminating aspects of the H-1B program have been undertaken without Congressional authorization is apparently of little concern to the Admin.
“Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.”
In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.
Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.
As I’ve stated before: H-1B workers have filled our massive skills gap and created intellectual property, businesses and jobs for America. They are Makers, not Takers. It is therefore particularly disheartening to witness illogical attempts to reject these professionals, especially when other nations are outcompeting the U.S. in eagerly recruiting STEM workers.
As a Country, we need to shake off the illusion that we can “coast” through this increasingly competitive world on the basis of our previous generation’s achievements. The future of our Nation and our Industry lie in our leadership within the STEM sectors. Instead of rejecting or delaying tens of thousands of these high-skilled H-1B immigrants every year due to insufficient H-1B Cap numbers, newly created/surprise “Level 1” wage issues, or making these professionals wait up to 12 years for a green card, we should be bending over backwards to facilitate their immigration.
Politico reports that USCIS Plans Adjustment of Status (Green Card) Interview Requirement – Including for All Employment Based Applicants
On August 25, 2017, Politico reported that USCIS is planning a change in policy to require interviews for all employment-based adjustment of status applicants and will be expanding the interview requirement to other categories. On August 28, 2017, the same reporter tweeted what appears to be the first page of a USCIS press release confirming that, effective October 1, interviews will be phased in for all employment-based adjustment applicants and for all I-730 refugee/asylee petitions. The press release also states that this is part of an “incremental expansion of interviews for benefits that lead to permanent residence,” thus signaling that the interview requirement could be expanded to other categories. An August 25 NBC News article provides some additional context as to what the future might hold.
AILA has been in contact with agency officials to verify this information and will continue to reach out to obtain updates. As with other announcements, it appears that this policy originated from high levels within the Administration. At this time it remains unclear how this will be implemented operationally, including resource allocation, timing, and process.
The Washington Post’s David Nakamura provides details on Sens. Tom Cotton (Ark.) and David Perdue (Ga.)’s new bill entitled “Reforming American Immigration for Strong Employment [RAISE] Act”.
In a nutshell, the new bill: a) Focuses on “Merit Based” Green Cards through a Canadian style points system b) Does away with the 50K Diversity Lottery green cards, c) Caps Refugee cases to 50K a year, d) Limits or does away with Family Based Immigration for “Extended Relatives” including adult children and siblings of US Citizens (termed “Chain Migration”), and d) Reduces the total number of Green Card issued annually by about half.
USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
- Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
- Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
- They are the principal beneficiaries of an approved Form I-140 petition,
- An immigrant visa is not authorized for issuance for their priority date, and
- They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
- Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
- Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
- Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
- Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
American Immigration Lawyers Association asks Secretary of State John Kerry and other Officials to restore the dates in the September 9, 2015 Visa Bulletin
Earlier today, the American Immigration Lawyers Association indicated that it had sent a letter to Secretary of State John Kerry, Department of Homeland Security Secretary Jeh Johnson, and Director of the Domestic Policy Council Cecilia Muñoz expressing great disappointment in the September 25, 2015, changes to the October 2015 Visa Bulletin, and asking that the dates published in the September 9, 2015, Visa Bulletin be restored. The revised October 2015 Visa Bulletin rolls back the “Dates for Filing” for several visa categories, and will force many individuals and families to continue to face lengthy wait times before they can submit their applications for permanent residence.
Sudden EB-2 Priority Date Retrogression: Did Donald Trump just get installed as Director of U.S. Citizenship and Immigration Services?
Many Employment Based 2nd Preference (EB-2) Indian applicants were expecting to file their Adjustment of Status (Green Card) applications in five (5) short days. These applicants include Doctors, Veterinarians, Scientists, Information Systems Managers, Senior Software Developers, Lawyers and many other advanced degree professionals, all readying their application in October of 2015 based on next month’s visa bulletin (issued September 9th 2015) which declared that EB-2 India dates were current as of July 2011. While the actual issuance of a green card would still have taken several more years, these applicants would have attained significant benefits while continuing their patient multi-year wait in line. This news was greatly welcomed by EB applicants who felt that this was our Administration’s first real “immigration reform” initiative intended specifically to benefit America’s highly educated immigrants.
However USCIS has taken an about-turn on this point by announcing, in a highly confusing manner, the retrogression of those July 2011 dates, back to July 2009. By way of background, a second visa bulletin announcement in one month is highly unusual, as is for the second announcement to be issued on a Friday, on the 25th of a month, at 4 pm, less than a week from the date the immigrant filings were set to begin. As a direct result, thousands advanced degree professionals, mostly born in India, who have been waiting to file their green cards for 4+ years, will have to keep waiting. This despite the applicants’ reasonable reliance on the Department of State’s Visa Bulletin of September 9th, or the thousands of dollars they each have likely spent in preparing their green card application(s) based on the same.
In this case, USCIS broke a promise to advanced degree immigrants who comprise a large percentage of our best and brightest. USCIS’ actions in this regard are simply unintelligible and amount to exactly what Mahatma Gandhi spoke of when he noted that “a breach of promise is a base surrender of truth“. USCIS’ action also moves us backward to the quota systems which the current immigration law, the Immigration and Nationality Act of 1965, was created to counter.
This is a highly suspect and unwelcome development which brings to mind July 2007, when USCIS attempted something similar. At that time, a lawsuit stopped USCIS from closing the filing window and in fact kept said window remained open for about two months (longer than if USCIS didn’t attempt to shut down filings).
I’m hopeful that history will repeat itself.