Travel Ban Explained

On Friday, January 31, 2020, President Trump issued a new set of travel restrictions for nationals of certain foreign countries. This is an expansion of the “travel ban” issued in 2017, as both draw their power from the Immigration and Nationality Act, Section 212(f).
The foreign nationals affected are those from Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria.
This does not affect nationals of those countries if they are already present in the U.S. For example, if you have a Nigerian employee on H-1B, they may remain employed. You are also perfectly fine to start or continue a permanent residency case (PERM, I-140, I-485) via employment-based sponsorship.
Non-immigrant visas, such as H-1b, TN, L-1, O, etc are not impacted.
Students are also unaffected. For example, you may continue to employ a Kyrgyzstani student on Optional Practical Training. Nationals from affected countries are also permitted to extend or change status in the U.S.—they may apply for a STEM OPT extension, and/or you may place them into the H-1B lottery.
The most heavily affected are those candidates who are outside of the United States and going through National Visa Center processing for an immigrant visa. Nationals of those four countries are no longer able to seek immigrant visas through U.S. embassies and consulates abroad, regardless of the location of the post. If you have candidates who are currently part of the offshore immigrant visa process, you need to inform the candidate as soon as you can that their case may continue to be processed, but that their case will be placed into administrative processing or outright denied if this ban remains in effect.
Dual citizens are unaffected so long as they seek an immigrant visa on their non-affected passport.
This set of restrictions will affect your employees’ family members who are not in the United States and seeking to immigrate under the follow to join rules. Permanent resident or U.S. citizen employees who are attempting to bring their family members—spouses, parents, siblings, and the like—are now unable to bring them here on an immigrant visa if the family member is a national of one of those four countries. H-1B or L-1A/L-1B employees may still bring their spouses and Under-21-Children on H-4/L-2 visas.
If you have specific cases, please contact your HLG atty. to discuss.

February Visa Bulletin

The Department of State (DOS) has recently released the February Visa Bulletin and there is very little forward movement in the Final Action Dates chart. Several categories remained the same and India EB2 jumped forward by 1 single day ! As expected, the Dates for Filing Chart stayed the same. The DOS issued a warning indicating that they expect retrogression in the “rest of the World” EB3 category as early as March. The USCIS has announced which 485 applications they will accept in Feb and they are using a combination of the dates for filing and final action charts depending upon your country of chargeability. Check the language carefully to understand how it may impact you.

By |January 23rd, 2020|Green Cards|0 Comments|

January Visa Bulletin

The Department of State (DOS) has released the January 2020 Visa Bulletin and there is a lot of activity. Most notably, in the Dates for Filing chart, EB3 for the Philippines and all other countries retrogressed to Jan 1, 2019. In the Final Action chart, EB1 for the all other countries jumped forward 4 mos. but, all other categories remained essentially the same with forward movement ranging from 3 days to 2 weeks. The USCIS has announced that they will accept I-485 filings in January based upon the Dates for Filing chart. Also, included in the Visa Bulletin were projections for coming months and there was a lot of bad news with the prediction that EB3 for all other countries is expected to retrogress by March and EB2 may retrogress as early as April.

By |December 30th, 2019|Green Cards|0 Comments|

December Visa Bulletin

Recently the Department of State (DOS) released the December Visa Bulletin and it brought no holiday gifts. All of the dates in the “Dates for Filing” chart remained unchanged whereas dates in the “Final Action Dates” chart stayed the same or barely crept forward. For example, of the 4 categories for Indian nationals, the India EB2 category is the only one that moved forward and it moved forward by a whopping 2 days 🙁 On the good news front, the USCIS has announced that it will accept I-485 filings in Dec using the “Dates for Filing” chart consequently, we are recommending that all persons eligible to file I-485’s in December, do so.

In a sign of dark clouds looming on the horizon, the DOS predicted that retrogression in the “All other countries” categories for EB2 and EB3 is imminent and cut-off dates could occur as soon as January. Typically, this does not occur until near the end of the fiscal year i.e. Aug or Sept. Retrogression remains a major problem for legal immigrants and only a legislative solution can solve the issue. With the current political climate, no relief is expected.

By |December 2nd, 2019|Green Cards|0 Comments|

Premium Filing Fee to Increase

In a move designed to offset the tremendous amount of paper costs associated with issuing 1200 page RFE’s on H-1b cases, the USCIS has announced that they will be raising the premium processing fees on I-129 and I-140 petitions to $1440.00 effective Dec 2nd. With this increased fee, they promise to continue to overlook the evidence presented, bastardize the regulations, ignore decisions from Federal Courts and the AAO; business as usual !

Senate Bill Fails Again but ….

On Thursday, the Senate bill designed to eliminate the per country limits for green card cases failed again. This time, it was blocked by Senator Perdue from Georgia. The current concern centers around the negative impact that the bill would have on the recruitment of international RN’s from the Philippines. It is expected that Senator Perdue and Senator Lee will try and work out a compromise to protect this important industry. Whether or not a compromise can be achieved is unknown at this time but, it is believed by many to be closer to passage than it has in the past. More insight onto the current state of this bill can be found at the WSJ.  If you would like to follow the bill using the official Congressional web-site, you can access that here.

October Visa Bulletin

The Department of State (DOS) has released the October Visa Bulletin  This is the first bulletin of the new fiscal year and is eagerly anticipated to see how far dates will advance forward. Unfortunately, this bulletin disappointed as dates did not even return to dates available in July. In addition, the DOS made predictions for the coming months and indicated slow movement  for many of the retrogressed categories. On the positive side, EB1 is current for all practical purposes for All Other Countries and EB2 and EB3 are both current and expected to remain that way.  The USCIS announced that it would honor the Date for Filing chart for the purposes of filing I-485 cases in October which is good news for many.

By |September 21st, 2019|Green Cards|0 Comments|

August Visa Bulletin

With the release of the August Visa Bulletin, the Department of State (DOS) forced everyone not born in India, China or the Philippines to learn the term retrogression as the final action dates for all categories for all countries retrogressed to dates ranging from Jan 2006 to Jan 2017. This “end of the year” phenomenon is created by the usage by the USCIS (I-485 cases) and the Consular posts (CP cases) of the allotted number of immigrant visas for a fiscal year. In other words, approvals of green cards exhausts the allotment thereby creating retrogression; so in effect, this is a good thing. Many years ago, all allotted immigrant visas were not utilized thereby wasting them as there is no carry-over so even though this recent retrogression may appear to be a bad thing, it is better than the alternative. The DOS expects priority dates to return to July 2019 dates when the new fiscal year starts on October 1, 2019.

BALCA Clarifies How Employers May Use One Advertisement to Support Multiple Labor Certification Applications

In a recent case, the Board of Alien Labor Certification Appeals (“BALCA”) revealed the potential problems of using one advertisement to support multiple applications and how employers may avoid these potential issues. In Capgemini America Inc., 2013-PER-02219 (May 29, 2019) the employer submitted an Application for Permanent Employment Certification (“Form 9098”) for the position of “Computer Systems Analyst.” The employer’s recruitment materials for this application all advertised multiple “IT openings” and listed numerous job requirements, some of which were not listed on the Form 9098. BALCA affirmed the Certifying Officer’s denial, explaining what while employers may use a single advertisement to support multiple applications, the advertisement must make clear if some of the listed job duties apply to only certain positions. Since the advertisements in question did not clarify which of the listed job duties applied to only some positions, the advertisements failed to apprise U.S. workers of the job offered.

This case is thus a reminder that when using a single advertisement to support multiple applications with divergent job duties, employers must carefully draft their advertisements to specific when some of the listed job duties do not apply to all of the job openings.

Fairness for High Skilled immigrants Act of 2019 up for Vote

The House is expected to vote tomorrow on the Fairness for High Skilled Immigrants Act of 2019. This bill would remove the per country limits from the green card quotas thereby significantly reducing the wait times for those from India and China. The flip side is that it would lengthen the wait time for everyone else without further amendments. The House version has 311 co-sponsors and is expected to pass in spite of strong and vocal opposition from the Stephen Milleresque Republicans (aka white nationalists and anti legal immigration camp)Check out but one example of the right wing propaganda being raised in opposition to the bill here. A somewhat more balanced perspective (in spite of its tendencies) can be found here. The White House has not expressed an opinion on this particular bill however, the current immigrant visa system is not consistent with the plan President Trump had his son in law (fresh off of bringing peace to the middle east) unveil to the sound of crickets a few months ago. The Senate version of the bill failed to move forward last week halted by Senator Rand Paul however, his opposition was not to the principles of the bill but to the reality that it would destroy immigration for Registered Nurses. If this bill passes the House, it is expected to be revived in the Senate. Its passage remains murky but, at least the issue is being considered.