Tag: Immigration

On January 25, 2019, President Trump signed a stopgap spending bill to re-open the U.S. government. Federal agencies affected by the 35-day shutdown have resumed operations and will be funded until February 15, 2019.

E-Verify also resumed operations, and the Department of Homeland Security provided instructions for participating employers to ensure compliance:

• Employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available.
• Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.

For additional details regarding E-Verify compliance during the shutdown, please visit the E-Verify site.

The situation posed by the federal government shutdown remains fluid. If another shutdown occurs on or after February 15, 2019, there may be further impact on immigration-related services such as E-Verify. For further information on the U.S. government agencies and services likely to be impacted if there is another shutdown, please see Immigration Alert: Potential Government Shutdown and Immigration Impact.

Gibney will be closely monitoring the situation and provide updates as necessary. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

Effective January 28, 2019, USCIS is resuming premium processing for all fiscal year (FY) 2019 H-1B cap petitions. Petitioners may now interfile requests for premium processing of H-1B cap petitions that were filed in April 2018 and are still pending.  Petitioners who have received Requests for Evidence (RFEs) on FY 2019 H-1B cap petitions may also submit premium processing requests when filing RFE responses.  A request for premium processing service must be made on Form I-907 and must be accompanied by the $1,410 filing fee.  USCIS then guarantees a 15-day processing time for the petition. If USCIS does not take certain adjudicative action within the 15 calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition.

Premium processing remains suspended for H-1B petitions requesting new employment, amendments to existing employment, or changes of employer. This suspension is projected to remain in effect until February 19, 2019. Petitioners who are filing H-1B extension of status petitions with no material change to the job, as well as certain cap-exempt employers, may continue to request premium processing service.

Gibney is actively monitoring developments and we will provide an update when premium processing for additional H-1B petitions is reinstated.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

The U.S. Department of State (DOS) recently released the January 2019 Visa Bulletin. The employment-based first preference (EB-1) category, reserved for multinational executives and managers, individuals of extraordinary ability, and outstanding researchers, remains backlogged for all countries.

Background: What is Immigrant Visa Retrogression?

Each year, by law, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The EB preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable EB preference category and specific country of birth.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on his/her priority date.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, his/her priority date must be available or “current” on the monthly DOS Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable EB preference category and country of birth.

Historically visa retrogression has been severe for foreign nationals born in China and India, particularly in the EB-2 and EB-3 preference categories and the result has been a multi-year wait to file green card applications.  More recently, retrogression has impacted foreign nationals from every country who fall within the EB-1 category.  While the EB-1 category has experienced retrogression for short periods in the past, it has not been prolonged, and typically has only occurred at the end of the fiscal year, as the supply of immigrant visas for that year was depleted.

What is the EB-1 Retrogression Forecast and What Does it Mean for Foreign Nationals?

• Over the next 8 to 12 months, the cut-off date for the EB-1 category is projected to advance to October 1, 2017 for Indian and Chinese nationals, and to June 1, 2018 for all other nationalities (EB-1 Worldwide). While priority cut-off dates are expected to advance, EB-1 Worldwide will likely remain backlogged for the duration of the fiscal year (through September 30, 2019).  Such a prolonged EB-1 backlog is unusual, and may result in multinational managers and executives, individuals of extraordinary ability, and outstanding researchers waiting for lengthy periods before they may file green card applications.
• Foreign nationals who hold L-1 Intracompany Transferee nonimmigrant visa status could reach their visa maximum stay limit before they are eligible to apply for a green card, potentially resulting in interrupted U.S. work authorization and the need to depart the U.S. at the conclusion of their authorized temporary period of stay.
• Lengthy employment-based visa retrogression also denies sponsored foreign nationals and their dependent family members access to ancillary benefits that stem from the filing of an I-485, Adjustment of Status (green card) application. These benefits include eligibility for temporary international travel authorization, unrestricted U.S. work authorization for dependents, and the flexibility for the principal applicant to change jobs and employment locations once the I-485 application is pending for at least 180 days.
• The inability to apply for a green card may also result in the principal applicant’s dependent children (under age 21 and unmarried) “aging out” (i.e., turning 21). When a dependent child turns 21, he/she loses eligibility for dependent nonimmigrant visa status (such as L-2 and H-4 status), and may also lose eligibility to apply for a green card as the dependent of the principal applicant when an immigrant visa number finally becomes available.

Possible Alternative Strategies for Employers and Foreign National Employees

• Immigrant Visa Strategies: Immigrant visas in the EB-2 category are available for nationals of countries other than India and China and in the EB-3 category for nationals of countries other than India, China, and the Philippines. Employers may consider sponsoring EB-2 advanced degree professional or National Interest Waivers petitions or EB-3 professional or skilled worker petitions for foreign nationals who otherwise qualify for EB-1.   This option would primarily benefit individuals born in countries other than India and China, as these foreign nationals are experiencing more severe retrogression in the EB-2 and EB-3 categories. EB-2/EB-3 Worldwide availability may be short-lived, however. If sponsorship in these preference categories continues to increase, EB-2/EB-3 Worldwide is likely to experience visa retrogression as well.
• H-1B Nonimmigrant Visa: To maintain uninterrupted temporary work authorization while waiting for green card issuance, employers may wish to explore changing L-1 nonimmigrant visa holders to H-1B status, where appropriate. The American Competitiveness in the 21^st Century Act (AC21) permits certain H-1B visa holders to continue to extend their nonimmigrant visa status beyond their visa maximum stay date while subject to visa retrogression and waiting for green card issuance.  In contrast, L-1 visa holders are not protected by AC21 and are not permitted to extend their nonimmigrant visa status past the maximum stay date. As a result, foreign national employees in L-1 status reaching their nonimmigrant visa maximum stay date could be required to depart the U.S. if they are subject to visa retrogression and unable to apply for their green card prior to their visa maximum stay date. Changing to H-1B status may allow the sponsored foreign national employee to take advantage of AC21 protection and continue to work in the U.S. without interruption until a green card can be issued.
• Other Nonimmigrant Visa Options: Employers may wish to consider whether L-1 visa holders might also qualify for another nonimmigrant visa classification, such as H-1B1 Specialty Occupation status (for Chilean and Singaporean professionals), O-1 extraordinary ability status, TN status (for Mexican and Canadian professionals), E-2 Treaty Trader/Investor status, or E-3 Specialty Occupation Status (for Australian professionals), as these categories do not have fixed visa maximum stay dates.   However, it should be noted that these strategies may have potential drawbacks that should be considered in the context of the particular facts and circumstances of each case.
• Overseas Assignments: Employers may wish to consider arranging temporary overseas assignments for employees, as time spent working for an employer outside of the U.S. does not count toward the L-1 visa maximum stay date. In addition, the permanent residence process can be pursued while a foreign national employee is situated outside the U.S.

Looking Ahead

Under the current Administration, it is unlikely that Congress will act to increase the statutory limit of 140,000 employment-based immigrant visas that may be issued each year. Therefore, it is expected that visa retrogression will continue to complicate both nonimmigrant and immigrant visa strategies and workforce planning for employers for the foreseeable future.  We encourage employers to work with their designated Gibney representative to troubleshoot and explore the full range of immigrant and nonimmigrant visa options in an effort to avoid interruptions in U.S. work authorization for valued foreign national employees.

For more information on immigrant visa availability, priority dates, and retrogression, please visit the USCIS website here.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

Congressional budget negotiations for FY 2020 continue, and the White House is threatening to veto any spending bill that does not fund a border wall. If an agreement to fund various federal agencies is not reached by midnight Friday, December 21, 2018, approximately 25 percent of government functions are expected to shut down. The Department of Homeland Security will be hardest hit, but the impact on immigration benefits is expected to be limited, as follows:

U.S. Citizenship and Immigration Services

Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. In contrast, USCIS E-Verify service is appropriations-funded and would be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.

U.S. Department of Labor

DOL previously received appropriations for FY 2020 and the agency is funded through September 30, 2019. Business should continue as usual, including the processing of Labor Condition Applications (required for H-1B, H-1B1 and E-3 visa applications), Prevailing Wage Requests, and PERM labor certification applications.

U.S. Customs and Border Protection

CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, is expected to continue.

U.S. Department of State

Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.

The situation posed by the federal government shutdown remains fluid. If a shutdown occurs, the impact on immigration related services may change the longer any shutdown persists. Gibney will be closely monitoring the situation and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

The U.S. Court of Appeals for the 9^th Circuit has ruled that the Administration cannot immediately end Deferred Action for Childhood Arrivals, or DACA, the program that shields from deportation young undocumented immigrants who were brought to the country as children.

The decision keeps in place an injunction from the lower court that allows DACA recipients to renew their applications. It also makes it more likely that the U.S. Supreme Court will settle the question. The Trump administration has asked the Supreme Court to add it to the docket for this term, but the Justices have not acted upon the request to date.

DACA is a program that was created in 2012 under the Obama administration and has served to protect nearly 700,000 young immigrants from deportation. In 2017, the Trump administration moved to end the program after several states threatened to sue. A number of courts have since ruled to keep the program in place.