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U.S. Citizenship and Immigration Services has announced that in August it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s August Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in August.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the August Visa Bulletin.
BAL Analysis: The announcement will affect all workers in the first preference category, Chinese and Indian born workers in the second preference category, and workers from China, India, and the Philippines in the third preference category. For other workers, the categories are current in both the Final Action and Dates for Filing charts for employment-based second and third preferences.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The Department of Homeland Security has proposed a rule that would significantly increase government immigration-related application fees for international students, exchange visitors and sponsoring schools.
Summary of proposed fee changes:
BAL Analysis: Schools and international students should budget for the fee increases. The proposed rule has been published in the Federal Register, and DHS will be accepting public comments until Sept. 17. Schools and individuals are encouraged to participate in the comment period and may contact their BAL attorney for additional information on submitting comments.
U.S. Citizenship and Immigration Services (USCIS) has published new policy guidance that will provide agency adjudicators with more discretion to deny applications, petitions or requests without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
Key points:
Background: The current policy was established in a 2013 memorandum that directed adjudicators to request additional evidence unless there is no way that additional evidence could fix a defective application or petition. In practice, this guidance has limited adjudicators’ ability to deny applications without first issuing an RFE or NOID except in cases called “statutory denials,” e.g., cases where an applicant applies for a benefit that is no longer offered or does not have the family relationship necessary to support a family-based application.
Under the new guidance, adjudicators will continue issuing statutory denials without requesting additional evidence, but will also be granted leeway to reject applications that could be cured by additional evidence but where the applicant has not provided the initial evidence necessary to establish eligibility. USCIS said the new policy was designed to discourage “frivolous or substantially incomplete filings,” (“placeholder filings”) but is not intended to punish “innocent mistakes or misunderstandings of evidentiary requirements.”
BAL Analysis: Applicants and petitioners are encouraged to work closely with their BAL professional to ensure that they provide all required supporting evidence at the time of their submission. This policy guidance will apply to applications, petitions and requests received after Sept. 11. BAL will monitor the implementation of the new guidance and will provide clients with additional information as it becomes available.
Cutoff priority dates will be imposed in the EB-1 categories for El Salvador, Guatemala and Honduras, Mexico, the Philippines and All Other Chargeability Areas, according to the State Department’s August Visa Bulletin. China EB-3 will advance significantly, while China EB-2, India EB-3 and Philippines EB-3 will advance more modestly.
Key movements:
Additional notes: All EB-2 categories other than those for China and India will remain current. The EB-3 categories for El Salvador, Guatemala and Honduras, Mexico and All Other Chargeability Areas will also remain current.
The imposition of cutoff priority dates in the EB-1 categories listed above, all of which have been current until now, is likely being undertaken to control the number of visas issued between now and the end of the fiscal year Sept. 30. The number of immigrant visas will probably increase again under the 2019 fiscal year’s annual limits.
The State Department also released its Dates for Filing chart for August. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once the State Department confirms whether the chart can be used in August.
U.S. Citizenship and Immigration Services published a Policy Memorandum on June 28 stating that it will commence removal (deportation) proceedings if, upon denial of an application or petition, the beneficiary is unlawfully present in the United States.
The revised policy generally requires USCIS to issue a notice to appear, or NTA, in the following categories of cases in which the individual is removable:
The changes do not stem from a new law or regulation, but represent a shift in USCIS’s enforcement priorities. The memorandum replaced earlier guidance on the removal of foreign nationals and was issued under an Executive Order President Donald Trump signed just days after taking office.
BAL Analysis: The policy memo directs USCIS directorates to develop an implementation plan within 30 days. BAL’s Government Affairs team has been in contact with USCIS and ICE to discuss how the new policy may impact U.S. businesses. BAL will continue to provide updates and engage with the government on the new policy.
A federal judge has stopped the enforcement of key portions of California’s Assembly Bill 450, including provisions of the law that prohibited employers from allowing federal immigration enforcement agents to enter their premises without a judicial warrant.
U.S. District Judge John A. Mendez issued a 60-page ruling Thursday in which he also declined to block enforcement of two other state immigration laws, including California’s “sanctuary state” law, which places limits on how much information state and local law enforcement can share with federal immigration authorities.
The U.S. Justice Department sued to stop California from enforcing the laws in question in March and only prevailed on AB 450. Judge Mendez wrote that a law that penalizes an employer solely because the employer “voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government.”
Key Points:
Background: The Justice Department’s lawsuit is part of a broader effort to prevent state and local authorities from hindering federal immigration enforcement efforts. Thursday’s ruling did not determine whether the laws themselves are legal under federal law and the U.S. Constitution, but rather only whether they should be enforced before the legal questions are settled on their merits. Both the Justice Department and the State of California will have the opportunity, should they so choose, to appeal the portions of Thursday’s ruling that went against them.
BAL Analysis: The ruling prevents California from enforcing key portions of AB 450. Employers should note, however, that AB 450’s notification requirement will remain in effect. Two other high-profile immigration laws will also remain in effect pending the outcome of appeals and additional litigation. BAL will continue following the litigation as it moves through the court system and will alert clients to any significant changes.
The Labor Department has posted processing times current as of June 30 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in March and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in November and earlier, and appeals filed in May and earlier are being reviewed for reconsideration.
Average PERM processing times in June:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in April and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in May and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in May and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in June:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in March and is awaiting PWDs for requests filed in April and earlier.
The Supreme Court upheld President Donald Trump’s travel ban Tuesday, ruling 5-4 that a proclamation Trump issued last September to impose new travel restrictions was constitutional and within the president’s statutory authority.
“The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” Chief Justice John Roberts wrote.
The ban has been enforced since December, following the Court’s decision to allow the administration to implement it while challenges played out in the courts. It applies to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, with restrictions specific to each country. Chad was initially included, but was removed in April.
The latest restrictions were issued in September after two earlier versions of the ban were met with resistance in the courts. The current version was crafted more carefully than earlier versions. Roberts quoted some of the anti-Muslim statements made by the president in his opinion, but upheld the ban saying the proclamation was facially neutral in regard to religion, and was supported by a national security claim that he stated reflects “the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”
Tuesday’s ruling was not a surprise after the justices split on traditional liberal-conservative lines when hearing oral arguments in April. Joining Roberts in the majority were Justices Samuel Alito, Neil Gorsuch, Anthony Kennedy and Clarence Thomas. Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan dissented.
“Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” Sotomayor wrote in a dissenting opinion joined by Justice Ginsburg. “That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”
BAL Analysis: The Court’s ruling means that the existing travel restrictions will remain in effect unless the administration changes or lifts the ban. The Court remanded the case to a federal court in Hawaii for further proceedings consistent with the opinion issued today, which will likely result in the dismissal of the case. BAL will continue to monitor enforcement of the restrictions and will provide updates on any developments. An FAQ outlining the restrictions is available here.
U.S. Citizenship and Immigration Services has announced that in July it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s July Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in July.
Family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the July Visa Bulletin.
BAL Analysis: The announcement will affect Chinese and Indian nationals in the first, second and third preference categories and Philippine nationals in the third preference category. For other nationalities, the categories are current in both the Final Action and Dates for Filing charts for employment-based first, second and third preferences.
Priority cutoff dates will advance in the China EB-2, India EB-2 and India EB-3 categories, but will retrogress significantly in the China EB-3 category, according to the State Department’s July Visa Bulletin. Priority cutoff dates in other key employment-based categories will neither advance nor retrogress.
Additional notes: All EB-1 and EB-2 categories other than those for China and India will remain current. The EB-3 categories for El Salvador, Guatemala and Honduras, Mexico and All Other Chargeability Areas will also remain current. The movement in the July Visa Bulletin comes after priority cutoff dates did not move in almost all categories in the June Visa Bulletin.
The State Department also released its Dates for Filing chart for July. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the next week or so. USCIS has used the Final Action Dates chart in recent months, but could opt to use the Dates for Filing chart. BAL will update clients once the State Department confirms whether the chart can be used in July.