News from the Alliance of Business Immigration Lawyers Vol. 14, No. 9A
1. State Dept. Announces Oversubscription of September Employment-Based Second and Third Preference Categories -The Department of State’s Visa Bulletin for September 2018 announced oversubscription of employment-based visa numbers in several categories.
2. USCIS Extends, Expands Suspension of Premium Processing for Certain H-1B Petitions; Increases Premium Processing Fee -USCIS announced that it is extending the temporary suspension of premium processing for cap-subject H-1B petitions and, beginning September 11, 2018, will expand this temporary suspension to include certain additional H-1B petitions. USCIS said it estimates that these suspensions will last until February 19, 2019. USCIS is also raising the fee for premium processing.
3. USCIS Automatically Extends EAD Validity for Certain Haiti and Yemen TPS Beneficiaries; Reminders Issued for Hondurans, Syrians, Nepalese -USCIS is automatically extending the validity of employment authorization documents for certain temporary protected status beneficiaries from Haiti and Yemen. Reminders were also issued for other countries.
4. USCIS Updates Guidance, Accepts Comments on Regional Center Geographic Area – USCIS is updating guidance and accepting comments regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests affect the filing of Form I-526 petitions.
5. Burbank Man Who Allegedly Led Prescription Drug Ring Arrested on New Charges of Fraudulently Procuring U.S. Citizenship – A Burbank, California, man who operated a string of allegedly sham medical clinics was arrested on new charges that he unlawfully procured U.S. citizenship. The man already faces federal charges of using the clinics to orchestrate a massive narcotics scheme.
6. ABIL Global: Canada – On July 31, 2018, amendments to Canada’s Immigration and Refugee Protection Regulations providing for the expansion of biometric information collection for foreign nationals seeking to enter or remain in Canada entered into force.
7. New Publications and Items of Interest – New Publications and Items of Interest8. Member News -Member News
9. Government Agency Links – Government Agency Links
1. State Dept. Announces Oversubscription of September Employment-Based Second and Third Preference Categories
The Department of State’s Visa Bulletin for the month of September 2018 includes the following excerpted information:
WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: As readers were advised in item F of the July Visa Bulletin, there has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY 2018 annual limits.
The implementation of the above-mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.
Readers were also advised in item F of the July Visa Bulletin that some retrogression might occur prior to the end of the fiscal year. It has been necessary to retrogress the September Final Action Dates for the China Employment-Based Second, and India Employment Second, Third, and Third Other Worker preferences in an effort to hold worldwide number use within the maximum allowed under their FY 2018 annual limits. This will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.
Visa Availability in the Coming Months
EMPLOYMENT-based categories (potential monthly movement)
WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.
Worldwide: Current for the foreseeable future.
China: Slow movement pending receipt of demand from recent advances
India: Up to two weeks
China: Up to three weeks
India: Slow movement pending receipt of demand from recent advances
Employment Fourth: Current for most countries
El Salvador, Guatemala, and Honduras: Little, if any forward movement
Mexico: Up to three months
Employment Fifth: The category will remain “Current” for most countries
China-mainland born: Up to one week
Vietnam: Steady forward movement
The above final action date projections for the [Employment category] indicate what is likely to happen on a monthly basis through January. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.
2. USCIS Extends, Expands Suspension of Premium Processing for Certain H-1B Petitions; Increases Premium Processing Fee
U.S. Citizenship and Immigration Services (USCIS) announced on August 28, 2018, that it is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning September 11, 2018, will expand this temporary suspension to include certain additional H-1B petitions. USCIS said it estimates that these suspensions will last until February 19, 2019, and that it will notify the public via uscis.gov before resuming premium processing for these petitions. The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until September 10, 2018. USCIS also said it is raising the premium processing fee.
Suspension extended, expanded. USCIS said the suspension will help the agency to reduce overall H-1B processing times by allowing it to:
- Process long-pending petitions, which USCIS has been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
- Be responsive to petitions with time-sensitive start dates; and
- Prioritize adjudication of H-1B extension-of-status cases that are nearing the 240-day mark.
According to reports from employers, an increasing number of employees were insisting on premium processing for petitions due to the increase in denials and requests for evidence (RFEs), as well as USCIS’s “no deference” policy, assertion of its ability to deny cases without RFEs, and its recent initiative to start removal proceedings upon denial of nonimmigrant petitions.
While H-1B premium processing is suspended, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I?129 H-1B fees, both forms will be rejected. The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).
USCIS said it will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before September 11, 2018. Therefore, USCIS will refund the premium processing fee if:
- The petitioner filed the Form I-907 for an H-1B petition before September 11, 2018; and
- USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.
The suspension does not apply to:
- Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity, or organization; or
- Petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, question 2, page 2 of the current Form I-129) with a concurrent request to:
- Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, question 4, page 2 of the current Form I-129); or
- Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, question 4, page 2 of the current Form I-129).
This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129, USCIS said.
While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. The petitioner must demonstrate that he or she meets at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite requests.
USCIS said it reviews all expedite requests on a case-by-case basis and that requests are granted “at the discretion of the office leadership.”
Increased fee for premium processing. USCIS announced on August 31, 2018, that it is raising the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, beginning on October 1, 2018. The premium processing fee will increase to $1,410, a 14.9 percent increase from the current fee of $1,225. This increase “represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers,” USCIS said.
Premium processing is an optional service that allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.
USCIS said it intends to hire additional staff and invest in information technology systems with the funds generated by the fee increase.
The related Federal Register final rule
3. USCIS Automatically Extends EAD Validity for Certain Haiti and Yemen TPS Beneficiaries; Reminders Issued for Hondurans, Syrians, Nepalese
U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of employment authorization documents (EADs) for certain temporary protected status (TPS) beneficiaries from Haiti and Yemen.
Haiti. USCIS said EADs issued under Haitian TPS are automatically extended through January 17, 2019, for certain beneficiaries with an EAD based on that TPS status. EADs under Haitian TPS may now be valid through January 17, 2019, if the EAD includes a category code of A12 or C19, the beneficiary has not yet received his or her new EAD, and:
- The EAD expired on January 22, 2018, and the beneficiary applied for a new EAD during the last re-registration period; or
- The EAD expired on July 22, 2017, and the beneficiary applied for a new EAD on or after May 24, 2017.
Affected beneficiaries may continue to use their current EADs as evidence of work authorization through January 17, 2019, USCIS said. Because they have pending EAD applications, USCIS is mailing them an individual Notice of Continued Evidence of Work Authorization that provides additional evidence of this automatic extension to show to employers Those who have not yet received the Notice of Continued Evidence of Work Authorization should contact USCIS at 202-272-8377 or 800-375-5283 (TTY 800-767-1833). USCIS says affected beneficiaries “may provide your employer with this notice until you receive your Notice of Continued Evidence of Work Authorization.” If USCIS approves the TPS re-registration application and the beneficiary applied for a new EAD, he or she should receive a new EAD with the expiration date of July 22, 2019.
Yemen. USCIS also has automatically extended the validity of EADs issued under Yemen TPS with an original expiration date of September 3, 2018, for 180 days, through March 2, 2019. Individuals who have EADs with an expiration date of March 3, 2017, and who applied for a new EAD during the last re-registration period for Yemen but have not yet received their new EADs are covered by this automatic EAD extension. USCIS had recently announced an extension of the designation of Yemen for Temporary Protected Status (TPS) for 18 months, from September 4, 2018, through March 3, 2020.
Those whose EADs are covered by this automatic extension may continue to use their existing EADs through March 2, 2019, as evidence that they are authorized to work. To prove that they are eligible to continue working legally, USCIS said such beneficiaries may show the following documentation to their employers. Government agencies may also accept these documents if they need to determine their immigration status:
- The TPS-related EAD with a September 3, 2018, expiration date; or
- The TPS-related EAD with a March 3, 2017, expiration date and the EAD application receipt (Form I-797C, Notice of Action) that notes the application was received on or after January 4, 2017
Honduras, Syria, Nepal. The Systematic Alien Verification for Entitlements (SAVE) program released the following reminders in its July 2018 newsletter:
- TPS for Honduras will terminate January 5, 2020. EADs are automatically extended through January 1, 2019.
- TPS for Syria is designated through September 30, 2019. EADs are automatically extended through September 27, 2018.
- TPS for Nepal will terminate June 24, 2019. EADs are automatically extended through December 21, 2018.
The USCIS notice about the Haiti EAD extension (scroll down to “Automatic Employment Authorization Document (EAD) Extension”)
The notice of TPS extension for Yemen
A Federal Register notice on the Yemen EAD extension
4. USCIS Updates Guidance, Accepts Comments on Regional Center Geographic Area
U.S. Citizenship and Immigration Services (USCIS) issued a memorandum on August 24, 2018, announcing that it is updating guidance in the USCIS Policy Manual regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests affect the filing of Form I-526, Immigrant Petition by Alien Entrepreneur. USCIS said the updated policy guidance “is controlling and supersedes any prior guidance.”
USCIS said the updated policy guidance:
- Clarifies that USCIS reviews whether an economic methodology is reasonable to demonstrate that a regional center’s geographic area is limited, to include whether the multipliers and assumptions about a project’s geographic impact are reasonable.
- Explains that a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.
- Affirms that a Form I-924 amendment must be filed and approved to expand the regional center’s geographic area for requests made on or after February 22, 2017.
- Clarifies how USCIS adjudicates regional center-associated Form I-526 petitions where the regional center has requested an expansion of its geographic area.
- Explains that USCIS considers a change in regional center affiliation a material change in cases where the change takes place after Form I-526 has been filed.
USCIS is accepting comments on the policy guidance update until September 9, 2018.
More information on the comments
5. Burbank Man Who Allegedly Led Prescription Drug Ring Arrested on New Charges of Fraudulently Procuring U.S. Citizenship
A Burbank, California, man who operated a string of allegedly sham medical clinics was arrested on August 7, 2018, on new charges that he unlawfully procured U.S. citizenship. The man already faces federal charges of using the clinics to orchestrate a massive narcotics scheme.
Armen Simonyan, who was free on bond in the narcotics-trafficking case, was arrested after being named in a two-count indictment returned by a federal grand jury. The new indictment charges Mr. Simonyan with unlawful procurement of U.S. citizenship and making a false statement on a passport application.
The indictment outlines Mr. Simonyan’s “15-year history of securing United States immigration benefits via fraud and identity theft,” USCIS said. Mr. Simonyan allegedly entered the United States from Armenia under a stolen identity and a fraudulent passport. He then sought asylum in the United States, allegedly using a false narrative that he was born in Azerbaijan to parents of mixed Armenian-Azerbaijani nationality; that his family suffered ethnic violence, including the murder of both of his parents; and that he fled to the United States via Russia. The indictment alleges that, in fact, Mr. Simonyan was born in Armenia to Armenian parents, that he entered the United States from Armenia, and that both of his parents were alive.
Mr. Simonyan will lose his U.S. citizenship if convicted of the immigration fraud charge.
The indictment also charges Mr. Simonyan with lying on his application for a U.S. passport after he gained citizenship. The alleged false statements related to his place of birth, his date of birth, and his claim that his mother was deceased.
Mr. Simonyan is currently scheduled to go on trial in the narcotics case on February 12, 2019. If convicted of the charges in the new indictment, he would face up to 20 years in prison, in addition to the statutory maximum of 60 years in federal prison that he faces in the narcotics case.
The immigration investigation was conducted by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) unit and the U.S. Department of State’s Diplomatic Security Service, and was conducted under the aegis of HIS’s Document and Benefit Fraud Task Force. Substantial assistance was provided by U.S. Citizenship and Immigration Services’ Fraud Detection and National Security unit, the Drug Enforcement Administration, and the U.S. Department of Health and Human Services’ Office of Inspector General.
6. ABIL Global: Canada
On July 31, 2018, amendments to Canada’s Immigration and Refugee Protection Regulations providing for the expansion of biometric information collection for foreign nationals seeking to enter or remain in Canada entered into force.
Since July 31, 2018, when these amendments became effective, the Canada Border Services Agency, Royal Canadian Mounted Police, Shared Services Canada, and Immigration, Refugees and Citizenship Canada have begun collecting biometric information for all foreign nationals between the ages of 14 and 79 applying for work permits, study permits, temporary resident permits, temporary resident visas, and Canadian permanent residence, regardless of whether visas are required. These rules do not apply to U.S. nationals seeking to enter Canada on a temporary status (permanent residence applications will require biometrics for U.S. nationals) as well as visa-exempt nationals seeking to enter Canada solely as visitors with valid Electronic Travel Authorization (eTA) documents.
The expansion of biometric collection is being rolled out in two phases. Since July 31, 2018, citizens of most countries in Europe, Africa, and the Middle East (and some Asian countries) must provide biometric information. On December 31, 2018, the second phase will add countries from both Asia and the Americas (including Australia and New Zealand). In practice, biometric information is being collected directly at Canadian ports-of-entry (POEs) for visa-exempt nationals eligible to present their temporary resident applications upon arrival in Canada and at Visa Application Centers for visa-requiring nationals presenting their temporary resident applications from abroad.
To facilitate this increased biometric collection, the government of Canada has announced the implementation of “biometric collection service points” at approximately 57 POEs across Canada (which includes all major airports) and in numerous locations around the world. The biometric information collected is valid for a 10-year period. Foreign nationals who have already provided biometric information will not be subject to this new regulation until their biometric information expires. Similarly, applicants applying to renew their temporary resident status from within Canada will not need to provide biometric information until the implementation of in-Canada enrollment services expected in February 2019.
The objective behind this biometric expansion project is to protect the safety of Canada’s borders and the security of all Canadians by providing authorities with the tools necessary to effectively screen temporary and permanent resident applicants before their entry into Canada. It remains unclear whether the benefits of the Biometric Expansion Project will outweigh potential frustrations associated with a more cumbersome application process, especially for visa-exempt nationals who may be unaccustomed to these types of increased security measures.
7. New Publications and Items of Interest
Civil surgeons podcast series. USCIS is launching a series of four podcasts for civil surgeons. The four segments include: (1) immigration basics and Form I-693, Report of Medical Examination and Vaccination Record; (2) inadmissible communicable diseases; (3) physical and mental disorders; and (4) vaccination requirements for the immigration medical examination. A transcript in PDF format. An MP3 file link.
Alliance of Business Immigration Lawyers:
- The latest immigration news
- The latest published media releases include:
- New Data Show Increase in H-1B Denials and RFEs
- ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
- ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
- ABIL Members Note Immigration Threats for Employers in 2018
- ABIL is available on Twitter: @ABILImmigration.
- Recent ABIL member blogs are at http://www.abilblog.com/.
Organizations seeking non-lawyer and lawyer volunteers. Cornell Law School has compiled a list of organizations seeking non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is at Cornell Law School.
Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division will present a series of webinars for employers and employees. For more information, see DOJ.
Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:
- Statutes of Liberty (new episode: A Prescription for Success: EB-1 for Physicians)
- Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
- Hidden Brain: The Huddled Masses and the Myth of America
- American Pendulum I
E-Verify free webinar listings
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, NYTimes and ACLU.
- Listings and links to cases challenging executive orders, and related available pleadings, are available at LAWFAREblog.
8. Member News
Several attorneys from Gomberg Dalfen, S.E.N.C., were listed in Who’s Who Legal: Canada 2018: Avi Gomberg, Seth Dalfen, Geneviève Hénault, and Isabelle Owston. See Who’s Who Legal. Also listed was B.J. Caruso. See Who’s Who Legal.
Ronald Klasko and William Stock earned placement in Human Resource Executive and Lawdragon’s annual joint publication of their “best of” lawyers list for the 11th year. In addition to Mr. Stock’s repeated recognition, which is bestowed on 216 lawyers, Mr. Klasko has been inducted into the publication’s Hall of Fame. The standard for this honor is high, with only 16 inductees this year, needing a minimum of 35 years of practicing law and consistently high recognition.
Mr. Klasko, Mr. Stock, and Elise A. Fialkowski have been included in The Best Lawyers in America© 2019 in the area of immigration law. Mr. Stock was named the Best Lawyers® 2019 Immigration Law “Lawyer of the Year” in Philadelphia. It is the second time he has received this honor.
Mr. Klasko was quoted by Law360 in “4 USCIS Policies Changing the Face of Business Immigration.” He said he is mustering plaintiffs to launch a lawsuit against a new USCIS policy on unlawful presence, accusing the agency of violating the Administrative Procedure Act’s requirements to provide notice and an opportunity for the public to comment on a new agency rule: “We’re very concerned about this because the immigration service has overturned a legal interpretation and policy that has been in place for 21 years without APA notice and comment rulemaking. The implications are huge.” It could mean that universities would have to take on massive liability, he noted. If, for example, a foreign student adviser incorrectly counsels a student that he or she can work extra hours on a campus job without violating visa status and accruing unlawful presence, that student may have grounds to sue, Mr. Klasko said. He noted that the policy does not necessarily change his strategy for filing visa applications. He said he already submits extensive documentation with every application to cover every possible issue. He is, however, more cautious about ensuring that he establishes a good record with that initial filing in the event the case needs to be litigated. The article is available by registering at law360.com.
Kuck Baxter Immigration is working with Emory Law School and the Church of Jesus Christ of Latter-Day Saints on an Immigrant Services Initiative law clinic, inaugurated August 8, 2018, in Chamblee, Georgia. The article is available by registering at law.com.
Cyrus Mehta has authored a new blog entry, “Artificial Reproductive Technology and Transmission of American Citizenship: Is There Any Need For a Biological Link After Jaen v. Sessions?”
David Isaacson, of Cyrus D. Mehta and Associates, PLLC, has authored a new blog entry, “Jaen v. Sessions: The Second Circuit Reminds Us That Government Manuals Aren’t Always Right.”
Stephen Yale-Loehr was quoted by Univision in “Unos 100,000 cónyuges de visas H-1B están a punto de perder sus permisos de trabajo” [“100,000 Spouses of H-1B Visa Holders are on the Verge of Losing Their Work Permits”]. He noted (in Spanish), that Trump’s executive order of April 18, 2018 “is too simple a solution to a complex problem.” He added that changes in immigration laws should be monitored “to make sure that companies pay the right salary, but that they do not damage innovation in the process.” The article is at Univision.com.
Mr. Yale-Loehr participated in an hour-long panel discussion on the Syracuse PBS TV station about how President Trump’s immigration changes are affecting people in New York. A recording is available at wcny.org.
Mr. Yale-Loehr was quoted by the San Jose Mercury News in “H-1B: U.S. Officials Cracking Down on Indian Citizens, Report Says.” “Cases that used to be approved without a second thought are now receiving requests for evidence and are being denied,” he noted. Mr. Yale-Loehr said that the Trump administration’s H-1B crackdown could ultimately hamper U.S. firms’ ability to hire U.S. workers: “They may not be able to continue to grow their companies the way they would like. It may make larger companies more likely to set up overseas operations rather than expand in the United States, and that ultimately hurts U.S. workers.” On the issue of whether Indian citizens are being singled out by the U.S. government, Mr. Yale-Loehr said that was unclear. “It could just be because Indians are over-represented among computer professionals; therefore they’re over-represented in these requests for evidence and denials,” he noted. The article is at San Jose Mercury News.
9. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of State Visa Bulletin
Visa application wait times for any post