Immigration Newsletter
October 2016  |  Volume 8, Issue 2
Greetings!
 
October 1st marked the start of Federal Fiscal Year (FY) 2017. Taking a look back at FY2016, one thing that stands out is the significant increase in USCIS processing times and adjudication delays.
 
In its 2016 Annual Report to Congress, the Office of the Ombudsman, which is tasked with assisting applicants and petitioners in resolving problems with USCIS, reported that USCIS processing times exceed government processing goals across numerous benefit lines. In fact, the Ombudsman reported that 67% of requests it received for case assistance related to cases outside normal processing times. This comes as no surprise, as we have seen increasingly delayed adjudication of filings through our office. In a more recent teleconference, the Ombudsman's Office provide an updated report, highlighting three key benefits that are experiencing processing delays: I-765 applications for employment authorization; I-539 change of status applications; and I-129 H-1B extension petitions through the same employer.
 
I-765s : Immigration regulations require USCIS to adjudicate EAD applications within 90 days. However, in FY2015, 22% of employment authorization applications were processed after 90 days. To alleviate the I-765 adjudication backlog, earlier this year USCIS transferred certain pending I-765 applications to the newly-created Potomac Service Center. This seems to have made some impact, at least for cases filed by our office, as the majority are now being processed within 90 days. As a reminder, EAD applications can be filed up to 120 days in advance of the expiration of the existing EAD, and we encourage applicants to apply close to that 120 day mark in case of processing delays.
 
One additional development with regard to I-765s is that USCIS has proposed eliminating the 90-day processing requirement. If this change is enacted, USCIS would instead allow for an automatic 180-day extension of work authorization for most timely filed EAD extension applications. We will of course notify our clients if any such change is enacted.
 
I-539s for Change of Status : Change of status (COS) applications also are taking many months to adjudicate. This can be a real concern for applicants who need a change of status by a certain date, such as F-1 students. To address the delays, USCIS temporarily transferred COS cases pending at the Vermont Service Center to the California Service Center.
 
H-1B Extensions : Delayed processing of H-1B extensions is, perhaps, the most concerning for employers. Processing times that have routinely taken 4-5 months are now 7-11 months. These delays have numerous consequences for employers and H-1B workers, including potentially exceeding the automatic extension of employment authorization limit of 240 days for timely filed extensions with the same employer, limiting the ability to travel internationally, and restricting the ability of workers to renew drivers' licenses, among others. As a result, premium processing has become de facto rather than elective. In response, USCIS now requires all H-1B extensions for the same employer, except cap-exempt employers, to be filed with the Nebraska Service Center. We have begun to see faster processing times on cases filed with Nebraska, so hopefully this will continue to make a difference.
 
Let's hope that in FY2017, USCIS efforts to address these delays result in improved processing times. In the meantime, it is advisable to check the USCIS direct filing instructions website prior to filing any application or petition, as filing locations are subject to change and USCIS may continue to shift workloads to address processing time delays.

Processing Times

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received.  Based on reported processing times from those agencies and what we have been seeing recently, following are the current processing times for the most commonly-filed employment-based applications and petitions:  

Application /
Petition Type
Current Reported
Processing Times
H-1B
CSC: 10+ months
VSC: 6-12+ months
NSC: 4 months
PERM
3-4 months
PERM Prevailing
Wage Requests
4 months average
PERM audits
8 months from
initial date of filing
I-140
6-12 months
I-485
6+ months
EAD
3 months
Advance Parole
3 months

Please keep in mind that these are average processing times, and there are always some outliers (i.e. cases that are approved more quickly, and some which take longer).  
USCIS to Increase Filing Fees
 
As detailed in our news flash earlier this week, USCIS has announced that filing fees will be increasing by a weighted average of 21%, effective December 23, 2016.
 
Current Form I-9 Valid Until January 21, 2017
 
On August 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. USCIS must publish the revised form by November 22, 2016. Employers may continue using the current version of Form I-9, with a revision date of 03/08/2013 N, until January 21, 2017. After January 21, 2017, all previous versions of Form I-9 will be invalid.

CBP Boston Accepting Email Requests for I-94 Corrections
 
Customs and Border Protection (CBP), which controls admission of international travelers to the United States, recently announced that CBP Boston has joined a Pilot Program for requesting I-94 corrections. CBP Boston will now accept requests for electronic I-94 error correction by email rather than in person at the Deferred Inspection Site located at Logan Airport.  Travelers must send an email to  cbp.boston.i94@cbp.dhs.gov and include:
  • Completed CBP I-94 Correction Request Form;
     
  • Scanned copy of biographical page from passport;
     
  • Scanned copies of other relevant and appropriate documents (i.e. I-797 H-1B approval notice)
If the email request is accepted, the correction will be made within 3 business days.  If not, the international traveler will need to appear in person at the Deferred Inspection Site.  CBP will not issue a notification of the change, so travelers seeking corrected records will need to check the I-94 website.
  
Other CBP Deferred Inspection offices enrolled in the Pilot Program, which began in January 2015, include: Charlotte, NC, Chicago, IL, Houston, TX, Louisville, KY, Miami, FL, Milwaukee, WI, Orlando, FL, Seattle, WA, St. Louis, MO, St. Paul, MN, and West Palm Beach, FL.

CBP Makes Online I-94 Payment Available for Land Ports
 
As of September 30, 2016, the CBP I-94 website allows international travelers arriving through a land port of entry to apply and pay for a paper I-94 application online up to seven days prior to seeking admission. The fee for an I-94 is $6. The I-94 form provides a nonimmigrant with evidence of lawful admission to the United States, which can be necessary to verify immigration status and employment authorization. The I-94 system at air and sea ports of entry has been automated since May 2013.

USCIS Issues Two-Year Work Permits to Asylum Applicants
 
Effective October 5, 2016, USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one to two years. Applicants with pending asylum claims file Form I-765, Application for Employment Authorization, under category (c)(8). This change applies to all (c)(8)-based applications that are pending as of October 5, 2016 and all such applications filed on or after October 5, 2016.

Proposed International Entrepreneur Rule
 
On August 31, 2016, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register. The proposed rule seeks to permit the use of parole for "entrepreneurs of start-up entities whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation." The proposed rule is a product of President Obama's November 2014 executive actions on immigration. On November 21, 2014, DHS Secretary Johnson directed USCIS to "propose a program that will permit DHS to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research." It is estimated that over 2,900 entrepreneurs could be eligible for parole under this program annually. Comments to the NPRM were due October 17, 2016; DHS will now need to review and respond to the comments as part of any final rule.

PERM Modernization Regulation Update
 
The Office of Foreign Labor Certification recently confirmed at a meeting with stakeholders that the draft regulation to modernize the PERM system for labor certifications is still undergoing review.  Implementation of the final regulation is not expected before the end of the Obama Administration. 

Unfair Employment Practices Regulation Update
 
The Department of Justice published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on August 15, 2016. The rule seeks to revise the regulations implementing section 274B of the Immigration and Nationality Act relating to unfair immigration-related employment practices. The comment period was extended until October 14, 2016. Among other things, the rule proposes updates to and clarifies the procedures for filing and processing charges of discrimination and ensures effective investigations of unfair immigration-related employment practices, as well as reflecting changes in existing practices.

2018 Diversity Visa Lottery
 
The Diversity Immigrant Visa (DV) Program is administered by the Department of State annually. Under the Immigration and Nationality Act (INA), it is available to a class of immigrants known as "diversity immigrants" who are from countries with historically low rates of immigration to the United States. For Fiscal Year 2018, 50,000 Diversity Visas (DVs) will be available.
 
Online registration for the DV-2018 Program began on Tuesday, October 4, 2016 and ends on Monday, November 7, 2016 at 12:00 noon, Eastern Standard Time (EST).  All entries must be submitted electronically on the Electronic Diversity Visa (E-DV) website during the specified registration period. The law allows only one entry by or for each person during each registration period and applications are selected through a randomized computer drawing.
 
For DV-2018, natives of the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
 
More information about the program, eligibility requirements and application instructions can be found in the DV-2018 Instructions.

Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State, recently provided a thorough analysis of current trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of November 2016:
  • Employment-Based First Preference (EB-1): EB-1 China and India were retrogressed in August and September to control number use under the EB-1 Worldwide annual limit, and to allow numbers to remain available for all other countries. However, the October and November 2016 Visa Bulletins reflect current immigrant visa number availability for all countries, and DOS indicates that these numbers should remain current for the foreseeable future.
     
  • EB-2 Worldwide: High demand for EB-2 visa numbers resulted in oversubscription of the EB-2 Worldwide category for August and September with a cutoff date of February 1, 2014 for all countries of chargeability, other than India and China. New visa numbers became available on October 1, 2016 at the start of the new Fiscal Year and EB-2 Worldwide is current and is expected to remain so for the foreseeable future, with the exception of China and India.
     
  • EB-2 and EB-3 China: In June, due to high volumes of visa number usage, the final action date for both EB-2 and EB-3 China retrogressed to January 1, 2010. New visa numbers became available on October 1, 2016 at the start of the new Fiscal Year, and EB-3 China once again has a later priority date than EB-2 China. When this occurs, EB-2 beneficiaries may choose to file a "downgraded" EB-3 petition to benefit from the additional visa availability. DOS expects that EB-2 China should advance to its previous date of September 2012 by February 2017, and may advance more rapidly due to EB-3 downgrade petitions.
     
  • EB-2 India: DOS anticipates that EB-2 India will continue to advance for the foreseeable future, likely at least 4 months per Visa Bulletin and potentially faster. The previous date of November 2008 is expected to be reached by March 2017.
     
  • EB-3 India: Movement is expected to continue to be slow, advancing at a week or less per Visa Bulletin.
     
  • Dates for Filing: One additional development is that, for the first time since DOS began issuing a "Dates for Filing" chart in October 2015, USCIS has allowed Employment-Based applicants to file I-485 applications based on these dates for October and November 2016. This means that applicants can apply for permanent residence before their priority date is "current" and the application is eligible to be approved, thereby allowing primary applicants and their family members to enter the processing queue and also obtain Employment Authorization and Advance Parole.
Background Note:  There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers.  For purposes of this newsletter, we are including only the categories most applicable to our business clients.  For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website

Employment-Based Preference Categories
  • First (EB-1):  Priority Workers.  Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
     
  • Second (EB-2):  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.  Also includes National Interest Waiver (NIW) applicants.
     
  • Third (EB-3):  Skilled Workers, Professionals, and Other Workers.
Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below.  "C" means current, i.e., numbers are available for all qualified applicants.    

Following are the relevant Visa Bulletin Final Action Dates for November 2016 (i.e. dates that allow an application to be adjudicated):
  
Employment-Based
All Chargeability Areas Except Those Listed
China - mainland born
India
Mexico
Philippines
1st
C
C
C
C
C
2nd
C
15JUL12
01NOV07
C
C
3rd
01JUL16
15APR13
08MAR05
01JUL16
01APR11
Other Workers
01JUL16
01SEP05
08MAR05
01JUL16
01APR11
  
  
Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
Family-Sponsored
All Chargeability Areas Except Those Listed
China - mainland born
India
Mexico
Philippines
F2A
22JAN15
22JAN15
22JAN15
08JAN15
22JAN15

Following are the relevant Visa Bulletin Dates for Filing for November 2016 (i.e. dates that allow an application to be filed):
  
Employment-Based
All Chargeability Areas Except Those Listed
China - mainland born
India
Mexico
Philippines
1st
C
C
C
C
C
2nd
C
01MAR13
22APR09
C
C
3rd
C
01MAY14
01JUL05
C
01SEP13
Other Workers
C
01AUG09
01JUL05
C
01SEP13
  
  
Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
Family-Sponsored
All Chargeability Areas Except Those Listed
China - mainland born
India
Mexico
Philippines
F2A
22NOV15
22NOV15
22NOV15
22NOV15
22NOV15

In the News: What's Happening at RSST Law Group
  • Sela Stockley, who joined the firm earlier this year, is now an Associate Attorney in our employment-based immigration practice.  Additionally, Marie-Claude Beaulac has joined the firm as a Legal Assistant working with Sela and Rhonda Tietjen on employment-based immigration matters.
     
  • All of the Firm's partners, Howard Silverman, Heidi Snyder, and Rhonda Tietjen, have again been listed in The Best Lawyers in America in the area of Immigration Law for 2017.
     
  • Additionally, Howard Silverman has once again been named by Super Lawyers Magazine as a Massachusetts Super Lawyer in the field of immigration law for 2016.
Please Note that this newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.
Attorneys at RSST Law Group:
Howard A. Silverman  |  Heidi L. Snyder  |  Rhonda A. Tietjen
  RSST Law Group
50 Congress Street, Suite 200, Boston, MA  02109  |  (617) 542-5111 | www.rsstlawgroup.com