Immigration Newsletter
October 2017  |  Volume 9, Issue 4
Changes abound in the immigration landscape.  As discussed in our last several newsletters, the Trump Administration's focus on limiting legal immigration (as spearheaded by the President's "Buy American and Hire American" Executive Order) is having a profound impact on the day-to-day practice of immigration law. 

Below are summaries of the most recent immigration-related developments. Please note that our newsletter is primarily distributed to our employer clients, so we encourage you to share this information with your employees.
USCIS Requiring Interview for Employment-Based I-485s
For nearly 20 years, USCIS has waived the requirement for in-person interviews with most employment-based I-485 (Green Card) applicants.  However, beginning October 2, 2017, in-person interviews are now required for all employment-based applicants for permanent residence whose I-485 applications were received at USCIS after March 6, 2017.  This policy change relates to President Trump's March 6 Executive Order, "Protecting the Nation From Foreign Terrorist Entry Into the United States."  Please see our News Flash for additional information, and note that this information differs from the information sent to our clients on September 29 based on updated information from USCIS.
DOS Updates Guidance Regarding Misrepresentation
On September 1, the Department of State updated a section of the Foreign Affairs Manual, which provides guidance to U.S. Consulates and Embassies regarding visa application adjudication (among other things). The updated guidance addresses activities that indicate a violation of status or conduct inconsistent with status that give rise to a presumption of misrepresentation if the conduct occurs within 90 days of entry. Such a finding could result in a ground for inadmissibility in the future. This change will primarily impact individuals entering the country on visa waiver or visitor visas, but will also make it more difficult for holders of other visas (e.g. H-1B, L-1)  to "clean up" status violations by leaving the U.S. and making a "clean entry". 

Examples of conduct identified as inconsistent with status include: working without authorization; enrolling in a full course of study while not in student status; and marrying a U.S. citizen and taking up residence in the U.S., but not applying for permanent residence. While these actions may constitute a violation of someone's status in the U.S., such conduct can now result in a finding of willful misrepresentation by a U.S. Consulate, which results in a bar from re-entering the United States. Under the prior rule, DOS only presumed willful misrepresentation if such actions occurred within 30 days of entry. 

As of now, USCIS has not indicated that it intends to institute a similar policy. If it were to do so, this could prevent individuals from changing their status once in the U.S. if, for instance, someone on a visitor's visa obtained a job offer and wanted to change status to H-1B. RSST Law Group will closely monitor USCIS policy guidance on this issue.  
Presidential Proclamation Restricting Travel from Certain Countries
As detailed in our September 25 News Flash, President Trump followed up on his January and March Executive Orders restricting travel from certain countries by implementing more permanent restrictions on entry into the U.S. for certain individuals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.  These restrictions will remain in place until the governments of these countries are able to comply with the U.S. Government's requirements with respect to their identity-management and information-sharing capabilities, protocols, and practices. 
Resumption of H-1B Premium Processing
As you know, USCIS temporarily suspended premium processing service for all H-1B petitions beginning April 3. Premium Processing was incrementally reinstated over the course of the past 6 months for certain case types.  USCIS announced on October 3 that it has resumed premium processing for H-1B visa extension petitions, which was the final category for which it was suspended.  All H-1B petitions are once again eligible for premium processing.
New Form I-9
USCIS released a new version of Form I-9, which must be used for all employment verifications and re-verifications completed on or after September 18, 2017.  You can always access the current version of Form I-9 on the USCIS Forms website.  
New Form I-765 Incorporates SSN Application
USCIS released a new version of Form I-765, Application for Employment Authorization on October 2 which must be used for all applications filed on or after December 4.  The new form will allow eligible applicants to provide the necessary information so that USCIS can coordinate with the Social Security Administration (SSA) and the applicant will receive their Social Security Number and card without the need for a separate application to SSA. 
DACA Rescission
On September 5, 2017, USCIS began a six month phase-out of the Deferred Action for Childhood Arrivals (DACA) program.  We have created a Fact Sheet with some details about DACA, the rescission of the program, pending legislation, and what employers can do to help advocate in support of "Dreamers".
Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State provides periodic analyses 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 October 2017:
  • EB-1 China and India: These categories are expected to remain current for some time, although a final action date will likely be imposed again later in the fiscal year.
  • EB-2 India: This category is expected to advance one month at a time in the coming months. There is some possibility that the final action date could advance to 2009 in the second half of FY 2018.
  • EB-2 and EB-3 China: EB-3 China is once again ahead of EB-2, allowing for "downgrade" petitions. Movement in these categories may be modest as DOS waits to see what downgrade demand materializes.
  • EB-3 India: This category is expected to remain at October 15, 2006 for November and may have slight movement in December. Due to the date advancement over the summer, quite a few numbers have already been used towards this fiscal year by cases which were adjudicated after the quota was met in September.
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 October 2017 (i.e. dates that allow an application to be adjudicated):
All Chargeability Areas Except Those Listed
China - mainland born
Other Workers
Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
All Chargeability Areas Except Those Listed

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 recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions:  

Application /
Petition Type
Current Reported
Processing Times
CSC: 3 - 5 months
VSC: 6 - 8 months
NSC: 4 - 8 months
3 - 4 months
PERM Prevailing
Wage Requests
2 - 3 months
PERM audits
7 - 8 months from
initial date of filing
4 - 6 months
9 - 12 months
4 - 5 months
Advance Parole
4 - 5 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).  
In the News: What's Happening at RSST Law Group
  • RSST Law Group congratulates long-time legal assistant Marlene McManus on passing the Massachusetts bar exam.  We are excited to announce that Marlene will stay with the firm as an Associate Attorney once she is admitted to the bar in November.
  • September 28, 2017: Partner Howard Silverman spoke about stays and motions to reopen at an AILA New England Chapter meeting in Boston.
  • October 22, 2017: Partner Howard Silverman will speak at the Needham, MA Public Library about detention issues at a Progressive Needham event co-sponsored by the League of Women Voters and the Needham Area Immigration Justice Task Force.  The event will be broadcast on the Needham Cable channel several times over the next few weeks. 
  • November 1, 2017: Partner Howard Silverman will present about Asylum as a Defense to Removal at an asylum training operated by the Political Asylum / Immigration Representation (PAIR) Project.
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.
  RSST Law Group
50 Congress Street, Suite 200, Boston, MA  02109  |  (617) 542-5111 |