In this issue
- OMB Concludes Review of EB-5 Immigrant Investor Program 'Modernization' Regulation
- Trump Administration Imposes Hefty Fines on Immigrant Overstays
- USCIS Expands 'FIRST' Digital FOIA System
- Don't Accept Restricted Social Security Cards for I-9 Verification, E-Verify Warns
- USCIS Aims to Decrease Processing Times Based on Location for Applications for Naturalization and to Register Permanent Residence or Adjust Status
- Green Card Backlogs Are Long, Growing, and Inequitable, CATO Institute Says
- IIUSA Expresses Concerns to USCIS About 'Surge' in Immigrant Entrepreneur Petition Adjudication Delays
- Visa Bulletin for July Notes Slowdowns or Retrogressions (Visa Unavailability) in Several Employment-Based Immigrant Visa Categories Before End of Fiscal Year
- New Zealand Nationals Eligible for E-1 (Treaty Trader) and E-2 (Treaty Investor) Visas
- USCIS Officers Required to Remind Sponsors of Affidavits of Support of Their Financial Obligations to Support Intending Immigrants
- Premium Processing Begins for Remaining H-1B Cap-Subject (Lottery) Petitions
- OFLC's New Online 'FLAG' Portal to Replace iCERT
- Cap Reached for Additional H-2B Visas for FY 2019
- New Publications and Items of Interest
OMB Concludes Review of EB-5 Immigrant Investor Program 'Modernization' Regulation
The Office of Management and Budget (OMB) announced on June 27, 2019, that it has completed its review of the "EB-5 Immigrant Investor Program Modernization" regulation. It is unclear when the regulation will be published or what, if any, changes have been made since the proposed rule was released in January 2017.
The January 2017 version proposed several major revisions to the EB-5 program regulations, such as priority date retention for certain EB-5 petitioners for use in connection with any subsequent EB-5 immigrant petition; increasing the standard minimum investment amount for all new EB-5 petitioners from $1 million to $1.8 million, and increasing the minimum investment amount for investors in targeted employment areas (TEAs) from $500,000 to $1.35 million; making changes to the TEA designation process; and revising the process for removing conditions on permanent residence.
Read the 2017 proposed rule
Read the 2017 comments from IIUSA: Invest in the USA
Trump Administration Imposes Hefty Fines on Immigrant Overstays
According to reports, U.S. Immigration and Customs Enforcement (ICE) has begun sending out notices of fines of up to hundreds of thousands of dollars to immigrants in the United States without authorization for violations including "failing to depart the U.S. as previously agreed."
The notices follow an executive order issued on January 25, 2017, "Enhancing Public Safety in the Interior of the United States," which calls for, among other things, "the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States."
USCIS Expands 'FIRST' Digital FOIA System
U.S. Citizenship and Immigration Services (USCIS) is expanding its digital Freedom of Information Act (FOIA) Immigration Records System, FIRST. USCIS said FIRST is the only system in the U.S. government that allows users to submit and track FOIA requests and receive documents digitally.
FOIA entitles every person access to certain information from the federal government. FOIA requests can be critical in cases where the full picture of an applicant's history matters to the success of their immigration petition/application.
FOIA requestors with a USCIS online account can submit requests online for their own records. Soon, they will be able to submit online requests for non-A-file materials.
Read the USCIS announcement
Don't Accept Restricted Social Security Cards for I-9 Verification, E-Verify Warns
E-Verify recently reminded employers not to accept restricted Social Security cards as List C documents on the I-9 work authorization verification form. Form I-9 List C documents verify an employee's authorization to work.
Employers should not accept a restricted Social Security card that is stamped with one of the following:
- Valid for work only with DHS authorization
- Valid for work only with INS authorization
- Not valid for employment
USCIS Aims to Decrease Processing Times Based on Location for Applications for Naturalization and to Register Permanent Residence or Adjust Status
U.S. Citizenship and Immigration Services (USCIS) said it will implement a "national strategy" to decrease differences in processing times based on location for the N-400 Application for Naturalization and I-485 Application to Register Permanent Residence or Adjust Status.
USCIS said this may mean scheduling applicants to appear for an interview at a field office outside of their normal jurisdictions. Applicants may receive an interview appointment notice or other types of notices (such as a Request for Evidence) from a field office outside of their normal jurisdiction. However, the agency will still direct applicants to the "nearest application support center" to complete their biometrics appointments. "Applicants should follow the instructions on any notices they receive from USCIS," the agency said.
Read the USCIS announcement
Green Card Backlogs Are Long, Growing, and Inequitable, CATO Institute Says
A new CATO Institute report says that immigration wait times have doubled since 1991 for applicants immigrating through both employment-based and family-sponsored "quota" categories, from an average of 2 years and 10 months to 5 years and 8 months. In 2018, more than 100,000 legal immigrants waited a decade or more to apply for permanent residence (green card) in 2018. Almost 5 million immigrants are waiting for their green cards now, the report says.
The report concludes that "Congress should eliminate the country quotas, exempt spouses and minor children from the overall quotas, and instead link quotas to population and economic growth."
The report also notes that the quotas (numerical limits) on green cards for individual nationalities are causing longer waits from countries with the highest demand. Indians averaged the longest wait because of such limits—more than 8 years and 6 months. "It will take decades and—in some categories—a half century or more to process everyone else waiting now," the report notes.
Read "Immigration Wait Times from Quotas Have Doubled: Green Card Backlogs Are Long, Growing, and Inequitable," by David J. Bier
IIUSA Expresses Concerns to USCIS About 'Surge' in Immigrant Entrepreneur Petition Adjudication Delays
In a letter dated June 11, 2019, Invest in the USA (IIUSA) expressed concerns to Ken Cuccinelli, Acting Director of U.S. Citizenship and Immigration Services (USCIS), about a "surge" in delays in processing immigrant petitions for alien entrepreneurs (Form I-526). IIUSA is an industry trade organization representing nearly 370 EB-5 stakeholder organizations.
The letter notes that based on the latest data on the USCIS website, the estimated processing time for I-526 completion is 29 to 45.5 months (as of May 2019). IIUSA's analysis further found that:
- The processing time for adjudicating I-526 petitions in the Immigrant Investor Program Office recently experienced a significant 32 percent to 60 percent surge within one month.
- In a year-over-year comparison, the estimated I-526 processing time in May 2019 almost doubled from May 2018.
"The ever-lengthening delays in adjudicating investor petitions will further delay the deployment of the EB-5 funding to the project developers, many of which depend on the investment from the investors to complete the economic development projects in their local communities, creating jobs for American workers," the group warned. The letter includes questions about causes, processing times, petition statistics, and personnel.
Read the IIUSA letter
Visa Bulletin for July Notes Slowdowns or Retrogressions (Visa Unavailability) in Several Employment-Based Immigrant Visa Categories Before End of Fiscal Year
The Department of State's Visa Bulletin for July 2019 includes the following notes:
- It has been necessary to retrogress the Mexico E4 and SR final action dates for July to keep visa issuances within the annual numerical limits. With the start of the new fiscal year in October, the final action dates will be returned to the latest dates established during FY-2019.
- India and Vietnam will each reach their per-country annual limit during July. This has resulted in the Vietnam date being held, and has required the imposition of a July final action date for India. For August, both countries will become subject to the same final action date that applies to China-mainland born employment fifth preference (EB-5) applicants and will remain so for the remainder of the fiscal year. Such action will only be temporary, with the EB-5 date for each advancing for October, the first month of fiscal year 2020, as follows:
- India: Most likely advancing to the summer or fall of 2017
- Vietnam: Most likely advancing to the fall or early winter of 2016
U.S. Citizenship and Immigration Services (USCIS) has also announced that the agency will follow the "Final Action Dates" chart for the month for accepting I-485 Adjustment of Status applications.
Click here for the Visa Bulletin (including details on expected potential monthly movement for the next several months)
Read the USCIS announcement
New Zealand Nationals Eligible for E-1 (Treaty Trader) and E-2 (Treaty Investor) Visas
U.S. Citizenship and Immigration Services (USCIS) announced that effective June 10, 2019, certain New Zealand nationals can request a change of status to E-1 treaty trader or E-2 treaty investor. This means that New Zealand nationals now have enhanced access to pursue trade and investment activities in the United States. According to USCIS:
- Eligible New Zealand nationals already in the United States in lawful visa status can file a petition to request a change of status to E-1 or E-2 visa classification, or a qualifying employer can file such a petition on their behalf.
- Spouses and unmarried children under 21 years of age of E-1 and E-2 visa holders, and employees who are already in the United States, may also seek to change status to E-1 or E-2 as dependents.
USCIS Officers Required to Remind Sponsors of Affidavits of Support of Their Financial Obligations to Support Intending Immigrants
On June 14, 2019, U.S. Citizenship and Immigration Services (USCIS) announced the implementation of the "Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens," issued May 23, 2019. USCIS officers will now be required to remind individuals at their adjustment of status interviews of their sponsors' responsibilities.
- Officers must remind applicants and sponsors that the Affidavit of Support is a legal and enforceable contract between the sponsor and the federal government, and that the sponsor must be willing and able to financially support the intending immigrant.
- If the sponsored immigrant receives any federal means-tested public benefits, the sponsor "will be expected to reimburse the benefits-granting agency for every dollar of benefits received by the immigrant," USCIS said.
Premium Processing Begins for Remaining H-1B Cap-Subject (Lottery) Petitions
On June 10, 2019, U.S. Citizenship and Immigration Services (USCIS) began premium processing for all remaining fiscal year (FY) 2020 H-1B lottery petitions. Employers may file a request for premium processing conversion with the USCIS service center that is processing their petition.
USCIS noted that it is offering premium processing in a two-phased approach during this year's cap season "to best manage premium processing requests without fully suspending it.
- The first phase, which started on May 20, 2019, included H-1B lottery petitions requesting a change of status, and the second phase includes all other H-1B lottery petitions. Premium processing for H-1B petitions that are exempt from the cap, such as extension-of-stay requests, remains available.
Also starting on June 10 and continuing through the end of June 24, USCIS used regular mail rather than pre-paid mailers to send out final notices for premium processing for H-1B lottery petitions not requesting a change of status. USCIS said it would resume using pre-paid mailers for final notices when provided by petitioners "when operationally feasible."
Read the latest USCIS notice
Read USCIS' previous announcement
OFLC's New Online 'FLAG' Portal to Replace iCERT
The Department of Labor's Office of Foreign Labor Certification (OFLC) has announced a new cloud-based online portal, the Foreign Labor Application Gateway (FLAG). The newly modernized portal is intended to "help U.S. employers find qualified workers while ensuring protections for U.S. and foreign workers."
The new portal is replacing OFLC's current iCERT system. It will serve as the new application filing and case management portal for all foreign labor certification programs. OFLC said the enhancements include personalized user accounts, form preparation, automated case alerts, and improved access to OFLC decisions.
FLAG is now used for filing prevailing wage requests (Form ETA-9141) for PERM applications (i.e., the first stage of the employment-based green card process) and for submitting H-2B applications.
Read the OFLC FLAG System/notice
Cap Reached for Additional H-2B Visas for FY 2019
U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to reach the additional maximum 30,000 visas made available under the H-2B numerical limit (cap) for fiscal year (FY) 2019. The H-2B visa program permits employers to hire foreign workers to come to the United States to perform temporary nonagricultural services or labor on a one-time, seasonal, peakload, or intermittent basis.
USCIS began accepting H-2B petitions on May 8, 2019, under a temporary final rule increasing the cap by up to 30,000 additional H-2B visas for returning workers through the end of FY 2019. The agency said it will reject and return any cap-subject petitions received after June 5, together with any accompanying filing fees. USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:
- Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change employers;
- Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
- Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.
New Publications and Items of Interest
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. · How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See examples here and here.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See examples here and here.
- Listings and links to cases challenging executive orders, and related available pleadings
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: