Visa Bulletin Preview for December and Beyond

From Council for Global Immigration, 10/24/2013

The Council for Global Immigration has learned details regarding what to expect in the coming months in the visa bulletin, including probable retrogression of numbers from India EB-2, modest advancement for China EB-2s and more significant advancement for China and “Rest of World” EB-3s.

India EB-2 numbers are expected to retrogress over three years to late 2004 or early 2005.   We have also been told not to expect any forward movement for India EB-3 priority dates and, while retrogression is not as likely for EB-3, it is not out of the realm of possibility.

China EB-2 numbers are expected to continue to move forward approximately 5 weeks per month.  EB-2 is expected to remain current for the rest of the world.

China and Mexico EB-3 numbers are expected to follow worldwide numbers, advancing about a year in the December Visa Bulletin and continuing to advance in January and February.  Philippines EB-3s are expected to advance about 2 weeks per month.

In addition, China EB-5s might have a cut-off date for the first time sometime in 2014.  Currently, there is an excess of approximately 3,000 EB-5 numbers which are used in the EB-1, EB-2 and EB-3 categories.  Thus, a cut-off date for China EB-5s could affect other EB categories for China.

USCIS Clarifies Rules for 17 Month STEM OPT Extension

From Council for Global Immigration, 10/22/2013

USCIS has issued a memo clarifying the rules regarding 17 month OPT extensions for F-1 students with STEM degrees. The memo states that F-1 students may apply for the 17 month extension even if they are yet to complete their thesis or equivalent requirement for the relevant STEM degree.

To read the USCIS memo, click here.

Government Shutdown Ends

Federal agencies shutdown for the last 16 days will re-open today. The Department of Labor closure has had the most significant impact on foreign national employees in the process of obtaining or extending H-1B status and those with pending ETA9089 applications for immigrant petitions. 

Although open, it is expected that we will continue to experience delays as the workers return to work and face a presumably large backlog of pending requests. 

Updates will be posted here as they become available.

Update

From Fragomen.com, 10/17/2013

Immigration Operations After the Federal Shutdown

The Department of Labor’s Office of Foreign Labor Certification (OFLC) is expected to reopen soon, as government agencies return to work in the wake of last night’s passage of a federal budget and debt ceiling bill. It may be several days, however, before OFLC’s PERM, labor condition application (LCA) and prevailing wage functions are operating fully. 

As of this morning, the PERM and iCERT online application systems remain offline. When they resume operation, employers and foreign nationals should expect processing delays and other slowdowns for several weeks at least, as DOL works through a large backlog of filings and deals with an expected surge of new cases. The slowdown may affect employers' ability to file H-1B petitions with USCIS, which require a DOL-certified LCA. 

USCIS’s E-Verify system, which was offline during the shutdown, is now operating.

Update
From the Council for Global Immigration, 10/18/2013

Social Security Administration and CIS Ombudsman’s Office Resume Normal Operations 
We have received reports that the Social Security Administration and the CIS Ombudsman’s Office have resumed all normal operations. This means that employees can once again file for Social Security numbers and that the CIS Ombudsman’s office has resumed case assistance. 

November 2013 Visa Bulletin

From Fragomen.com, 10/10/2013

Modest Advancement for EB-2 China

November 2013 Visa Bulletin, Employment Based Categories

According to the State Department’s November Visa Bulletin, the EB-3 subcategory for professionals and skilled workers will advance by three months for most countries, to October 1, 2010, but EB-3 India will remain at September 22, 2003. 

The EB-3 other worker subcategory for China will advance by six years, to October 1, 2010. This sudden advancement is due to the application of unused visa numbers to the subcategory. If there is an increase in EB-3 demand, the cut-off date for the China other worker subcategory could retrogress. 

The priority date cut-off for EB-2 China will advance by three weeks to October 8, 2008 next month, but EB-2 India will remain unchanged at June 15, 2008. 



November 2013 Priority Date Cut-Offs 
In November 2013, EB immigrant visa priority date cut-offs will be: 

EB-1 Current for all countries. 

EB-2 China: October 8, 2008 
India: June 15, 2008 
All other countries: Current 

EB-3 Professionals and Skilled Workers China: October 1, 2010 
India: September 22, 2003 
Philippines: December 15, 2006 
All other countries: October 1, 2010 

EB-3 Other Workers 
China: October 1, 2010 
India: September 22, 2003 
Philippines: December 15, 2006 
All other countries: October 1, 2010 

EB-5 
Current for all countries and subcategories.

What to Expect During the Federal Shutdown: Information for Foreign Nationals

The U.S. Congress was not able to come to consensus on the federal budget by the October 1 deadline. As a result, many U.S. government operations – including some key immigration functions – will be suspended until an agreement is reached.

The duration of the shutdown cannot be predicted. It could last for several days or weeks, though Congress could pass a temporary measure to fund the government while debate over the budget continues.

The following are some frequently asked questions about the impact of the shutdown on foreign nationals. If your immigration case is delayed by the shutdown, keep in close contact with your employing department and your designated Faculty & Researcher Immigration Specialist in Global Human Resources. We will be closely monitoring the government’s immigration operations and will provide updates on this blog. 

1. I need to apply for a nonimmigrant visa. Will the U.S. consulate be able to process my application and issue my visa during the shutdown? 

Yes, but you should file quickly and be prepared for possible delays.

U.S. consulates plan to remain open and process visa applications for as long as the funding the State Department receives from application fees remains available. (Visa operations are partly funded by application fees paid by foreign nationals and partly by U.S. government appropriations. Only the government appropriations funding is affected by the shutdown.)

But it is important to file as soon as possible in the event the shutdown lasts for more than a few days. If funds from application fees are depleted, the State Department could suspend visa processing or limit it to urgent medical or humanitarian cases only. 

2. My nonimmigrant visa application is pending and I have a visa appointment in the very near future. Will the U.S. consulate be able to process my visa? What if my case is undergoing a security clearance?

As noted above, U.S. consulates will be open during the shutdown and will continue to process visas and conduct visa interviews as long as State Department funds remain available. However, if the shutdown lasts for more than a few days and funding is depleted, your case could be delayed.

If your application is subject to a security clearance, you could experience a delay during the shutdown. Many government agencies take part in security clearances in addition to the State Department, and some may be affected in the event of a shutdown. 

3. Will Canadian nationals be able to submit applications for TN or L-1 status at the U.S. border or port of entry? 

U.S. Customs and Border Protection, which adjudicates border applications for TN and L-1 status, has not yet announced whether they will continue to process these applications, but this function may not be affected by the shutdown. If you are a Canadian national planning to apply at the border while the shutdown is ongoing, please contact your designated Faculty & Researcher Immigration Specialist in Global Human Resources to coordinate your application.

4. My department is planning to file a PERM application on my behalf. Will the Labor Department process my application during the shutdown? 

No. All of DOL’s immigration-related functions, including labor certification operations, will be suspended during the shutdown. The online system used to file PERM applications will not be able to accept new cases. PERM applications already on file with DOL will not be processed. Processing will resume only after the shutdown is over. 

5. My department is filing an immigration petition with USCIS on my behalf. Will the USCIS be able to process it during the shutdown?

Yes, USCIS will continue to process applications and petitions for immigration benefits during the shutdown. This includes petitions for immigrant and nonimmigrant workers and applications for adjustment of status. However, processing delays are possible if adjudication of your case is dependent on support from government functions that are suspended during the shutdown – for example, if your case requires a certification from the Department of Labor or a security clearance from an agency that is affected by the shutdown. 

6. I am an H-1B employee and my status is expiring soon. My department is planning to file for an extension for me. Will my extension be affected by the shutdown? 

Possibly. Though USCIS will continue to process extensions during the shutdown, your case could be delayed by the suspension of labor condition application (LCA) processing at the Department of Labor. A valid LCA certified by DOL is an essential part of any extension of H-1B nonimmigrant status, but DOL’s LCA operations will be suspended during the shutdown.

If we do not have a valid, certified LCA in place for your position and work location, your extension could be delayed. 

7. I am a new nonimmigrant employee and I need to apply for a U.S. Social Security number. Will I be able to apply during the shutdown?

No. Though the Social Security Administration will remain open during the shutdown, it will not be accepting or processing applications for Social Security numbers (SSNs) or replacement Social Security cards.

You do not need an SSN to start work, but lack of an SSN could affect your ability to obtain a U.S. driver’s license, open a bank account and obtain other benefits. 

8. Will a nonimmigrant be able to apply for a driver’s license or non-driver ID during the shutdown? What about renewing a license or state ID?

Even though driver’s licenses and non-driver IDs are the responsibility of state governments, your application for a new or renewed license could be delayed during the shutdown. Your state Department of Motor Vehicles must use a federal database to verify your immigration status before it will issue you a license or ID card. This database, known as SAVE, could be suspended.  

9. How quickly will immigration operations return to normal after the shutdown is over?

Once the budget impasse is resolved, you should expect some processing delays while affected agencies get back up to speed. Backlogs are likely to build up during the shutdown and it could take several days or weeks for agencies to work through them.

Source: Fragomen.com

Impact of Government Shutdown on Immigration Agencies

From the Council for Global Immigration, 10/01/2013

After months of negotiation between the administration and the two branches of Congress, no deal has been reached to keep the federal government open.  As such, federal immigration agencies are scrambling to implement a government shutdown.  While the situation is fluid and we have seen conflicting information from various sources, we have verified the following information through conversations and correspondence with government officials in order to ensure you have the most recent information.   Please let us know if your experience with the agencies differs from the information below and we will provide updates as the implementation of the shutdown continues to develop.

Department of Homeland Security

The DHS contingency plan for the shutdown can be found here.

USCIS Adjudications

USCIS is mostly fee funded, and therefore the impact on adjudications will be minimal compared to most immigration processes.  In fact, out of the 12,558 USCIS employees, all but about 300 will be reporting to work during a shutdown.

This means that processing at USCIS will be relatively normal, other than processes affected by other agencies (for instance, no new LCAs will be issued by Department of Labor for H-1Bs).

E- Verify

Unlike the rest of USCIS, E-Verify is not fee funded and will be inaccessible during a shutdown, including employment verification, resolution of Tentative Nonconfirmations (TNCs) and Self Check.   USCIS has provided the following guidance:

• The 'three-day rule' for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.

• The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.

• For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.

• Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses). 

Customs and Border Protection

Most CBP functions will continue, as most CBP staff are considered essential, but adjudication of TN and blanket L applications by Canadian citizens would stop during a government shutdown. 

Immigration and Customs Enforcement

ICE will retain most of its staff because they are considered essential.   We do not expect any major issues with enforcement.

CIS Ombudsman

The CIS Ombudsman’s office will be closed during a government shutdown.

Department of Labor

The Office of Foreign Labor Certification (OFLC) notice regarding the shutdown can be found here. 

OFLC will essentially shut its doors during a shutdown.  This means no processing of labor certifications, LCAs or prevailing wage determinations during a shutdown.  We also now know that employers and attorneys will not even be able to log into the PERM and iCERT websites during a shutdown.  We are pushing for grace periods in situations such as recruitment expiration while the agency is closed.

Department of State

In previous situations where a shutdown was looming, we were told that a shutdown would basically mean cessation of consular affairs, visa processing and passport issuance altogether, except for certain narrow exceptions such as humanitarian exceptions.

With this shutdown, however, the Department of State appears to have a temporary solution but the details are unclear.  The official statement from the Department of State is:

Consular operations domestically and overseas will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Under Secretary for Management.

We were able to confirm yesterday with the Department of State's Bureau of Consular Affairs that visa issuance will continue at least temporarily.  We do not have confirmation at this time as to the alternative source of funding or how long it will last.

SEVIS is fee funded and we have not heard any indication that it will be affected by a shutdown.  We will keep you up to date if this news changes.

Department of State guidance on the shutdown can be found here.

Department of Justice

Office of the Special Counsel

The hotline for the Office of the Special Counsel will not be available to the public during a shutdown. Some attorneys working on litigation will work limited hours. 

Federal Shutdown Has Immediate Impact at DOL, E-Verify

From Fragomen.com, 10/01/2013

Department of Labor 

DOL's foreign labor certification operations have ceased and will remain suspended until further notice. DOL issued PERM and LCA certifications on Monday evening, but will not process any further cases to completion until after the shutdown concludes. When normal operations resume, employers should expect delays as the agency works through its case backlog. 

The PERM and iCERT systems are now offline and will remain so for the duration of the shutdown, but were briefly operational this morning and appeared to be accepting filings. It is not clear how applications submitted during this brief window of opportunity will be treated after the shutdown is over. Employers and their immigration counsel will need to monitor these cases closely after DOL operations resume, and should be prepared for the possibility that cases submitted today may need to be refiled later on.

Employers who filed PERM applications on Monday received DOL’s standard sponsorship questionnaire emails this morning, but will not be able to complete them until after the shutdown. 

Impact of DOL Shutdown on H-1B Filings 

Though USCIS will continue to process petitions during the shutdown, employers may not be able to file H-1B petitions because of the suspension of labor condition application (LCA) processing at the Department of Labor. A valid, certified LCA is a requirement for every H-1B petition. In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, but it has not yet announced whether it will do so during the present shutdown. Suspension of LCA operations will also affect the processing of E-3 and H-1B1 filings at USCIS Service Centers and U.S. consulates. E-3 and H-1B1 filings also require a valid, certified LCA.

U.S. Consulates 

Currently, visa services at U.S. consulates appear to be operating normally, but foreign nationals should submit visa applications and make visa appointments as soon as possible in case consular operations are affected by the shutdown later on. The State Department will use funding from application fees to support consular functions for the time being, but it is not clear how long these funds will remain available. Employers and visa applicants should be prepared for the possibility of future delays in the event that the shutdown persists for more than a few days and State Department needs to suspend or limit visa services. 

E-Verify Operations 

The E-Verify system is down for the duration of the federal shutdown. Employers will not be able to initiate E-Verify queries or resolve tentative nonconfirmations, and will not be expected to meet the usual E-Verify deadlines. However, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. 

All employers remain subject to the same I-9 obligations. E-Verify outage would not affect the deadlines that are applicable to Form I-9 completion. 

Other Government Benefits

The Social Security Administration has confirmed that it is not accepting or processing applications for Social Security numbers or replacement cards during the shutdown. Foreign nationals who are unable to obtain an SSN may not be able to apply for a U.S. driver's license, open a bank account or obtain other benefits. 

The SAVE system is operating during the shutdown. SAVE is the federal database used by government agencies -- including State Departments of Motor Vehicles -- to verify the immigration status of foreign nationals applying for benefits. Though foreign nationals could experience delays in driver's license applications and renewals for other reasons related to the shutdown, SAVE verifications should not be affected.