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Welcome back to Visalawyerblog! In this post we bring you the latest immigration updates.


Naturalization Ceremonies

Great news for naturalization applicants waiting for an oath ceremony. On July 1, 2020, USCIS issued an announcement notifying the public that it anticipates that it will complete nearly all postponed administrative naturalization ceremonies by the end of July of 2020.

USCIS has been prioritizing the scheduling of oath ceremonies for all naturalization applicants who were approved following their interviews. As we previously reported, USCIS is also exploring options to bypass the formal oath ceremony process in the future, and administer the oath immediately following a successful naturalization applicant’s interview. This will help move cases along quickly during the pandemic and limit further exposure.

USCIS remains committed to being as flexible as possible to welcome new citizens to the United States as fast as possible. We are glad that in the very least, naturalization applicants are being accommodated by the agency during this difficult time.

If you have not yet received your naturalization oath ceremony notice, you should be receiving one very soon. As always, we recommend calling USCIS to expedite the process.


Calls to Extend TPS for Yemen and Somalia due to COVID-19

Dozens of organizations are calling on the government to extend Temporary Protected Status (TPS) for at least 180 days to all current Yemen and Somalia TPS holders due to the COVID-19 pandemic. A letter was issued in early April by interested organizations urging USCIS and DHS to automatically extend work authorization and TPS for all current Yemen and Somalia TPS holders, or at the very least extend the re-registration period for TPS holders from Somalia and Yemen for a total of 180 days.

The letter emphasizes the importance of granting relief for Yemeni and Somalia TPS holders stating, “While states across the country are rightfully taking precautions to prevent the spread of COVID-19, these measures and the subsequent loss of income and freedom of movement establish insurmountable barriers for TPS holders to renew their status before the rapidly approaching re-registration deadline. TPS holders should not have to choose between missing a deadline and violating health directives that keep themselves, their families, and their communities safe.”

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The Department of State has released the visa bulletin for May 2020 outlining the availability of immigrant visa numbers for the upcoming month.


Please note:

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin. 


May Visa Bulletin Cutoff Dates


According to the Department of State’s May Visa Bulletin, the following cutoff dates will apply for the issuance of an immigrant visa:

  • EB-1: All countries except for China and India will become current on May 1. China will advance by five weeks to July 15, 2017, while India will advance by three months to August 1, 2015.
  • EB-2: China will advance by one month to October 1, 2015, and India will advance by one week to June 2, 2009. All other countries will remain current.
  • EB-3 Professional and Skilled Workers: All countries except India and China will remain retrogressed at January 1, 2017. Cutoff dates for China and India will advance, with China moving ahead by one month to May 15, 2016, and India moving ahead by more than five weeks to March 1, 2009.
  • EB-5: Most countries will remain current. China will advance by more than six weeks to July 1, 2015; India will advance by nine months to October 1, 2019; and Vietnam will advance by just under two months to April 1, 2017.

Employment-Based Priority Cut-off Dates for May 2020


USCIS recently announced that it will honor Final Action dates for adjustment of status filings in May. In order to file an employment-based adjustment of status application next month, employer-sponsored foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country. This is the second consecutive month that USCIS has chosen the Final Action Dates chart, after several months of honoring the Dates for Filing chart.

The May Final Action Dates chart is current for EB-1 countries worldwide, after several months of retrogression.


How will the President’s Executive Order affect immigrant visas?


The President’s executive order will temporarily suspend and limit the entry of foreign nationals seeking an immigrant visa at a U.S. Consulate abroad. Although the order will apply for the next 60 days, the order will have little practical effect on immigration, given that U.S. Consulates and Embassies worldwide have suspending the issuance of all visas until the COVID-19 pandemic subsides.

If U.S. Consulates and Embassies resume operations within the next 60 days, the executive order will prevent foreign nationals from obtaining immigrant visas at U.S. Consulates worldwide. The suspension will apply to individuals who, as of Wednesday, were outside of the United States, do not have an immigrant visa, do not have official travel documents other than visas, and have not been exempted by the executive order.

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The long-awaited Executive Order temporarily suspending the immigration of certain aliens into the United States has been released.


WHO IS IMPACTED BY THE EXECUTIVE ORDER?


The order entitled, “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” suspends and limits the entry of the following types of aliens (for a 60-day period) beginning 11:59 p.m. eastern daylight time on April 23, 2020.


Your entry is suspended and limited if all of the following are true:

THREE PART TEST


  • You are an alien outside of the United States on the effective date of the Proclamation (April 23rd)
  • You are an alien that does not have an immigrant visa that is valid on the effective date of the Proclamation (April 23rd) and
  • You are an alien that does not have an official travel document other than a visa on the effective date of the proclamation (April 23rd) or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission
    • Official travel documents include a transportation letter, an appropriate boarding foil, or advance parole document.

ENFORCEMENT


This Proclamation shall be enforced by U.S. Consulates worldwide at their discretion giving them the power to determine whether an immigrant has established his or her eligibility and is otherwise exempted from the Proclamation. The Department of State will implement the proclamation as it applies to immigrant visas, at the discretion of the Secretary of State in consultation with the Secretary of Homeland Security.

The Department of State governs the immigration process outside of the United States, while the Department of Homeland Security governs the immigration process within the United States and guides the United States Citizenship and Immigration Services (USCIS).


WHO IS EXEMPT FROM THE EXECUTIVE ORDER?


The order expressly exempts:

  • Lawful Permanent Residents of the U.S.
  • Aliens who are the spouses of U.S. Citizens
  • Members of the U.S. Armed Forces and any spouse and child of a member of the U.S. Armed Forces
  • Aliens under 21 years of age who are children of United States Citizens and prospective adoptees
  • Aliens seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional
  • Aliens seeking to enter the U.S. to perform medical research or other research intended to combat the spread of COVID-19
  • Any spouse any unmarried child under 21 years of age of any such alien who is accompanying or following to join the alien
  • Any alien applying for a visa pursuant to the EB-5 Immigrant Investor Program
  • Aliens whose entry furthers important United States law enforcement objectives
  • Any alien seeking entry pursuant to a Special Immigrant Visa in the SI or SQ classification, and any spouse and child of any such individual
    • SI: Certain aliens employed by the U.S. Government in Iraq or Afghanistan as translators or interpreters
    • SQ: Certain Iraqis or Afghans employed by or on behalf of the U.S. Government
  • Any alien whose entry would be in the national interest of the United States (national interest waivers)
  • Aliens seeking entry for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Exciting news for Filipino nurses. The EB-3 employment-based category will become current in July 2019 through the summer.

This means that if you have an approved PERM application that was filed by your employer, your employer may file Form I-140 Immigrant Petition for Alien Worker on your behalf. Please note that registered nurses and physical therapists are not required to go through the PERM process and may proceed straight to the I-140.

Since there will be no waiting period in July 2019 through the summer, EB-3 Filipino nurses will be able to apply for the I-140 straight away, and for their adjustment of status. Applicants who are outside of the United States, may apply for their immigrant visa at a U.S. Consulate/Embassy in their country of residence.

Important Steps

If your employer has not filed a PERM application for you, they should do so as soon as possible. The PERM requirement does not apply to registered nurses or physical therapists.

After the PERM application is approved, your employer must file Form I-140 Petition for Alien Worker on your behalf. Registered nurses and physical therapists do not need to file a PERM application, and their employers may proceed with the immigrant visa petition (I-140).

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The R-1 visa is arguably one of the most underrated work visas available in the U.S. immigration system. The R-1 visa program enables foreign nationals to travel to the United States for the purpose of engaging in temporary employment, as a minister, or in another religious vocation or occupation on at least a part time basis (20 hrs/week).

To qualify for the R-1 visa, the foreign national must be employed by (1) a non-profit religious organization in the United States or (2) a religious organization that is authorized by a group tax exemption holder to use its group tax exemption or (3) a non-profit religious organization affiliated with a religious denomination in the United States.

In addition, the foreign national must be a member of the religious denomination for at least two years immediately prior to filing for an R-1 visa.

What is considered a religious occupation under the program?

Religious occupations are those whose duties:

  • Primarily relate to a traditional religious function
  • Are recognized as a religious occupation within the denomination
  • Are primarily related to, and clearly involve, inculcate, or carry out the religious creed and beliefs of the denomination

Who may not be eligible for the R-1 visa?

Administrative or support personnel including janitors, maintenance workers, clerical employees, or fund-raisers, or similar occupations that involve soliciting donations. Limited administrative duties that are incidental to religious functions are permissible.

Benefits of the R-1 Visa Program

Dual Intent

The R-1 visa is a dual intent visa. A dual intent visa allows a foreign national to enter the United States as a non-immigrant for a temporary specified period of time, but allows the foreign national to retain the option of applying for a green card in the future.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

EB-1 Worldwide: this category is not expected to advance until January 2019. Time will tell whether this category will become current during the next year.

EB-1 China and EB-1 India: Also expected to experience forward movement until January 2019. A cutoff date for this category will continue through the next 12 months.

EB-2 Worldwide: This category is expected to remain current until at least the foreseeable future.

EB-2 China: is two months behind EB-3 China, which may prompt EB-2 applicants to downgrade.

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BREAKING: The United States Citizenship and Immigration Services (USCIS) will be publishing a final rule in the Federal Register tomorrow August 30, 2018, increasing the premium processing fee charged by the agency by 14.92 percent.

According to USCIS the increase in the fee accounts for inflation according to the Consumer Price Index. The last time that the filing fee for premium processing was updated to account for inflation was in the year 2010.

The adjustment in the fee will bring the premium processing fee to $1,410 instead of $1,225. The final rule states that the ruse will become effective 30 days after publication in the federal register which would fall on September 30th of this year. Any applications postmarked on or after September 30th will need to include the new $1,410 filing fee instead of the previous filing fee.

DHS has authorized the fee increase without notice and comment, because according to DHS it is “unnecessary.” The government cites 5 U.S.C. 553(b)(B) and INA section 286(u), 8 U.S.C. 1356(m) as authority to adjust the fee without notice or public comment.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the month of May and June. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Below are the highlights of those trends and projections:

Check-in with DOS’s Charlie Oppenheim: May 2018

Employment Based Categories

For the month of May, the following categories remained steady with no changes in the final action dates:

  • EB-1 China and India
  • EB-2 India
  • EB-3 China and Philippines
  • EB-4 El Salvador, Guatemala, and Honduras and
  • EB-5 China

Categories that experienced some forward movement included:

  • EB-2 China to move forward one month to September 1, 2014
  • EB-3 India to advance three months to May 1, 2008
  • EB-3 Other Workers—China to move forward one month to May 1, 2007
  • EB-4 Other Workers—India to move forward about 3 months to May 1, 2008
  • EB-4 Mexico to advance 5 weeks to October 22, 2016

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During December of last year, the United States Citizenship and Immigration Services (USCIS), announced that the agency was beginning to take preliminary steps to terminate H-4 Employment Authorization for certain H-4 spouses, a privilege that has been available to eligible spouses of H-1B nonimmigrant workers since 2015. As it stands, the 2015 H-4 EAD rule allows certain H-4 dependent spouses of H-1B nonimmigrant workers the ability to obtain an employment authorization card (work permit), provided the H-1B nonimmigrant worker is in the process of obtaining an employment based green card.

Proposal to Amend the 2015 H-4 EAD Rule

On December 14, 2017, a rulemaking notice was first published in the Federal Register notifying the public that the Department of Homeland Security, in conjunction with USCIS, would be reviewing and possibly amending the 2015 H-4 EAD rule, following the issuance of Executive Order 13788, “Buy American, Hire American.”

According to the notice published in the Federal Register, DHS reserves the authority to amend the 2015 H-4 EAD rule under section 102 of the Homeland Security Act of 2002 and section 103(a) of the Immigration and Nationality Act (INA). These sections of the law give the Secretary of the Department of Homeland Security the discretionary power to amend the law so that it aligns with the policies set out in the President’s executive order.

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Now is a good time to file your green card application. Significant wait times are expected given a new policy passed by the Trump administration that will require in-person interviews for LPR applicants filing based on employment sponsorship

In yet another controversial move, the Trump administration has recently adopted a new policy change that will require an in-person interview for individuals wishing to obtain lawful permanent residency based on employment sponsorship. The new policy will be implemented beginning October 1st.
Previously, foreign nationals applying for permanent residency, based on employment sponsorship, were not required to attend an in-person interview, although this allowance was discretionary. In recent years, the in-person interview requirement was typically reserved for individuals applying for permanent residency based on a qualifying familial relationship, and not for individuals applying based on employment sponsorship.

A USCIS spokesperson announced the new policy change on Friday August 25th, a change that will delay the process of obtaining a green card significantly, given the increased number of individuals that will be required to attend an in-person interview. According to USCIS this change in policy will apply to any individual adjusting their status to legal permanent residency from an employment-based visa category.

What’s more, family members of refugees or asylees, holding a valid U.S. visa, will also be required to attend an in-person interview when applying for provisional status.

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