• Ashenberg Law Group

August 2019 Newsletter

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IMMIGRATION UPDATES

1. Continuation of Worldwide Backlog, USCIS’ Final Decision on Submitted Applications Regressed 10 Months, for EB-1 Green Cards; Priority Date for Family-Based F2A Spouses and Minor Children of Green Card Holders Continues to be “Current”

The U.S. Department of State’s (DOS) most recently released Visa Bulletin for August 2019 shows a continuation of worldwide backlog for EB-1. The priority date in which USCIS gives the final decision on green card applications already submitted by China-Mainland born applicants has regressed 10 months.

On the other hand, in a pleasant surprise, the Visa Bulletin for August 2019 shows that Family-Based F2A Spouses and Minor Children of Green Card Holders continues to be “current” for all countries. Those in the U.S. can apply for an adjustment of status green card concurrently with the immigrant petition; those who are overseas will be scheduled for an immigrant visa interview, provided that they are "documentarily qualified", and be eligible for an immigrant visa.

As with previous months, USCIS will accept adjustment of status applications based on the “Dates of Filing” charts for family-based cases (exception for F2A Spouses and Minor Children of Green Card Holders, see above), and the “Final Action Dates” for employment-based cases.

The August 2019 Visa Bulletin can be found here.

2. Understanding HR.1044 and S.386: Fairness of High Skilled Immigrants Act of 2019

On July 10, 2019, the House of Representatives passed H.R. 1044: the Fairness of High-Skilled Immigrants Act of 2019, where the bill will next go to the Senate for consideration. H.R. 1044’s companion bill S.386 originated in the Senate with the same bill text.

H.R. 1044 and S.386 both propose changes to the per-country cap on the existing rule of immigrant visa distribution, so that green cards are issued on a first-come, first-serve basis instead of the Beneficiary’s country of birth. Proposed changes include:

Eliminating the Per Country Cap for Employment-based Immigrant Visas: The bills completely remove the 7% per country cap for employment-based immigrant visas, without discrimination or limit based on country of origin. This will help speed up the decades long waiting period for high-skilled H-1B workers from India and Mainland China.

Increasing the Per Country Cap for Family-based Immigrant Visas: The bills raise the 7% per country cap to 15% for family-based immigrant visas.

Transition Rules for Employment-based Immigrant Visas from FY 2020 to FY 2022: Transition rules ensure India and Mainland China applicants do not take up all employment-based immigrant visas in the first few years.

  • FY 2020 (October 2019 to September 2020): 85% of employment-based immigrant visas to be allocated to immigrants from India and Mainland China, the remaining 15% to be reserved for immigrants from all other countries.

  • FY 2021 and FY 2022 (October 2020 to September 2022): 90% of employment-based immigrant visas to be allocated to immigrants from India and Mainland China, the remaining 10% to be reserved for immigrants from all other countries.

  • After FY 2022 (Starting from October 2022): No employment-based immigrant visas will be reserved for immigrants from any country.

Per Country Limits in the Transition Rules for Employment-based Immigrant Visas from FY 2020 to FY 2022: During the transition period from FY 2020 to FY 2022, there are limitations to the number of employment-based immigrant visas allocated to each country.

  • Reserved Visas (for all countries apart from India and Mainland China): Each country should not take more than 25% (or 2% for each dependent area) of the total number of reserved visas during the transition period.

  • Unreserved Visas (for India and Mainland China): Each country should not take more than 85% of the total number of unreserved visas during the transition period.

  • Special Rule to Prevent Unused Visas: If there are any visas left over after applying the rules above, they would be given to those in line who are not subject to these restrictions.

Transition Rule for Currently Approved Applicants: If the applicant is already in line waiting for an immigrant visa, his/her wait time will either shorten or remain the same. The bill will not negatively affect those who already have a priority date from an approved immigrant petition.

3. Published Final Rule to Bring Significant Changes to EB-5 Program

According to the final rule published in the Federal Register on July 24, 2019, USCIS announced significant changes to DHS’ regulations governing the EB-5 Immigrant Investor Program, effective November 21, 2019. Major changes to the EB-5 Program include:

Raising Minimum Investment Amounts: Accounting for inflation, the minimum investment amount in non-Targeted Employment Areas (non-TEAs) will increase from $500,000 to $900,000, whereas that for Targeted Employment Areas (TEAs) will increase from $1 million to $1.8 million. Furthermore, the rule provides that the minimum investment amounts will automatically adjust for inflation every five years.

Revising Standards for TEA Designation: The new regulation changes how TEAs are determined and removes State authority for TEA designation. Under this new final rule, DHS will have exclusive authority over the management of TEAs.

Clarifying Procedure for Removal of Conditions on Permanent Residence: The new final rule clarifies the procedure for certain derivative family members who are lawful permanent residents to independently remove conditions on their permanent residence, improving the flexibility of interview locations. This is not applicable to those family members who were included in a principal investor’s petition to remove conditions.

Allowing Investors to Retain Priority Dates: The new final rule permits qualified immigrant investors to retain his or her priority date from previously approved EB-5 Immigrant Petition for any subsequently filed EB-5 Immigrant Petition.

USCIS’ alert can be found here.

ALG SUCCESS STORIES

FY 2020 H-1B Cap-Subject Petition Approved in 3 Months for Graphic Designer of an Education Management Company

On July 11, 2019, ALG received notice of another approval for FY 2020 H-1B cap-subject petition.

Company W is an education management company seeking to hire Mr. Z in the specialty occupation of Graphic Designer under H-1B status. Mr. Z has a bachelor’s degree in Graphic Arts, which ALG used as the petitioning degree to meet the H-1B speciality occupation requirement. Since Mr. Z has already completed all the course requirements for a master’s degree in Fine Arts from a U.S. university, and is eligible for graduation at the time of submission, ALG filed Company's H-1B petition under the U.S. advanced degree exemption (i.e. master’s cap) to give Mr. Z a better chance in getting selected in the lottery.

ALG mailed out Company W’s H-1B petition at the end of March, which arrived at USCIS on April 1, 2019. The petition got selected in the FY 2020 H-1B cap season computer-generated random selection process.

USCIS approved the petition in 3 months without a request for additional evidence.

L-1A Petition Approved in 10 Days for Deputy General Manager of High-Tech Enterprise Mr. L had been serving as the Deputy General Manager of a successful Chinese high-tech enterprise that specializes air purification, internet medical and health services (medical wearable equipment), and big data service for over 1 year, where he managed 43 employees of 3 key departments. The U.S. affiliate company hoped to transfer Mr. L as Deputy General Manager to expand its new U.S. business, as well as have him manage 5 employees in the U.S.

ALG attorneys consulted with Mr. L on the qualifying relationship of the two companies, carefully reviewed all probative documents, and drafted a detailed petition letter to incorporate all the supporting documents to prove the Chinese company’s thriving business and the genuine business need to expand to the U.S. market.

Under premium processing, USCIS approved this L-1A petition in 10 days without a request for additional evidence.

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