I-94 RECORD UPDATE

Beginning in May 2019, I-94 numbers will be alphanumeric. Currently, I-94 numbers are 11 digits long and only contain numbers.  I-94 numbers will remain at 11 characters but will follow the format of 9 digits, followed by a letter in the 10th position, and a digit in the 11th position.

E-Verify AND E-Verify SERVICES ARE UNAVAILABLE DUE TO THE GOVERNMENT SHUTDOWN

While E-Verify is unavailable, employers will not be able to access their E-Verify accounts to: Enroll in E-Verify; Create an E-Verify case; View or take action on any case; Add, delete or edit any user account; Reset passwords; Edit company information; Terminate accounts; and Run reports.

Also, employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).

The government understands that E-Verify’s unavailability may have a significant impact on employer operations. To minimize the burden on both employers and employees, the following policies have been implemented:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve TNCs will be extended.
  • The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs. USCIS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines (/employers/federal-contractors/timeframes-for-enrollment-and-use).

For information on interim cases statuses and E-Verify resources see E-Verify publications (/employers/employer-resources) and Questions and Answers (/about-e-verify/questions-andanswers).

The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) (https://www.uscis.gov/i-9-central/handbook-employers-m-274) and on I-9 Central (https://www.uscis.gov/i-9-central).

What happens if the Government shuts down?

Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

USCIS:  USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers. As announced by USCIS on January 20, 2018, those programs may be suspended or otherwise impacted.

E-Verify:  Unavailable

DOS:  Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.

CBP:  Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.

ICE:  ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

EOIR:  Immigration court cases on the detained docket will proceed during the lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings.

DOL:Is NOT impacted by this government shutdown. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

UPDATE ON ADVANCE PAROLE DENIALS DUE TO INTERNATIONAL TRAVEL

USCIS recently updated its website with information regarding the agency’s practice of denying pending Form I-131 advance parole applications for abandonment due to international travel. Specifically, USCIS indicates on its website that if an applicant files Form I-131, Application for Travel Document, to request an advance parole document and departs the United States without possession of an advance parole document that is valid for the entire time the applicant is abroad, USCIS will consider the pending Form I-131 to be abandoned.

However, in some situations, an individual may have an approved advance parole document in hand while a second one is pending with the agency. USCIS indicates that individuals may travel on the approved advance parole document, provided the document is valid for the entire duration of the time abroad, and confirms that a pending Form I-131 application will not be considered abandoned in this situation.

Though not a formal announcement, this update can be found on the USCIS website under the “Special Instructions” section. This update does not appear to cover applicants who travel abroad with a valid H, K, L, or V visa.

Recap: If you currently have a valid Advance Parole document while an application for a new advance parole document is pending at USCIS, international travel will not result in a denial of the pending application.  This only applies if you are returning to the U.S. with an advance parole document.  This does not apply if you need to return to the U.S. using a nonimmigrant visa.

Update on USCIS Practice of Denying Pending Forms I-131 for Abandonment Due to International Travel

On November 16, 2018, USCIS Director L. Francis Cissna spoke briefly on the USCIS policy to deny pending Forms I-131, Application for Travel Document when an applicant travels overseas. Based on feedback from the CIS Ombudsman and other stakeholders, Director Cissna indicated that USCIS will end the practice of denying pending I-131 applications when an applicant travels overseas. Though he did not provide a timeline for this change, he indicated that policy on this would be forthcoming.

This is finally a bit of good news.  We will post more information as it becomes available.

Check-in with DOS’s Charlie Oppenheim Regarding October Visa Bulletin

Employment-Based Preference Categories

EB-1. For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017. Charlie remains pessimistic that the EB-1 Worldwide final action date will advance before the end of this calendar year. He forecloses the possibility of advancement in November and is pessimistic that there will be advancement in December but notes that there will be some forward movement in all EB-1 categories after the beginning of 2019. Demand is sufficiently high that Charlie is unable to predict at this time whether this category will become current in FY 2019. Charlie does not expect any advancement of EB-1 China or EB-1 India before January 2019 and believes it is “almost guaranteed” that both categories will be subject to a final action date through the fiscal year.

EB-2 and EB-3 Worldwide. As previously predicted, EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year. Charlie has not seen expected growth in EB-3 Worldwide.

EB-2 China and EB-3 China. While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015. It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand. If there are not as many downgrades, EB-3 China could advance more rapidly than expected. Charlie has no visibility into EB-3 China “downgrade” demand until a visa number is requested, so this category may move modestly to avoid future retrogression. Members should continue to watch these two categories closely.

EB-2 India and EB-3 India. EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009. Members should carefully watch movements in these two categories. Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.

EB-3 Philippines and Other Workers Philippines. As predicted, EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Members should expect only minimal movement during the first quarter of the fiscal year.

EB-4. As predicted, EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October. There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1. Due to visibility into pre-adjudicated cases filed prior to the imposition of a final action date in May 2016, as well as potential future demand by cases with old priority dates, Charlie is moving this category conservatively to avoid a future retrogression.

EB-4 India. It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.

EB-5 Non-Regional Center for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.

EB-5 China. Demand remains high, so members should not expect much movement in this category throughout the fiscal year. EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.

Check-in with DOS’s Charlie Oppenheim Regarding the September Visa Bulletin

Family-Based Preference Categories

September brings a one-month retrogression in the final action dates for FB-1 Worldwide, China and India, from May 8, 2011 back to April 8, 2011.

FB-3 Worldwide, China and India also retrogress approximately 6 weeks, from June 15, 2006 to May 1, 2006. In October 2018, when the new fiscal year commences, these categories will recover and return to the previously held August final action dates.

All Philippines family-based preference categories will advance in September except FB-2A Philippines.

FB-1 Mexico, FB-2B Mexico and FB-3 Mexico all advance modestly in September.

In the first few months of FY 2019, it is predicted that the Worldwide family-based preference categories will advance as follows: FB-1: up to three weeks, following an October recovery; FB-2A: up to three to five weeks; FB-2B: up to six weeks; FB-3: up to three to five weeks, following an October recovery; FB-4: up to five weeks. Members should keep in mind that whenever the Visa Bulletin indicates there will be movement “up to” a certain amount of time, there could be no movement or movement up to the maximum of the referenced period.

Employment-Based Preference Categories

EB-1. Despite a one-month advancement in September and previously expressed hopes that EB-1 Worldwide would return to current on October 1, 2018 (as it has in past years), heavy demand will preclude the category from returning to current in October. Charlie further believes that EB-1 China and EB-1 India will continue to have final action dates in October which are earlier than those established for Worldwide. It is unlikely that any of the EB-1 categories will have much forward movement before December or possibly into Q2 of FY 2019.

EB-2 Worldwide. This category will return to current in October and will remain so for the foreseeable future.

EB-2 China and EB-3 China Flip Again, but is it Too Soon to Downgrade? In September, EB-2 China will retrogress from March 1, 2015 to the Worldwide date of January 1, 2013, resulting in EB-3 China having a more favorable date than EB-2 China. Despite this dramatic retrogression, Charlie predicts that EB-2 China will fully recover to at least the August Visa Bulletin date of March 1, 2015 in October, once again causing EB-2 China’s final action date to be later than that of EB-3 China. EB-2 China will move very slowly through the first quarter of the fiscal year, as Charlie assesses demand from earlier movements.

EB-3 China advances four months in September to November 1, 2014 and is expected to advance from this date by up to three weeks at a time, starting in October. While EB-2 China is likely to stay ahead of EB-3 China for the first quarter of the fiscal year, members should continue to watch these categories closely as their dates are only within a few months of one another.

EB-2 and EB-3 India. After its long-awaited movement into 2009, EB-2 India retrogresses more than two years to January 1, 2007 in September. This abrupt retrogression should be short-lived as Charlie expects EB-2 India to recover to a 2009 date in October and to advance at a pace of up to two weeks at a time. In September, EB-3 and Other Workers India retrogresses six years to January 1, 2003 but will recover in October and then move slowly pending receipt of demand from recent advances. The dramatic retrogression of these categories was required to stop further number use in light of the recent increase in demand by all other countries, resulting in a lack of “otherwise unused” numbers available for India EB-2/EB-3.

EB-3 and Other Workers. A final action date of November 1, 2016 is briefly imposed for EB-3 Worldwide, Mexico and Vietnam (as well as El Salvador, Guatemala, and Honduras), and Other Workers Worldwide, Mexico, and Vietnam, but all of these categories will return to current in October.

EB-3 China. This category advances four months to November 1, 2014, and Other Workers China holds at May 1, 2007. These categories are expected to move at a pace of up to three weeks.

EB-3 Philippines. In September, this category and Other Workers Philippines retrogresses seven months to November 1, 2016 but is expected to recover some in October.

EB-4 El Salvador, Guatemala, Honduras, EB-4 Mexico and EB-4 India all advance one week to February 15, 2016. Members should expect variances in these categories starting in October.

Given the complexity of processing Special Immigrant Juvenile cases, it is very difficult for Charlie to predict when pending cases will mature into demand for visa numbers. Members should expect EB-4 El Salvador, Guatemala and Honduras to at least hold at February 15, 2016 for October.

EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, and EB-4 India will return to current in October.

EB-5 Non-Regional Center and Regional Center for both China and Vietnam will advance one week to August 8, 2014 in September. Charlie expects that for both countries, these categories will continue to operate under a final action date as we enter FY19. Their dates are likely to be different, however, with Vietnam’s date being later than that of China for the first five to six months of the fiscal year, until EB-5 Vietnam hits it’s per country limit. At that time, its final action date will track that of China.

What Happens If the Government Shuts Down Today?

USCIS: USCIS is a fee-funded agency with the exception of E-Verify, so if the government shuts down, only E-Verify shuts down. Otherwise, it’s business as usual.

DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.

CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.

ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

EOIR: EOIR’s detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.

DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.

Re-registration for El Salvador TPS Recipients

U.S. Citizenship and Immigration Services (USCIS) announced yesterday that current beneficiaries of Temporary Protected Status (TPS) under El Salvador’s designation who want to maintain their status through the effective  termination date of Sept. 9, 2019, must re-register between Jan. 18, 2018, and March 19, 2018.

Re-registration procedures, including how to renew employment authorization documents, have been published in the Federal Register and on uscis.gov/tps.