The July 2019 Visa Bulletin contains significant updates in many U.S. immigrant visa categories and is filled with predictions about visa availability for future months, which is vital for visa applicants to plan ahead.  Here are five important updates from the July 2019 Visa Bulletin:

1. F2A Category is Current. The F2A category includes spouses and children (unmarried and under 21 years of age) of permanent residents.  This category is current for all applicants, meaning that anyone who wishes to apply in this category, and is otherwise eligible to adjust status, can file Form I-130 and Form I-485 concurrently.  Keep in mind the F2A category has heightened scrutiny compared to the immediate relative category, so properly determining eligibility to adjust status is critical.

2. Large Forward Movement for China EB-1, EB-2, and EB-3. For other countries, including those not specifically listed in the Visa Bulletin (the rest of the world or “ROW”), the EB-1, EB-2, and EB-3 categories had very modest forward movement or none at all.  For China, the EB-1, EB-2, and EB-3 categories each jumped over 2 months forward.  In future months, China EB-1 likely will not move forward, but EB-2 and EB-3 are expected to continue to move forward rapidly.

3. India EB-5 First Ever Final Action Date. As predicted in earlier statements and in Item E of the June 2019 Visa Bulletin, India will reach its per-country annual limit in July, resulting in the imposition of its first ever Final Action Date (“FAD”) of 01MAY2017.  In August and September, the India FAD will track China, but in October, the start of Fiscal Year 2020, the India EB-5 FAD will advance to Summer or Fall 2017.  Indian EB-5 applicants with an approved Form I-526 petition must act quickly in order to file an adjustment of status application before July 1 while the FAD remains current.   For more information, visit our earlier blog. 

4. Future Visa Availability – Family-Based. The F2A category is expected to remain current through September in order to generate increased demand because there are not enough applicants actively pursuing final action to actually use the visa numbers in this category.  Once enough applicants use enough visa numbers, this category will again be subject to a FAD.

5. Future Visa Availability – Employment-Based. EB-1 continues to experience heavy demand resulting in little forward movement.  The India EB-1 FAD is expected to be 22FEB2017 in October.  EB-2 and EB-3 are expected to remain current for ROW, Mexico, and the Philippines with modest movement for India.  EB-5 for Vietnam will also track China for the rest of the fiscal year.  In October, the Vietnam EB-5 FAD will advance to Fall or early Winter 2016.

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• China – October 1, 2014
• Vietnam – October 1, 2016
• India – May 1, 2017

The July 2019 Visa Bulletin also indicates that in August, both India and Vietnam will become subject to the same final action date which applies to China-mainland born EB-5 visa applicants for the remainder of the fiscal year (until October 1, 2019).  The publication is consistent with information provided by Mr. Charles Oppenheim, Chief, Immigrant Visa Control & Reporting, U.S. Department of State at the IIUSA EB-5 Advocacy Conference last month.  In fact, the imposition of a final action date for India around this time was shared by Mr. Oppenheim as early as April 2018.  So, if lawfully present in the United States with an approved Form I-526 and able to do so, file your Form I-485 and get the “combo card” to work and travel in the U.S. prior to July.

To learn more about the imposition of a final action date and “retrogression,” be sure to visit our Visa Retrogression Q&A with Managing Partner Bernard Wolfsdorf.

The post EB-5 Update – India and Vietnam Subject to Final Action Date Effective July 2019 appeared first on Immigration Attorneys Los Angeles, New York, Oakland, San Francisco & Shanghai.

Effective immediately, New Zealand citizens are now eligible to apply for E-1/E-2 Treaty Trader/Investor visas.  Individual investors who make a substantial investment usually in the amount of about $150,000  into a U.S. business may apply for an E-2 visa to direct and develop the U.S. operations.  Additionally, New Zealand citizens may be granted E-2 visas to work as executives, managers, or essential employees of U.S. businesses that have received a substantial investment from New Zealand.

New Zealand citizens who meet these criteria can now be issued five-year, renewable, multiple entry E-1/E-2 visas to conduct business in the U.S.  Spouses and children under age 21 years may be issued derivative visas for the same duration and spouses can obtain an unrestricted work permit.

Five Requirements for an E-1 Treaty Trader Visa

1. Activities constitute substantial international trade. “Substantial” means trade must be a continuous flow that should involve numerous transactions over time.  The focus is primarily on the volume of trade conducted but the monetary value of the transactions is also relevant. Greater weight is given to cases involving more numerous transactions of larger value.
2. Applicant must be coming to the United States solely to engage in substantial trade. This does not prohibit an ancillary or coincidental purpose of travel:
3. Trade is principally between the United States and the treaty country. This rule requires that over 50 percent of the total volume of the international trade conducted by the treaty trader regardless of location must be between the United States and the treaty country of the alien’s nationality.  The remainder of the trade in which the alien is engaged may be international trade with other countries or domestic trade;
4. Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and
5. Applicant intends to depart the United States when the E-1 status terminates.

Seven Requirements for an E-2 Treaty Investor

1. Applicant has invested, and the investment is irrevocably committed;
2. Enterprise is a real and operating commercial enterprise and is  producing some service or commodity. It cannot be a speculative investment held for potential; appreciation in value, such as undeveloped land or stocks held;
3. Applicant’s investment is substantial. There are no bright line percentages that exist in order for an investment to be considered substantial.  Thus, investments constituting 100 percent of the total cost would normally qualify for a business requiring a startup cost of $100,000.  At the other extreme, an investment of $10 million in a $100 million business may be considered substantial, based on the sheer magnitude of the investment itself.
4. Investment must be more than a marginal one solely for earning a living. A marginal enterprise is an enterprise that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and his or her family.  If at the end of five years the company is not making considerable profits, an extension may be difficult. .
5. Applicant is in a position to “develop and direct” the enterprise. The type of enterprise being sought will determine how this requirement is applied. For example, an equal share of the investment in a joint venture or an equal partnership of two parties, generally gives controlling interest, if the joint venture and partner each retain full management rights and responsibilities. In instances in which a sole proprietor or an individual who is a majority owner wishes to enter the United States as an “investor,” or send an employee to the United States as his and/or her personal employee, or as an employee of the U.S. enterprise, the owner must demonstrate that he or she personally develops and directs the enterprise.
6. Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States. Here the U.S. wants to see the applicant has the skills to perform the job successfully; and
7. Applicant intends to depart the United States when the E-2 status terminates.

For more information about the benefits New Zealand citizens and companies can enjoy with an E-1 or E-2 visa, please see our previous blog.  Also view the video below from WR Partner Bernard Wolfsdorf. If you would like to discuss whether this is a viable immigration option, please contact an attorney at Wolfsdorf Rosenthal LLP.

The post U.S. Opens Door to New Zealand Investors – The E-Treaty Trader/Investor Visa Goes Live appeared first on Immigration Attorneys Los Angeles, New York, Oakland, San Francisco & Shanghai.

Our firm Wolfsdorf Rosenthal LLP has blogged about the U.S. government’s use of digital information as part of the visa vetting process. The State Department is now requiring both temporary and permanent visa applicants to list their social media accounts.

When completing a DS-160, the Nonimmigrant Visa Application or a form DS-260, the Immigrant Visa Application, the applicant is required to list “each social media platform used within the last five years.”  For each platform, the visa applicant is required to enter each and every username or “handle” used.  This includes the following social media providers/platforms:

• Fm
• Douban
• Facebook
• Flickr
• Google+
• Instagram
• LinkedIn
• MySpace
• Pinterest
• Qzone (QQ)
• Reddit
• Sina Weibo
• Tencent Weibo
• Tumblr
• Twitter
• Twoo
• Vine
• Vkontakte (VK)
• Youki
• Youtube

The regulatory proposal for this new action is for the purpose of “identity resolution and vetting purposes based on statutory visa eligibility standards.” The U.S. State Department will search social media to determine whether a foreign national is admissible to the United States or it may be used to identify inconsistencies in the application. Applicants are advised to complete their forms carefully since social media may disclose inconsistencies in regard to employment location, position, or even place of residence. 

We will continue to update this story as more information about the use of such social media information by the U.S. government becomes available. 

The post U.S. Visa Applications Now Require Disclosure of Social Media Handles appeared first on Immigration Attorneys Los Angeles, New York, Oakland, San Francisco & Shanghai.

As many of our clients will be traveling abroad over the upcoming summer season, this brief travel memo summarizes the basic requirements for international travel/return to the United States.  

Please note that DHS and DOS policy often changes with little or no prior notice, so we encourage you to check with your WR attorney prior to your international travel.

The basic documents required for travel and re-entry to the U.S. include:

• A passport valid for at least six months beyond the date of intended departure from the U.S.;
• A valid U.S. visa;
• The original Form I-797, Notice of Approval (for non-immigrant petition-based cases);
• A valid advance parole for pending adjustment of status applicants (or a valid H-1B/H-4 or L-1/L-2 visa);
• A valid Lawful Permanent Resident Card (“Green card”) for U.S. permanent residents;
• It should be noted that U.S. Customs and Border Protection (CBP) has automated Form I-94 at air and sea ports of entry. The paper form is no longer provided and a CBP admission stamp is issued in the passport.  The I-94 (record of admission) should be printed as soon as possible after admission to the U.S. from www.cbp.gov/I94.

If you need to apply for a non-immigrant visa at a U.S. Consular Post, please consider the following:

• Nonimmigrant (NIV) appointments at many consular posts worldwide are backlogged during the summer season;
• Most applicants between ages 14 years and 79 years must have an in-person consular interview;
• Consider Third Country National (TCN) processing at a U.S. consular post in Canada or Mexico.  TCN processing at border posts is a complex and highly specialized field of U.S. immigration law. Applicants should be aware of the significant risks, including potential delays for security clearances/administrative processing  (see https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/administrative-processing-information.html), denials and most important, the inability to return directly to the U.S. if rejected/delayed. The advice of an experienced attorney is highly recommended to research post policy, thoroughly review the applicant’s U.S. immigration history and status, properly prepare the visa application forms and supporting documents, and be available to assist the applicant with the visa process. 
• Appointment scheduling times can be checked online at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/wait-times.html;
• U.S. Consular Posts links can be found at https://www.usembassy.gov/;
• Any individual with a criminal arrest and/or conviction, immigration status issues, or potentially subject to the Trump Travel Ban should consult with immigration counsel prior to departing the U.S.

Safe travels and a have a great summer!

If you have questions or problems, please email your assigned WR professional or contact us at visalaw@wolfsdorf.com. For emergencies call 1-800-VISA-LAW or (310)570-4088.

The post Client Alert: Summer Travel Advisory appeared first on Immigration Attorneys Los Angeles, New York, Oakland, San Francisco & Shanghai.

On May 10, 2019, USCIS updated its policy on Expedite Requests, effective immediately.  We previously blogged about expedite processing requests in the context of EB-5 applications, but this new policy applies to the adjudication of an application or petition for an immigration benefit by USCIS, though some exceptions apply.  Here are five things to know about requesting an expedite of an application or petition by USCIS: 

1. Criteria. The criteria have been narrowed, and USCIS will only consider an expedite request if it meets one of the following criteria: (a) urgent humanitarian reasons; (b) compelling U.S. government interests (such as public safety and national security interests); (c) an error on the part of USCIS; or (d) severe financial loss to a company or person.

2. Severe Financial Loss. While documentation is required to support any expedite request, USCIS states that where a company or individual claims “severe financial loss,” the actual loss must be documented, and the requestor must demonstrate that he/she/it is not able to withstand the temporary financial loss that is the natural result of normal processing times.    Additionally, “severe financial loss” is not warranted if the petitioner or applicant failed to file the benefit request in a reasonable time frame or failed to respond to a request for evidence in a reasonably timely manner.  Notably, USCIS’ policy states that the need to obtain employment authorization or student status, standing alone, without any evidence of other compelling factors, does not warrant expedited treatment.

3. Not Available if Premium Processing Allowed. USCIS does not consider expedite requests for petitions and applications that have Premium Processing service available (like most Form I-129 and Form I-140 petitions). 

4. Making an Expedite Request on Phone. It’s possible to make an expedite request by contacting USCIS at 1-800-375-5283 after receiving a receipt notice.  The USCIS Contact Center will not be able to refer the expedite request to the appropriate office without a receipt number. When you call to request expedited processing, the USCIS Contact Center creates and forwards a service request to the office with jurisdiction over your application or petition. 

5. USCIS Responses. After receiving the service request, the reviewing officer may request additional documentation to support expedited processing.  However, a decision on a request for an expedite does not constitute an approval or denial of the underlying application or petition; if the request is granted, it merely informs the requestor that USCIS will issue a decision faster than the normal processing time.  Further, to increase efficiency in the review and processing of expedite requests, USCIS is not required to provide justification (or even respond to the requestor) regarding decisions on expedite requests. 

The post 5 Things to Know About USCIS’ New Policy on Expedite Criteria appeared first on Immigration Attorneys Los Angeles, New York, Oakland, San Francisco & Shanghai.

1. WHAT IS THE “QUOTA BACKLOG”?

The Immigration and Nationality Act sets limits on how many immigrant visas (green cards) may be issued each Fiscal Year (October 1 through September 30) in all visa categories.  In addition, in the employment-based area where immigration is based on employment and not family relationships, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3, EB-4, or EB-5). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually.  If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created, and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date.”  The priority date is the single, most important, factor in any immigration case. 

2. WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?

• Employment-Based First Preference (EB-1)
• Employment-Based Second Preference (EB-2)
• Employment-Based Third Preference (EB-3)
• Other Workers
• Employment-Based Fourth Preference (EB-4)
• Employment-Based Fifth Preference (EB-5)

3. WHAT DOES EB-1 MEAN?

Employment-Based First Preference (EB-1) includes:  (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers. 

4. WHAT DOES EB-2 MEAN?

Employment-Based Second Preference (EB-2) includes:  (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an

EB-2, rather it is the company’s minimum job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business.  Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected. The EB-2 category includes National Interest Waiver petitions.

5. WHAT DOES EB-3 MEAN?

 Employment-Based Third Preference (EB-3) includes:  (1) Professionals and skilled workers (bachelor’s degree or two years of training).  The position must require a minimum of a bachelor degree or two years of training.

6. WHAT DOES “OTHER WORKERS” MEAN?

Other Workers includes positions that require less than two years of experience.

7. WHAT DOES EB-4 MEAN?

Employment-Based Fourth Preference (EB-4) includes certain religious workers and other special immigrant categories.

8. WHAT DOES EB-5 MEAN?

Employment-Based Fifth Preference (EB-5) includes immigrant investors who have made a qualifying investment of at least $500,000 or $1,000,000 which created 10 full-time jobs for U.S. workers.  Applicants receive a conditional green card for 2 years, after which they must file a second petition with proof that the investment was sustained, and the jobs were created in order to remove the conditions. * Click here for additional information on the EB-5 wait line update.

9. WHAT IS THE “PRIORITY DATE”?

If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the Department of Labor. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 or I-526 Immigrant Visa Petition.  However, the priority date does not attach to your case until the I-140 or I-526 has been approved.

10. WHY IS THE PRIORITY DATE IMPORTANT?

In order for an individual to obtain an immigrant visa, a visa number must be available. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the Department of State’s monthly Visa Bulletin, which is accessible at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the Department of State (“DOS”) each month.

11. WHAT IS THE DIFFERENCE BETWEEN CHART A – FINAL ACTION DATES AND CHART B – DATES FOR FILING?

On November 20, 2014, the Department of Homeland Security directed the U.S. Citizenship and Immigration Services (“USCIS”) to work with DOS to improve the Visa Bulletin system. On July 16, 2015, the Obama Administration issued a report Modernizing and Streamlining Our Legal Immigration System for the 21st Century. As a result, USCIS/DOS revised the procedures for determining visa availability for applicants waiting to file for adjustment of status.  This change enhances the ability to more accurately predict overall immigrant visa demand and minimize month-to-month fluctuations.

Chart A – Final Action Dates (FAD) lists the dates when applicants will be eligible to receive their green cards.  Chart B – Dates for Filing (DFF) lists the dates when applicants are eligible to commence their cases with the National Visa Center for immigrant visa processing.

12. WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “DD/MMM/YY” (QUOTA BACKLOG)?

Unavailable means that there are no more visas available at all for the month.  If there is a date noted (i.e. 01JAN18), it is considered to be the cut-off date, and that means that there is a “quota backlog.”  Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

13. WHAT DOES “C” MEAN?

“Current” – this means that there is no quota backlog in this category.

14. WHAT DOES IT MEAN TO BE “CURRENT”?

If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment of status application or immigrant visa application.

15. IF THE VISA BULLETIN SHOWS A DATE OF 01JAN18AND MY PRIORITY DATE IS 01JAN18, IS MY PRIORITY DATE CURRENT?

No.  In order for the priority date to be current, it must be a date prior to the date published in the Visa Bulletin.

16. MY PRIORITY DATE IS CURRENT UNDER CHART B BUT NOT UNDER CHART A. CAN I FILE AN I-485 APPLICATION TO ADJUST STATUS?

It depends.  A few days after DOS publishes the Visa Bulletin each month, USCIS will determine whether applicants must use Chart A – FAD or Chart B – DFF to file an I-485 adjustment of status application.  USCIS publishes this information on its website at https://www.uscis.gov/visabulletininfo.

17. HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?

Each month, the DOS issues the visa bulletin, usually in the middle of the month.  When the bulletin is issued, it will provide information that will take effect on the first day of the following month.  (i.e., on April 8, 2019, the DOS released the dates effective as of May 1, 2019).  Depending on the availability of immigrant visas, the FAD and DFF in each category and for each country can change each month.  However, please note that the FAD and DFF can also stay the same.  They can move very slowly or progress by several months or years.  They can move forward or backward.  Therefore, there is no way to anticipate what the FAD or DFF will be in a future month or when a category will become current.

18. THE FAD IS 5 YEARS EARLIER THAN TODAY. DOES THIS MEAN THAT IT WILL TAKE 5 YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?

No.  It all depends on how many visas are used.  Please see the answer to the above question.

19. CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?

There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a different preference category with a shorter line, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an I-485 application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

20. IF I AM CHINESE OR INDIAN AND WOULD NORMALLY FILE AN EB-1 AS AN ALIEN OF EXTRAORDINARY ABILITY OR AN OUTSTANDING PROFESSOR/RESEARCHER, DO I HAVE ANY ALTERNATIVES?

Yes. An employer, usually a university or private company, may file a petition for you under the Schedule A, Group II category for Aliens of Exceptional Ability. Schedule A occupations are a special “pre-certified” category of occupations which are exempted from the labor certification process. Schedule A, Group 1 includes professional nurses and physical therapists; and Group II includes aliens of exceptional ability in the arts, sciences and performing artists.

21. IF I AM A CHINESE OR INDIAN AND WOULD NORMALLY FILE AN EB-2 PERM SPECIAL HANDLING PETITION OR A NATIONAL INTEREST WAIVER PETITION, DO I HAVE ANY ALTERNATIVES?

Yes, you may also potentially qualify under the Schedule A, Group II Alien of Exceptional Ability category. Schedule A occupations are a special “pre-certified” category of occupations which are exempted from the labor certification process. Schedule A, Group 1 includes professional nurses and physical therapists; and Group II includes aliens of exceptional ability in the arts, sciences and performing artists.

22. I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?

You may use the Priority Date attached to the approved I-140 Petition.  The Priority Date will be printed in the top portion of the Form I-797 Approval Notice.  You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.

23. I HAVE AN APPROVED I-140 PETITION IN THE EB-2 PREFERENCE CATEGORY. CAN I USE THIS PRIORITY DATE FOR A NEW PETITION IN A DIFFERENT PREFERNCE CATEGORY?

You may use a previous I-140 Priority Date interchangeably between EB-1, EB-2, and EB-3.  However, you may not use a previous EB-1, EB-2, or EB-3 Priority Date for a new EB-4 or EB-5 petition.

24. VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OF CITIZENSHIP OR COUNTRY OF BIRTH?

Your country of birth is what determines your country of chargeability.

25. MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY PETITION, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?

Your spouse’s country of birth may also be used to determine chargeability.  For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

26. BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT?  CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?

No.  You can use your spouse’s country of birth for eligibility.  However, your child’s country of birth cannot be used.

27. MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?

No.  The labor certification process is not affected by quota backlogs.

28. CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?

No.  The visa category cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed.  Also, since quota backlogs are based on the filing date, it is not in your interest to refile a case and obtain a later priority date.

29. CAN I STILL FILE THE I-140 PETITION OR I-526 PETITION IF THE PRIORITY DATE IS NOT CURRENT?

Yes.  The filing and adjudication of an I-140 is not affected by the quota backlogs.

30. MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT.  IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?

Yes.  Even through your case was approved, your dependent’s application is still based on your priority date.  USCIS cannot approve the dependent’s application until the priority date is current.

31. THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES A FUTURE BACKLOG AFFECT ME?

Yes.  USCIS can work on the pending application.  However, they cannot approve the application unless the priority date is current and a visa is “available”.

32. THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT USCIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?

Yes.  USCIS will continue to process the I-140 and it can be approved, regardless of the quota backlog.

33. CAN I FILE AN I-526 PETITION AND I-485 APPLICATION CONCURRENTLY IF THERE IS NO BACKLOG FOR MY COUNTRY OF BIRTH?

No.  You may not file an I-485 application concurrently with an I-526 petition.

34. IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL USCIS STILL ISSUE A FINGERPRINT NOTICE AND/OR RFE?

They may.  USCIS can still process the case but cannot approve it until the priority date is current.  Therefore, you may receive requests for evidence or fingerprint appointments.  It is important to comply with these requests.  Even though the case cannot be approved, it can be denied for failure to provide information or show up for fingerprinting.

35. MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?

No.  Even though the only issue may have been the security and background checks, USCIS cannot approve the case until the priority date is current.

36. DOESN’T USCIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?

No.  Immigrant visa numbers are not assigned to a case until right before approval.

37. CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?

Yes.  As long as you have a pending I-485 application at USCIS, you are eligible to apply for and receive EAD and AP documents.

38. MY I-485 IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E. CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?

No.  In order to add a dependent to the pending application, the priority date must be current.

39. MY FINGERPRINTS HAVE ALREADY BEEN TAKEN. HOWEVER, DUE TO THE QUOTA BACKLOG, THEY MAY EXPIRE.  WILL USCIS REQUIRE ME TO REDO MY FINGERPRINTS ?

Yes.  Fingerprint results expire after 15 months.  USCIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485.  If the results have expired, they will send out a new fingerprint appointment notice.

40. IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?

The USCIS may ask for updated employment information.  However, new photos and medical exams should not be required.

41. IF THE I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?

Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remains current.

42. I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?

The AC21 legislation provides for H-1B extensions beyond six years in certain circumstances. If you have a labor certification or an I-140 petition that has been pending for more than 365 days, you may extend your H-1B in one-year increments until a final decision is made. Another provision of AC 21 also provides that if you have an approved I-140 petition and you are unable to file the I-485 due to quota backlogs, you may apply for an extension of H-1B time for a three-year period. Your dependent’s H-4 status may also be extended.

43. IF I AM NOT ABLE TO FILE THE I-485 AND THEN I LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?

No.  In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.

44. IF I AM NOT ABLE TO FILE THE I-485 DUE TO QUOTA BACKLOGS, IS THERE ANOTHER WAY FOR MY H-4 SPOUSE TO OBTAIN WORK AUTHORIZATION?

Certain H-4 spouses are eligible for to apply for an EAD if the H-1B nonimmigrant is 1) the principal beneficiary of an approved I-140 petition or 2) has been granted H-1B status beyond the six-year limit pursuant to section 106(a) and (b) of AC21.

45. I HAVE A DERIVATIVE CHILD WHO MAY TURN 21 BEFORE MY PRIORITY DATE BECOMES CURRENT. WILL MY CHILD ALSO OBTAIN A GREEN CARD WHEN I DO?

Your child must be unmarried and under 21 years old at the time a green card is issued in order to qualify for a derivative green card.  If your child turns 21 while the case is backlogged, the child will age out and will be ineligible for a derivative green card.

46. DOES FILING AN I-140 OR I-526 PETITION WHILE MY CHILD IS UNDER 21 ENSURE THAT MY CHILD WILL NOT AGE OUT?

The Child Status Protection Act (“CSPA”) allows a derivative child to subtract the time the immigrant visa petition (I-140 or I-526) was pending from his or her actual age.  The CSPA age is the child’s actual age on the date a visa became available (either the date the petition was approved or the first day of the month when the priority date is current according to Chart A – FAD) minus the time the petition was pending.  However, the CSPA does not provide “age-out” relief for the time after the immigrant visa petition is approved until the date a visa becomes available unless the child’s age was frozen by taking steps at a time when a visa was available.

The child must “seek to acquire” permanent residence within one year of a visa becoming available.  This will lock or freeze the child’s CSPA age if a visa is available at the time these steps are taken and ensures that the child will not age out before the final adjudication of the immigrant visa or adjustment of status.

You can lock in your child’s age by filing an I-485 adjustment application or by paying the fee bill and filing a DS-260 application with DOS.  Until a visa is “available” and the age can be frozen, the child will continue to age and may age out.

47. DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A U.S. CITIZEN. I HAVE MINOR US CITIZEN CHILDREN.  I HAVE A US CITIZEN SPOUSE.  CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?

Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old.  However, if you have a U.S. citizen child who is over 21 or a U.S. citizen spouse, please contact us to discuss your options.

Disclaimer: This does not constitute direct legal advice and is for informational purposes only. FOR PRECISE ADVICE REGARDING YOUR CASE EMAIL US AT VISALAW@WOLFSDORF.COM OR CALL 1-800-VISA-LAW TO SPEAK TO A WR GLOBAL IMMIGRATION LAWYER

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This week, Mr. Charles Oppenheim, Chief, Immigrant Visa Control & Reporting, U.S. Department of State (“DOS”) presented at the IIUSA EB-5 Advocacy Conference.  Mr. Oppenheim’s presentation provided important information regarding the latest EB-5 data and estimates for future processing times.

1. Predictions for Future Final Action Dates. Oppenheim predicted the following Final Action Dates for EB-5. It is important to note in the past, Mr. Oppenheim has had to recalibrate estimates later in the year based on unforeseen variables impacting visa demand or usage:

• China
  • Best Case Scenario for October 2019 (the start of FY2020) – October 15, 2014
  • Worst Case Scenario for October 2019 – October 8, 2014
  • Comment: Slow movement because of large groupings of applicant demand in weekly groupings surrounding Regional Center program sunsets
• Vietnam
  • Best Case Scenario for October 2019 – December 15, 2016
  • Worst Case Scenario for October 2019 – November 22, 2016
• India
  • Imposition of a Final Action Date in July 2019 likely (formal alert in June 2019 Visa Bulletin likely).
  • Best Case Scenario for October 2019 – Fall 2017
  • Worst Case Scenario for October 2019 – Summer 2017
• All Other Countries
  • Will remain current for the foreseeable future

2. Potential “Rough” Visa Wait Time for EB-5 Investors, if I-526 Filed on May 6, 2019. The wait time estimate is the number of years between the time when an I-526 petition was filed and the time when an EB-5 visa is available, including the processing time for adjudicating the I-526 petition. USCIS petition processing times vary from a few months to a few years.

These estimates are “rough” and cannot encompass all the variables, such as dissipation from petition revocations, deaths, age outs, withdrawals, and many other factors; nor does it include possible increases from family “acquired” before visa issuance, possible legislative, regulatory, judicial or other governmental action that might increase available numbers. But, they do provide a glimpse into the issue of demand versus the annual per-country limit impacting visa availability. However, these estimates do not apply to EB-5 applicants whose I-526 petition was filed before May 6, 2019.

• China (estimate based on 3,000 visas per year): about 16.5 years
• Vietnam (700 visas per year): about 7.6 years
• India (700 visas per year): about 8.4 years
• South Korea (700 visas per year): about 2.4 years
• Taiwan (700 visas per year): about 2.0 years
• Brazil (700 visas per year): about 1.6 years

Mr. Oppenheim mentioned that, with the exception of China, these times might be considered the “worst case,” and a “wait” only comes into play if a Final Action Date is being applied to a country at that time.  Otherwise, numbers are immediately available (no wait) to all eligible applicants who are ready to proceed with final action on their case (i.e., petition approved, and provided all required information is sent to NVC, etc. such that they are “documentarily qualified” for a final interview at a Consulate or Embassy abroad).

3. Still Opportunity for India EB-5. Despite the estimated 8.4-year EB-5 visa wait time for newly filed Indian-born nationals, EB-5 may still remain the fastest way to get a green card.  While Mr. Oppenheim did not present official estimates for employment-based categories other than EB-5, wait line estimates for India EB-2 and EB-3 range from decades to centuries.  Indian applicants should consider all employment-based green card options available.

For additional content on visa retrogression read 47 Questions & Answers About Visa Retrogression.

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USCIS has issued new policy guidance to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance clarifies that an applicant for U.S. naturalization who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.  With marijuana use directly impacting U.S. naturalization determinations, it is critical that immigrants understand the U.S. federal immigration laws’ policies towards marijuana.  Moreover, such use may render a green card holder inadmissible, and possibly removable.

Here are 5 things to know:

1. Marijuana is a Schedule I Drug. Federal law classifies marijuana as a “Schedule I” controlled substance like heroin or LSD. The growing or manufacture, distribution, dispensing, or possession of marijuana may lead to negative immigration consequences, even though numerous states have enacted laws permitting medical or recreation use of marijuana.  It is irrelevant that since 1996, several states and the District of Columbia have enacted laws to decriminalize the cultivation, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions.  Also, the violation of federal controlled substance law may be established by a conviction or a mere admission of use. If a non-U.S. citizen admits to smoking or consuming marijuana, they can be refused admission, or possibly become inadmissible if they continue to use.

2. Inadmissibility.U.S. immigration law is extremely harsh. As we previously blogged, the Immigration and Nationality Act of 1990, states that any alien who a consular office knows or has reason to believe is or has been an illicit trafficker in any “controlled substance,” or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so is inadmissible. This includes offenses beyond simple possession of marijuana and also include all parts of a marijuana plant, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant. 

3. Green Card Waiver Waivers. You will not be eligible for a waiver if you are inadmissible for drug trafficking or for any drug crime (other than an offense related to simple possession of 30 grams or less of marijuana). To qualify for a waiver, you must have been convicted of a single offense of simple possession of 30 grams or less of marijuana or more than 15 years have passed since you committed the crime. There is however a second requirement to get this waiver. If you are applying for a waiver based on the passage of 15 years, you will need to show that you have been rehabilitated and that your admission is not contrary to the welfare, safety, or security of the United States. If you are applying based on having a “qualifying relative” it is necessary to prove the relative would experience extreme hardship if you are not admitted to the United States. A qualifying relative means a spouse, parent, son, or daughter who is a U.S. citizen or lawful permanent resident. U.S. immigration officials may consider a variety of factors to decide whether your qualifying relative would suffer extreme hardship, such as medical, financial, educational, personal, and physical concerns.

4. Nonimmigrant Waiver. A nonimmigrant waiver, under §212(d)(3) for persons who are otherwise inadmissible may be possible but passage of time since use and rehabilitation are often key requirements to success. According to CBP, the exercise of authority to grant a waiver is discretionary and the granting of an application for advance permission to enter as a nonimmigrant pursuant to Section 212(d)(3) is considered on the merits which include the presence of extenuating or mitigating circumstances. The applicant bears the burden of establishing that the waiver should be granted in the exercise of discretion. Adjudicators are supposed to decide by balancing a.) the risk of harm to society if the applicant is admitted; b.) the seriousness of the underlying cause of the applicant’s inadmissibility, and c.) the nature of the applicant’s reason for wishing to enter the United States. CBP says that it also considers the following factors in exercising discretion (1) the nature of the offense; (2) the circumstances which led to the offense; (3) how recently the offense occurred; (4) whether it was an isolated incident or part of a pattern of misconduct; and (5) evidence of reformation and rehabilitation. Port parole is available in emergent circumstances. Port parole is a discretionary grant of entry (but not admission).

5. Our Advice. Unless you are a U.S citizen stay away from marijuana or it could have adverse immigration consequences. If you critically need medical marijuana for example to control seizures, and there is no substitute, get a legal consult to advise regarding the consequences, but do not expect good results. If you are a foreign national, do not carry marijuana, a medical marijuana card, or marijuana stickers, t-shirts, etc. Be careful regarding texts or photos relating to marijuana from your social media and on your phone. If you have used marijuana or worked in the industry, get legal counsel before leaving the United States or applying for naturalization or immigration status as you may face eligibility issues. Be aware that admissions made involving marijuana with immigration, border, consular, or law enforcement authorities may render you inadmissible. We do not advise foreign nationals to refuse to cooperate, so each case must be handled by competent counsel. On the positive side, there may be health benefits from refraining.

Wolfsdorf Rosenthal has written extensively on marijuana use by U.S. immigrants.  To read more, click

• https://wolfsdorf.com/blog/2018/10/19/canadas-cannabis-conundrum-5-things-every-u-s-visa-holder-should-know/
• https://wolfsdorf.com/blog/2016/08/02/immigration-consequences-of-marijuana-use-for-green-card-holders-and-non-immigrants-dont-let-your-dreams-and-hard-work-go-up-in-smokevapor/
• https://wolfsdorf.com/blog/2017/12/20/4-things-know-applying-u-s-citizenship-digital-information-age/

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