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June 14, 2017

FOIA Lawsuit Reveals Critical H-1B Regular and Master’s Cap Information

The American Immigration Council (AIC), on behalf of the American Immigration Lawyers Association (AILA), filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Citizenship and Immigration Services (USCIS) to obtain information on how H-1B cap-subject cases are selected and processed.  In response to the lawsuit, USCIS released 3,600 records to the AIC, and the AIC has identified five key documents of interest to date.

These documents reveal that in addition to the 65,000 Regular cap H-1B cases and 20,000 Master’s cap H-1B cases, USCIS accepts 10,000 additional Regular cap cases and 5,000 additional Master’s cap cases, with a total of 75,000 Regular cap cases and 25,000 Master’s cap cases accepted in the lottery and receipted into USCIS’s system. USCIS accepts these additional cases in anticipation that some cap cases will be denied on the merits during adjudication.  Moreover, if more than 3,000 cases accepted in the lottery end up being rejected for any reason, additional cap-subject cases will be accepted and receipted in by USCIS. For these reasons, we will not know for certain whether an H-1B cap case has been formally rejected and not accepted in the Fiscal Year (FY) 2018 cap by USCIS until the rejected petition is actually received at our office.

June 14, 2017

USCIS Transfers Cases Between NSC and CSC

On June 9, 2017, USCIS began transferring cases from Nebraska Service Center (NSC) to California Service Center (CSC) for processing. To lighten the workload at NSC, USCIS has transferred H-1B extension petitions and I-765 employment authorization document (EAD) applications that were filed with I-539 H-4 extensions. While the transferred cases are now being processed by CSC, the receipt numbers have not changed and USCIS does not expect the case transfers to affect processing times.

June 14, 2017

Visa Bulletin Update

The final action date of January 1, 2012 for the EB-1 China and EB-1 India categories has remained and is expected to hold steady until October 2017, when the final action date could possibly become current again. The recent increase in EB-1 Worldwide demand, combined with demand increases in the EB-4 and EB-5 categories, has significantly decreased the “otherwise unused numbers” that in the past trickled up to EB-1 and down to EB-2 for usage. For example, in 2014, EB-2 India used approximately 23,500 numbers due to the infusion of otherwise unused numbers.  In 2017, however, EB-2 India will be held to its annual 2,803 limit. This will result in continued pressure on China and India in the EB-1 and EB-2 categories for the foreseeable future. The EB-2 Worldwide category has remained current for July, but a final action cut-off date will be imposed in August due to continued high demand. The EB-2 Worldwide category, however, is expected to become current again in October 2017. The EB-2 India date has progressed slightly to July 22, 2008, however, it will likely not advance any further this fiscal year and may retrogress slightly through September 2017. EB-2 China has advanced three weeks to March 22, 2013.  Most notably, EB-3 China has retrogressed from October 1, 2014 to January 1, 2012 due to the heavy volume of EB-3 downgrade requests. EB-3 Worldwide demand has been low this fiscal year, which has allowed unused numbers to be used by EB-3 India, which will jump forward from May 15, 2015 to February 15, 2006 in the month of July.  The “All Chargeability Areas” and Mexico final action dates in EB-3 have advanced to June 8, 2017, making them nearly current. EB-5 China has continued to advance very slowly, moving forward only one week to June 8, 2014. The cut-off date in the family-based second preference (F2A) category will continue to advance up to one month each month. The other family-based preference categories continue to move forward slowly, with projections of advancements of several months for the F1 category, up to five weeks for F2B, three to four weeks for F3, and two to three weeks for F4.

June 14, 2017

Government Files Appeal with the U.S. Supreme Court in Travel Ban Case

On June 1, 2017, the DOJ filed a petition for a writ of certiorari to the U.S. Supreme Court appealing the Fourth Circuit’s preliminary injunction against Executive Order 13780, “Protecting The Nation From Foreign Terrorist Entry Into The United States”, which suspended the entry of nationals from six countries.  On May 25, 2017, the Fourth Circuit Court of Appeals affirmed in substantial part the district court’s issuance of a nationwide preliminary injunction against the Executive Order.  Due to the strong national significance, it is likely that the justices will choose to hear the case, although the Supreme Court is not under any obligation to do so. At least four of the nine Supreme Court justices must agree to hear the case before it can be placed on the docket. The vote will occur once the Supreme Court has had ample time to review the findings and information presented in the writ of certiorari. The government also filed an application for a stay of the preliminary injunction pending the disposition of the petition for certiorari (International Refugee Assistance Project v. Trump, 6/1/17).

June 14, 2017

USCIS Policy Memorandum Designating Matter of A-T- Inc as an Adopted Decision

On May 23, 2017, USCIS released a Policy Memorandum regarding the qualifications of H-1B Master’s Cap petitions. The memorandum designates the decision of the Administrative Appeals Office (AAO) in Matter of A-T- Inc. as an adopted decision. As an adopted decision, the case establishes policy guidance that is binding on all USCIS employees. In Matter of A-T- Inc., the AAO clarified that in order to qualify for the H-1B Master’s cap, the conferring institution must have been qualified as a “United States institution of higher education” at the time that the degree was issued to the beneficiary.

June 14, 2017

$225,750 Settlement Agreement Reached in I-9 Employment Verification Investigation

On May 17, 2017, a settlement agreement was reached between the Immigrant and Employee Rights Section (IER) of the Department of Justice (DOJ), Pasco Processing, LLC, and Washington Potato Company following an over two-year investigation on whether the I-9 employment eligibility practices of Pasco Processing, LLC violated the anti-discrimination provisions of the Immigration and Nationality Act (INA).

The investigation results revealed that from November 1, 2013 to October 16, 2016, Pasco Processing, LLC and Washington Potato Company required noncitizens of the U.S. to present specific documents regarding their citizenship and/or immigration status but did not require the same specified documents for U.S. citizens.  After unsuccessfully attempting to resolve the matter through negotiation, DOJ filed a complaint with the Office of Chief Administrative Hearing Officer (OCAHO) against both employers on November 10, 2016.

The penalties awarded in the settlement include a civil penalty of $225,750 and significant revisions to both companies’ employment verification practices, which will be monitored at the discretion of the IER.

June 14, 2017

Employers Given More Time to Confirm Sponsorship After Filing a PERM Application

On May 31, 2017, the Office of Foreign Labor Certification (OFLC) extended the deadline for employers to respond to the PERM sponsorship confirmation email sent by the U.S. Department of Labor (DOL) following the filing of a PERM application.  Employers now have 30 days to respond to the sponsorship email; previously, employers were required to respond to the sponsorship email within seven days.  If DOL has not received a response within seven days, it will automatically email the employer a reminder that there are 23 days left before the deadline for PERM sponsorship confirmation expires.

June 14, 2017

Entry and Exit Overstay Report for Fiscal Year 2016 Released

On May 22, 2017, Department of Homeland Security (DHS) released the FY 2016 Entry/Exit Overstay Report to the public.  The report provides information on the departures and overstays of nonimmigrant visitors who entered the U.S. through an air or sea port of entry (POE). While the report does not consider visitors who enter the U.S. through a land or vehicular POE, the report includes persons who comprise 96.02 percent of all nonimmigrant admissions to the U.S. including temporary workers, students, exchange visitors, visitors for business and pleasure, and other nonimmigrants.

The report found that in 2016, there were 50,437,278 nonimmigrant admissions processed by U.S. Customs and Border Protection (CBP).  The report stated that 544,676 persons or 1.07 percent overstayed their nonimmigrant admissions.

Immigration and Customs Enforcement (ICE) recently began increasing their overstay enforcement operations, and CBP will launch a biometric exit process in seven airports in the U.S. This new technology uses facial recognition software to confirm the identity of departing travelers and has been successfully implemented from June 2016 through the present at Atlanta’s Hartsfield-Jackson International Airport.

June 14, 2017

State Sponsored Visa Pilot Program Act Introduced to U.S. Senate

On May 4, 2017, Senators Ron Johnson (R-WI) and John McCain (R-AZ) introduced the State Sponsored Visa Pilot Program Act of 2017 (S. 1040) to amend the Immigration and Nationality Act (INA). This bill would create 5,000 visas per state with an additional 245,000 visas to be divided among all 50 states annually, according to size and population. The proposed visas would be available for states to allocate to qualifying migrant workers, investors, and entrepreneurs. The state would petition the Department of Homeland Security (DHS) and the Department of State (DOS) to allow the foreign national to enter the U.S. with visas being approved for a maximum period of three years. This bill would also allow states the ability to allocate visas to the industries in their economies having the highest need for guest workers. All foreign nationals admitted on these visas would be required to live and work in the state that sponsored them. Congressman Ken Buck (R-CO) plans to introduce a companion bill in the U.S. House of Representatives.

May 11, 2017

USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions

The U.S. Citizenship and Immigration Services (USCIS) announced on May 3, 2017 that it has completed data entry of all fiscal year (FY) 2018 H-1B cap petitions selected in the computer-generated random lottery and will begin returning unselected H-1B cap petitions. USCIS is unable to provide a definitive time frame for mailing back unselected cases but will issue an announcement once all the unselected petitions have been returned (likely in early July based on previous years). ImLaw anticipates receiving any final H-1B cap receipt notices from USCIS by mid-May 2017.  Additionally, USCIS is transferring some H-1B cap petitions from the Vermont Service Center (VSC) to the California Service Center (CSC) to balance the workload distribution of cap cases.

May 11, 2017

Federal Government Spending Bill with Certain Immigration Provisions Signed into Law

On May 1, 2017, Congress reached an agreement for a federal government funding bill, the “Consolidated Appropriations Act, 2017”, which President Trump has signed into law.  The bill appropriates $42.4 billion to the Department of Homeland Security (DHS) for FY 2017, including $772 million for Customs and Border Protection (CBP) funding and other border security programs and $3.71 billion for interior immigration enforcement in FY 2017.  The bill did not include any funding for construction of a border wall as requested by the President.  Notably, the bill also provides limited H-2B cap relief for FY 2017, allowing DHS and the Department of Labor (DOL) to increase the H-2B cap by not more than the highest number of H-2B workers who participated in the H-2B returning worker program in any year in which the returning workers were exempt from the H-2B numerical limitation.  The highest number of H-2B workers admitted to the US when the returning worker exemption was in place is likely 154,895 which occurred in FY 2007.  New H-2B applications should not be filed with USCIS until USCIS has made an official announcement.

May 11, 2017

Visa Bulletin Update

As anticipated, continued heavy demand of visas in the EB-1 category has required the establishment of a priority date of January 1, 2012 for EB-1 China and EB-1 India beginning in June 2017. The dates for these two countries will once again become current in October 2017. The EB-2 final action dates for all countries other than China and India will remain current, however, a final action date will likely be imposed in July. EB-2 India has advanced slightly, but March demand doubled from February. EB-2 China continues to advance slowly and remains over 18 months behind EB-3 China, a trend that is expected to continue while the demand for “downgrading” to EB-3 materializes. During the last month, there has been a significant increase in EB-3 China demand, resulting in the final action date being held for the month of June with possible retrogression no later than August if the high demand continues. The priority date for EB-3 India has advanced nearly two months. In the EB-3 category, the “All Chargeability Areas” and Mexico final action date will continue to advance up to one month and remain approximately two months away from being current. The cut-off dates for EB-5 China will experience slow forward movement of up to two weeks each month. The cut-off date in the family-based second preference (F2A) category will continue to advance up to one month each month. The other family-based preference categories continue to move forward slowly, with projections of advancements of several months for the F1 category, up to five weeks for F2B, three to four weeks for F3, and two to three weeks for F4.

April 19, 2017

H-1B Cap Update

As expected, on April 7, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the 65,000 H-1B “regular” cap and the 20,000 H-1B U.S. advanced degree “Master’s” cap for fiscal year 2018.  USCIS announced on April 17, 2017 that it received a total of 199,000 H-1B cap petitions, which is significantly less than the 236,000 petitions the agency received last year.  For petitions that were selected in the lottery, USCIS will send receipt notices by regular mail.  For unselected petitions, USCIS will return the application package with unused filing fees and rejection notice by regular mail.  ImLaw will update clients when we receive any news on their cases.  USCIS will continue to accept H-1B petitions that are exempt from the H-1B cap, including petitions for cap-exempt employers (institutions of higher education, nonprofit organizations “affiliated with” or “related to” institutions of higher education, nonprofit research organizations, and government research organizations), H-1B transfers (change of employer), H-1B extensions, H-1B amendments, and H-1B petitions for a J-1 physician who has a received a 214(l) waiver.  Premium Processing remains unavailable for all H-1B petitions until further notice from USCIS.

April 19, 2017

President Trump Issues Executive Order, “Buy American and Hire American”

On April 18, 2017, President Trump issued a new Executive Order, “Buy American and Hire American.”  In this order, Trump directs the Department of Homeland Security (DHS), Department of Labor (DOL), Department of State (DOS), Department of Justice (DOJ) to review the laws governing the current H-1B program and propose reforms that ensure H-1B visas are issued to the “most-skilled or highest-paid beneficiaries.”  President Trump also directs federal agencies to review all visa programs, propose changes, and take prompt action to crack down on fraud and abuse to protect U.S. workers.  This executive order will have no immediate impact on the current H-1B program since most changes will require action by Congress or federal rule making, which will take time to implement.

April 19, 2017

USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

On April 3, 2017, the first day USCIS began accepting fiscal year 2018 H-1B cap petitions, USCIS announced multiple measures to further deter and detect H-1B visa fraud and abuse. In an effort to help protect American workers, USCIS will take a more targeted approach when making site visits to H-1B employers and the worksites of H-1B employees. The agency will focus on cases where USCIS cannot validate the employer’s basic business information through commercially available data, H-1B dependent employers (possessing a high ratio of H-1B workers as compared to U.S. workers, as defined by statute), and employers petitioning for H-1B workers who work offsite at another company or organization’s location. H-1B employers who fall under one of these categories should be prepared for a potential audit by USCIS.

Since 2009, USCIS has conducted random site visits to ensure that H-1B employers and H-1B workers are complying with legal requirements, however, the agency will now focus its site visits where fraud and abuse are more likely to occur.

On April 4, 2017, the DOL also announced plans to “protect U.S. workers from H-1B program discrimination by providing greater transparency and oversight.” DOL plans to initiate investigations of H-1B program violators and consider changes to the Labor Condition Application (LCA) and other program improvements.

April 19, 2017

Visa Bulletin Update

In the last several weeks, the level of employment-based first and second preference (EB-1 and EB-2) demand has increased dramatically. Continued heavy demand of visas will require corrective action by DOS to hold usage of visas within the annual limits until October 2017, the first month of fiscal year 2018. EB-1 will remain current for all countries, however, a final action date will be imposed for China and India in the near future. The EB-2 final action dates for all countries other than China and India will remain current, however, a final action date will be imposed no later than July. EB-2 India has remained at the same date, while EB-2 China continues to advance slowly and remains nearly 20 months behind EB-3 China, which is expected to continue until the demand for “downgrading” to EB-3 materializes. In the EB-3 category, the “All Chargeability Areas” and Mexico final action date will continue to advance up to one month and remain approximately two months away from being current. DOS estimates that EB-3 will advance up to six months for the Philippines, with extremely limited forward movement for India.  The cut-off dates for EB-5 China will experience slow forward movement of up to two weeks each month. The cut-off date in the family-based second preference (F2A) category will continue to advance up to one month each month. The other family-based preference categories continue to move forward slowly, with projections of advancements of several months for the F1 category, up to five weeks for F2B, three to four weeks for F3, and two to three weeks for F4.

March 7, 2017

USCIS Suspends Premium Processing for all H-1B Petitions Filed On or After April 3, 2017

USCIS has suspended its premium processing service for all H-1B petitions filed on or after April 3, 2017. This suspension applies to all H-1B petitions filed on or after April 3, 2017, including H-1B extension and amendment petitions, this fiscal year’s H-1B cap cases, and all H-1B cap-exempt cases. According to USCIS, the suspension may last up to six months.

Premium processing will still be available for any H-1B cases filed prior to April 3, 2017. According to USCIS, the suspension of premium processing is being implemented to help reduce overall H-1B processing times, which are running several months and up to 1 year in some cases. USCIS states it will also prioritize processing of H-1B extension petitions that are approaching being pending for 240 days, since the automatic extension of employment authorization is effective for only 240 days following the prior petition’s H-1B expiration date.

During the premium processing suspension period, USCIS will accept and review expedite requests on a case-by-case, discretionary basis. USCIS may expedite a petition if it meets one or more of the following criteria:

• Severe financial loss to company or person;
• Emergency;
• Humanitarian reasons;
• Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
• Department of Defense or national interest situation (these expedite requests must come from an official U.S. government entity and must state that the delay will be detrimental to the government);
• USCIS error; or
• Compelling interest of USCIS.

ImLaw advises employers to file all H-1B petitions a full six months in advance of the expiration date to allow for maximum processing time with USCIS. The suspension of premium processing will likely affect the ability of certain employees to travel and apply for/obtain new visas abroad and renew driver’s licenses.

March 7, 2017

Reminder to Employers on Filing H-1B Cap-Subject Cases – Must Initiate Cases Now!

A final reminder for US employers seeking to file H-1B cap-subject cases on behalf of foreign professional workers – these cases need to be filed during the first five business days in April 2017 (April 3 through April 7, 2017). Prior to filing these H-1B cap cases in the first week of April, there are several pre-required actions including evaluating the offered position to determine whether it qualifies as an H-1B “specialty occupation”, whether the foreign professional’s credentials satisfy H-1B legal requirements, whether the offered salary meets the actual wage paid to similar situated workers in the geographic area of intended employment or the applicable prevailing wage for that occupation in the geographic area of intended employment, whichever is higher, and preparing, filing, and obtaining a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) for the offered position.

March 7, 2017

President Trump Issues Revised Executive Order Effective March 16, 2017

On March 6, 2017, President Trump issued a revised Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States”, which imposes an entry ban and suspends processing of visas and other immigration benefits for nationals of six designated countries for 90 days from March 16, 2017, the effective date of the order. The new Executive Order revokes the previous January 27, 2017 Executive Order.
The new order imposes a 90-day ban on entry to the U.S. for nationals of six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Notably, Iraq, previously included in the January 27 Executive Order, has been removed from the list. The entry ban applies to foreign nationals who (1) are outside of the United States on the effective date of March 16, 2017; (2) did not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and (3) do not have a valid visa on the effective date of this order, March 16, 2017. The entry ban does not apply to any U.S. lawful permanent residents (“green card” holders), any dual national of one of the six designated countries when the individual is traveling on a passport issued by a non-designated country, individuals granted asylum or refugees who have already been admitted to the U.S., foreign nationals who possess a valid visa or advance parole document for entry to the U.S. on or after March 16, 2017, foreign nationals who are admitted or paroled into the U.S. on or after March 16, 2017, and foreign nationals traveling on a diplomatic, NATO, C-2, G-1, G-2, G-3, or G-4 visa.
The order provides for case-by-case waivers to allow the issuance of a visa or entry of a foreign national if the foreign national has demonstrated that denial of the visa or entry would result in undue hardship, that the entry would be in the national interest, and that the entry would not pose a threat to national security. The order enumerates several examples where a waiver may be appropriate including a foreign national seeking to enter the U.S. to visit or reside with a spouse, child, or parent who is a U.S. citizen, lawful permanent resident, or individual lawfully admitted on a valid nonimmigrant visa where the denial of entry would cause undue hardship; the foreign national is an infant, young child, adoptee, or individual needing urgent medical care; certain business scenarios; certain continuation of work and study obligations; the foreign national is traveling as a US government-sponsored exchange visitor; the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada, among others.
The new order also suspends entry of refugees in the U.S. and suspends decisions on applications for refugee status for 120 days to allow the Secretary of Homeland Security to review the current application and adjudication process for refugees. The order also imposes a cap of 50,000 refugees to be admitted to the United States in fiscal year 2017. Similar to the entry ban, the order provides for refugee waivers on a case-by-case basis if the Secretary of State and Secretary of Homeland Security jointly determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the U.S.
Please contact ImLaw with any questions on the revised Executive Order.

March 7, 2017

H-2B Cap Will Be Hit Much Sooner Than Last Year or Prior Years

As of March 3, 2017, USCIS announced it has received petitions covering 29,803 H-2B workers towards the 33,000 cap for the second half of fiscal year 2017. Specifically, 18,492 H-2B beneficiaries have been approved with cases covering 11,338 H-2B workers pending at this time with USCIS. According to the DOL, there has been a 93% increase in filings from last year. Accordingly, the 33,000 cap will be reached significantly earlier than previous years. In 2016, the H-2B cap was not reached until May 12, 2016.  In 2015, the H-2B cap was not hit until June 11, 2015. Moreover, in 2014, 2013, and 2012, the H-2B cap was never even reached! We will continue to provide updates to our employers on this fiscal year’s H-2B cap.

March 7, 2017

Visa Bulletin Update

The employment-based first preference (EB-1) will remain current for all countries, however, a final action date is likely be imposed for China and India by August, if not sooner. The EB-2 final action dates for all countries other than China and India will remain current. The U.S. Department of State (DOS) estimates that EB-2 India and EB-2 China will continue to advance up to one month each month until demand materializes. In the EB-3 category, the “All Chargeability Areas” and Mexico final action date will continue to advance up to three months. The DOS estimates that EB-3 will advance up to six months for China, up to six months for the Philippines, with extremely limited forward movement for India.  The cut-off dates for EB-5 China will experience slow forward movement of up to two weeks each month. The cut-off date in the family-based second preference (F2A) category will continue to advance up to one month each month. The other family-based preference categories continue to move forward slowly, with projections of advancements of several months for the F1 category, up to five weeks for F2B, three to four weeks for F3, and two to three weeks for F4.

February 22, 2017

Ninth Circuit Court of Appeals Upholds TRO to Halt Executive Order on Travel and Refugee Ban

On February 9, 2017, the Ninth Circuit Court of Appeals unanimously ruled to keep in place the temporary restraining order (TRO) barring implementation of President Trump’s Executive Order, “Protecting the Nation from Terrorist Entry into the United States”, which suspended entry to the U.S. for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for a minimum 90 days, entry of refugees from any country for a minimum 120 days, and entry of Syrian refugees indefinitely.  The Ninth Circuit found that the government failed to show a likelihood of success on the merits of its appeal and that the failure to stay (maintain) the TRO would cause irreparable injury.  This Executive Order will remain suspended until it can be legally addressed on the full merits.

The ImLaw team will continue to provide critical updates surrounding this Executive Order.

February 22, 2017

Urgent ImLaw Alert: Travel Warning for Nationals and Citizens of Seven Countries

On Friday, January 27, 2017, President Trump signed an Executive Order titled, “Protecting the Nation from Foreign Terrorist Entry into the United States”, which immediately suspends the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order. The designated countries are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen and are tied to the Visa Waiver provisions of the 2016 Consolidated Appropriations Act. The order also suspends the issuance of visas and “other immigration benefits” to nationals of the seven designated countries. After the 90-day period, travel is not automatically reinstated, but rather, the Department of Homeland Security (DHS) is required to report within 30 days whether the foreign country in question has provided adequate information “needed…to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the foreign country in question does not supply such information to DHS with 30 days, that country has 60 days to comply, otherwise the entry of foreign nationals from that country is prohibited indefinitely until such information is provided to DHS. U.S. consulates abroad have been ordered to cease issuance of all immigration benefits, including immigrant and nonimmigrant visas, for nationals of the seven countries for a minimum of 90 days; in fact, nationals of those countries can no longer even make visa appointments with the U.S. consulates. Per this executive order, refugees from all countries are barred from entry to the U.S. for at least 120 days, and refugees from Syria are barred from entry indefinitely.
At this time, ImLaw advises clients who are temporary visa holders (“nonimmigrants”), permanent residents/green card holders (“immigrants”), or individuals who hold dual nationality who are also nationals or citizens of one of the designated seven countries, to avoid any travel outside the U.S. until the necessary formal written guidance is provided to DHS agencies such as Custom and Border Protection (CBP) on how specifically the order is to be carried out by its officers and until proper implementation of the order actually occurs. To date, no such guidance has been provided to CBP, Immigration Customs and Enforcement (ICE), or U.S. Citizenship and Immigration Services (USCIS), and as a result, there have been numerous disturbing reports of CBP officers interpreting the order on their own and taking a variety of actions toward permanent residents and temporary visa holders that were clearly not authorized by this executive order or by formal supplemental guidance to CBP or any other DHS agency. The executive order is supposed to apply to non-U.S. citizens only, however, the White House Chief of Staff, Reince Preibus, stated on January 29 that CBP officers still have “discretionary authority” to question U.S. citizens arriving from one of the seven countries. Also on January 29, DHS issued a summary of the executive order which states “Lawful Permanent Residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals.” However, it remains to be seen how this DHS directive will actually be implemented.
We encourage clients who hail from one of the seven designated countries and may be affected by this executive order to reach out to ImLaw with questions. If you encounter difficulty or resistance upon entry or reentry to the U.S., please contact our office immediately. If you are a client of ImLaw and are directed by a CBP officer upon return to the U.S. to sign a document abandoning your permanent residence (I-407), return to your home country voluntarily with cancellation of your current visa, or sign any other document and threatened with an expedited removal bar from the U.S. for five years or other adverse immigration action if you do not comply, inform the CBP officer that you wish to speak to your immigration counsel and contact ImLaw immediately. We do yet not know how this executive order will affect the adjudication of other immigration benefits such as applications filed with USCIS for nationals of one of the seven countries but based on current reports, at minimum we expect processing and adjudication of immigration applications for affected nationals to be delayed. Clarification from the Trump administration on who is truly affected by this executive order and how it is supposed to be implemented is fluctuating on a daily basis; stay tuned for more updates as ImLaw obtains reliable information on this critical issue.

December 16, 2016

Final Rule Affecting High-Skilled Workers Takes Effect on Jan. 1, 2017

The Department of Homeland Security (DHS) recently published its final rule on the retention of EB-1, EB-2, and EB-3 high skilled immigrant workers and program improvements affecting these workers. The new rule aims to improve the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved I-140 employment-based immigrant visa petitions and are waiting to become lawful permanent residents (“green card holders”), while increasing the ability of these workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options. Below are 6 key highlights from the new rule, which takes effect on January 17, 2017:

  • H-1B Cap Exemption Based on Affiliations with Universities: The term “related or affiliated nonprofit entity” for H-1B cap exemption purposes is defined to specifically include nonprofit entities that have “entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher education for the purposes of research or education and a fundamental activity of the non-profit is to directly contribute to the research or education mission of the institution of higher education.”
  • 10-Day and 60-Day Grace Periods: The rule creates a new mandatory 10-day grace period which allows individuals in approved E-1, E-2, E-3, L-1, and TN classifications to be admitted to the U.S. up to 10 days before the petition’s start date and remain in the U.S. up to 10 days after the petition’s end date.  (Note, DHS already provides for such 10-day periods for H-1B, O, and P workers.)  Also, the rule authorizes a new grace period of up to 60 days for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN workers whose employment has ended during the petition’s validity period.
  • H-1B Extensions Beyond 6-year Maximum: If a PERM labor certification application or I-140 petition has been pending for more than 365 days, H-1B nonimmigrants will be eligible for a one-year extension of stay.
  • Automatic Renewal of Work Authorization Upon Filing of EAD Renewal Application: Upon filing for renewal of an employment authorization document (EAD) in the same category, work authorization is automatically renewed for up to 180 days from the EAD’s expiration date, or until adjudication of the EAD renewal application. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated. Troubling, however, is the elimination of the requirement that USCIS must adjudicate EAD applications within 90 days of receipt.
  • Eligibility for 1-year EAD for certain employment-based nonimmigrants: Permits application for a one-year EAD for individuals in H-1B, L-1, H-1B1, O-1, and E-3 status with approved I-140 immigrant visa petitions who are unable to file their I-485 adjustment of status applications due to priority date backlogs and where “compelling circumstances” exist. Spouses and children are also eligible to apply for EADs and extensions are available in one-year increments.
  • Clarification of “same or similar occupation”:  Where a foreign national with an approved I-140 petition and an I-485 application to adjust status pending for 180 days or longer desires to port to new employment, “same occupational classification” is now defined as “an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved.” The term ‘‘similar occupational classification’’ is now defined as “an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment based immigrant visa petition was approved.”

December 16, 2016

January 2017 Visa Bulletin

The Department of State (DOS) has released the Visa Bulletin for January 2017. According to the Visa Bulletin, the level of demand in many employment-based categories for cases filed with USCIS increased significantly late last winter and those levels have been sustained, with no signs that demand will diminish. The DOS has made several projections regarding visa availability in the coming months. EB-1 will remain current in the coming months, but at some point it will be necessary to impose a final action date for China and India. EB-2 will remain current for the foreseeable future, however, based on current demand, it will likely be necessary to impose a Worldwide, Mexico, and Philippines final action date by July 2017. EB-2 China has already exceeded its EB-2 quarterly limit so there is unlikely to be any major forward movement in this category. The plan for EB-2 India is to recover the November 22, 2008 final action date, but EB-3 upgrades could negatively impact that recovery. EB-3 demand is increasing and the Worldwide date may need to be retrogressed in early 2017. Finally, EB-3 India movement will be limited to one week, then the date will hold for several months before moving one week and then holding again.

The employment-based first preference (EB-1) will remain current for all countries including China and India. The employment-based second preference (EB-2) final action dates for all countries other than China and India will remain current in January 2017. EB-2 India has advanced from February 1, 2008 to April 15, 2008, and the filing date remained at April 22, 2009. For EB-2 China, the final action date advanced from September 22, 2012 to October 15, 2012, and the filing date remained at March 1, 2013. In the EB-3 category, the “All Chargeability Areas” and Mexico final action date advanced from July 1, 2016 to August 1, 2016, and the filing date is still current. EB-3 India final action date remained at March 15, 2005, and filing date remained July 1, 2005. EB-3 China final action date advanced from July 1, 2013 to September 8, 2013, and the filing date remained at May 1, 2014. EB-3 Philippines final action date advanced from June 1, 2011 to July 22, 2011, and the filing date remained at September 1, 2013. The cut-off dates for EB-5 China advanced only slightly from March 22, 2014 to an April 8, 2014 final action date, while the filing date remained at June 15, 2014.

The cut-off date in the family-based second preference (F2A) category has advanced from February 22, 2015 to March 22, 2015, and the filing date remained at November 22, 2015 for all countries other than Mexico, which advanced to March 8, 2015 with a filing date of November 22, 2015 as well. The F2A priority dates will continue to advance up to one month each month. The other family-based preference categories continue to move forward slowly, with projections of advancements of three to five weeks for the F1 category, up to four weeks for F2B category, two to four weeks for F3, and three to five weeks for F4.

USCIS has not yet advised whether in January 2017 the agency will accept adjustment of status applications for family-based or employment-based petitions based on dates of filing, rather than final action dates.

December 16, 2016

Reminder: New Increased USCIS Fees Take Effect on 12/23!

The Department of Homeland Security’s (DHS) final rule containing an increased filing fee schedule takes effect on December 23, 2016.  All applications filed on or after December 23 are subject to the new fee schedule.

December 16, 2016

Reminder to Employers:  New I-9 Form Must Be Used After January 21, 2017

The current I-9 form (edition date 3/8/2013) is valid for use only until January 21, 2017.  After January 21, 2017, employers must use the new I-9 form (edition date 11/14/2016). The new I-9 form is available at www.uscis.gov/i-9.

 

December 16, 2016

Post-Election Immigration Impact

At this time, we do not know what exactly will happen once the new administration takes office on January 20, 2017.  It is important not to take action or panic without obtaining the facts, gathering knowledge from reliable legal sources, and knowing your rights.  It is also important not to fall prey to scammers or notarios who may take advantage of any post-election confusion and anxiety.  ImLaw will communicate significant immigration updates and changes affecting our clients through our newsletters, and, as always, feel free to reach out to ImLaw with any questions you have.

November 3, 2016

Final Rule on New Increased USCIS Fee Schedule

On Monday, October 24, 2016, the U.S. Department of Homeland Security (DHS) published its final rule in the Federal Register for a new increased filing fee schedule for immigration applications processed by the U.S. Citizenship and Immigration Services (USCIS). DHS increased fees by a weighted average of 21 percent. The filing fee increases include the I-90 ($365 to $455), the I-129 ($325 to $460), the I-129F ($340 to $535), the I-130 ($420 to $535), the I-131 ($360 to $575), the I-140 ($580 to $700), the I-485 ($985 to $1,140), the I-539 ($290 to $370), the I-751 ($505 to $595), the I-765 ($380 to $410), the N-400 ($595 to $640), and the USCIS immigrant fee ($165 to $220). Note, the biometrics services fee has not been increased and  remains $85.  All applications filed on or after December 23, 2016 are subject to the new fee schedule.

Form No.5 Title Current fee Final fee
G-1041 Genealogy Index Search Request $20 $65
G-1041A Genealogy Records Request (Copy from Microfilm) 20 65
G-1041A Genealogy Records Request (Copy from Textual Record) 35 65
I-90 Application to Replace Permanent Resident Card 365 455
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 330 445
I-129/129CW Petition for a Nonimmigrant Worker 325 460
I-129F Petition for Alien Fiancé(e) 340 535
I-130 Petition for Alien Relative 420 535
I-131 6/I-131A 7 Application for Travel Document 360 575
I-140 Immigrant Petition for Alien Worker 580 700
I-191 Application for Advance Permission to Return to Unrelinquished Domicile 585 930
I-192 Application for Advance Permission to Enter as Nonimmigrant 585 8 585/930
I-193 Application for Waiver of Passport and/or Visa 585 585
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal 585 930
I-290B Notice of Appeal or Motion 630 675
I-360 Petition for Amerasian Widow(er) or Special Immigrant 405 435
I-485 Application to Register Permanent Residence or Adjust Status 985 1,140
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 635 750
I-526 Immigrant Petition by Alien Entrepreneur 1,500 3,675
I-539 Application to Extend/Change Nonimmigrant Status 290 370
I-600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition 720 775
I-800/800A Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country 720 775
I-601 Application for Waiver of Ground of Excludability 585 930
I-601A Application for Provisional Unlawful Presence Waiver 585 630
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) 585 930
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act 1,130 1,130
I-690 Application for Waiver of Grounds of Inadmissibility 200 715
I-694 Notice of Appeal of Decision 755 890
I-698 Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA) 1,020 1,670
I-751 Petition to Remove Conditions on Residence 505 595
I-765 Application for Employment Authorization 380 410
I-800A Supp. 3 Request for Action on Approved Form I-800A 360 385
I-817 Application for Family Unity Benefits 435 600
I-824 Application for Action on an Approved Application or Petition 405 465
I-829 Petition by Entrepreneur to Remove Conditions 3,750 3,750
I-910 Application for Civil Surgeon Designation 615 785
I-924 9 Application for Regional Center Designation Under the Immigrant Investor Program 6,230 17,795
I-924A Annual Certification of Regional Center 0 3,035
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 215 230
N-300 Application to File Declaration of Intention 250 270
N-336 Request for Hearing on a Decision in Naturalization Proceedings 650 700
N-400 Application for Naturalization 595 640
N-470 Application to Preserve Residence for Naturalization Purposes 330 355
N-565 Application for Replacement Naturalization/Citizenship Document 345 555
N-600/N-600K Application for Certification of Citizenship/Application for Citizenship and Issuance of Certificate under Section 322 10 600/550 1,170
USCIS Immigrant Fee 11 165 220
Biometric Services Fee 85 85

November 3, 2016

November 2016 Visa Bulletin

The Department of State (DOS) has released the Visa Bulletin for November 2016. Notably, for the entire month of November, USCIS has determined that for both family-sponsored and employment-based filings, the Dates for Filing chart may be utilized by applicants again.

The employment-based first preference (EB-1) will remain current for all countries including China and India. Number usage is high in EB-1, however, a retrogression of EB-1 is not expected for the first half of the fiscal year. The employment-based second preference (EB-2) final action dates for all countries other than China and India will remain current in November 2016. EB-2 India has advanced from January 15, 2007 to November 1, 2007, and the filing date remained at April 22, 2009. For EB-2 China, the final action date advanced from February 15, 2012 to July 15, 2012, and the filing date remained at March 1, 2013. The DOS estimates that EB-2 India and EB-2 China will continue to advance approximately three to four months each month to achieve visa usage. The goal is to move EB-2 India to a November 2008 date by March 2017 and to move EB-2 China to September 2012 by February 2017. In the EB-3 category, the “All Chargeability Areas” and Mexico final action date advanced slightly to July 1, 2016, and the filing date is still current. The DOS believes demand will eventually materialize for EB-3 Worldwide, limiting movement of the final action date. EB-3 India final action date advanced from March 1, 2005 to March 8, 2005, and filing date remained July 1, 2005. EB-3 China final action date advanced from January 22, 2013 to April 15, 2013, and the filing date remained at May 1, 2014. EB-3 Philippines final action date advanced from December 1, 2010 to April 1, 2011, and the filing date remained at September 1, 2013.  The DOS estimates that EB-3 will advance up to three months for China, several months for the Philippines, and one week for India.  The cut-off dates for EB-5 China advanced only slightly to a March 8, 2014 final action date, while the filing date remained at June 15, 2014. There will be slow forward movement in this category.

The cut-off date in the family-based second preference (F2A) category has advanced from December 22, 2014 to January 22, 2015, and the filing date remained at November 22, 2015 for all countries other than Mexico, which advanced to January 8, 2015 and has a filing date of November 22, 2015 as well. The F2A priority dates will continue to advance up to one month each month. The other family-based preference categories continue to move forward slowly, with projections of advancements of three to five weeks for the F1 category, up to four weeks for F2B category, two to four weeks for F3, and three to five weeks for F4.

November 3, 2016

Current Form I-9 Expires on January 21, 2017

USCIS announced that the Office of Management and Budget (OMB) has approved a revised Form I-9, Employment Eligibility Verification. Employers may continue to use the current version of the I-9 form (revision date of 3/8/13) until January 21, 2017. After January 21, 2017, however, all previous versions of the I-9 form will be invalid.

November 3, 2016

OSC Settles Immigration-Related Discrimination Claim Against Maintenance and Janitorial Company

The Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices resolved claims with American Cleaning Company, a maintenance and janitorial company. The Department’s investigation found that the company violated the law by requiring workers who were not U.S. citizens to produce specific documents for Form I-9 and E-Verify processes. The company agreed to pay a fine of $195,000.

November 3, 2016

H-1B Visa Lottery Class Action Lawsuit Still Alive

A federal lawsuit challenging the annual H-1B visa lottery cleared a legal hurdle and will move forward. The class action lawsuit filed on June 2, 2016, in the U.S. District Court for the District of Oregon against USCIS alleges that the randomized lottery system used to select a limited number of H-1B petitions for processing is “arbitrary and capricious.” The lawsuit asks the court to set aside and hold unlawful USCIS’s regulations requiring H-1B petitions to be filed during a five-day filing window and subjected to a random lottery. In September, the court rejected USCIS’s claims that foreign workers seeking H-1B status cannot sue if they do not get accepted and also rejected the notion that employers were not injured by the lottery (Tenrec, Inc. et al. v. USCIS, 06/02/2016).

November 3, 2016

Travelers Arriving at a Land Port of Entry Can Now Pay for I-94 Online

U.S. Customs and Border Protection announced that the I-94 website now allows travelers to submit a request for I-94 online, up to seven days prior to arriving at a land port of entry. After submitting the application and payment online, travelers will receive a provisional I-94. The I-94 online application will collect information that is otherwise collected in-person at the land port of entry, including biographic information (name, date of birth, country of citizenship), passport details, visa details (if applicable), and the applicant’s petition/Student and Exchange Visitor Program (SEVIS) number (if applicable). The new website feature should increase efficiency of the entry process and result in shorter waits for travelers requiring an I-94.

November 3, 2016

Expansion of Global Entry to Nine Additional Airports

On Tuesday, October 4, 2016, Customs and Border Protection (CBP) announced that the Global Entry program will be expanded to nine additional airports including Fairbanks, Oakland, Sacramento, San Jose, New Orleans, Kansas City, St. Louis, Houston, and Burlington. Global Entry will become operational at all nine airports on or before April 3, 2017. Global Entry is a voluntary program that allows pre-approved participants to use Global Entry kiosks located at designated airports for processing with CBP for admission to the U.S.

November 3, 2016

Supreme Court Denies Rehearing in United States v. Texas

On October 3, 2016, the U.S. Supreme Court denied without comment the DOJ’s request to rehear United States v. Texas once a ninth Supreme Court justice is confirmed. In June 2016, the Court deadlocked with a 4-4 tie in the case on President Obama’s Executive Actions on the Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) programs. At this time, the case will proceed to trial on the substantive issues in the lower federal district court.

November 3, 2016

President Obama Signs Bill to Keep Government Funded

On September 29, 2016, President Obama signed into law H.R. 5325, a bill passed by Congress that includes a Continuing Resolution (CR) to fund the government until December 9, 2016. The CR includes clean, short-term extensions of the Conrad 30 J Waiver, Special Immigrant Non-Minister Religious Workers, EB-5 Regional Center, and E-Verify programs until December 9, by which time another spending bill will have to be passed.

November 3, 2016

Recent PERM Updates

The Board of Alien Labor Certification Appeals (BALCA) finds that where a job opportunity included a Cost of Labor Adjustment (COLA), it could be viewed as part of the wage offer and was not required to be included in the recruitment or Notice of Filing. The Board reversed 382 factually similar cases. BALCA found that “ETA has issued no guidance whatsoever alerting employers to the CO’s position that this type of wage adjustment needed to be specifically disclosed in the application and advertising.” Matter of Cognizant Technology Solutions US Corp., 2013-PER-01448 (09/29/2016).

It is critical to ensure that the foreign national’s qualifications meet the stated minimum primary requirements or alternate requirements on the ETA-9089 form. In this case, the employer required a bachelor’s degree and 60 months of experience, but the company listed only the foreign national’s equivalent of three years of study. The employer did not attest that the foreign national possessed a combination of education, training, or work experience equivalent to a bachelor’s degree when hired, thus BALCA affirmed the denial. Matter of QAD Inc., 2012-PER-01997 (09/27/2016).

Omitted documentation in response to an audit is material enough to constitute a substantial failure by the employer to provide required documentation. In this case, the employer did not provide evidence that it contacted one of the U.S. applicants such as phone logs or other documentation. Thus, BALCA affirmed the denial. Matter of Unified Ltd, D/B/A: Pan American Banana, 2012-PER-01757 (09/27/2016).

Where recruitment expired on a Saturday but the PERM application filed by mail was not received by the Department of Labor until Monday, BALCA found that sufficient documentation was submitted by the employer to prove the date of mailing, and thus the PERM was timely filed. Matter of Town and Country Children’s Montessori, 2012-PER-03624 (10/06/2016).

After reviewing the bulk of the evidence submitted in an audit response, BALCA found that when considered as a whole, the employer’s documentation of its participation in a job fair was equivalent to the primary proof required by the regulations. The combination of employer communications leading up to the job fair and the recruitment report, which listed 40% of applicants from the job fair, led BALCA to conclude that the employer did perform job fair recruitment. Matter of HTC Global Services, 2012-PER-02084 (10/06/2016).

Employers may not improperly reject applicants from consideration for the position. In this case, the employer rejected an applicant because of poor grammar and formatting and for lacking skills that were not listed on the PERM application. Matter of Kelly Group Enterprises Corp., 2012-PER-02324 (10/06/2016).

It is the employer’s responsibility to ensure that a Prevailing Wage Determination (PWD) is accurate. In this case, the PWD did not contain the 24-month job experience requirement that the employer listed as a minimum requirement on the PERM application. Since this omission could have affected the accuracy of the PWD, BALCA affirmed the Certifying Officer’s denial. Matter of Jamshid Ehsani, 2012-PER-02129 (10/12/2016).

Although Matter of Symantec does not require the content of the State Workforce Agency (SWA) job order to be identical to what is listed on the PERM application, the content of the job order must still support that there is a clearly open job opportunity. In this case, the employer underreported the wage as $8 per hour when the actual offered wage was $8.10 per hour. BALCA found that U.S. applicants were unaware of the true salary, and that the job was not clearly open to U.S. workers. Matter of Norman W. Fries, Inc. d/b/a Claxton Poultry Farms, 2012-PER-03743 (10/21/2016).

August 19, 2016

September 2016 Visa Bulletin

The Department of State (DOS) has released the Visa Bulletin for September 2016. The employment-based first preference (EB-1) final action dates for China and India remained at January 1, 2010 for September 2016 and will become current once again in October 2016, the first month of fiscal year 2017. The employment-based second preference (EB-2) final action dates for all countries other than China and India remained at February 1, 2014 for September 2016 and will become current once again in October 2016. EB-2 India has advanced from November 15, 2004 to February 22, 2005, however, the filing date of July 1, 2009 remained the same. For EB-2 China, the final action date remained at January 1, 2010 and the filing date remained the same at June 1, 2013. In the EB-3 category, the “All Chargeability Areas” and Mexico final action date advanced slightly to May 1, 2016 and the filing date is still current. EB-3 India final action date advanced from November 8, 2014 to February 15, 2005 and filing date remained July 1, 2005. EB-3 China final action date remained at January 1, 2010 and the filing date remained at May 1, 2015. EB-3 Philippines final action date advanced from May 15, 2009 to July 1, 2010 and the filing date remained at January 1, 2013.  The cut-off dates for EB-5 China remained at a February 15, 2014 final action date with a May 1, 2015 filing date.

The cut-off date in the family-based second preference (F2A) category has remained at November 15, 2014 and the filing date remained at November 22, 2015 for all countries other than Mexico, which remained at September 1, 2014 and has a filing date of November 22, 2015 as well. The temporary freeze of the F2A priority dates will end in October 2016 and the dates should begin to advance. The other family-based preference categories continue to move forward slowly, with projections of advancements of one to three weeks for the F1 category, three to six weeks for F2B category, one to three weeks for F3, and two to four weeks for F4.

August 19, 2016

USCIS Announces Final Rule to Expand I-601A Provisional Waiver Eligibility

On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced the publication of a final rule that expands eligibility for provisional unlawful presence waivers to all individuals who are statutorily eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or lawful permanent resident (LPR) spouse or parent. Until now, only spouses and children of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. The expanded rule will allow the spouses and children of lawful permanent residents and the adult children of U.S. citizens and lawful permanent residents to file for a provisional unlawful presence waiver. The rule takes effect on August 29, 2016, on which date USCIS will post an updated version of Form I-601A. The provisional waiver process promotes family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency. This final rule builds on a process established in 2013 to support family unity. USCIS also expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations in the coming weeks.