1. Openers ................................................................................................................ 2

2. ABCs of Immigration: Social Security No-Match Letters ............................................... 3

3. AskVisalaw.com ..................................................................................................... 8

4. Border and Enforcement News ............................................................................... 11

• ICE Arrests 163 in Recent Enforcement Actions in New Jersey, New England ......... 11

• DOL's iCERT System Crashed on January 1, Preventing H-2B Application E-Filings.. 12

• State Dept. Issues Travel Advisory for China ..................................................... 14

5. News from the Courts ........................................................................................... 15

• Third Circuit Court of Appeals Holds Wire Fraud Conviction Was Crime Involving

Moral Turpitude.............................................................................................. 15

• District Court Finds Decision to Add Citizenship Question to Census Violated APA ... 16

6. News Bytes .......................................................................................................... 16

• USCIS Launches New Online Fee Calculator ....................................................... 16

• USCIS Terminates Categorical Parole Programs for Certain Individuals Present in

CNMI ............................................................................................................ 17

7. In the News at ABIL .............................................................................................. 18

• Begin Work on H-1B Petitions Now, ABIL Attorneys Urge; H-1B Tips for Employers 18

Table of Contents

• ABIL Global: Update on Brexit vs. Freedom of Movement (for Workers) ................ 19

8. Updates from the Visalaw.com Blogs ....................................................................... 24

9. State Department Visa Bulletin: February 2019 ........................................................ 24

1. Openers

Dear Readers:

As we embark on 2019, we are, as has become the norm, in the middle of immigration

battles in Washington. The country just went through the longest government shutdown in

our history, and the main issue in contention was a $5 billion down payment on a border

wall. The President gave up that fight to allow Congress a couple of weeks to negotiate a

compromise, but it’s very possible that we’ll be in the same place in a couple of weeks. One

of the issues that may be on the table is the fate of DACA and Temporary Protected Status

(TPS). More than a million people are affected by the shutdown of those programs and a

major question looming (aside from how to placate the President and Republicans on border

security) is what will happen with those programs. Many are expecting Democrats to press

hard for permanent solutions rather than relying on the courts.

In firm news, I wanted to let lawyer readers know we have openings for

business/employment immigration lawyers in our Memphis and Nashville offices. 2+ years

of relevant experience is needed and the ideal candidate will also have an interest in legal

technology. Our firm is developing artificial intelligence-based apps to advance the practice

of immigration law and our lawyers are all involved.

In firm news, I just returned from speaking at the midwinter meeting of the American

Immigration Lawyers Association. And attorney Johnna Main Bailey made national news for

successfully bringing home a Honduran woman in the middle of a high-risk pregnancy who

was arrested at a marriage green card interview and sent to an ICE detention center eight

hours away from her family. You can read about the case here -

https://www.newsweek.com/ice-agents-arrest-high-risk-pregnant-woman-during-her-

green-card-interview-1299295.

As always, if you are interested in consulting with one of our lawyers, please visit our web

site at www.visalaw.com/consultation.

Regards,

Greg Siskind

*****

2. ABCs of Immigration: Social Security No-Match Letters

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored

by Bruce Buchanan, The I-9 and E-Verify Handbook.]

August 2007 saw United States Immigration and Customs Enforcement (ICE) released a

long-awaited no-match letter regulation. After being quickly challenged in court, the

regulation was barred from going into effect by a federal district court. 2 years later, in

2009, the regulation was rescinded by the Department of Homeland Security (DHS), and

the Social Security Administration (SSA), furthermore, stopped issuing no-match letters

until April 6, 2011. These no-match letters, however, were not under the 2007 regulation,

and therefore failing to act on a letter did not constitute constructive knowledge. Budgetary

reasons dictated the discontinuation of these no-match letters, which ended in August 29,

2011 and has not since resumed.

The rescinded regulation outlined employers’ obligation when they receive no-match letters

from the SSA or receive a letter regarding employment verification forms from DHS. “Safe

harbors” were also outlined in the regulation, allowing employers to avoid a finding that the

employer had constructive knowledge that an employee referred to in the letter was an

unauthorized alien ineligible for employment in the United States. Employers who do have

that knowledge are liable for both civil and criminal penalties.

The no-match letter regulation is not in effect, but many immigration law compliance

attorneys nevertheless expect such a regulation closely resembling the one released by ICE

to eventually come into force.

Why did the court block the regulation from taking effect?

Before the regulation went into effect, it was challenged in court, and the judge who issued

the preliminary injunction based the decision on three reasons:

1. The U.S. Department of Homeland Security (DHS) failed to supply reasoned analysis

justifying what the court thought was a change in the DHS position, that is, that a

no-match letter may be independently sufficient to put an employer on notice that its

employees may be unauthorized to work.

2. DHS exceeded its authority (and encroached on the authority of the U.S. Department

of Justice) by interpreting anti-discrimination provisions of the Immigration Reform

and Control Act (IRCA).

3. DHS violated the Regulatory Flexibility Act (RFA) by not conducting a regulatory

flexibility analysis.

Why did U.S. Immigration and Customs Enforcement issue this regulation?

All United States based employers are required to report their employees’ Social Security

earnings. These W-2 reports, which list an employee’s name, Social Security number (SSN),

and the worker’s earnings are delivered to the Social Security Administration (SSA). In the

event that an employee’s name and SSC do not match, the SSA sends and employer a letter

informing the employer of the no-match. While in some cases, the no-match results from a

clerical error or name change, it may also be indicative of an employee’s lack of work

authorization.

ICE issues similar letters to employers upon the conclusion of its audits of an employer’s

employment eligibility verification forms (Forms I-9) if it finds evidence that an immigration

status document or employment authorization document fails to match the name of the

person on the Form I-9.

An employer’s obligations after receiving such a letter had been considerably ambiguous, as

well as whether an employer would be considered to be on notice of an employee’s lack of

work authorization. Though it was achieved in a crass manner with respect to employers

and workers, the regulation’s purpose was to clarify both of these ambiguities.

DHS cited Mester Manufacturing Company v. U.S. Immigration & Naturalization Service, 900

F.2d 201 (9th cir. 1990) reminding employers that if they have “constructive” knowledge of

an employee being out of status, they are in violation of the Immigration Reform and

Control Act (IRCA), the statute that punished employers for the knowingly hiring unlawfully

present workers or for violating paperwork rules associated with the Form I-9 employment

verification form.

How was the definition of “knowing” going to change in the regulation?

Two additional examples of “constructive knowledge” were added to the list of examples of

information available to employers which indicate an employee is not authorized for

employment in the United States. First, an employer receives a written notice from the SSA

indicating an incongruity between the name and the SSN in SSA records. Second, an

employer receives written notice from DHS that the immigration document that was

presented when completing the Form I-9 was either assigned to another person or that

there is no agency record that the document was assigned to anyone.

However, the question of whether the employer has “constructive knowledge” is dependent

upon “the totality of relevant circumstances.” Therefore, the proposed regulation was

merely a “safe harbor” regulation, informing an employer how to avoid a constructive

knowledge finding without guaranteeing the employer will be deemed to have constructive

knowledge if the employer deviates from the “safe harbor” procedure.

What steps should an employer take if it receives a no-match letter?

An employer first needs to assess its own records to rule out the possibility that a

typographical, transcription, or some other clerical error resulted in the no-match. If there is

such an error, the employer should correct it and inform the agency which sent the no-

match letter, whether it be DHS or the SSA. The employer then needs to verify that the new

number is correct and internally document the manner, time, and date of the verification. In

the preamble to the regulation, ICE indicated that 30 days is an appropriate time frame in

which an employer can take those steps.

If these actions do not resolve the discrepancy, the employer should contact the employee

to verify the accuracy of the employer’s records. If they are incorrect, the employer needs

to inform the relevant agency and verify corrected records. If the employee confirms that

the records are correct, the reasonable employer should ask the employee to follow up with

the relevant agency, such as visiting an SSA office and taking original or certified copies of

required identity documentation. Again, 30 days is a reasonable time frame in which this

step should occur.

Once 90 days have elapsed without a resolution to the discrepancy, an employer needs to

undertake a procedure verifying the employee’s identity and work authorization. Once

completed, the employer will not be deemed to have constructive knowledge that an

employee is work unauthorized if the system verifies the employee, even if it is determined

the employee is not actually work authorized. This assumes the employer does not have

actual or constructive knowledge of an employee’s lack of work authorization.

Under the proposed regulation, if the discrepancy remains unresolved and the employee’s

identity and work authorization are not verified, the employer is required to terminate the

employee or else risk DHS finding the employer had constructive knowledge of the

employee’s lack of employment authorization.

What is the procedure to re-verify identity and employment authorization when an

employee has not resolved the discrepancy as previously described?

Within 93 days of receiving the no-match letter, the employer would need sections 1 and 2

of the Form I-9 completed. In the event of the employer taking the full 90 days to try to

have the issue resolved, it would then be granted three additional days to complete the new

Form I-9. AN employee is not permitted to use any document containing the disputed SSN,

the “Alien number,” or a receipt for a replacement of such document. Only documents with

a photograph may be used to establish identity.

Does an employer need to use the same procedure to verify employment

authorization for each employee who is the subject of a no-match letter?

The anti-discrimination rules do mandate that the employer apply these procedures

uniformly. DHS also reminds employers of the document abuse provisions barring

employers from failing to honor documents which appear reasonable on face value.

Employers under the proposed regulation, however, do have the “safe harbor” stating that

this provision does not apply to documents that are the subject of a no-match letter.

DHS points out that employer requiring employees to complete a new Form I-9 must not

apply this requirement discriminatorily. All employees who fail to resolve the SSA

discrepancies should be required to provide a Form I-9 verification, and employers should

apply a uniform policy to all employees refusing to participate in resolving discrepancies and

completing new Forms I-9. Exempt from this rule are employees hired prior to November 6,

1986.

What if the employer has learned that an employee is unlawfully present from

some source other than the Social Security Administration or the U.S. Department

of Homeland Security?

Employees who have actual knowledge of an alien’s lack of work authorization are liable

under the INA, regardless of their compliance with the Form I-9 and no-match regulations.

However, the burden of proof lies with the government. DHS also notes that constructive

knowledge may still be shown by reference to other evidence.

Will following the procedures in this proposed regulation protect an employer from

all claims of constructive knowledge, or just claims of constructive knowledge

based on the letters for which the employer followed the “safe harbor” procedure?

An employer that remains in compliance with the “safe harbor” procedure will be considered

to have taken all reasonable steps responding to the notice, and the employer’s receipt of

written notice will not be used as evidence of constructive knowledge. The employer is not

protected, however, if other independent evidence exists of an employer’s constructive

knowledge.

What are the timeframes required under the regulation to take each necessary

action after receiving the no-match letter?

The timeframes were as follows:

• The employer checks its own records, makes any necessary corrections of errors,

and verifies corrections with the Social Security Administration or the U.S.

Department of Homeland Security within 30 days.

• If necessary, the employer notifies the employee and asks him or her to assist in the

correction within 90 days. (Note that under the March 2008 proposed regulation,

employers would have five days to notify employees of the no-match if the employer

conducts its internal review.)

• If necessary, the employer corrects its own records and verifies the correction with

the Social Security Administration or Department of Homeland Security within 90

days.

• If necessary, the employer performs a special Form I-9 procedure within 90 to 93

days.

May an employer continue to employ a worker throughout the process noted

above?

Yes. Only if an employer gained actual knowledge of unauthorized employment would an

employer need to terminate prior to 93 days. DHS notes that it does not require termination

by virtue of this regulation, rather it is providing a “safe harbor” to avoid a finding of

constructive knowledge. Employer could be allowed to terminate based on information in

their own personnel files, including an employee’s poor attendance or an employee’s false

statement to the employer. It is advised that employers consult employment and

immigration compliance counsel prior to their termination of employees for reasons during

the no-match process.

Employers may also terminate if they notify an employee of the no-match letter and the

employee admits his or her lack of work authorization.

Does it matter which person at het place of employment receives the no-match

letter?

No. DHS will not allow an employer’s designation of a specific person receiving no-match

letters, regardless of concerns raised about the no-match letter not reaching the appropriate

party. DHS has noted that an employer is allowed to designate an office within a company

to receive all DHS and SSA mail.

Does verification through systems other than those described in the proposed

regulation provide a “safe harbor”?

No. This includes instances in which the SSA provides options for SSN verification in

addition to E-Verify. DHS notes, however, that it may choose to use prosecutorial discretion

when employers take such steps.

Does an employer have to help an employee resolve the discrepancy with the SSA

or DHS?

No. Employers only need to advise the employee of the timeframe to resolve the

discrepancy. Employers have no obligation to assist in resolving the question or share any

guidance provided by the SSA.

If a new Form I-9 is prepared based on this regulation, does that affect the

amount of time the Form I-9 must be retained?

No. The original hire date remains the same even though the “safe harbor” procedure is

utilized. For example, if an employee was hired several years ago, completes the Form I-9

again, and then moves on to a new employer, the original date of hire applies for purposes

of determining the one-year retention requirement.

Will an employer be liable for terminating an employer be liable for terminating an

employee who turns out to be work authorized if the employer receives a no-

match letter?

If the employee is authorized to work and an employer does not go through the various

“safe harbor” steps in the regulation, then the employer might be liable for unlawful

termination.

What if the employee is gone by the time the no-match letter arrives?

An employer is not obligated to act on a no-match letter for employees no longer employed

by it.

*****

3. AskVisalaw.com

In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law

questions sent in by our readers. If you enjoy reading this section, we encourage you to

visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your

immigration questions. You can also follow The Immigration Answer Man

on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t

answer every question, but if you ask a short question that can be answered concisely, we’ll

consider it for publication. Remember, these questions are only intended to provide general

information. You should consult with your own attorney before acting on information you

see here.

***

QUESTION: Is there a specific amount of time that a green card holder can spend outside

the US without abandoning their green card?

THE IMMIGRATION ANSWER MAN – ARI SAUER: US Permanent Residents (green card

holders) are required to maintain the US as their primary permanent residence. When a

Permanent Resident fails to maintain the US as their permanent residence the US

government can determine that they have abandoned their US Permanent Residence.

Abandonment is really a factor of continuing to maintain one’s permanent residence within

the US. The length of time spent outside the US is just one factor that they use to

determine whether someone is maintaining the US as their permanent residence. Trips

outside the US that are longer than 180 days can trigger CBP to question whether the

person was continuing to maintain he US as their permanent residence. If the trip is for

longer than a year, it can create a presumption that the person abandoned their US

residence. If someone is planning on taking a trip that is longer than a year, they should

apply for a reentry permit. But the reentry permit just allows them to return to the US after

a trip of longer than a year, it does not get rid of the requirement to maintain the US as the

permanent residence.

Some other examples of factors that the government will consider when determining

whether someone has been maintaining their US permanent residence include:

▪ The reason for the trip. Whether the trip was for a temporary purpose.

▪ How much time the person has been spending outside the US compared to the

amount of time they have been spending within the US.

▪ Whether the person has been working abroad. Also whether the employment was in

a permanent position or whether the employment was in a position that was

temporary in nature.

▪ Whether the person continued to have a permanent home in the US during their

trip(s) abroad. For example, they continued to own their home or to pay rent for

their home during their trip(s) abroad.

▪ Whether the person has filed US tax returns each year as a US resident. Filing US

tax returns as a non-resident (using 1040NR or 1040NR-EZ) or failing to file US tax

returns because the person did not consider themselves a US resident, is a strong

indicator that the person was not maintaining the US as their permanent residence.

▪ Whether the person’s family members remained in the US during their trip(s)

abroad.

In addition to the issue of not abandoning your US permanent residence, there is also the

issue of eligibility to apply for naturalization. For naturalization, there is a requirement to

have been physically present in the US for at least 50% of the time, during the past 5 years

as a permanent (3 years for certain spouses of US citizens). There is also a requirement to

maintain continuous US residence during the period, which is broken by a trip abroad of

longer than a year (even if you have a reentry permit). Trips of longer than 180 days, but

less than a year, create a presumption that there was a break in continuous US residence,

which the person will need to overcome by presenting evidence that they continued to

maintain their US residence during the trip abroad.

***

QUESTION: I filed an I-485 with an application for employment authorization and advance

parole based on my marriage with a U.S citizen. It has been five and half months, but I still

haven’t received any updates other than my biometrics appointment. I have done three

service requests but have received no response. What can I do? I need the advance parole

to go back to my home country as my father is sick.

THE IMMIGRATION ANSWER MAN – ARI SAUER: It is not unusual right now for it to take 5

or 6 months for USCIS to issue the card that serves as a combination Employment

Authorization Document (EAD) and Advance Parole travel document. Sometimes it is taking

a bit longer. This is especially true where USCIS has issued a Request for Evidence for the I-

485 application or the applications for the EAD or Advance Parole. I encourage you to

continue to make service requests with USCIS, or even to request assistance from your

Congressman’s or Senator’s office (if you have an attorney representing you, ask them first

before doing this). However, USCIS’s responses to these inquiries are usually not very

helpful. These inquiries are most helpful where a case is taking a long time because it has

“fallen between the cracks” and these inquiries can help to get the case back on track.

However, if your father is extremely sick, for example to the point where waiting for USCIS

to issue the advance parole might result in him passing away before you are able to visit

with him, you might be able to get USCIS to issue the advance parole document under their

Expedited Request procedure. At a minimum, you would need a letter from his doctor to

prove that he is that sick. The current procedure for asking for an Advance Parole to be

issued under Expedited Request is to make an Infopass appointment with your local USCIS

field office (if your local USCIS field office does not have any infopass appointments

available in the time you need, you could try going to the USCIS office without an infopass

appointment) and to file a new application for Advance Parole, and additional required

proof, including proof of the emergency (you shouldn’t have to pay a filing fee where your I-

131 application is based on a pending I-485 application, but sometimes new filing fees for

the form are required to be paid). Otherwise, you will just need to wait a little bit longer. It

should come soon.

Other situations where USCIS may consider expediting an application include:

• Severe financial loss to company or person;

• Emergency situation, for example where the applicant is gravely ill;

• Humanitarian reasons, for example, the outbreak of war in the applicant’s home

country;

• Nonprofit organization whose request is in furtherance of the cultural and social

interests of the United States, for example, an organization broadcasting in regional

areas to promote democratic interests;

• Department of Defense or national interest situation (These particular expedite

requests must come from an official U.S. government entity and state that delay will

be detrimental to the government.);

• USCIS error; or

• Compelling interest of USCIS.

Please note, however, that USCIS will normally only grant an expedite request in more

extreme situations. The procedure for requesting the expedited processing of other petitions

and applications is often different than the procedure for requested expedited processing of

an application for Advance Parole document explained above. Expedite Processing is not

available for those petitions that can be filed with USCIS using Premium Processing.

*****

4. Border and Enforcement News

ICE Arrests 163 in Recent Enforcement Actions in New Jersey, New England

In several recent enforcement actions, U.S. Immigration and Customs Enforcement (ICE)

arrested 163 people in New Jersey and the New England region of the United States.

Following are highlights:

New Jersey. ICE arrested 105 people in a New Jersey operation targeting criminal aliens and

public safety threats, the agency reported. Four individuals in the United States without

authorization who have Interpol warrants based on crimes they committed in their home

countries were among the 105 foreign nationals taken into custody during a five-day

operation in New Jersey (and including two individuals arrested in New York). The action

was spearheaded by ICE's Enforcement and Removal Operations (ERO) and targeted "at-

large criminal aliens, illegal re-entrants and other immigration violators." It was supported

by ICE’s Homeland Security Investigations (HSI) and U.S. Customs and Border Protection's

(CBP) New Jersey Field Office.

Of those arrested during the operation, 80 percent had prior criminal convictions and/or

pending criminal charges, ICE said. The individuals arrested throughout New Jersey included

nationals of Brazil (6), Canada (1), Colombia (1), Costa Rica (1), Cuba (2), Dominican

Republic (10), Ecuador (4), Egypt (1), El Salvador (8), Guatemala (13), Honduras (7),

Jamaica (4), Korea (2), Mexico (28), Peru (4), Philippines (1), Poland (1), Russia (1), Serbia

(1), Slovakia (2), Spain (1), Taiwan (1), Trinidad (1), and Venezuela (4). ICE said these

individuals range from age 18 to 65 years old and most were previously convicted of a

variety of offenses. Some of the convictions included sexual assault on a minor, child abuse,

possession of narcotics, distribution of narcotics, extortion, DUI, fraud, domestic violence,

theft, possession of a weapon, robbery, promoting prostitution, aggravated assault,

resisting arrest, endangering the welfare of a child, credit card fraud, insurance fraud,

shoplifting, and illegal reentry.

New England. Officers from ICE's ERO Boston arrested 58 people in enforcement activities

during a five-day period, ending December 4, 2018, in the New England region. Of the 58

individuals arrested by ICE's ERO for violating U.S. immigration laws:

• 30 had prior felony convictions for serious or violent offenses;

• 33 had criminal charges pending;

• 15 individuals were previously released from local law enforcement custody,

correctional facilities, and/or court custody with an active detainer;

• 9 were referred for criminal prosecution to the U.S. Attorney's Office in the

jurisdiction; one was referred to the U.S. Marshals for failure to register as a sex

offender as required by federal law;

• 9 of those arrested had been previously removed from the United States and

returned without authorization; and

• 4 had active Interpol Red Notices.

Criminal histories of those arrested during the operation included charges and convictions

for: murder, aggravated identity theft, assault, attempted assault, cocaine possession,

cocaine trafficking, DUI, and multiple other categories of crimes. The arrestees included

nationals from the Dominican Republic, Brazil, France, Jamaica, Haiti, and Antigua, among

other nations.

The ICE announcement about the New Jersey action is at

https://www.ice.gov/news/releases/ice-arrests-105-new-jersey-operation-targeting-

criminalaliens-and-public-safety. The ICE announcement about the New England action is at

https://www.ice.gov/news/releases/ice-arrests-58-new-england-enforcement-action.

Today, Secretary of Homeland Security Kirstjen M. Nielsen announced historic action to

confront the illegal immigration crisis facing the United States. Effective immediately, the

United States will begin the process of invoking Section 235(b)(2)(C) of the Immigration

and Nationality Act. Under the Migration Protection Protocols (MPP), individuals arriving in

or entering the United States from Mexico—illegally or without proper documentation—

may be returned to Mexico for the duration of their immigration proceedings. “Today we are

announcing historic measures to bring the illegal immigration crisis under control,” said

Secretary Nielsen. “We will confront this crisis head on, uphold the rule of law, and

strengthen our humanitarian commitments. Aliens trying to game the system to get into

our country illegally will no longer be able to disappear into the United States, where many

skip their court dates. Instead, they will wait for an immigration court decision while they

are in Mexico. ‘Catch and release’ will be replaced with ‘catch and return.’ In doing so, we

will reduce illegal migration by removing one of the key incentives that encourages people

from taking the dangerous journey to the United States in the first place. This will also

allow us to focus more attention on those who are actually fleeing persecution. “Let me be

clear: we will undertake these steps consistent with all domestic and international legal

obligations, including our humanitarian commitments. We have notified the Mexican

government of our intended actions. In response, Mexico has made an independent

determination that they will commit to implement essential measures on their side of the

border. We expect affected migrants will receive humanitarian visas to stay on Mexican soil

the ability to apply for work, and other protections while they await a U.S. legal

determination.”

***

DOL's iCERT System Crashed on January 1, Preventing H-2B Application E-Filings

The Department of Labor's (DOL) iCERT website crashed early on January 1, 2019,

preventing employers from e-filing their application packets for the 33,000 H-2B visas with

an April 1, 2019, start date for temporary nonagricultural H-2B workers. Employers and

their attorneys reported working late on New Year's Eve to be able to submit their

applications at midnight ET, only to be thwarted repeatedly while hitting "submit."

DOL subsequently posted the following iCERT announcement:

IMPORTANT ANNOUNCEMENT:

We sincerely apologize for the major service interruption in the iCERT System early

in the morning of January 1, 2019. Due to overwhelming filing demand, the

Department's technology staff is working diligently to investigate the cause of the

system outage and has temporarily taken the iCERT System down for the remainder

of January 1st and until further notice. The Department will provide another update

on the status of the iCERT System around 12:00PM EST, January 2nd, and separate

advance public notice regarding when the iCERT System will be operational once

again.

DOL's Office of Foreign Labor Certification (OFLC) announced on January 7, 2019, that the

system was back up as of 2 p.m. ET that day.

OFLC announced on January 8, 2019, that it had received approximately 5,276 H-2B

applications covering more than 96,400 worker positions, which was nearly three times

greater than the 33,000 semiannual visa allotment for fiscal year 2019. To process this

"significant surge," OFLC said it would sequentially assign H-2B applications to analysts

based on the calendar date and time on which the applications were received, measured to

the millisecond.

On January 11, 2019, OFLC posted the following additional announcements:

The Department has received questions about the difference between timestamps

displayed in iCERT and timestamps contained in emails confirming the submission of

applications. When an applicant submits an application, the system generates a

courtesy email to the applicant which confirms the submission. The date and time in

the courtesy email, however, does not represent the official date and time of the

applicant's submission. Rather, it indicates the time at which the email was

generated. To reiterate, the official date and time of each application may be viewed

in the applicant's H-2B Portfolio Screen through the applicant's iCERT system

account.

The Department undertook an after-action analysis of the iCERT system's January 7,

2019 performance. Through a review of the data logs, the Department has

determined that 186 applicants submitted the same application more than once in

the iCERT system. Because the iCERT database overwrites the previous date and

time stamp when a new submission is made, the official date and time saved in the

iCERT database is the date and time of the final submission. For these 186

applications, the Department was able to determine the time of the first submission

down to the second. For the 152 applicants with multiple submissions within the

same second, the final time stamp to the millisecond is reflected in the official date

and time. In the remaining 34 cases, the submissions were made outside of the

same second. Those applications are now at the first submission's second. These

time stamps are reflected in the official receipt date and time that may be viewed on

the H-2B Portfolio Screen through an iCERT system account.

Some users received an outage banner which delayed or blocked access to the H-2B

page in the iCERT system. To increase processing capacity on January 7, 2019, the

Department scaled up iCERT infrastructure to 50 load-balanced servers. One of the

pathways to these servers did not allow access to the iCERT's H-2B module system

at the 2:00 p.m. EST opening of the system, and for approximately two and [a] half

hours thereafter. All iCERT users were randomly assigned to a server at log-on as

per a standard load-balancing algorithm. As a result, users assigned to this particular

pathway experienced the outage banner and may have been delayed from getting

into iCERT's H-2B module. In addition, the Department received questions regarding

whether there was a restoration of data due to data corruption. There was no

restoration of data from back-up and no data corruption found connected to the

system disruption of January 1, 2019.

The Department was notified that some applicants were missing certain required

data or attachments from their applications. As per standard practice, applicants are

encouraged to log into their iCERT accounts and verify that their applications are

complete and accurate. If any attachments are missing, applicants may upload them

at any time. If any required data fields on the ETA-9142B are missing or inaccurate,

applicants may contact the Office of Foreign Labor Certification (OFLC) help desk at

tlc.chicago@dol.gov and provide the relevant H-2B case number and explain the

necessary corrections.

In light of the unprecedented demand for H-2B labor certifications, the Department

is considering rulemaking changing the process by which applications are ordered for

processing, including randomization and other methods. In the interim, the

Department welcomes comments and suggestions from the public on these matters.

Comments and suggestions should be directed to … H2BReform.Comments@dol.gov.

Some attorneys said the agency had been warned in advance about the capacity issue, and

that lawsuits were pending. The system is at https://icert.doleta.gov/. OFLC's

announcements are at https://www.foreignlaborcert.doleta.gov/.

***

State Dept. Issues Travel Advisory for China

The Department of State warned U.S. citizens on January 3, 2019, to exercise increased

caution when traveling to China due to "arbitrary enforcement of local laws as well as

special restrictions on dual U.S.-Chinese nationals." The travel advisory states that Chinese

authorities have asserted broad authority to prohibit U.S. citizens from leaving China by

using "exit bans," sometimes "keeping U.S. citizens in China for years."

The travel advisory states that China uses exit bans coercively to compel U.S. citizens to

participate in Chinese government investigations, to lure individuals back to China from

abroad, and to aid Chinese authorities in resolving civil disputes in favor of Chinese parties.

In most cases, U.S. citizens become aware of the exit ban only when they attempt to leave

China, the advisory states, and there is no way to find out how long the ban may continue.

"U.S. citizens under exit bans have been harassed and threatened," the advisory notes.

The advisory warns that U.S. citizens may be detained without access to U.S. consular

services or information about their alleged crimes. U.S. citizens may be subjected to

prolonged interrogations and extended detention for reasons related to "state security."

Security personnel may detain and/or deport U.S. citizens for sending private electronic

messages critical of the Chinese government.

The advisory also notes that China does not recognize dual nationality. U.S.-Chinese citizens

and U.S. citizens of Chinese heritage may be subject to "additional scrutiny and

harassment," and China may prevent the U.S. Embassy from providing consular services,

the advisory states.

Among other things, the advisory recommends that those traveling to China enter on their

U.S. passports with a valid Chinese visa; enroll in the Smart Traveler Enrollment Program;

and have a contingency plan. The advisory, which includes additional information, is at

https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/china-

traveladvisory.html.

*****

5. News from the Courts

Third Circuit Court of Appeals Holds Wire Fraud Conviction Was Crime Involving

Moral Turpitude

The Third Circuit Court of Appeals partially denied and dismissed a petition for review put

forth by Chiao Fung Ku, which sought review for of a Board of Immigration Appeals (BIA)

final order of removal. The BIA reached the conclusion that Ku’s prior conviction of wire

fraud constituted both an aggravated felony, since the fraud resulted in the victim losing

more than $10,000, as well as a crime involving moral turpitude. Both of these conclusions

rendered her ineligible for an adjustment of status. The BIA in rendering the decision

reversed the Immigration Judge’s decision, granting Ku a waiver of inadmissibility due to

extreme hardship resulting from her deportation. The Court of Appeals affirmed that Ku’s

fraud conviction resulted in well over the $10,000 threshold qualifying it as an aggravated

felony and agreed that wire fraud is inherently a crime involving moral turpitude. The BIA

acknowledged that it lacked jurisdiction to review the discretionary denial of a waiver of

inadmissibility, partially denying and partially dismissing the petition for review.

For more information, view the full case.

***

District Court Finds Decision to Add Citizenship Question to Census Violated APA

A federal district court vacated the Secretary of Commerce’s decision to add citizenship

question to census questionnaire and enjoined the government from adding such a question

to 2020 questionnaire without curing legal defects

For more information, view the full case.

*****

6. News Bytes

USCIS Launches New Online Fee Calculator

USCIS Launches New Online Fee Calculator U.S. Citizenship and Immigration Services

(USCIS) has launched the Online Fee Calculator to assist in calculating the correct fee

amount to include when filing forms with USCIS at an agency Lockbox facility.

USCIS said it developed the new Online Fee Calculator to help reduce the number of

applications rejected due to incorrect fee amounts. Fee issues, including incorrect fee

amounts, are consistently a leading cause of rejection. For applications that require fees,

USCIS rejects forms submitted with an incorrect payment amount. The Online Fee

Calculator will determine the exact filing and biometric fees to include with forms and "will

always have the most up-to-date fee information," the agency said.

When using the Online Fee Calculator, filers select a form or combination of forms and

answer a series of questions. The calculator then calculates the correct fee amount that the

filer must submit.

USCIS said the Online Fee Calculator works on all browsers and on both desktop and mobile

devices. To protect privacy, the agency noted, "it does not collect user data."

For forms filed at Lockbox facilities, USCIS accepts payment via check, money order, or

credit card with Form G-1450, Authorization for Credit Card Transactions.

The Online Fee Calculator is at https://www.uscis.gov/feecalculator. The USCIS

announcement is at https://www.uscis.gov/news/news-releases/new-uscis-tool-calculates-

fees-helps-avoidincorrect-payments. For more information on payment, see the USCIS

webpage on paying USCIS fees at https://www.uscis.gov/forms/paying-uscis-fees. G-1450

is available at https://www.uscis.gov/g-1450.

***

USCIS Terminates Categorical Parole Programs for Certain Individuals Present in

CNMI

Effective immediately, the categorical Commonwealth of the Northern Mariana Islands

(CNMI) parole programs are terminated. This affects USCIS parole programs for immediate

relatives of U.S. citizens and certain stateless individuals in CNMI; CNMI permanent

residents, immediate relatives of CNMI permanent residents, and immediate relatives of

citizens of the Freely Associated States (Federated States of Micronesia, Republic of the

Marshall Islands, or Palau); and certain in-home foreign worker caregivers of CNMI

residents.

After any parole authorized through these programs expires, USCIS will not renew that

parole. Although USCIS will not otherwise authorize re-parole under these programs, it will

allow a transitional parole period and extension of employment authorization (if applicable)

for up to 180 days for affected individuals, with parole not extending beyond June 29, 2019.

The transitional parole period of up to 180 days "will help ensure an orderly wind-down of

the programs and provide an opportunity for individuals to prepare to depart or seek

another lawful status," USCIS said.

Current parolees who have requested an extension of parole from USCIS will receive a letter

granting an additional 180 days of transitional parole, unless there is a specific reason to

deny the request as determined on a case-by-case basis, USCIS said. For those parolees

with an Employment Authorization Document (EAD) expiring at the same time as their

parole, that letter and the EAD will serve as evidence of identity and work authorization for

employment eligibility verification (Form I-9) purposes during the 180-day period.

USCIS will also issue a new EAD valid for the duration of the re-parole period to those

parolees who request an extension of parole. The new EAD will be issued automatically upon

approval for the period of re-parole, and no new employment authorization application or

fee will be required, the agency said. Current parolees with upcoming expiration dates who

have not yet requested an extension of parole, and who desire to receive the additional

period of transitional parole, should request such transitional parole "as soon as possible."

The USCIS announcement is at https://www.uscis.gov/news/alerts/termination-

categoricalparole-programs-certain-individuals-present-commonwealth-northern-mariana-

islands-cnmi. Information on eligibility requirements and how to complete a request is

available at https://www.uscis.gov/laws/immigration-commonwealth-northern-mariana-

islands-cnmi/paroleimmediate-relatives-us-citizens-and-certain-stateless-individuals.

*****

7. In the News at ABIL

Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the

Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top

tier immigration practices with years of expertise and a comprehensive understanding of

immigration law. For more information on ABIL, including a map of ABIL attorneys

worldwide, visit their website.

The following articles are excerpts from ABIL’s monthly Immigration Insider, available here

on their website.

***

Begin Work on H-1B Petitions Now, ABIL Attorneys Urge; H-1B Tips for Employers

Alliance of Business Immigration Lawyers (ABIL) attorneys recommend that employers

assess their need for H-1B employees and begin working on their H-1B petitions now. Filing

season is expected to open April 1, 2019, for fiscal year (FY) 2020 cap-subject H-1B visas.

Annual demand typically far outstrips availability, so the visas are snapped up immediately.

ABIL recommends the following ways for employers to maximize their H-1B chances:

➢ Apply based on a master's degree from a U.S. nonprofit university as long as

all degree requirements were completed before April 1

➢ Ensure a close match between the course of study and job duties

➢ Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B

• Apply for "consular notification," not change of status, to preserve OPT if

OPT lasts beyond October 1

➢ Apply for "change of status" if OPT expires before October 1 to preserve work

eligibility under "cap gap" policy, but avoid travel

➢ Choose O*NET code and wage level carefully

➢ If more than one field of study could qualify a person for the position, explain

task by task how the position requires the education

➢ Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage

from a legitimate source other than the Department of Labor, offer to pay a

higher wage from the outset, or explain why this particular job is both entry

level and qualifies as a "specialty occupation"

➢ Consider other visa options if your employee is not selected in the H-1B

lottery

➢ Check the USCIS website for changes to form, fee, and filing location

The Department of Homeland Security (DHS) published a notice of proposed rulemaking on

December 3, 2018, that would require petitioners seeking to file H-1B cap-subject petitions

to first electronically register with USCIS during a designated registration period. USCIS said

the proposed rule would also reverse the order by which the agency selects H-1B petitions

under the H-1B cap and the advanced degree exemption, with the goal of increasing the

number of beneficiaries with master's or higher degrees from U.S. institutions of higher

education to be selected for H-1B cap numbers and introducing "a more meritorious

selection of beneficiaries." It is unclear, however, if the rule will be finalized and

implemented in time for the start of the H-1B filing season on April 1.

Contact your local ABIL attorney for advice and help with preparing H-1B petitions.

The proposed rule published in December 2018 is at

https://www.govinfo.gov/content/pkg/FR2018-12-03/pdf/2018-26106.pdf.

***

ABIL Global: Update on Brexit vs. Freedom of Movement (for Workers)

This article provides a summary of highlights of "Brexit" and the outlook for the near future

with respect to the free movement of affected workers.

It has now been over two and a half years since the United Kingdom (UK) resolved in a

referendum held on June 23, 2016, by a slim majority (51.9% to 48.1%), to leave the

European Union (EU). Following submission of the written Withdrawal Declaration to the

European Council on March 29, 2017, effective after two years, negotiations on the terms

and conditions of the withdrawal were initiated with some delay. An initial breakthrough in

the negotiations was achieved about a year ago, and the first draft of the UK-EU Withdrawal

Agreement was presented in the spring. The debate nevertheless continued to be highly

controversial. Finally, in November 2018, despite all the adversity, a decisive breakthrough

was achieved. On November 14, 2018, the EU and the UK reached an agreement on the

revised version of the Withdrawal Agreement, which includes a transitional arrangement

until December 31, 2020, which may be extended once by mutual agreement for a period

that has not been specified.

However, this arrangement can only enter into force once it has been ratified by both the

UK and the EU. Unless the Council agrees otherwise with the withdrawing Member State,

Article 50, para. 3, TEU, states that European contracts will no longer apply after two years

from the date of the formal application, i.e., after March 28, 2019, unless all Member States

mutually agree on an extension. This is commonly referred to as "hard BREXIT" or "no deal"

and would be accompanied by significant trade barriers between the UK and mainland

Europe, with huge economic ramifications.

All of this is reason enough to take a closer look at the effects of the withdrawal from a

residency law perspective and to appraise the (probable) future legal situation.

What is the law now and what will it be in the future? "The deal"

With regard to the freedom of movement (for workers), it is first necessary to bear in mind

the regulations that will continue to apply until at least March 29, 2019, under the current

legal situation and what would (probably) change in the future under the Withdrawal

Agreement.

Legal Situation Before the Withdrawal

UK citizens continue to be (even after the Withdrawal Declaration on March 29, 2017) EU

citizens or, more precisely, citizens of the Union. Article 17 of the Treaty on the Functioning

of the European Union (TFEU) states that any person who is a citizen of a Member State is

also a citizen of the Union. This is the situation until two years after the declaration of

withdrawal, i.e., until March 28, 2019. At present, this means that the privileges granted to

UK citizens with regard to the right to free movement and residence (for workers) continue

to apply. This includes the right of workers:

• to apply for jobs offered on the market

• to move unrestrictedly within the territory of the Member States for that purpose

• to reside in a Member State in order to pursue employment there in accordance with

the laws, regulations, and administrative provisions applicable to employees in that

State

• to remain within the territory of a Member State after having been employed there

under conditions laid down by the Commission by means of regulations

However, these privileges with regard to the right to free movement and residence of

workers will continue to apply without restriction for a period of two years (subject to a

mutually agreed extension of this period) after the UK submitted its declaration of

withdrawal.

Anticipated Legal Situation After the Withdrawal

The Withdrawal Agreement includes transition provisions ("Implementation Period") until

December 31, 2020, to mitigate the effects of the withdrawal on Union citizens and British

citizens and contains the following detailed regulations:

Free Movement of Workers

EU citizens residing legally, temporarily, or permanently in the UK at the time of the EU

withdrawal may continue to live, work (or become unemployed with no fault of their own,

selfemployed, study or seek employment within the meaning of Article 7(3) of the Free

Movement Directive), or study in the UK. The same applies to British citizens who live in an

EU member state.

Persons living temporarily or permanently in the United Kingdom at the time of the

withdrawal or the date of the Withdrawal Agreement may also remain in the country. The

same applies analogously to British citizens who are legally residing in an EU member state,

including persons living with them in non-marital relationships. EU negotiators rejected a

request by negotiators from the United Kingdom that a regulation be provided for with

regard to British citizens who move to an EU member state after the date of record, stating

that they had no mandate to provide for such regulation and that such matters would be

provided for in a later agreement.

EU and UK citizens must be legal residents in the host Member State at the end of the

transitional period in accordance with EU law on the free movement of persons. However,

the Withdrawal Agreement does not require a personal presence in the host country at the

end of the transitional period—temporary absences do not affect the right of residence, and

longer absences that do not restrict the right of permanent residence are permitted.

According to the Withdrawal Agreement, the above rights will not expire after the

transitional period. This means that Union citizens retain their right of residence essentially

under the same substantive conditions as under the EU right of free movement, but must

apply to the UK authorities for a new UK residence status. After five years of legal residence

in the UK, the UK residence status will be upgraded to a permanent status with more rights

and enhanced protection.

The same applies to British citizens who continue to legally reside in an EU Member State

after a period of five years.

Family Members

EU citizens who are already legal residents in the UK either temporarily or permanently, at

the time of the country's withdrawal from the EU, have a right to family unification,

including with family members who do not live with them yet. In addition to spouses (or

persons with equivalent status), this also concerns parents and children (including children

born after the date of record). The applicable regulations under national law will apply to

any other family members.

Social Security

EU citizens who are already living in the United Kingdom at the time of the country's

withdrawal from the EU, as well as British citizens who live in an EU Member State, will

retain their entitlements from health and pension insurance plans, as well as other social

security benefits, or these entitlements are mutually taken into account.

Administrative Procedures

The United Kingdom promises its resident EU citizens a special residential status that

secures their rights and can be applied for easily and at a low cost. EU citizens living

permanently or temporarily in the United Kingdom can have their status clarified by the

responsible administrative authorities until two years after the date of record. Decisions are

to be made exclusively on the basis of the Withdrawal Agreement, without any further

discretionary powers. The procedure is proposed to be quick, simple, convenient, and free

of charge.

Case Law

Under the Withdrawal Agreement, the European Court of Justice (ECJ) retains jurisdiction

for pending cases and questions referred by British courts until the end of the transitional

period. EU citizens can only litigate their rights before British courts; these courts, however,

will give consideration to the case law of the ECJ for a transitional period of eight years after

the expiration of the transitional period, and may also continue to submit questions to the

ECJ.

Right to Permanent Residency

The right of EU citizens to permanent residency after they have been in the UK for five

years will be retained, with regulations under European law continuing to be authoritative

for the eligibility requirements. Time spent in the country before the withdrawal will be

taken into account, and periods of temporary absence (of up to six months within a period

of 12 months) from the United Kingdom for important reasons will not count toward this

period. EU citizens living outside of the UK will only lose their right of permanent residency

after a period of five years. Existing permanent residency permits are proposed to be

converted free of charge, subject to an identity check, a criminal background and security

check, and the assurance and confirmation of ongoing residency.

The State of Play

The road to the possible conclusion and entry into force of the Withdrawal Agreement

remains rocky and almost impassable. To make things worse, all of this is playing out in a

political minefield. Now that the EU has adopted the Withdrawal Agreement, it is the UK's

turn. The Parliament's decision on the adoption of the Withdrawal Agreement was initially

scheduled for December 11, 2018. In the meantime, however, British Prime Minister

Theresa May held a crisis meeting and announced that she was postponing the vote until an

unspecified later point in time. This is probably because recent surveys indicated that the

Withdrawal Agreement would fail to attract a majority. According to press reports, the vote

is proposed to take place by January 21, 2019.

Meanwhile, the EU has reiterated that the bloc will not be available for renegotiations on the

Withdrawal Agreement. In the meantime, Ms. May held talks with German Chancellor

Angela Merkel in Berlin and with leaders of other EU member states in Amsterdam, Holland,

and Brussels, Belgium. So far, these talks have been without success. It is more than

symbolic that Ms. May was unable to disembark upon arrival in Berlin due to a technical

defect that prevented her car's door from being opened. The times in which a "handbag"

moment (this refers to former UK Prime Minister Margaret Thatcher, who "forced" a decision

in a brash appearance in Brussels) is enough to persuade the EU to give in seem to be over.

There is unanimous consent on the EU side that renegotiations are categorically excluded.

Meanwhile, growing reports point to an imminent motion of censure in the British

Parliament. The political pressure on Ms. May's shoulders is therefore as heavy as it could

possibly be despite of having survived the vote of no confidence on December 12, 2018.

A further possible way out of this dilemma that has now been suggested by the ECJ did not

come as a surprise, given the opinion of the Advocate General published recently. In its

judgment handed down on December 10, 2018, the ECJ, on the basis of a referral made at

the request of Scotland's highest civil court in the matter of Wightman et al. vs. Secretary

of State for Exiting the European Union (C-621/18), ruled that it is possible under certain

conditions for the UK to unilaterally revoke the Withdrawal Declaration issued to the EU on

March 29, 2017. It would be possible for as long as there is no binding withdrawal

agreement and the period of two years stipulated in Article 50(3) TFEU has not expired, for

as long as the revocation is made by a unilateral, unequivocal, and unconditional written

declaration to the European Council after the concerned Member State has enacted the

revocation decision in accordance with its constitutional requirements. Irrespective of this

fundamental possibility established in this judgment, it is questionable whether this would

happen before March 29, 2019, as the decision to issue such a revocation would also be

subject to a majority in the British Parliament and, in all likelihood, could not ever be validly

declared without the consent of the majority of Parliament.

Given all of these circumstances, both sides (but more on the UK side than on the EU side)

continue to find themselves under massive pressure. This is all the more true as the

Withdrawal Agreement still needs to be ratified by the Member States. Any extension of the

two-year negotiation window, which would only be possible by mutual agreement, seems

highly unlikely and would always entail the risk of a Member State "throwing a wrench into

things" or demanding significant concessions in other areas before agreeing to such an

extension. In this context, the possibility of a unilateral revocation of the Withdrawal

Declaration could gain significance.

Assessment—"The Complete Mess"

The current situation seems hopeless from the point of view of the UK. The ratification of

the Withdrawal Agreement seems such a remote possibility that the British Prime Minister is

apparently too afraid of even putting it to a vote. The negotiating partners at the EU are not

willing to make any further concessions. The alternative of withdrawing from the EU without

a transitional arrangement appears to entail unpredictable economic disadvantages for the

UK. On the other hand, the outcome of a second referendum, once again conceivable after

the ECJ ruling on the possibility of unilaterally revoking the Withdrawal Declaration, is not as

clear-cut as may be suggested in some newspapers. Calling all of this a "complete mess"

would probably be a fair assessment.

The history of the EU tells us that the negotiations likely will eventually come to an end with

a compromise that is bearable for both sides, even though we cannot predict the details.

There might even be a chance that the United Kingdom will in the end remain in the EU.

Stay tuned.

***

This newsletter was prepared with the assistance of ABIL, the Alliance of Business

Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

*****

8. Updates from the Visalaw.com Blogs

Greg Siskind’s Blog on ILW.com

• Carmen Puerto Diaz

• Siskind Summary: The H-1B Pre-Registration Proposed Rule

• Siskind Summary: East Bay Sanctuary Covenant v Trump (The Asylum Ban Case)

• Siskind Summary: The Suspension of Asylum Eligibility and Presidential Proclamation

• Siskind Summary – The Texas DACA Preliminary Injunction Ruling

• Iowa Encapsulates America’s Immigration Debate

• Help Wanted: Seeking Congressional Committees Interested in Wise Immigration

Policies – By Anthony Weigel

• Siskind Summary – Immigration Innovation Act of 2018 (“I-Squared”)

• How Immigration Functions Will be Impacted by a Government Shutdown

Bruce Buchanan's Blog on ILW.com

• Immigration Compliance - Don't Forget about the IER

• Fremont Business Owner Goes top Prison for Visa Fraud Conspiracy

• ICE/HSI Increased I-9 Audits by Over 400% in FY 2018

• IER Settles Immigration-Related Discrimination Claim Against Sinai Health System

• No-Match Letters Returning

• E-Verify Unavailable During Government Shutdown

• OCAHO Orders $857,868 in Penalties Against Two Related Companies in

Immigration-Related Discrimination Lawsuit

• IER Settles Immigration-Related Discrimination Claim Against Walmart

• 26 Indian-Related Companies Named Willful Violators of the H-1B Visa System

• IER Settles Immigration Discrimination Claim against Mrs. Fields' Original Cookies

• Five New York-based 7-Eleven Franchises Join IMAGE

*****

9. State Department Visa Bulletin: February 2019

Visa Bulletin For February 2019

Number 26

Volume X

Washington, D.C

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during February for: “Final

Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants

should be notified to assemble and submit required documentation to the National Visa

Center.

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS)

website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for

adjustment of status with USCIS in the Department of Homeland Security must use the

“Final Action Dates” charts below for determining when they can file such applications.

When USCIS determines that there are more immigrant visas available for the fiscal year

than there are known applicants for such visas, USCIS will state on its website that

applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.

1. Procedures for determining dates. Consular officers are required to report to the

Department of State documentarily qualified applicants for numerically limited visas; USCIS

reports applicants for adjustment of status. Allocations in the charts below were made, to

the extent possible, in chronological order of reported priority dates, for demand received

by January 8th. If not all demand could be satisfied, the category or foreign state in which

demand was excessive was deemed oversubscribed. The final action date for an

oversubscribed category is the priority date of the first applicant who could not be reached

within the numerical limits. If it becomes necessary during the monthly allocation process to

retrogress a final action date, supplemental requests for numbers will be honored only if the

priority date falls within the new final action date announced in this bulletin. If at any time

an annual limit were reached, it would be necessary to immediately make the preference

category “unavailable”, and no further requests for numbers would be honored.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum

family-sponsored preference limit of 226,000. The worldwide level for annual employment-

based preference immigrants is at least 140,000. Section 202 prescribes that the per-

country limit for preference immigrants is set at 7% of the total annual family-sponsored

and employment-based preference limits, i.e., 25,620. The dependent area limit is set at

2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference

visas be issued to eligible immigrants in the order in which a petition in behalf of each has

been filed. Section 203(d) provides that spouses and children of preference immigrants are

entitled to the same status, and the same order of consideration, if accompanying or

following to join the principal. The visa prorating provisions of Section 202(e) apply to

allocations for a foreign state or dependent area when visa demand exceeds the per-country

limit. These provisions apply at present to the following oversubscribed chargeability

areas: CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO,

PHILIPPINES, and VIETNAM.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-

sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not

required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent

Residents: 114,200, plus the number (if any) by which the worldwide family preference

level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second

preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent

Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not

required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not

required by first three preferences.

A. FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is

oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for

issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not

authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants

whose priority date is earlier than the final action date listed below.)

Family-

Sponsored

All Chargeability

Areas Except

Those Listed

CHINA-mainland

born INDIA MEXICO PHILIPPINES

F1 22SEP11 22SEP11 22SEP11 01AUG97 15MAR07

F2A 01DEC16 01DEC16 01DEC16 15NOV16 01DEC16

F2B 01MAY12 01MAY12 01MAY12 22JUL97 01JUL07

F3 22AUG06 22AUG06 22AUG06 22DEC95 22AUG95

F4 22JUN05 22JUN05 22JUN04 08FEB98 01OCT95

*NOTE: For February, F2A numbers EXEMPT from per-country limit are authorized for

issuance to applicants from all countries with priority dates earlier than 15NOV16. F2A

numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable

to all countries EXCEPT MEXICO with priority dates beginning 15NOV16 and earlier than

01DEC16. All F2A numbers provided for MEXICO are exempt from the per-country limit.

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying

immediate action in the application process. Applicants for immigrant visas who have a

priority date earlier than the application date in the chart below may assemble and submit

required documents to the Department of State’s National Visa Center, following receipt of

notification from the National Visa Center containing detailed instructions. The application

date for an oversubscribed category is the priority date of the first applicant who cannot

submit documentation to the National Visa Center for an immigrant visa. If a category is

designated “current,” all applicants in the relevant category may file applications, regardless

of priority date.

The “C” listing indicates that the category is current, and that applications may be filed

regardless of the applicant’s priority date. The listing of a date for any category indicates

that only applicants with a priority date which is earlier than the listed date may file their

application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that

this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing

applications for adjustment of status with USCIS.

Family-

Sponsored

All Chargeability

Areas Except

Those Listed

CHINA-

mainland

born

INDIA MEXICO PHILIPPINES

F1 08APR12 08APR12 08APR12 22SEP99 15MAR08

F2A 01DEC17 01DEC17 01DEC17 01DEC17 01DEC17

F2B 22JUN14 22JUN14 22JUN14 08OCT97 15JAN08

F3 01FEB07 01FEB07 01FEB07 08JUN00 01AUG97

F4 15JUN06 15JUN06 01FEB05 01NOV98 08DEC97

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-

based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus

any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional

Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not

required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level,

plus any numbers not required by first and second preferences, not more than 10,000 of

which to "*Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which

reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside

for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is

oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for

issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not

authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants

whose priority date is earlier than the final action date listed below.)

Employment-

based

All

Chargeabili

ty

Areas

Except

Those

Listed

CHINA-

mainlan

d

born

EL

SALVADO

R

GUATEMA

LA

HONDUR

AS

INDIA MEXIC

O

PHILIPPIN

ES

VIETNA

M

1st 01DEC17 08FEB17 01DEC17 08FEB

17

01DEC

17 01DEC17

01DEC1

7

2nd C 01OCT1

5 C

06APR

09 C C C

3rd C 01JUL15 C 22APR

09 C 01AUG17 C

Other Workers C 01AUG0

7 C

22APR

09 C 01AUG17 C

4th C C 01MAR16 C 01SEP1

7 C C

Certain

Religious

Workers

U U U U U U U

5th Non-

Regional Center

(C5 and T5)

C 01SEP14 C C C C 15JUN1

6

5th Regional Ce

nter

(I5 and R5)

U U U U U U U

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan

and Central American Relief Act (NACARA) passed by Congress in November 1997, as

amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third

Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW

petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal

year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This

reduction is to be made for as long as necessary to offset adjustments under the NACARA

program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001,

the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying

immediate action in the application process. Applicants for immigrant visas who have a

priority date earlier than the application date in the chart may assemble and submit

required documents to the Department of State’s National Visa Center, following receipt of

notification from the National Visa Center containing detailed instructions. The application

date for an oversubscribed category is the priority date of the first applicant who cannot

submit documentation to the National Visa Center for an immigrant visa. If a category is

designated “current,” all applicants in the relevant category may file, regardless of priority

date.

The “C” listing indicates that the category is current, and that applications may be filed

regardless of the applicant’s priority date. The listing of a date for any category indicates

that only applicants with a priority date which is earlier than the listed date may file their

application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that

this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing

applications for adjustment of status with USCIS.

Employment-

based

All

Chargeabilit

y

Areas Exce

pt

Those

Listed

CHINA-

mainlan

d

born

EL

SALVADOR

GUATEMAL

A

HONDURA

S

INDIA MEXIC

O

PHILIPPINE

S

1st 01JUN18 01OCT17 01JUN18 01OCT1

7

01JUN1

8 01JUN18

2nd C 01NOV15 C 22MAY0

9 C C

3rd C 01JAN16 C 01APR10 C 01OCT17

Other Workers C 01JUN08 C 01APR10 C 01OCT17

4th C C 01MAY16 C C C

Certain Religious

Workers C C 01MAY16 C C C

5th Non-

Regional Center

(C5 and T5)

C 01OCT14 C C C C

5th Regional Cent

er

(I5 and R5)

C 01OCT14 C C C C

6. The Department of State has a recorded message with the Final Action date information

which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of

each month with information on final action dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF FEBRUARY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit

additional immigration opportunities for persons from countries with low admissions during

the previous five years. The NACARA stipulates that beginning with DV-99, and for as long

as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made

available for use under the NACARA program. This resulted in reduction of the DV-2019

annual limit to 50,000. DV visas are divided among six geographic regions. No one

country can receive more than seven percent of the available diversity visas in any one

year.

For February, immigrant numbers in the DV category are available to qualified DV-2019

applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off

number is shown, visas are available only for applicants with DV regional lottery rank

numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability

Areas Except

Those Listed Separately

AFRICA 13,800 Except: Egypt 9,500

ASIA 4,400 Except: Iran 3,400

Nepal 2,800

EUROPE 10,000

NORTH AMERICA

(BAHAMAS) 12

OCEANIA 450

SOUTH AMERICA,

and the CARIBBEAN 625

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal

(visa) year for which the applicant is selected in the lottery. The year of entitlement for all

applicants registered for the DV-2019 program ends as of September 30, 2019. DV visas

may not be issued to DV-2019 applicants after that date. Similarly, spouses and children

accompanying or following to join DV-2019 principals are only entitled to derivative DV

status until September 30, 2019. DV visa availability through the very end of FY-2019

cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL

APPLY IN MARCH

For March, immigrant numbers in the DV category are available to qualified DV-2019

applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off

number is shown, visas are available only for applicants with DV regional lottery rank

numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability

Areas Except

Those Listed Separately

AFRICA 15,300 Except: Egypt 12,600

ASIA 5,000 Except: Iran 4,600

Nepal 3,400

EUROPE 13,500

NORTH AMERICA

(BAHAMAS) 12

OCEANIA 550

SOUTH AMERICA,

and the CARIBBEAN 750

D. SCHEDULED EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES

Employment Fourth Preference Certain Religious Workers (SR):

With the expiration of the continuing resolution on December 21, 2018 authorization for the

non-minister special immigrant program has lapsed. No SR visas may be issued overseas,

or final action taken on adjustment of status cases. Therefore, the final action date for this

category has been listed as “Unavailable” for February.

If there is legislative action extending this category for FY-2019, the final action date would

immediately become “Current” for February for all countries except El Salvador, Guatemala,

and Honduras which would be subject to a March 1, 2016 final action date, and for Mexico

which would be subject to a September 1, 2017 final action date.

Employment Fifth Preference Categories (I5 and R5):

With the expiration of the continuing resolution on December 21, 2018 authorization for the

immigrant investor pilot program has lapsed. No I5 or R5 visas may be issued overseas, or

final action taken on adjustment of status cases. Therefore, the final action dates for the I5

and R5 categories have been listed as “Unavailable” for February.

If there is legislative action extending them for FY-2019, the final action dates would

immediately become “Current” for February for all countries except China-mainland born,

which would be subject to a September 1, 2014 final action date and Vietnam, which would

be subject to a June 15, 2016 final action date.

E. VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates (except oversubscribed countries):

F1: Up to five weeks

F2A: Up to one month

F2B: Up to two months

F3: Up to two weeks

F4: Up to six weeks

EMPLOYMENT-based categories (potential monthly movement)

Employment First:

WORLDWIDE (most countries): Up to two months.

China and India: Up to one month.

Employment Second:

Worldwide: Current for the foreseeable future.

China: Up to three months.

India: Up to one week

Employment Third:

Worldwide: Current

China: Up to three weeks.

India: Up to three months.

Mexico: Current

Philippines: Rapid movement to generate demand.

Employment Fourth: Current for most countries.

El Salvador, Guatemala, and Honduras: Up to one week.

Mexico: Rapid forward movement until limit is reached.

Employment Fifth: The category will remain “Current” for most countries.

China-mainland born: Up to one week.

Vietnam: Up to three weeks.

The above final action date projections for the Family and Employment categories indicate

what is likely to happen on a monthly basis through May. The determination of the actual

monthly final action dates is subject to fluctuations in applicant demand and a number of

other variables. It is also important to remember that by no means has every applicant with

a priority date earlier than a prevailing final action date been processed for final visa action,

with applicants often processing at their own initiative and convenience.

F. OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”,

please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:

Subscribe Visa-Bulletin

(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa

Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa final action dates

which can be heard at: (202) 485-7699. The recording is normally updated on/about the

10th of each month with information on final action dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the

following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514

CA/VO: January 8, 2019