Category Archives: Department of State

Categories Department of Labor Department of State News & Updates USCIS

EB-3 Downgrade I-140 Petitions Guidance

Each month the State Department publishes the Visa Bulletin, which summarizes the availability of immigrant numbers for a particular month. You can track your priority date and your corresponding immigration preference category, and once your priority date is current you can apply to adjust status to permanent resident, which is the last step in the green card process.

Your priority date is the date of filing the Labor Certification. If your I-140 Immigrant Petition for Alien Worker does not require an approved Labor Certification, the priority date is the date of filing the I-140 petition.

The three common employment-based immigration preference categories are as follows:

  • EB-1
    • Individuals with Extraordinary Ability – can self-petition
    • Outstanding Researchers and Professors
    • Multinational managers or executives
  • EB-2
    • National Interest Waiver for individuals with advanced degrees or with exceptional ability – can self-petition
    • Members of professions that require an advanced degree or individuals with exceptional ability in the sciences, arts, or business
  • EB-3
    • A skilled worker (meaning your job requires a minimum of 2 years training or work experience)
    • A professional (meaning your job requires at least a U.S. bachelor’s degree or a foreign equivalent and you are a member of the profession)

In 2015, the State Department began to post two charts on the Visa Bulletin,

  • Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing (earliest dates when applicants may be able to apply).

After the Visa Bulletin is published each month, USCIS designates which chart to use. When USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, the Dates for Filing chart may be used to determine when to file an adjustment of status application with USCIS. Otherwise, the Final Action Dates chart must be used to determine when to file an adjustment of status application with USCIS.

If a foreign national has an I-140 approval in the EB2 preference category, it can be advantageous to “downgrade,” or file a second I-140 petition in the EB3 preference category, depending on visa bulletin movement. For example, due to the pandemic, an unprecedented low number of family-based (FB) immigrant visas were issued in fiscal year (FY) 2020, and those unused family-based numbers were added to FY 2021’S employment-based immigrant visa allocation.

This reallocation resulted in rapid advancement in the final action dates and dates for filing of all of the EB categories that were not current, particularly EB3 India and EB3 China. The 2020 October Visa Bulletin presented an unprecedented opportunity for clients who had been waiting years to file adjustment of status applications to finally be able to do so.

The risk of filing an EB-3 downgrade I-140 petition are quite low. When filing an EB-3 I-140 downgrade petition, the PERM Labor Certification from the approved EB-2 I-140 petition will be submitted to USCIS. Practically every PERM that qualifies for the EB2 preference category will qualify for the EB3 preference category. Absent a PERM job opportunity that is no longer valid, or fraud or willful misrepresentation, EB3 I-140 petitions should be successful.

Downgrading from EB2 to EB3 does not create any issues, it actually gives you more options should either category move more favorably than the other. If you choose to file an EB-3 downgrade I-140 petition, your EB-2 approval will remain valid. Once the EB-3 I-140 is approved, you will have two I-140 approvals with the same priority date, one in each category and you can use whichever one will be faster to adjust status when the Final Action Date becomes current. If the EB3 category retrogresses and the EB2 category improves, then you can submit an interfiling request to USCIS, or a request asking that your EB2 I-140 approval be interfiled with your pending I-485 application.

Even if your priority date is only current according to the Dates for Filing chart, it can still prove advantageous to file an EB3 downgrade I-140 petition if it will allow you to apply to adjust status sooner. The Dates for Filing option for the green card process permits applicants to obtain interim benefits, including work authorization and travel documents, and allows them to accept a position with a new employer at an earlier stage in the process:

  • Additional work authorization and travel documents: An individual who submits an application for adjustment of status application can concurrently request an employment authorization document (EAD) and advance parole (AP) travel document, which provides the applicant with additional flexibility in employment and international travel.
  • Work authorization for spouses: Family members can submit an application for adjustment of status and request EAD and AP documents for themselves.
  • Increased worker mobility to new employment: Once the adjustment of status application has been pending for six months, the individual is no longer tied to the sponsoring employer and becomes mobile in the labor market. After six months, most adjustment of status applicants can change employers as long as the new position is “same or similar” to the position for which the green card application was filed.

If you are in H-1B status, you can continue to maintain your H-1B status while the I-485 is pending. We recommend maintaining your H-1B status while the I-485 is pending, in the unlikely event that something happens to your I-485. This is unlikely, but it is a good idea to maintain your H-1B status just in case.

In summary, filing an EB-3 downgrade I-140 petition can be of significant benefit to applicants born in China and India who are subject to the longest priority date backlogs. With an EB-3 I-downgrade I-140 petition, foreign nationals from China and India may be able to file the green card application sooner than anticipated.

As always, we are here to help.  If you would like to reach out you can email us at info@grahamadair.com or call us at (408) 715-7067.

Categories Department of State Immigration and Customs Enforcement News & Updates

Current COVID-related Guidance on Travel to and From the United States

With the constantly changing landscape around COVID-related travel restrictions, is it important to find updated information prior to any international travel. As of right now, our current guidance is as follows:

Before Departing the U.S.

It is recommended to be fully aware of the COVID-19 requirements at your destination as they may differ from U.S. requirements. You can find country-specific guidance on the CDC website. Failing to follow your destination’s requirements can result in denial of entry.

Per CDC guidance, you should refrain from traveling if you have COVID-19 symptoms, you tested positive for COVID-19, you are waiting for results of a COVID-19 test or you had close contact with a person with COVID-19 and are recommended to quarantine.

Vaccination Requirements to Enter the U.S.

As of June 12, 2022, the CDC is no longer requiring air passengers traveling from a foreign country into the U.S. to show a negative COVID-19 test or documentation of recovery from COVID-19.

U.S. citizens, Legal Permanent Residents and Nonimmigrants flying into the U.S. will be required to provide contact information to their airline before boarding a flight to the United States.

Nonimmigrants entering the U.S. through air, land or ferry must be fully vaccinated, with limited exceptions. A person is considered fully vaccinated:

  • 2 week (14 days) after an accepted single-dose vaccine
  • 2 weeks (14 days) after second-dose of an accepted 2-dose vaccine
  • 2 weeks (14 days) after receiving the full series of an accepted COVID-19 vaccine in a clinical trial
  • 2 weeks (14 days) after receiving 2 doses of any “mix and match” combination of accepted COVID-19 vaccines administered at least 17 days apart

Accepted COVID-19 vaccines include the following:

  • Single dose: Janssen/J&J and Convidecia (CanSinoBIO)
  • 2-dose series: Comirnaty (Pfizer-BioNTech); Spikevax (Moderna); Vaxzevria (AstraZeneca); Covaxin; Covishield; BIBP/Sinopharm; CoronaVac (Sinovac); Nuvaxovid (Novavax); Covovax; and Medicago (clinical trial vaccine)

Accepted proof of COVID-19 vaccination must have personal identifiers (full name plus another identifier such as date of birth or passport number), name the official source who issued the record and list the vaccine manufacturer and date(s) of vaccination. Accepted proof of COVID-19 vaccination includes the following:

  • Verifiable records (digital or paper): vaccination certificate with QR code or digital pass via Smartphone application with QR code
  • Non-verifiable paper records: printout of COVID-19 vaccination record or COVID-19 vaccination certificate issued at a national or subnational level or by an authorized vaccine provider
  • Non-verifiable digital records: Digital photos of vaccination card or record, downloaded vaccine record or vaccination certificate from official source

In order to expedite the inspection process, the Department of Homeland Security is encouraging travelers arriving or departing the U.S. to use Simplified Arrival or Mobile Passport Control, which can make the inspection process touchless and more expedient with the use of facial comparison technology.

Please contact your Graham Adair attorney with specific travel questions, or contact us at info@grahamadair.com; +1 408 715 7067.

Categories Department of State News & Updates

TN Visa Processing in Mexico is Now Available Only at Three Consular Posts

The U.S. Embassy and Consulates in Mexico have resumed limited processing of nonimmigrant visas. TN Visa appointments are now available only in Mexico City, Ciudad Juarez, and Guadalajara. However, previously scheduled TN appointments in Tijuana will be honored, but expedited appointments cannot be accommodated, and new TN appointments cannot be made.

 

Since only three posts process TN visa appointments, applicants may experience significant delays for visa appointments. It is advised that applicants make note of this and plan accordingly. If applicants have an urgent need for travel, they may request an emergency appointment by following the guidance found here .

 

Applicants applying in the same visa class and whose previous visa expired within the last 48 months may be eligible for interview waiver.  Applicants may schedule a renewal appointment here. Routine appointments for applicants not ordinarily resident in Mexico are not available at this time.

 

The U.S. Department of State has extended the validity of visa payments (known as the MRV fee) until September 30, 2023, to allow all applicants who were unable to schedule a visa appointment as a result of the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the paid fee.

 

Please contact your Graham Adair attorney with any case specific questions, or contact us at info@grahamadair.com; +1 408 715 7067.

Categories Department of State News & Updates USCIS

Employment for spouses gets major win today

Today, fifteen nonimmigrant plaintiffs reached a settlement agreement with the Department of Homeland Security in a putative class action over long-delayed processing of H-4 and L-2  employment authorization documents (EADs).

 

The settlement agreement contains two key changes for H-4 and L-2 work authorization:

 

The first major victory is for automatic extension of EAD based on a timely filed extension. Qualifying H-4 nonimmigrants who timely file I-765 extension applications and will continue to have H-4 status beyond the expiration date of their EADs will now have their employment authorization automatically extended. The auto-extension of employment authorization will end once the nonimmigrant’s H-4 status expires according to their Form I-94; once the I-765 application is approved or denied; or 180 days from the expiration date on the face of the EAD.

 

To complete the I-9, qualifying H-4 nonimmigrants may provide a combination of documents in lieu of an unexpired EAD, including an expired EAD, I-765 receipt notice evidencing timely filed application, and unexpired Form I-94.

 

Within 120 days, U.S. Citizenship and Immigration Services (USCIS) will amend I-765 receipt notices to detail the EAD auto-extension eligibility for qualifying H-4 nonimmigrants.

 

The second major victory is that USCIS will issue guidance stating that L-2 spouses will have work authorization incident to status. Within 120 days, U.S. Customs and Border Protection (CBP) will change the Form I-94 to mention L-2 spouse where appropriate. Once CBP updates the Form I-94, it will be available for use as a List C document for I-9 purposes.

 

Further, L-2 spouses who timely file I-765 extension applications and will continue to have L-2 status beyond the expiration date of their EADs will have their employment authorization automatically extended. The auto-extension will end once the nonimmigrant’s L-2 status expires according to their Form I-94; once the I-765 application is approved or denied; or 180 days from the expiration date on the face of the EAD.

 

To complete the I-9, L-2 spouses may provide a combination of documents in lieu of an unexpired EAD, including an expired EAD, I-765 receipt notice evidencing timely filed application, and unexpired Form I-94.

 

USCIS will issue further guidance to employers and benefit granting agencies. Graham Adair will monitor the situation closely for developments. If you are an L-2 or H-4 spouse with a pending I-765 application and you have questions about the implications of the settlement agreement on your EAD processing, please reach out to the Graham Adair attorney handling your case.

 

Please contact your Graham Adair attorney with any specific questions, or contact us at info@grahamadair.com; +1 408 715 7067.

Categories Department of Labor Department of State News & Updates USCIS

Looming government shutdown’s anticipated impact on immigration

The Senate failed on Monday to pass a key procedural FY 2022 federal budget vote to advance the House-passed short-term government funding bill. If lawmakers fail to reach an agreement, U.S. government funding could expire and lead to a full federal government closure on 12:01 am on October 1, 2021.

What impact does this have on immigration processing? Each federal agency would have its own shutdown plan, which will coordinated by the Office of Management and Budget. However, based on prior shutdowns in previous years, the following should be expected:

Immigration operations that should remain in operation:

  • Customs and Border Protection (CBP): CBP is likely to continue processing immigration applications at the border and performing inspection functions.
  • Immigration and Customs Enforcement: ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) should continue.
  • SAVE System (USCIS database used by government agencies such as state motor vehicle departments to verify an applicant’s immigration status when processing applications for benefits).

Immigration operations that will likely be suspended:

  • Department of Labor (DOL): As the DOL would likely be categorized as a non-essential function, DOL immigration functions will likely be suspended. No PERM applications, labor condition applications (LCAs), prevailing wage determinations (PWDs) or applications for temporary labor certification would be processed. The agency would not accept PERM applications or audit responses, LCAs or prevailing wage requests either online or by mail.
  • E-Verify: Employers should expect to be unable to initiate E-Verify queries or resolve tentative non-confirmations, and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. Please note, employers should not take any adverse action against any employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. All employers will remain subject to Form I-9 obligations and deadlines as usual.
  • Conrad 30 Program

Immigration operations that will be potentially experience further processing delays:

  • U.S. Citizenship and Immigration Services (USCIS): The USCIS should continue to process applications but processing delays, already widespread, would continue or worsen. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown, though COVID-19 precautions are still in place.
  • Department of State: Some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown, but if not, should continue operations. Although the State Department’s visa processing and U.S. citizenship document functions are not expected to be suspended, they may be further affected by reduced staffing and other effects of the COVID-19 pandemic.

We will continue to monitor the situation and provide updates as they become available. In the meantime, please contact your Graham Adair attorney with any questions.

1 2 3 9