October 2017 Visa Bulletin

INTRODUCTION

On September 11, 2017, the U.S. Department of State (DOS) released the Visa Bulletin for October 2017 [PDF version]. The October 2017 Visa Bulletin is the first Visa Bulletin of Fiscal Year (FY) 2018. On September 15, 2017, the United States Citizenship and Immigration Services (USCIS) determined that family-sponsored adjustment of status applicants may rely on the dates for filing chart for October 2017, but that employment-based applicants must use the less generous final action date chart [PDF version]. The USCIS's determination that employment-based adjustment of status applicants must use the final action dates is a shift from both October of FY 2015 and October of FY 2016, when employment-based applicants were permitted to use the dates for filing chart.

In this article, we will reproduce the relevant charts from the October 2017 Visa Bulletin along with other notes included by the DOS.

Please see our full article on using the visa bulletin for guidance on how it applies both to adjustment of status applicants and to those who are seeking their immigrant visas through consular processing [see article]. Please also see our full article on the differences between the final action dates and the dates for filing [see article].

Finally, please see our list of articles on prior visa bulletins [see article].

FAMILY-SPONSORED CASES

The USCIS determined that beneficiaries of approved family-sponsored immigrant visa petitions can use the dates for filing chart for determining eligibility to apply for adjustment of status in October of 2017. The dates for filing are slightly more generous than the final action dates. In October 2017, the beneficiary of an approved family-sponsored petition may apply for adjustment of status if his or her priority date is earlier than the applicable final date for his or her preference category and chargeability area. The priority date is the date on which the immigrant visa petition was properly filed for the majority of family-sponsored cases.

The following is the list of filing dates for family-sponsored preference cases in October 2017, courtesy of USCIS [see here].

For your reference, we are including the final action dates for family-sponsored cases in October 2017. The final action dates are the dates on which final action may be taken on an application for an immigrant visa. It is important to reiterate that adjustment of status applicants may rely on the filing dates listed above for October 2017.

The following is the list of final action dates for family-sponsored preference cases in October 2017, courtesy of DOS [see here].

EMPLOYMENT-BASED CASES

Unlike family-sponsored cases, the USCIS determined that employment-based adjustment of status applicants must rely on the final action dates for October 2017. Accordingly, the beneficiary of an employment-based immigrant visa petition may apply for adjustment of status only if his or her priority date is before the applicable final action cutoff date for his or her applicable preference category and chargeability area. The priority date will generally be the date on which the labor certification application was approved for by the U.S. Department of Labor for petitions for which labor certification was required. In cases in which labor certification was not required, the priority date will generally be when the employment-based petition was properly filed.

The following is the list of filing dates for employment-based preference cases in October 2017, courtesy of USCIS [see here].

NEWS ON VISA AVAILABILITY FOR UPCOMING MONTHS

The DOS included news about potential movement of final action dates in upcoming visa bulletins.

First, the DOS offered the following projections for the forward movement of family-sponsored worldwide final action dates:

• F1: Up to several months
• F2A: Up to one month
• F2B: Up to one month
• F3: Three or four weeks
• F4: Two or three weeks

Here, the DOS projects potentially significant movement in the F1 worldwide dates, and more limited forward movement in the other family-sponsored preferences.

The DOS then provided the following projections for the forward movement of dates in the following employment-based preferences and chargeability areas:

• Employment First: Will remain current
• Employment Second (Worldwide): Will remain current
• Employment Second (China): Up to four weeks
• Employment Second (India): Up to one month
• Employment Third (Worldwide): Will remain current
• Employment Third (China): Up to four months
• Employment Third (India): Limited forward movement
• Employment Third (Mexico): Will remain current
• Employment Third (Philippines): Up to two months
• Employment Fourth (Most countries): Will remain current
• Employment Fourth (El Salvador, Guatemala, and Honduras): Up to three weeks
• Employment Fourth (Mexico): Some forward movement
• Employment Fifth (Most countries): Will remain current
• Employment Fifth (China): Up to one week

The DOS reminded readers of the October 2017 Visa Bulletin that these projections are based on what is likely to happen based on current applicant demand patterns. The projections are not guarantees of future final action date movement. Changes in demand for immigrant visas in a specific preference category and chargeability area may lead to the movement in final action dates not aligning with the DOS's current projections.

SPECIAL IMMIGRANT (SI) TRANSLATOR CATEGORY VISA AVAILABILITY

The DOS explained that there are only 50 Special Immigrant Visas in the SI category available per fiscal year. Accordingly, it expects to reach the annual limit early in FY 2018. For this reason, the DOS established a final action date of April 1, 2010, for the SI category for October 2017. Once the annual limit of 50 SI category visas has been reached, the DOS will be unable to grant more visas in the category until October 2018.

The DOS added that the “SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan is not affected and remains current.”

CONCLUSION

Beneficiaries of approved immigrant visa petitions should stay abreast of developments in the visa bulletin. This is especially important for adjustment of status applicants. Those seeking immigrant visas should remain in contact with an experienced immigration attorney throughout the entire process. Please continue to follow our website for developments related to the immigrant visa bulletin.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Asylum in the USA

Comparing Asylum and Refugee Status

U.S. immigration law includes protections for “asylees” and “refugees.”  Before continuing, it is important to understand the similarities and differences between asylee and refugee status.

The main difference between asylum and refugee status is how the applications are filed.  Asylum applications are filed by individuals within the United States.  Refugee applications are made by individuals who are outside the United States.

However, despite the differences in applying for asylum status and applying for refugee status, an individual must meet the statutory definition of “refugee” in either case.  This means that the asylum seeker must establish that he or she was subject to persecution or violence or has a reasonable fear of being subject to persecution or violence on the basis of one of the statutorily specified grounds.

Who is Eligible to Apply for Asylum?

Under statute, any alien who is physically present in the United States, or who arrives in the United States, may apply for asylum in accord with the rules for asylum applications.  An alien may apply for asylum regardless of his or her immigration status (or lack thereof).  The spouse and/or child(ren) may be eligible  for derivative status.

However, there are three bars to applying for asylum.

First, the safe third country bar applies to individuals with certain connections to Canada.  In general, an individual who initially arrives in Canada prior to then arriving in the United States must apply for asylum in Canada.  The same applies in most cases in the reverse.  The U.S. immigration authorities may make exceptions on a case-by-case basis.  This bar does not apply to unaccompanied alien children.

Second, and perhaps most importantly, an individual must apply for asylum within one year after the date of his or her arrival in the United States.  Otherwise, the application will be considered “time-barred.”  There is an exception to the “time bar.”  An individual may seek to establish that, while he or she would not have qualified for asylum within one year of arrival in the United States, changed circumstances that would materially relate to his or her asylum application attach.  An asylum seeker may also seek an exception by establishing “extraordinary circumstances” that prevented him or her from applying for asylum within the time limit.  This bar does not apply to unaccompanied alien children.

Third, individuals who previously applied for asylum and had the previous application denied are barred from re-applying for asylum.  However, there is a changed circumstances exception to this bar if the applicant can establish that the changed circumstances would materially relate to the subsequent asylum application. 

Affirmative Asylum vs Defensive Asylum

There are two types of ways to apply for asylum:  affirmative and defensive.

An individual who makes an affirmative application for asylum does so by filing an application outside of the context of removal proceedings.  The applicant will be scheduled for an asylum interview after filing the application.  If asylum status is denied, the applicant may appeal.

An individual may also apply for asylum defensively.  This occurs if the individual is seeking to defend him or herself in removal proceedings.  Being granted asylum will prevent an alien from being removed.  It is important to note that there are special procedures for individuals who are subject to expedited or administrative removal instead of regular removal proceedings in immigration court.  In this context, the individual’s application for asylum will also be considered for withholding of removal and protection under the Convention Against Torture, two lesser forms of relief.  An immigration judge will consider the application for asylum in the context of removal proceedings.

Definition of a “Refugee”

Although U.S. asylum is different than refugee status, an individual must meet the statutory definition of “refugee” in order to qualify for asylum.

First, the individual must be outside the country of his or her nationality or, in the case of an individual who lacks nationality, the country in which he or she last habitually resided.  The individual must be unable or unwilling to return to his or her country of nationality or last habitual residence, and must be unwilling to avail him or herself to the protection of that country, on account of persecution or a well-founded fear of persecution on one of the five following grounds:  (1) race; (2) religion; (3); nationality; (4) membership in a particular social group; or (5) political opinion.

It is crucial to understand the five grounds that evidence of persecution or a well-founded fear of persecution may be based in the U.S. asylum context.  Asylum in the United States is not a catch-all benefit for an individual seeking refuge from any set of undesirable conditions in his or her home country.  Rather, it is designed to protect individuals who have either been persecuted or who have a well-founded fear of persecution based on specified grounds.  Furthermore, the applicant must establish that the country in which he or she was persecuted or from which he or she has a well-founded fear of persecution is either unwilling or unable to protect him or her from persecution.  The applicant must also show either that the persecutor is the government of his or her home country or that the persecutor is a group or groups that the government is unwilling or unable to control. 

Bars to Eligibility for Asylum

Even if an individual is not barred from filing an application for asylum, he or she may be barred from being granted asylum.  The bars to asylum apply even to individuals who would otherwise meet the statutory definition of “refugee.”  There are six grounds that can lead to the mandatory denial of an asylum application.

First, if the alien persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion, he or she is ineligible for asylum.  Simply put, an individual who persecutes others on one of the five protected grounds cannot win asylum relief for fear of persecution on those same grounds.

Second, an alien who was convicted by a final judgment of a “particularly serious crime” is ineligible for asylum.  Under statute, a conviction for an immigration aggravated felony constitutes a “particularly serious crime.”  However, the aggravated felony provision does not apply as a matter of course to asylum applications filed before November 29, 1990.  For asylum applications filed before April 1, 1997, the conviction for the particularly serious crime must have occurred in the United States.  For applications after, convictions both inside or outside of the United States trigger the bar.

Third, if there are serious reasons for believing that an asylum applicant committed a “serious nonpolitical crime outside the United States” prior to arriving in the United States, he or she is ineligible for asylum.  The standard for “serious nonpolitical crime” is less serious than a “particularly serious crime.”  An applicant may seek to establish that his or her “crime” abroad was political in nature.  However, offenses that are “political” in nature may still be deemed to constitute the bar depending on the facts of the offense.

Fourth, an applicant may be barred from asylum if he or she is deemed to be a “danger to the security of the United States.”

Finally, individuals who are inadmissible to the United States based on terrorism-related inadmissibility grounds (TRIG) are subject to a mandatory bar to eligibility for asylum.

The final bar to asylum eligibility is called the “firm resettlement bar.”  If the individual is firmly resettled in another country prior to arriving in the United States, the asylum application must be denied.  This generally applies in cases where the individual has established significant ties to a third country or has received an offer of permanent residence from that country.  The U.S. Government bears the burden of initially establishing firm resettlement.

Burden and Credibility

The applicant for asylum bears the burden of proving that he or she is a “refugee” within the meaning of the statute.  This requires the applicant to establish that one central reason for his or her persecution or reasonable fear of persecution was one of the five protected grounds.  In asylum proceedings, the trier of fact will make a credibility determination on the applicant’s or witness’s account.

The “EAD Clock” and Employment Authorization

Unfortunately, asylum applications are often pending for significant periods of time.  In general, once an asylum application has been pending for 150 days, an asylum applicant may seek employment authorization.  This only applies to asylum applications filed after January 4, 1995. Under certain cases, individuals who qualify as “ABT class members” may seek employment authorization under the “ABT Settlement Agreement.”  The agreement covers applications still pending on or after December 3, 2013.  Asylum seekers should consult with an attorney regarding EAD clock issues.

Frivolous Asylum Applications

If an individual is found to have made a “frivolous” application for asylum, he or she will be permanently barred from receiving any benefits under the Immigration and Nationality Act (INA).  An application is frivolous if any material elements of the application (meaning those elements that would influence the trier of fact’s decision on the application) are found to be deliberately fabricated.  This extremely harsh penalty underlies the seriousness with which the U.S. Government treats frivolous asylum applications.  In short, an individual should be fully honest in applying for asylum and only apply for asylum if he or she has plausible grounds to do so. 

Asylum Status and Asylee Adjustment

If an individual is granted asylum, his or her spouse and or children will be eligible for derivative asylum benefits.  An individual on asylum status will be authorized for employment and, with prior permission from the Government, may travel abroad and return.  The individual will not be returned to the country in which he or she fears persecution.

Asylum may be terminated on various grounds.  If the asylee is found subsequently to not meet the definition of refugee or if he or she is found to be described by one of the mandatory bars to granting asylum, asylum status can be terminated.  If the asylee voluntarily avails him or herself to the protection of his or her country of nationality or last habitual residence where he or she allegedly feared persecution, asylum status may be terminated.  However, it is important to note that returning to said country does not, in and of itself, lead to the termination of asylum status.  Finally, if the asylee acquires a new nationality and enjoys the protection of that nationality, asylum in the United States may be terminated.

An asylee may apply for adjustment of status after being physically present in the United States for at least one year subsequent to the application.  He or she must continue to meet the definition of “refugee” if his or her asylum status was granted after November 29, 1990.  The applicant must not be firmly resettled in another country and must continue to be admissible to the United States.  Derivatives must continue to qualify as derivatives of an asylee when applying for adjustment, except in limited cases where the principal asylee dies.

Alternatives to Asylum

For those seeking relief from removal, asylum applications are also considered for withholding of removal and protection under the convention against torture.  The grounds for withholding of removal are similar to those for asylum, although the applicant must show a higher likelihood that he or she would face persecution.  The Convention Against Torture only applies to fear of torture.  Unlike asylum, these forms of relief merely prevent an individual from being returned to a specific country and do not confer any immigration status.  There are cases in which an individual may be ineligible for asylum but eligible for withholding of removal or protection under the Convention Against Torture.

Individuals from countries designated for temporary protected status (TPS) may be able to seek TPS depending on when they arrived in the United States and the facts of their specific situations.

Guidance

Before lodging any kind of asylum application, it is important to consult with an experienced immigration attorney.  The attorney will be able to determine whether the individual has a bona fide case for asylum or for withholding of removal or protection under the Convention Against Torture.  Because the asylum process is complicated and evidence-intensive, it is recommended that all applicants work closely with an experienced immigration attorney throughout the entire process.  An attorney may also help an asylee and derivatives subsequently understand the rules of U.S. asylum status and for applying for adjustment of status.

Applicable Statutes

The definition of “refugee” is found in section 101(a)(42) of the Immigration and Nationality Act (INA).  The statutes regarding asylum eligibility and applications are found in section 208.  The asylee adjustment of status provisions are found in section 209.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Asylum in the United States", "Bars to Applying for Asylum", "Bars to Eligibility for Asylum"

Lawyer website: http://myattorneyusa.com

DHS Announces Enhanced Aviation Security Measures for Flights to the United States

On June 28, 2017, the Department of Homeland Security (DHS) announced new aviation security measures for flights to the United States [PDF version]. It is important to understand that these aviation security measures are not immigration-related, and that they will affect both foreigners and U.S. citizens flying into the United States. We previously discussed measures specific to certain airports in the Middle East and North Africa here on site [see blog]. In this post, we will briefly examine the DHS's new aviation security measures.

Homeland Security Secretary John Kelly determined it necessary to implement the new aviation security measures “[i]n light of evaluated intelligence.” These security measures will apply to all commercial flights to the United States. The new aviation security measures will affect 105 countries, approximately 280 airports, 180 total airlines, 2,100 average daily flights, and 325,000 average daily passengers.

The DHS explains that the enhanced aviation security measures will include, but not be limited to:

• Enhanced passenger screening;
• Heightened screening of personal electronic devices;
• Increased security protocols around aircraft and in passenger areas;
• Deployment of advanced technology;
• Expanded canine screening; and
• Establishment of additional preclearance locations.

The DHS explained that it will work with stakeholders to ensure that the enhanced aviation security measures are properly and fully implemented. Stakeholders that fail to fully implement the enhanced aviation security measures will “run the risk of additional security restrictions being imposed.”

Interestingly, the DHS did not expand its laptop and other similarly-sized device ban despite speculation that it would do so. That should come as welcome news for travelers flying to the United States from abroad. I will update the blog if DHS provides further updates on this issue.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

OFLC Discusses Progress on Implementing Changes After "Buy American and Hire American" EO

On June 21, 2017, the American Immigration Lawyers Association (AILA) posted the minutes of a meeting with the Office of Foreign Labor Certification (OFLC) that took place on June 6, 2017 (see AILA Doc. No. 17062131 (6/21/2017)). In this post, I will examine in brief an update provided by the OFLC regarding the implementation of the provisions of President Trump's April 18, 2017, Executive Order 13788 titled “Buy American and Hire American” [PDF version]. Please see our full article on the “Buy American and Hire American” Executive Order to learn in more detail about its immigration-related provisions [see article].

AILA asked the OLFC about the Department of Labor's (DOL's) progress in implementing the “Buy American and Hire American” Executive Order. The OFLC stated that the DOL has released a memo in response to the Executive Order. However, the DOL is still early in the process of devising new policies and, according to the OFLC, does not yet know how it will implement the policies directed by the Executive Order.

In the same vein, the OFLC stated that changes to the Labor Condition Application procedures for H1B petitions “are currently under review.” The OFLC is working to make changes “intended to provide greater transparency to personnel, workers, and the public.” The OFLC stated that it is too early to share details relating to changes to Labor Condition Application rules and procedures or any other associated regulatory changes. However, the OFLC stated that it will share details on its new rules and procedures “as soon as appropriate.”

It is important to note that, under the “Buy American and Hire American” Executive Order, all changes implemented by the relevant departments must fall within the scope of existing statutes. We will update the site with any immigration policy changes stemming from the Executive Order, or any other immigration policy changes in general, when the information becomes available. To learn more about the points of emphasis for the DOL, please see our article on Secretary of Labor Alexander Acosta's statement on combatting fraud and abuse in the H1B program [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com