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March 2019 Visa Bulletin, New Form I-539, Proposed Rescission of H-4 EAD & Form G-1530
 
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By: Shaune D. Fraser, Esq.

1. March 2019 Visa Bulletin: USCIS extends use of Final Action Dates chart for Employment-Based Preference Filings

The United States Citizenship & Immigration Services (USCIS) announced that it will continue to use the Final Action Dates chart in the Department of State (DOS) March 2019 Visa Bulletin for all employment-based (EB) Adjustment of Status filings in the month of March, as opposed to the Dates for Filing Chart used in previous months. According to this Visa Bulletin, the final action dates for EB1 India and China will advance slightly to Feb. 22, 2017, while EB1 Worldwide will move to Jan. 1, 2018. In the EB2 categories, China will advance 3 months to Jan. 1, 2016, India will advance 3 days to Apr. 9, 2009, and EB2 Worldwide will remain current. The EB5 category remains current for India and EB5 worldwide, while China and Vietnam advance to Sept. 8, 2014 and Jul. 15, 2016. The Dates for Filing Chart in each Visa Bulletin are a projection of where the Final Action Date is expected to be 8-12 months in the future. 

Just a few days ago, the DOS Liaison Committee provided a report of its monthly check-in with Mr. Charlie Oppenheim, DOS Chief of Visa Control and Reporting Division. Mr. Oppenheim emphasized that due to the continuing high level of demand for the EB1 category, minimal if any movement is expected in the month of March for EB1 categories, especially EB1 China and India. During the first 3 weeks of February, the level of demand for EB1 exceeded that received for all of February 2018. In January, following the publication of the February 2019 Visa Bulletin, demand increased by over 50%. Due to the oversubscription of these EB1 categories, current/future applicants with expiring nonimmigrant status or immediate work assignments should seek legal advice.   

2. USCIS releases new Form I-539 Application to Change/Extend Status

Effective March 11, 2019, USCIS will require all applicants requesting an extension or change of status to submit the revised Form I-539 and Form I-539A. USCIS will only accept the revised edition of the form and will reject all prior versions. Historically, USCIS has implemented reasonable transition period during which time it has accepted prior form editions. However, applicants now run the risk of having their applications rejected for failure to submit the updated forms or new fee, which could jeopardize eligibility for future immigration benefits.

Form I-539 is used by a wide variety of nonimmigrant foreign nationals to change or extend their underlying nonimmigrant status, including those changing to F, J or M status, B.1/B.2 visitors, and dependents in O, E, L, and H classifications. The revised Form I-539 has two significant changes: (1) a new signature requirement for all applicants, including minor children; and (2) a mandatory biometrics requirement (fingerprints and photo) for all applicants.

A Form I-539 application to extend or change status is only valid if nonfrivolous and timely filed while the applicant still holds valid nonimmigrant status. During the pendency of application, the individual remains in a period of authorized stay until USCIS adjudicates the pending form. Once approved, the decision applies retroactively and any lapse in status is cured. If the application was untimely and subsequently denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for the denial. Similarly, if denied because the application was frivolous or due to unauthorized employment, any and all time after the Form I-94 expiration date will count towards the unlawful presence calculation.

3. Proposed Rescission of H-4 Employment Authorization (EAD) under Federal Review

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The Department of Homeland Security (DHS) recently sent the long-anticipated proposal to rescind the H-4 spousal employment authorization (EAD) regulation to the White House of Management and Budget (OMB) for review – the next step in the termination of the program. Once cleared, details of the proposal will be published in the Federal Register for public comments during which time stakeholders will have the opportunity to submit comments to DHS.

The proposed regulation would not have an immediate impact on H-4 spouses. Eligible H-4 spouses can still apply for new or renewed EADs under the current rules until further notice. DHS has not yet indicated whether the rule will allow for a transition period for current H-4 EAD holders to continue working. H-4 holders should be aware that the termination of the program could come within months of the release. 

4. Form G-1530 - USCIS Tip Form

USCIS recently submitted Form G-1530 USCIS Tip Form for comment in the Federal Register, a form that would enhance agency information collection activities. Form G-1530 would affect both employers and individuals and would facilitate the collection of information from the public regarding credible and relevant claims of immigration benefit fraud impacting both pending adjudications as well as previously approved benefits where the benefit remains valid.   


For additional information on these developments, please contact me at shaune@fraserpllc.com

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

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