Immigration Briefs

May Visa Bulletin and Update from Charlie Oppenheim

Unknown Recently Charlie Oppenheim once again spoke with AILA and updated us on immigrant visa usage numbers. This update also encompasses the updates in the May Visa Bulletin so there will be no separate post about that. Below are the highlights of that update.

Employment Based Categories

In the April Bulletin Charlie moved forward several employment based categories quite a bit. This was done to spur filings and usage of immigrant visas. However, due to the longer timeframes now for adjudicating such cases, it will be months before the usage starts to affect visa numbers. Therefore, for most categories, including EB-1 for China and India, EB-2 India, and EB-3 for China and the Philippines, the dates will hold steady in May. Several other categories will see some forward movement:

EB-2 China will move forward 1 month to September 1, 2014

EB-2 India will move forward 3 months to May 8, 2008

EB-3 Other Workers – China will move forward about 1 month to May 1, 2007

EB-3 Other Workers – India will move forward about 3 month to May 1, 2008

For the future, it is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July. What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS. The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

Specifically looking at EB-1 China and India: It is now too early to know whether the high worldwide EB-1 demand seen over the past few months is the result of a processing glut or sustained demand. Because of this, it is likely that EB-1 China and India will hold for at least another month, but Charlie is closely watching demand to determine whether any advancements may be possible.

Lastly, Charlie is hopeful that the advancements made in April to EB-2 China will be sufficient to exhaust the visa numbers in this category, however he continues to monitor China EB-3 downgrades and is likely to hold the final action dates in these categories for at least another month. Despite this, there still remains the possibility of some advancement later this fiscal year if the anticipated demand does not materialize.

Family Based Categories

Below are the Dates for Filing (not the final action dates) for family based categories:

Family- Sponsored	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	08JAN12	08JAN12	08JAN12	15JUL98	08OCT07
F2A	22SEP17	22SEP17	22SEP17	22SEP17	22SEP17
F2B	08SEP11	08SEP11	08SEP11	22MAY97	08SEP07
F3	08SEP06	08SEP06	08SEP06	22SEP98	22JUL95
F4	01APR05	01APR05	01DEC04	08MAY98	15OCT95

As we have pointed out before, unlike employment based applications, most family-based preference petitions are processed through the National Visa Center and U.S. consulates abroad, which accept applications based on the “filing date” rather than the final action date. As a result, Charlie has excellent visibility into demand in these categories, enabling a slow and steady progression of the final action dates with much less volatility than is seen in the employment-based preference categories.

Final action dates advance modestly in May for all family-based preference categories, except F-1 China, India and Worldwide, which hold at the April dates. There is no retrogression in any of the family-based preference categories in May.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Reaches FY 2019 H-1B Visa Cap And Finishes Count

images USCIS announced on April 11 that they had received enough applications to fill the FY 2019 H-1B Cap. Just today they announced that they had completed the counting nad selection process. We should begin to receive receipts first, then returned applications that were not selected. Here is the text of the press release from USCIS:

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the United States;

Change the terms of employment for current H-1B workers;

Allow current H-1B workers to change employers; and

Allow current H-1B workers to work concurrently in a second H-1B position.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Suspending Premium Processing for Cap Subject H-1B applications

images-1 Yesterday, USCIS announced that they would be suspending premium processing for 2019 Cap-subject applications until September 10, 2018. This means you can only file cap-subject applications via regular processing. Those applications that are cap-exempt, including those filed by universities and those for extensions of H-1B status, can continue to use premium processing. Below is a section of the press release from USCIS:

Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. We will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, we will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. We will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.
During this temporary suspension, we will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition. If a petitioner submits one combined check for the fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, we will reject both forms. When we resume premium processing, petitioners may file a Form I-907 for FY 2019 cap-subject H-1B petitions that remain pending.

Please call our office with any questions you may have. And, please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

EB-1 for China and India Backlogged come April 1

Charlie Oppenheimer and the Department of State have determined that, because of increased usage of the EB-1 immigration visas that, come April 1 they will have to backlog this category for both India and China. Both have been backlogged to January 1, 2012 (a date for which there will be no demand). This action was taken to make sure that worldwide usage for this category stays within the numbers allowed.

Charlie did say that, if worldwide usage declines over the coming months he may be able to move these dates forward at some point this fiscal year. While the category will move forward, and may even come current, at the beginning of the next fiscal year (October 1, 2018), it is most likely that both India and China will continue to use their allotted share of EB-1 visas each year and there may end up being a more consistent backlog as there is for the EB-2 and EB-3 categories for India and China.

We will update you as soon as we receive any additional information.

Update on H-4 EAD’s

Unknown It appears that USCIS is preparing to release a new rule by June, 2018 to remove the provision that allows certain H-4 spouses of H-1B visa holders to apply for work authorization. If you have been following this issue, you know that the new administration has been looking at revoking these rules since it came into power. It appears now that they are getting ready to act. According to the administration, allowing such people work authorization is taking away potential jobs from US Citizens. In further of this view, USCIS just released a report on the H-4 EAD process, including statistics on the number of cases, etc. According to this report, there are over 104,000 people taking advantage of this law.

While we cannot be certain that the new rule will actually be published (or when it will be published) until it is actually published, it appears that it is now in sight, and will be implemented by the end of this year. If you are currently using such an EAD, it would be beneficial to discuss other options with your attorney.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Updates: Signatures and Credit Card Acceptance at USCIS

USCIS Now Accepting Credit Cards for Most Filings

USCIS has issued a new form G-1450 that will allow people to pay for form filing fees via credit card directly with USCIS. This form is available for all applications filed at lockbox facilities. It cannot be used for filings at local offices. You should read all the information at the USCIS website here to make sure that you complete the form correctly according to what applications you are filing.

Please do call us with any questions about this new policy.

USCIS No Longer Accepting Power of Attorney for Signatures

USCIS has always required original signatures on all forms. However, USCIS did accept the signature of someone other than the applicant if there was a duly authorized power of attorney. This is the case no longer. USCIS will no longer accept such arrangements. Now the applicant must sign all forms being filed with USCIS. Parents are still allowed to sign for minors, however. USCIS also made clear that any deficiency in the signature (whether for an employer, employee, applicant, etc.) could also result in a rejection or denial of the application.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

H1B Recent Trends: The Wage Level 1 Conundrum

unknown In the last year, USCIS has certainly increased its scrutiny on all cases, especially on H-1B cases.One tact that USICS has taken is to insist that, if an employer has used a Level 1 wage, then, without any further review of the position, USCIS can assume that it is an entry level position and is NOT a specialty occupation. While to most people, this simply makes no sense, USCIS used this rationale (or lack there of) to deny many H-1B applications. Finally, the Administrative Appeals Office, which overseas appeals of all H-1B denials, has ruled on one such case and overturned the denial. The AAO stated;

Before we do so, a few more general observations are in order about the relevance of wage levels in the context o f H-1 B adjudications. A position’s wage level designation certainly is relevant, but is not a substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. We assess each case on its merits. There is no inherent inconsistency between an entry-level position and a specialty occupation. For some occupations, the “basic understanding” that warrants a Level I wage may require years of study, duly recognized upon the attainment of a bachelor’s degree in a specific specialty. Most professionals start their careers in what are deemed entry-level positions. That doesn’t preclude us from identifying a specialty occupation. And likewise, at the other end of the spectrum, a Level IV wage would not necessarily reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty or its equivalent. Wage levels are relevant, and we will assess them to ensure the LCA “corresponds with” the H-1B petition. But wage is only one factor and does not by itself define or change the character of the occupation.

We are very hopeful that this means that USCIS will take a more holistic approach and review all relevant documents in all such cases instead of denying a majority of such cases without really reviewing the relevant documentation. Despite the above, it is still very important to include sufficient evidence with the initial application showing the specialty nature of the occupation. Such evidence can include other job postings for similar positions, letters from other employers, CVs of other employees in the same position, etc. Please do note, that each case is different and the type and amount of evidence needed will vary by case. Please call our office with any specific questions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.