Final Rule Published by USCIS – Clarifies H-1B Cap Exemptions, Grace Periods for Non-Immigrant Visas, Retention of Priority Dates, and More

USCIS has just issued its final rule to  amend and add to its regulations regarding highly skilled worker.  These are the same changes I discussed about 1 year ago when USCIS issued a draft rule on these issues.  They have now been adopted.  Below is a summary of the provisions of this new rule.  Please note the effective date of the new rules is January 17, 2017.

I have divided the summary into two parts: those provisions that I feel make major changes to current law and those provisions that, while they do make changes, the changes are not as major.

First, lets look at the major revisions, the ones that will make major changes to current practices:

H-1B Cap Exemptions: USCIS clarified and codified its definition for two cap-exemptions. First, it defined who qualifies for a cap-exemption when they are working “at” a cap exempt location even though the employer for who they work is not cap-exempt. The new regulation states that the H-1B is cap exempt if the employee is performing a majority of their duties at the cap-exempt location and such job duties directly and predominately further an essential purpose, mission, objectives or functions of the cap-exempt organization.

Second, USCIS clarified its definition of “related or affiliated nonprofit entity” plus added one additional ground (currently only institutions that are connected or affiliated with an institute of higher education through shared ownership, that are operated by an institute of higher education, or that are attached to an institute of higher education as a member, branch, cooperative or subsidiary). The new definition also includes entities that have entered into a formal written affiliation agreements with institutes of higher education. The agreement must establish an active working relationship with the institution of higher education for the purposes of research or education, and it must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education.

Revocation of Approved I-140s: USCIS amended its regulations so that I-140 applications that have been approved for 180 days or more will no longer be subject to automatic revocation because the employer requests it, or because the employer goes out of business. Those I-140s will remain valid for priority date retention and for extending H-1Bs past the six year maximum. However, unless the I-485 was filed and remained pending for at least 180 days before the withdrawal request or the employer went out of business, the I-140 cannot be used to file an I-485 or have it approved as the underlying offer of employment is no longer valid. If the I-485 had already been filed and remained pending for 180 days prior to the withdrawal request or the company going out of business, the applicant can still use the I-140 for 204(j) portability purposes (showing an offer of employment that is in the same or similar category). If that is not possible, a new I-140 would have to be filed in order to obtain an adjustment of status.

Retention of Priority Dates: As stated above, USCIS changed its regulations relating to retaining the priority date of an I-140. For those applications that require a labor certification, the filing date of the labor certification (or the I-140 in the case of Schedule A case) is the priority date for those I-140s. USCIS would clarify that the priority date for all other I-140s is the date it is properly filed with USCIS. Furthermore, USCIS would clarify that the priority date could be retained on any I-140 except if the I-140 is denied (or otherwise not approved), or if the approval is revoked based upon fraud/misrepresentation. If the employer subsequently withdraws the application or if the employer goes out of business, the priority date will be retained. This is true regardless of how long ago the I-140 was approved (i.e. it applies if it was approved yesterday or 2 years ago). In other words, the 180 day rule above does NOT apply to priority date retention.

Non-Immigrant Grace Periods: USCIS already has in place a provision that allows for a person entering the US on an H-1B to come up to 10 days before the start date, and to get an additional 10 days after the expiration of their H-1B (it is important to remember that currently, these extra 10 day periods MUST be included on the I-94 when you enter, they are not automatic). This will be extended to L-1, E-1, E-2, E-3 and TN visa statuses as well. In addition, these statuses would also receive a one-time, up to 60 day grace period if the employment is terminated prior to the end date on the I-94. The actual grace period time would be the SHORTER of 60 days, or the amount of time left until the expiration of the current I-94. During this period the person would still be considered in status and could file a new H-1B, L, E or TN applications (as listed above) or an application to change status. The above grace periods are also extended to dependent family members.

Eligibility for EAD in Compelling Circumstances: USCIS amended its regulations to allow EAD issuance to certain non-immigrants (those who have an approved I-140 and are in the US in E-3, H-1B, H-1B1, O-1 or L-1 status) if there exists compelling circumstances. The EAD would be valid for 1 year, and could be renewed as long as the compelling circumstances remained, and the priority date is within 1 year of the current cut-off date. In addition, if the person has a priority date that has already passed (so there is an immigrant visa available) and is more than 1 year beyond the posted date, they would be ineligible for either an initial or renewed EAD. In terms of defining compelling circumstances, USCIS will not do so. They do give certain examples, however. The four examples give are: Serious illness or disability that significantly changes employment circumstances (has to move to a new area for treatment, etc.), employer retaliation, other material harm to worker (such as on an H-1B in a industry specific job, company goes out of business, industry does not exist in home country, so lack of job would cause hardship), or Significant Disruption to Employer.

H-1B licensing Requirements: USCIS amended the regulation to reflect that, those applying for an H-1B in an occupation that requires licensing will be able to get the H-1B approved (for up to 1 year) prior to receiving the license if they can show that they have the application pending, or the application has been denied because they do not have a social security number or employment authorization and that the ONLY reason they cannot get the license is because they cannot get a social security number and/or they do not have employment authorization. USCIS will also allow approval in cases where the applicant does not have a license if the state in which they are practicing allows such persons to work under the supervision of a licensed practitioner. However, USCIS will review these cases to ensure that the duties will still be specialty in nature.

EAD Processing: USCIS is making two changes here. First, they will allow automatic extension of EADs (up to 180 days) and work authorization incident to status in cases where the applicant is seeking renewal of their EAD, files the application prior to the expiration of the old EAD, files the application in the same category in which it was initially granted AND either they continue to be employment authorized incident to status beyond the expiration period or they are applying for renewal in a category that does not first require adjudication of an underlying application. In addition, for I-9 purposes, they would amend the regulations to show that an expired EAD and an I-797 receipt notice would be sufficient to show employment eligibility. USCIS states that this would apply to those seeking to renew their EAD based upon: refugee or asylum status; a grant TPS; a pending I-485, as well as additional categories. It specifically does NOT apply to H-4s applying for work authorization – as their grant depends upon the maintenance of H-1B status of the underlying H-1B Principal. The second proposal would eliminate the 90 day processing period for EADs now required in the regulations for I-485 applicants.

Next are the provisions that, while important, do not represent as much of a change to existing policy.

3 and 1 year extensions of H-1B:  First, USCIS codified a couple of long standing USCIS policies in relation to AC21 and the granting of additional H-1B time past the six year maximum. For the three year renewals (allowed to those with an approved I-140 who are unable to file an I-485 based upon visa backlogs) USCIS is codifying that the three year extension can be renewed in three year increments for as long as the visa backlog exists. They are also codifying that the extension is available to those both in the US and outside the US, and to those currently in H-1B status and those not in H-1B status but who previously held H-1B status.

They are also codifying that any employer (not just the one who filed the I-140) can request the extension and that the extension is ONLY available to the principle beneficiary of the I-140, not dependents.  For the 1 year renewals, available to those whose green card process has been ongoing for 1 year or more, they are codifying similar provisions (available to those currently in the US and those outside the US and those in and not in H-1B status at the time the renewal is filed and it is only available to principle beneficiary).  In addition, they would codify that the denial or revocation of an underlying petition is not considered a final action (thus stopping the ability to get the 1 year renewals) until the time for appeal has elapsed, or, if an appeal is filed, the appeal is finalized – but an expired PERM would not be grounds to get an extension.

Lastly, a beneficiary must seek to get their permanent residence within 1 year of the visa becoming available or the extension is not longer available to them.

Job Portability:  USCIS codified that, once the I-140 is approved and the I-485 has been pending for at least six months, the adjustment of status can be approved if the underlying employer continues their sponsorship OR if you provide a new letter of employment from a new employer (or through self-employment) in a same or similar occupation.

In addition they are extending this to cases where the old employer has gone out of business.  USCIS will also define “same” and “similar” in a manner consistent with their latest memo on this issue.

H-1B Portability:  USCIS codified that those in H-1B status can begin working for a new employer upon the filing of the new H-1B application, that such ability is ONLY available to those in the US in H-1B status, and that you can file subsequent H-1B portability applications and begin working for those employers prior to approval of  the other underlying H-1B application.

Counting H-1B time:  USCIS codified the ability to recapture time outside the US. Anytime spent outside the US, regardless of the reason or the amount of time, can be recaptured at the end of the six year H-1B period. The burden of proof is on the applicant to show that they were out of the US during that period (passport stamps, etc.).

Whistleblower Protections: USCIS instituted certain protections for whistleblowers (those who alert the government to certain to illegal activities of their employers).

 

Please do let me know if you have 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.

December Visa Bulletin: Baby Steps

unknownDOS released the December Visa bulletin and there are only some modest moves forward, as detailed below.  Unfortunately, USCIS has not yet stated if they will still allow the Dates for Filing to be used to determine when you are able to file the adjustment application.  We will update you once USCIS releases that information.  Below we will go through each category in detail

Family Based Applications:

F1Final Action Dates: Moved forward about 2 months to December 1, 2009 for All Other Countries, India and China.   Mexico only moved forward about 1 week to April 15, 1995 and the Philippines moved forward about 1 week as well to September 15. 2005. Dates for Filing: No movement

F2A: Final Action Dates: Everyone moved forward about 1 month to February 22, 2015 (February 15, 2015 for Mexico).  Dates for Filing:  No movement.

F2B: Final Action Dates: All countries moved forward about three weeks to May 8, 2010 except Mexico which moved forward about 1 week to October 15, 1995 and the Philippines which moved forward about 2 weeks to March 1, 2006. Dates for Filing: No movement

F3: Final Action Dates: All countries moved forward about one month to February 15, 2005 except Mexico and the Philippines, which moved forward about 1 week to December 8, 1994 and to August 15, 1994 respectively . Dates for filing: No movement.

F4: Final Action Dates: All other countries moved forward about three weeks to December 22, 2003.  China moved forward two months to October 1, 2003.  India moved forward only about 2 weeks to April 1, 2003.  Mexico moved forward only 1 week to May 15, 1997.  And the Philippines moved forward about 2 weeks to May 22, 1993. Dates for filing: No Movement.

Employment Based Applications:

E1:  Current for everyone

E2: Final Action Dates: Current for everyone except India and China.  China moved forward about 2 months to September 22, 2012.  India moved forward about 3 months to February 1, 2008.

E3:  Final Action Dates: Most countries stayed the same at  July 1, 2016.  China moved forward about 2.5 months to July 1, 2013.  Since China E3 is ahead of China E2, expect this to backlog at some point. India moved forward about 1 week to March 15, 2005 and the Philippines moved forward 2 months to June 1, 2011.

Employment Dates for Filing:  Same as last month – Current across the board EXCEPT:

E2:  China is at March 1, 2013 and India is at April 22, 2009

E3: China is at May 1, 2014 and India is at July 1, 2005

October 2016 VIsa Bulletin: Forward Movement for All

unknownThe Department of State released the visa bulletin for October 2016 recently. Below is a summary of movement and changes.

Family Based Immigrant Visa Numbers

F1 – Unmarried Sons and Daughters of US Citizens: This category moved forward about 1 week to September 22, 2090 for every country except Mexico (which moved forward 1 week to April 1, 1995 and the Philippines (which moved forward 1 week to August 1, 1995).

F2A – Spouses and children of Permanent Residents: All countries moved forward around 1 month, Mexico moved forward about 3 months to December 1, 2014. And the rest of the World moved forward about 5 weeks to December 22, 2014

F2B – Unmarried Sons and Daughters of Permanent Residents: Most of the world moved forward about 5 weeks to March 15, 2010. Mexico moved forward only 2 weeks to October 1, 1995 and the Philippines moved forward 1 month to January 1, 2006

F3 – Married Sons and Daughters of US Citizens: Most of the world moved forward about 3 weeks to December 22, 2004. Mexico moved forward about 1 week to November 22, 1994 and the Philippines moved forward about 3 weeks to July 8, 1994

F4 – Brothers and Sisters of US Citizens: China moved forward 4 months to May 1, 2003. India jumped just over 1 year to December 1, 2002. Mexico moved forward a couple weeks to May 1, 1997. The Philippines moved forward about 6 weeks to April 15, 1993. The rest of the world moved forward about 1 month to November 1, 2003

Predictions for coming months:

There should be forward movement on all categories in the next several months of about 2-6 weeks.

Employment Based Immigrant Visas

EB-1: As stated previously, this became current for everyone for October.

EB-2: Again, as we stated previously this became current for Worldwide numbers, Mexico and the Philippines. It moved forward to February 15, 2012 for China and to January 15, 2007 for India.

EB-3: Moved forward 1 month for Worldwide and Mexico to June 1, 2016. China jumped forward to January 22, 2013 (putting the EB-3 category ahead of the EB-2 for China). India Moved forward about 1 month to March 1, 2005 and the Philippines moved forward about 5 months to December 1, 2010.

Predictions for the Coming Months:

For EB-2s the Department of State sees China and India moving forward about 3 months (maybe 4 months for India) in the coming months. Worldwide and Mexico should remain current.

For EB-3s, they still feel that for the Worldwide numbers, demand may cause them to backlog (however this did not occur at all last year, and they thought it would then as well), but we will have to see. For China, EB-3 should move forward about 3 months. It will move forward only about 1 week for India and about 3 weeks for the Philippines.

Checkin With Charlie Oppenheim on Visa Numbers

Charlie Oppenheim, the officer at the Department of State in charge of visa numbers and the Visa Bulletin, recently released an update to his predictions for the upcoming months. Below is a summary of some of that update.

Family Based Visa Numbers

According to Charlie, in September most of the family-based categories will likely hold or retrogress from where they are in August. Only F-4 Worldwide has the potential to advance in September. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2015, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.

It should be noted that when we state that there will be a “full recovery” Charlie is not saying that the categories will become current, but that they will go back to their pre-August 2015 dates.

Employment Based Visa Numbers

CHINA:

The Final Action date of January 1, 2010 that was imposed in June for both EB-2 and EB-3 China remains the same in August with no forward movement in either of these categories expected this fiscal year (which ends on September 30, 2016).

EB-2 should recover partly in October, 2016 and should fully recover to its previous dates by the end of this calendar year.

INDIA:

EB-3 India should advance modestly into a 2005 Final Action date in September. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.

EB-2 will advance in October 1, 2016 with the new fiscal year, and should fully recover by December of this year.

WORLDWIDE:

EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.

Eb-2 was retrogressed in August to February 1, 2014 with the hope of holding number use to within the EB-2 annual limit. That date should hold in September and is expected to fully recover to “current” in October.

July 2016 Visa Bulletin and Check-In with DOS

Unknown.jpegThe Department of State (DOS) released the July visa bulletin recently and Charlie Oppenheim, the person at the DOS who is in charge of the visa bulletin also updated the American Immigration Lawyer’s Association on what further movement or backlogs can be expected in the near future.

For family based cases, there was not much movement at all.  Below is a table showing the movement.

Family Based All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
F1 2 Months 2 Months 2 Months 2 Weeks 1 month
F2A 1 Week ! Week ! Week None 1 Week
F2B 2 Weeks 2 Weeks 2 Weeks None 1 Month
F3 None None None None 1 Month
F4 1 Month None None None 1 Month

For employment based, there was also not a lot of movement.  Again, the movement and new dates are listed below:

 

Employ.

Based

All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
1st C C C C C
2nd C None (Jan 1, 2010) 1 Month (Nov 1, 2004) C C
3rd 2 Weeks (Mar 1, 2016) None (Jan 1, 2010) I Month (Oct 22, 2004) 1 Month (Oct 22, 2004) 3.5 Months (Feb 15, 2009)

In terms of future movements, we will look at family based categories first.

FB4- China: For China, the FB-4 category just recently retrogressed and will remain at its current date through July, and perhaps through the rest of the fiscal year (it will depend on usage for FB-1 through FB-3).  However it will return to the prior cut off date by November of this year.

FB-4 India:  Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June. However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Mr. Oppenheim predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Mr. Oppenheim anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

Moving on to employment based categories:

EB-2 and EB-3 China:   There will be no forward movement in these categories for the rest of this fiscal year (the fiscal year ends on September 30, 2016).  We will have to see what the new fiscal year brings, but hopefully there will be forward movement shortly after the new fiscal year.

EB-2 and EB-3 India:  There may be some moderate movement forward in September, but it depends (see next category)

EB-2 Worldwide:  It is looking increasingly likely that this category will become unavailable in September.  However, since the new fiscal year begins October 1, they will, again, become current on that date.

EB-1 for India and China:  Similar to EB-2 Worldwide, these categories will most likely become unavailable in September but go back to current in October.

If you have any questions leave a comment below or send me an email.  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.

June 2016 Visa Bulletin is Out

In the last week, the Department of State released the June, 2016 visa bulletin,  USCIS has announced which tables they will utilize for this month and Charlie Oppenheim, the Department of State employee in charge of immigrant visa numbers, issued guidance for the coming months.   Below is a summary of the relevant points for all three of these documents.

Family Based Cases

There was some slight forward movement in some categories, but not much.  The largest movement was a backlog in the F4 category (Brothers and Sisters of US Citizens) for India and Chine.  India dropped from 2003 to 2001, and there is little hope of forward movement until the next fiscal year.  There has been high demand across the board in this category, and this is what is causing the retrogression.  China went back to January of 2013, about a seven month retrogression.  Again, high demand has caused the retrogression, but, in the case of China, there may still be some forward movement this fiscal year – depending on usage.

Employment Based

EB-1:  While EB-1 remains current across the board, it should be noted that there us unusually high usage of EB-1 numbers this fiscal year.  According to a recent update by Charlie Oppenheim this may result in corrective action later this fiscal year.

EB-2:  China will retrogress to January 1, 2010 (as will China EB-3).  Since EB-2 and EB-3 for China will be at the same date for the rest of the fiscal year (most likely) this should stop the upswell of downgrades from EB-2 to EB-3.

India is also retrogressing, but much more severely.  India will be at October 1, 2004.   There is a large amount of usage for EB-2’s in general, meaning that there most likely will not be any “unused” numbers for other countries that could be given to India.  This, in conjunction with the number of EB-3 cases that have moved up to EB-2s, has led to this need for retrogression.  However, Charlie Oppenheim, in his latest update, said this date could move forward if more EB-3 India cases are adjudicated, alleviating the burden of older EB-3 priority dates moving up to EB-2.

It does not appear that the EB-2 worldwide category will be retrogressed at this time.

EB-3:  As stated above, China has retrogressed to 2010.  India, on the other hand, moved forward slightly to September 22, 2004.

Worldwide held steady at February 15, 2016.  Charlie did not indicate anything about what the future holds for EB-3 Worldwide numbers.  If  we get an update on this we will certainly let you know.

USICS

USCIS has, once again, decided that the final action table should be used for both Family based and Employment based green cards.  This is frustrating to not only attorneys and their clients, but also to the Department of State.  The only way they can get a good handle on what the actual backlogs are for both EB-2 India and China and EB-3s for everyone, is if those in the backlog are able to file their adjustment of status applications.  If USCIS would utilize the Dates for Filing Table, it would give DOS the visibility they need to accurately predict usage and would prevent these wildly swinging priority date movements.  Alas, USCIS does not look like they will employe these dates any time soon.  This is unfortunate and shows that USCI was not serious about reforming the current visa processing, as if they were, they would at least explain why they are failing to utilize the Dates for Filing and helping the DOS get more visibility into these issues.  We will certainly update you if there is any change in this area.

If you have any questions leave a comment below or send me an email.  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 Proposes Increases to Filing Fees

Unknown.jpegUSCIS has proposed a new fee structure – raising certain fees, keeping certain fees at their current level, and even lowering some fees.  As part of its bi-annual review, USCIS determined that what it was receiving in user fees was insufficient to allow it to continue its current operations (USCIS receives very little from the general budget (and what it does get is for special projects) and is almost entirely funded by user fees).

The proposed increases that we feel are of importance are as follows:

FORM NUMBER

PREVIOUS FEE

NEW FEE

I-90 – Replace PR Card

$365

$455

I-129 – Nonimmigrant Worker

$325

$460

I-130 – Relative Petition

$420

$535

I-131 – Re-entry Permit

$360

$575

I-140 – Employment based Green Card Application

$580

$700

I-290B – Appeal

$630

$675

I-485 – AOS

$985

$1140

I-539 – Extend/Change Status

$290

$370

I-751 – Remove Conditions

$505

$595

I-765 – Work Authorization

$380

$410

N-400 –  Naturalization

$595

$640

N-600 – Cert. Of Citizenship

$600

$1170

It should be noted that the above do not include the biometrics fee of $85 (which will remain the same) where needed.  In addition to the above, the USCIS Immigration Fee (paid when you enter the US on an Immigration Visa) is being raised from $165 to $220.

USCIS does do its best to keep its fees down on most of the important applications.  The application fees that were raised the most are those related to the Alien Entrepreneur Visa.  The I-526, Application for Alien Entrepreneur went from $1500 to $3675 and the I924 Application for Regional Center Designation went from $6230 to $17,795.  There is a sixty day comment period after which USCIS will publish the final rule with a date for implementation of the new fees.  We will, of course, update you when that happens.

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.