EB1 for China and India Backlogging in June, 2017

Unknown.jpegThe June, 2017 Visa Bulletin was released and the biggest change is that both India and China are now backlogged in EB-1 category.  Below are all the changes and further information about this new backlog.  We are also including updates from Charlie Oppenheim from the Department of State on projected future movements for the various immigrant visa categories.

Employment Based Immigrant Visas

EB1:  India and China Backlogged to January 1, 2012.  All other countries Current.  The reason for this backlog are several fold.  First, India and China have already used up about one half of ALL immigrant visas for the EB1 category already.  Second, there has been high usage in EB-4 and EB-5 categories.  Normally, all left over visas from EB-4 and EB-5 will roll over to the EB-1 category (and down to EB-2 if applicable.  However, because of the high usage in those categories, there are no visas to roll over.  Lastly, there has been significantly high demand in the EB-2 category for India and China, which prompts more people from those countries to file EB-1 applications if they can.  At this point, Charlie is very hopeful that India and China will go Current in this category again come October 1, 2017, the beginning of the new fiscal year.

EB2:  China moved forward about a month to March 1, 2013 and India moved forward a little more than 1 week to July 1, 2008.  All other countries are Current.  Right now India and China are both limited to their per country allocation in this category (approximately 2, 810 immigrant visas).  Both are expected to use up their allocations by the end of the fiscal year.  Additionally, worldwide EB2 will backlog by July or August (at the latest) but note, it will go current again come October 1, 2017.

EB3: China held steady at October 1, 2014, India moved forward about 2 months to May 15, 2005 and the Philippines moved forward about four months to May 1, 2013.  All other countries moved forward 1 month to April 15, 2017.  For China, Charlie is keeping it steady on October 1, 2014 for as long as possible.  China may backlog at some point, but Charlie is not certain.  Worldwide demand in this area is fairly steady so it should keep up as it has all year.  India is expected to move forward steadily in this category as long as Worldwide demand, and especially Mexico demand remains as low as it has been.

Family Immigrant Visas

Not much to say here, most categories moved forward about 1 week to 1 month, no more than that.  The only indications that Charlie gave were that F4 (Brothers and Sisters of Citizens) may move forward more significantly this fiscal year.  If you are waiting for that category keep an eye on it in the coming months.

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.

April Visa Bulletin and Guidance from Charlie Oppenheim

imagesThe April Visa Bulletin was released last week as was some additional guidance from Charlie Oppenheim of the Department of State.  I will go through the highlights below.

Family Based Immigration

F1 (Unmarried Sons and Daughters of US Citizens):  Most countries moved from June 1, 2010 to October 15, 2010, a fairly big jump.  The exceptions were Mexico (which moved about 1 week to May 22, 1995) and the Philippines (which moved forward one month to January 15, 2006)

F2A (Spouses and children of Permanent Residents): Most countries moved forward 1 month to June 8, 2015.  The only exception was Mexico, which also moved one month forward to May 22, 2015.

F2B (Unmarried Sons and Daughters of Permanent Residents): Most countries moved forward 1 month to September 15, 2010.  The only exceptions were Mexico (which moved forward 1 month to December 22, 1995) and the Philippines (which moved forward 1.5 months to June 15, 20016).

F3 (Married Sons and Daughters of US Citizens): Most countries moved forward about 3 weeks to May 15, 2005.  The only exceptions were Mexico (which moved forward about 2 weeks to January 8, 1995) and the Philippines (which moved forward about 1 week to September 15, 1994.

F4 (Siblings of US Citizens): Most countries moved forward about 2.5 months to May 8, 2004.  India moved forward only about 3 weeks to August 15, 2003.  Mexico moved forward about 2 weeks to June 15, 1997.  The Philippines moved forward about 1 month to September 8, 1993.

Charlie Oppenheim Guidance:  FB-1, FB-2 and FB-3 are expected to continue to advance at the same pace as this month in the future  because of the low rate at which applicants are becoming documentarily qualified. The FB-4 advancement in April was sufficient to meet Charlie’s target for this category for the next two to three months. This allowed the overall desired allocation level through April to be met, and should prevent excessive allocations once demand in the other categories increases those desired levels. No further advancement of FB-4 Worldwide is expected until July.

Employment Based Immigration

EB1: Current for all countries (but see guidance below for India and China)

EB2: Current for most countries.  China moved forward about 1 month to January 15, 2013 and India moved forward about 3 weeks to June 22, 2008.

Eb3: Worldwide numbers moved forward about two months to February 15, 2017. China moved forward about 5 months to August 15, 2014.  India moved forward 2 days to March 22, 2005 and the Philippines moved forward about 1 month to September 15, 2012.

Charlie Oppenheim Guidance:  

EB-1:  India has already used over 9,000 immigration visas in this category (its per country limit is 2,800) and China has used over 4,500.  There will be backlogs for both of these countries in this category in the near future.

EB-3: At some point Charlie expects there to be more demand for China EB-3 because of the downgrades from EB-2s.  However, to date, this demand has not materialized.  This is why he moved the final action date forward.  You may notice that the Date for Filing for EB-2 China is actually several months behind the Final Action Dates.  As USCIS is using the Final Action Dates, this date is irrelevant.  EB-3 Worldwide will continue to remain about 2 months behind being current.

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.

 

 

 

 

 

Update from Charlie Oppenheim on Visa Avalability

unknownAILA met with Charlie Oppenheim (the Department of State Employee in charge of the Visa Bulletin and determining Visa availability) on February 15th of this year.  Below is some of the information Charlie gave us.

EB-1:

According to Charlie, despite the high usage of this category, he is now expecting it to remain current for the Worldwide numbers.  However, as stated previously, he still feels that there will be cut off date imposed for China and India.  In contrast to his earlier prediction of having a cut off date imposed by June or July, he now believes it will be in August (or, perhaps, not at all).  Demand for EB-1s from Indian and Chinese persons has declined from October/November.  If this demand increases again, this may change.

EB-2 and EB-3 for China:

EB-2 will go up about 1 month next month, but EB-3 dates will move forward about 5 monhts.  This will put EB-3 for China about 15 months ahead of EB-2.  Demand for EB-3 is increasing, and the biggest increases usually occur in April and May, so there wil most likely be a retrograde in EB-3 for China at that time.

EB-2 and EB-3 for India:

EB-2 will move forward about 1 month.  As long as there is not significantly higher deman from EB-3 upgrades to EB-2, Charlie sees EB-2 for India moving forward about 1 month every month.

EB-2 and EB-3 Worldwide:

EB-2 is expected to remain current.  EB-3 will continue progressing quickly as demand is still low in this category.

February 2017 Visa Bulletin Released

unknownThe February 2017 visa bulletin was released by the Department of State yesterday.  Below is a summary of the changes.

Family Based Application:

F1:  Most countries moved forward about 1 month to 1.5 months (except the Philippines, which moved forward about 2 months).  This means that most countries are now at February 22, 2010. The exceptions are Mexico (May 8, 1995) and the Philippines (December 1, 2005).

F2A: This category actually retrogressed one month across the board.  All countries are now at April 15, 2015 except Mexico which is at April 1, 2015.

F2B: Most countries moved forward about 1 month to July 8, 2010.  Mexico moved forward only about 3 weeks to May 8, 1995. The Philippines stayed at April 9, 2006 (no movement forward or backward).

F3: Most countries moved forward about 2.5 weeks to March 22, 2005.  Mexico stayed at December 15, 1994 (no movement) and the Philippines moved forward only 1 week to September 8, 1994.

F4: There was movement forward for all countries in varying degrees.  China had the biggest movement forward (2 months) to January 22, 2004.  India moved forward about 1 month to June 15, 2003.  Mexico had the smallest movement (1 week) to May 22, 1997.  The Philippines moved forward about 2 weeks to June 22, 1993.  All other areas moved forward about 2 weeks to February 8, 2004.

Employment Based Application:

EB-1:  Still current across the board.  NOTE: Charles Oppenheim has stated that there is increased usage for this category and he may have to retrogress some countries (China and India) in the near future.

EB-2:  Current for all countries except India and China.  India did not have any movement staying at April 15, 2008.  China moved forward 1 month to November 15, 2012.  NOTE:  Charles Oppenheim did indicate increased usage across the board (especially for China and India) and did indicate there may be a need to retrogress ALL countries in the coming months.

EB-3:  Most countries moved forward to October 1, 2016.  The exceptions were China, which moved forward about 3 weeks to October 1, 2013, India, which moved forward about 1 week to March 22, 2005 and the Philippines, which moved forward almost 3 months to October 15, 2011.  NOTE:  Again, Charles Oppenheim did indicate increased usage and the possibilities of retrogression.

 

We will update you when the next visa bulletin is released or if Charles Oppenheim updates his predictions as to the movement of these visa categories.  Please contact us with any 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.

India and China heading towards EB-1 Backlogs – November Check-In With Charlie Oppenheim on Visa Availability

Unknown.jpegThe American Immigration Lawyer’s Association recently met with Charlie Oppenheim of the Department of State about the upcoming year and what the trends look like in terms of immigrant visa availability.  Here is what Charlie said in regards to employment-based visas:

EB-1:

First, in terms of EB-1 Employment-based visas, India has ALREADY surpassed its country allocation for EB-1 visas and is currently using visas otherwise allocated to other countries.  China, while not quite as bad, is also coming close to using all its allocation.  This means that both India and China will be backlogged in the EB-1 category, and probably relatively soon.  EB-1 demand for all other countries is not as great, and there should be no backlogs for All other countries in this category

EB-2 and EB-3:

The final action date for EB-3 China is approximately ten months ahead of the EB-2 China final action date. This has actually been the case for the last few years and tends to spur greater demand for EB-3 China based on requests to “downgrade” from EB-2 China by filing a new I-140 petition based on an existing certified EB-2 labor certification.   Forward movement of the China EB-3 date has been limited because of the expected significant influx of “downgrade” demand, which resulted in retrogression in earlier years. If such demand fails to materialize in the coming months the date will begin to advance at a faster pace.

EB-2 India continues to receive significant demand, which Charlie attributes to EB-3 upgrades.Charlie hopes that this final action date will get into 2009 at some point this fiscal year, but  does not yet have a sense as to how quickly that might occur. There continues to be significant demand for EB-2 Worldwide, and if that continues, it will leave little, if any, otherwise unused numbers to reallocate to EB-2 India. In past years, EB-2 India has often benefitted from the addition of thousands of otherwise unused numbers not required for use by other countries. In terms of EB-3 India numbers, Charlie expects India to hold in January, advance up to one week in February, and hold again for a month or two before advancing modestly again.

Demand has also not abated for EB-2 Worldwide/Mexico/Philippines, causing Charlie to speculate that a date will be imposed no later than July. Charlie has been waiting for some time for demand to be generated in EB-3 Worldwide, which Charlie has been waiting for some time for demand to be generated in EB-3 Worldwide, which has generally been current for more than a year. Charlie is watching demand very closely, and though he has started to see an increase, it is unclear whether this demand will be sustained.

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.

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.

USCIS Agrees to Use Dates For Filing Again in December

unknownSurprisingly USCIS is again using the dates for filing in December of 2106 for all categories EXCEPT for EB-5 filings.   This means that, even though your priority date is not current (i.e. there is no immigrant visa available) you may still be able to file the I-485.  Below are the dates that can be used to determine if you can file you I-485 for certain case types:

Family Based Cases:

F2A:  While all the categories have later dates that can be used, the only one that is close to being current is the F2A (Spouses and children of permanent residents).  Unfortunately the difference in dates is not really that signficant.  The Final Action Date for this category is Fenruary 22, 2015 and the Date for Filing is November 22, 2015.  This means if your priority date is before November 22, 2015 you are now eligible to file your Adjustme of Status application.

Employment Based:

Eb-2:  The Dates for Filing for China are March 1, 2013 about 5 months more current than the Final Action Date.  The Date For Filing for India is April 22, 2009 about 11 months more current that the Final Action Date.

EB-3:  For All Other Areas the Date for Filing is current (as opposed to July, 2016).  For China the Date for Filing is  May 1, 2014 (11 months more current) and for India it is July 1, 2005 (about 4 months more current).  The Philippines is also backlogged in this category – the Date for Filing is September 1, 2013 as opposed to a June 1, 2011 Final Action Date.

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.