H-Visa Season Opening!

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As many of you know, the H-1B process has become a lottery.  For the past several years, USCIS has received more applications with the first week of availability (First week of April) than they have H-1B visas.  This means that they take all applications received and randomly select enough to ensure that they will use up all the H-1Bs.  There are approximately 65,000 H-1B visas available under the cap.  There are an additional 20,000 made available to those people who have a Master’s Degree or higher from a US institution.  Last year, USCIS received over 250,000 applications in that first week.

HOW THE LOTTERY WORKS

USCIS first selected applications that qualify for the additional 20,000 Master’s cap visas.  Once those are all used up, all those not selected in that lottery are placed in the lottery for the 65,000 normal H-1Bs.  Once that lottery is complete, USCIS send out receipt notices to all those selected and rejection notices to those not selected.  USCIS does actually accept more cases than they have visas available.  They do this because there is a historical denial rate for the H-1Bs and they want to make sure they use up all, or most, of the H-1Bs available.

WHEN SHOULD I START PREPARING

Since you cannot file the applications until March 31 (to arrive at USCIS on April 1) you may think that you have quite a bit of time.  However there are a couple of other considerations to keep in mind.  First, you do need to file the Prevailing Wage Request to make sure you are paying the required wage.  Currently this is taking about 30-60 days (the DOL website states that they are current, which, according to them, means that it can take up to 60 days to process the request).  In addition, a Labor Condition Application must also be filed with the DOL.  Those generally are only taking about 2-3 weeks, however occasionally there are errors in DOL information and they are unable to verify the existence of an Employer and require the submission of additional documents.  This can extend the process a couple of weeks.

All of a sudden having two months until submission time doesn’t seem like that much time, does it?

WAYS OF MAKING THE PROCESS GO QUICKER

Unfortunately, there really is not anyway of speeding up timelines in this case.  About the only way to quicken the process is to file the LCA and perhaps the H-1B application itself prior to receiving the Prevailing Wage request back.  For the H-1B USCIS requires the employer to pay the higher of the actual wage (an average of actual wages to people in that position and similar positions at the employer) and the prevailing wage (usually a DOL determined average for that position in that geographical area).  The prevailing wage is actually divided into 4 skill levels, level 1 being entry level and level 4 being the highest level for the position.  There are many factors that they look at to determine wage level, but for this article the important points are that DOL selects which job title in their database to apply to the given position and which level, regardless of what title and level the employer or their attorney feel is appropriate.  While there are methods to appeal their decision, they are not easy and do not always work.  Therefore, filing before the Prevailing Wage is determined could mean that you will have to change the wages you are going to pay the employee once it does come back.  If the employee has already started working and has already been paid, you may owe back wages as well.

What happens if you do not do the prevailing wage request? If the DOL or USCIS audits your case and comes to the place of employment and reviews the employee file and does not see the prevailing wage request, then they will make a determination as to what the prevailing wage is, and the employer will be responsible for back wages and fines if they are paying less than the  prevailing wage.  If there is a prevailing wage, it acts as a safe harbor to protect the employer from any fines.

CONCLUSION

We suggest that all those interested in filing H-1Bs start the process as soon as possible.  Of course, we do understand that not everyone is in a position to start right now.  While there are some ways of making things happen a little quicker, the safest route for the employer is to start preparation as soon as possible.

February 2014 Visa Bulletin Released: No Real Surprises

Below is the update on visa number availability as reflected in the lated February 2014 Visa Bulletin.

EB-2

China has moved forward to January 8. 2009 (a one month move) while India has stayed at November 15, 2004. The worldwide availability is still current. As stated before, it is doubtful if the India numbers will see any further forward movement this fiscal year.

EB-3

Worldwide numbers (and China and Mexico) dates were backlogged a little to April 12, 2012. This was from June 1, 2012 the month before. India held steady at September 1, 2003 and Philippines retrogressed as well to February 15, 2007. Again, the DOS had stated that the quick forward movement in the category would end soon, and apparently, they are starting to get more demand. There may be further retrogressing in the near future as well.

Family Sponsored Categories

The Spouses and children of Permanent Residents category held steady at September 8, 2013. It has been at this date for the past several months.

Unmarried Sons and Daughters of US Citizens retrogressed slightly to December 6 2008 for Worldwide, China and India and to September 22, 1993 for Mexico and July 1, 2001 for Philippines. Married Sons and Daughters of US Citizens also retrogressed slightly to April 15, 2003 for Worldwide, China and India but held steady for Mexico and Philippines.

Unmarried Sons and Daughters of Permanent residents retrogressed a week for Worldwide, China and India to June 1, 2006, and to April 1, 1994 for Mexico an dMay 1, 2003 for Philippines.

Lastly, Brothers and Sisters of US Citizens retrogressed about 20 days for Worldwide, China and India to October 1, 2001 and to November 1, 1996 for Mexico and to July 1, 1990 for Philippines.

I Know My Employer Sponsored Me, But I Found a New Job, Now What?

Being sponsored by an employer for a green card is prospective in nature. What this means is that the future employer and employee are attesting that they have the intent to enter into the employer-employee relationship UPON approval of the I-485 (or upon receiving the immigrant visa and entering the US if one uses Consular Processing). However, in many cases, for one reason or another, an employee either finds or has to find a new position with a new employer. The question is then, what is the effect of that new employment on the process? As with all questions asked of a lawyer, the answer is “it depends”.

Change of Jobs during the Pendency of the Immigration Process

The biggest factor is timing. If the change in employment occurs during the actual labor certification process or prior to the I-140 being filed, then the process, most likely, needs to be started over. If the I-140 has been filed and is pending, there is a chance that the case could survive, however according to AC21, the law pertaining to this area, in order to get the benefits of being able to continue to use the sponsorship process once an employer change occurs one needs an approved I-140 for the previous position AND the I-485 needs to be pending for at least 6 months. Prior to this, porting is not supported.

If you are able to use the AC21 process what you need to show is that the new position is the “same or similar” to the old position. USCIS looks not just at the job title and the DOT codes, but also at the actual duties to make this determination. Every case is different and needs to be looked at individually to make this determination. A good rule of thumb is that at least 50% of the duties need to be the same in order for the jobs to be considered similar (this is not to say that this will work in every case, as there are other factors to look at, but it is a general rule).

Change of Jobs AFTER the receipt of Permanent Residence

The last scenario would be if a job change occurs AFTER the I-485 is approved. In this case the biggest issue that arises is one of fraud. If you switch positions as soon as you have your green card, or soon thereafter, it creates the appearance of fraud – that is, it appears that you had no intention of actual working for the employer that sponsored you, which is immigration fraud. You can try to show that in fact it was not fraud, but you need to be aware of the issue up front so you can get the documents you need PRIOR to the job switch. If the sponsoring employer asks you to leave for any reason, get it in writing. If a grant, etc. is cancelled leading to you loosing your job, get something in writing. It is also important to discuss the reasons you are switching position with your attorney to make sure USCIS will consider them sufficient.

One point to keep in mind is that, assuming you meet the qualification of AC21, as long as you have the new job offer in hand before the I-485 is approved, the new position will be controlling on the process and you do not have to worry about not working for the original employer. Again, the job offer needs to be in hand before the I-485 is approved.

Conclusion

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p>The above only scratches the surface on these issues and, again, we urge you to discuss any specific scenario you find yourself in with your attorney. 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.

January Visa Bulletin Released

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The January 2014 Visa Bulletin was recently released by USCIS last week.   Perhaps the most notable movement was for the worldwide EB-3 and China and Mexico EB3 numbers.  In all three of those cases, the priority date moved up almost 1 year to April 1, 2012.  The Philippines moved forward only one month in this category to February 15, 2007 and India did not move at all, staying at September 1, 2003.

For EB2 movement, the worldwide, Mexico and Philippines numbers stayed current.  China moved forward by one month to December 8. 2008 and India again stayed at the same date, November 15, 2004.   As stated in our previous posts, chances are India will not see any movement until later in the fiscal year.

In terms of family based visas, the Family Preference 1 (Unmarried Sons and Daughters of US Citizens) saw a little movement to December 8, 2006 for Worldwide numbers, China and India and the Family Preference 2A (Spouses and Children of Permanent Residents) stayed at September 8 , 2013 for all areas except Mexico which is still at September 1, 2013.  Likewise the Family Preference 2B (Unmarried Sons and Daughters of Permanent Residents) also stayed the same at June 1, 2006 for All areas except Mexico and the Philippines, both which are extremely backlogged in this area.  Family Preference 3 (Married Sons and Daughters of US Citizens) and Family Preference 4 (Brothers and Sisters of US Citizens) both moved forward about 1 month to April 15, 2003 and October 1, 2001 respectively (except for Mexico and the Philippines, both of which are extremely backlogged in this area).

For those interested, the visa bulletin is released every month by the Department of State and is available at this page.

Image courtesy of digitalart at FreeDigitalPhotos.net

PERM Processing Timelines: Not for the faint of Heart

The PERM process is not a short process even in the best of times.  It usually takes several months to put together and file.  There is a mandatory 60 day advertising and recruitment period.  Prior to that, you need to determine the job description and file and receive back the prevailing wage request.  This usually takes a couple weeks to put together and about 60 days.  So overall that is about 5 months just to prepare and file a PERM labor certification.  While the Department of Labor (DOL), the agency that processes PERM cases, was processing these cases fairly quickly even as recently as June or July of this year, things have slowed down precipitously, making this process even longer in duration.

As of the time of this writing, the most recent DOL information, published on December 6, 2013, states that the DOL are processing PERM cases filed on or before April, 2013 (they do not indicate where in April they are currently processing).  This means it is taking them at least 10 months to process such cases.  In September of this year they were processing cases filed as of February 28, 2013. So even over the last couple of months it appears that some additional ground was lost.  One should keep in mind, however, that the DOL was not processing PERM cases for about two weeks in October due to the government shutdown, which did greatly impact the processing times. DOL processing times can be obtained by visiting the iCert WebSite, and then selecting the PERM & PW Processing Times tab.  These timelines are updated on an inconsistent basis, so you do need to check back frequently to see if changes have been made.

For cases that are being audited, the DOL is currently working on cases filed in October of 2012, making the processing time for these cases over 1 year in length.

Because of the lengthy wait period for the approval of the labor certification, it is more important to carefully plan out how your employee (or if you are the employee, how you) will remain in valid non-immigrant status and continue to be able to work in the interim.   It is also important to monitor the timelines carefully for any movements, positive or negative, that can impact when you file the next step, or how long you need to maintain another status.

Further Updates on the Visa Bulletin

Members of the American Immigration Lawyer’s Association met with Charles Oppenheim to discuss the upcoming December Visa Bulletin and, especially, the large backlogs for India.  Mr. Oppenheim provided the following updated information regarding immigrant visa usage for this fiscal year (October 1, 2013 – September 30, 2014).  Please note that the following are based on Mr. Oppenheim’s impressions at this time and could change should usage patterns change in the future:

1.  As of November 20, 2013 the Department of State (DOS) retrogressed the EB-2 immigrant visa numbers for India to November 1, 2004 – which is the priority date that they were going to implement for this category starting December 1, 2013.   The reason for this sudden turn is that the DOS has been receiving approximately 150 requests for immigrant visa numbers for India EB-2 cases from USCIS every day since November 10th (the vast majority of these were for EB-3 cases upgrading to EB-2 cases).  While this may not sound like much, it is an unprecedented demand.  They are uncertain how many more visas they will have to allocate to India so had to retrogress the numbers earlier than December 1.

2.  It is possible that in August or September of 2014 that the India cut-off for EB-2 numbers may be moved back to 2008, but this will depend on how many immigrant visas are left in this category, how many EB-1 immigrant visas are left and can be transferred to this category and how many immigrant visas are used by the pre-November 2004 cases during the coming months.   As a guideline, Mr. Oppenheim reported that almost 15,000 immigrant visas were allocated to backlogged Indian cases in the EB-2 category in August and September of last fiscal year (so August and September 2013).

3.  Lastly, the Worldwide EB-3 numbers jumped another year in the December Visa bulletin (to October 1, 2011)  because there are very few immigrant visa requests from USCIS for this category.  DOS is trying to stimulate demand in this category to use all the allocated visas before the end of the fiscal year.  Depending on what happens with demand, the DOS has indicated that it may have to retrogress this category later in the year.

I will post updates as they become available.

The December Visa Bulletin: Bad News for India

The Department of State recently released its December Visa Bulletin which updated the priority date listings for immigrant visa categories and also provided some guidance as to future movement of these dates. In addition, Mr. Oppenheim, who is in charge of immigrant visa numbers and the visa bulletin for the Department of State, also met with AILA and immigration lawyers last month and gave us some additional guidance as well. To summarize: Most of the world looks ok at least for the short terms in terms of visa availability. India, on the other hand, does not.

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The biggest movement in the December bulletin was the backlogging of the EB-2 category for India. This has moved to November 14, 2004, a backlog of 9 years. According to Mr. Oppenheim, the reason for this backlog is that they are now almost out of immigrant visas for India for this fiscal year. So this means he feels that there are few, if any cases, with this priority date that have not received immigrant visas already.
That seems bad, but not too bad, you may think. Well, unfortunately, this is not the whole story. We had previously reported that the backlog for India is around 30,000 or so cases, which is about a 10 year backlog overall. Unfortunately, as it turns out, this is ONLY the backlog of EB-2 cases for India in which an adjustment of status (I-485) case was ALREADY filed. In other words, this does not include EB-2 cases that have been approved for which NO I-485 has been filed. What does this mean? This means that the potential backlog could be double what it currently is, or more. Realistically, unless there is a change in the law, the EB-2 backlog for India could reach 20, 30 or more years.

As for the rest of the World, the Eb-2 category is at November 8, 2008 for China, and is current for the rest of the world. According to the DOS, projected movement of these numbers over the next couple of months is as follows: China will move about 3-5 weeks every month, Worldwide numbers will stay Current, India will NOT move forward at all.

Lastly, EB-3 numbers are at October 1, 2011 for most of the world, except they are at September 1, 2003 for India and January 8, 2007 for the Philippines. India will have no more movement forward in the next several months. The worldwide numbers and Mexico and China should see some more forward movement through February, but will then hold steady after that. The Philippines will see movements of aout 3-6 weeks per month. Of course all of this depends on how many visas are actually used during any given period, and it may change rapidly. We will try to update you as we receive more information.

Other news is that the family based F2A number (for spouses and children of permanent residents) is holding at September September 8, 2013 for most countries (and September 1, 2013 for Mexico). Unfortunately, the DOS does not see any forward movement of this date over the next couple of months. Once again, we will update you as new information becomes available. I am happy to answer any questions about these numbers as well.

Image courtesy of digitalart at FreeDigitalPhotos.net