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

imagesUSCIS 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.

 

Update from Charlie Oppenheim RE: Visa Bulletin Movement

UnknownCharlie Oppenheim recently released a new update on possible movement of various visa categories.  While for the most part there are no surprises, it is good to review what he says on your particular category to ensure you are not surprised in future months.  However, overall, it was a short update this month.

EB-1:  All countries should remain current for the foreseeable future (including China and India)

EB-2:  Worldwide should remain current for the foreseeable future.  India and China will have some forward movement but not much.

EB-3:  Worldwide should remain current for the foreseeable future.  India will most likely hold steady and China will move forward slowly.  Charlie has been paying close attention to China especially because of the number of EB-2 downgrades.  To prevent any retrogression, Charlie is only moving forward slowly in that category.  The Philippines should also progress slowly.

Family based:  Mostly modest movement forward.  The only surprise is FB-4 for India, which is having lower than expected demand and may move forward more quickly than Charlie previously thought.

 

Did Water Damage your Passport and/or Visa? Here is what you should do

damaged_passport_bookIn the wake of the hurricanes that have brought massive flooding to parts of Texas, Indiana, Florida and many islands in the Caribbean, many foreign nationals in the US planning foreign travel (or those outside the US planning on coming back) have passports and visas that have been water damaged.  According to the Department of Homeland Security, you should replace such documents before attempting to enter the US.  The primary reason for this is that the ink that is used in the documents does not hold up to water, and if the damage is apparent by looking at the document, there is a high likelihood that the visa/ passport will not be machine readable. People who seek reentry to the United States by air will not be permitted to board an airplane if their passports cannot be scanned. There is very little room for discretion for those entering by air, as the airlines will likely deny boarding before CBP (Customs and Border Protection) ever sees the applicant.

Those who seek reentry by land may receive greater favorable discretion, as they may be granted a waiver of the required entry document (on Form I-193, pursuant to INA 212(d)(4)). Such waivers are granted on a case-by-case basis at the discretion of the port, and there is no guarantee that it will be done in any particular case. In cases that merit favorable discretion (e.g., emergency travel due to hardship), you should call your attorney as soon as you can so that they can facilitate your return at a border port of entry by contacting them and explaining why you warrant a favorable exercise of discretion.   While ports will never pre-adjudicate admissibility, your entry may be facilitated by having your attorney make this type of inquiry in advance. The I-193 waives only the lack of a travel document and does not waive any other grounds of inadmissibility which would require a waiver under INA 212(d)(3).

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.

November Visa Bulletin – Some Movement, Dates for Filing Available

unknownDOS released the November Visa bulletin and there has been some forward movement.  Importantly, USCIS is still allowing the Dates for Filing to be used for almost all applications (except EB-5 applications) to determine when you are able to file the adjustment application.  Below we will go through each category in detail.

Family Based Applications:

F1:  Final Action Dates: Moved forward about 1 month to October 2009 for All Other Countries, India and China.   Mexico only moved forward about 1 week to April 8, 1995 and the Philippines moved forward about 1 month to October 2005. Dates for Filing: No change

F2A: Final Action Dates: Everyone moved forward about 1 month to January 22, 2011 (January 8, 2011 for Mexico).  Dates for Filing:  No Movement.

F2B: Final Action Dates: All countries moved forward about one month except Mexico which moved forward about 2 weeks.  All Other Countries, China and India are at April 15, 2010.  The Philippines is at February 15, 2006 and Mexico is at October 8, 1995. Dates for Filing: No movement

F3: Final Action Dates: All countries moved forward about one month except Mexico which moved forward about 2 weeks.  All Other Countries, China and India are at January 22, 2005.  The Philippines is at August 8, 1994 and Mexico is at December 1, 1994. Dates for filing: No movement.

F4: Final Action Dates: All countries moved forward about one month except the Philippines and Mexico which moved forward about 2 weeks.  All Other Countries is at December 1, 2003.  China is at August 1, 2003 and India is at February 15, 2003.  The Philippines is at May 8, 1993 and Mexico is at May 8, 1997. 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 5 month to July 15, 2012.  India jumped forward about 10 months to November 1, 2007.

E3:  Final Action Dates: Most countries moved forward about 1 month to July 1, 2016.  China moved forward about 3 months to April 15, 2013.  Since China E3 is ahead of China E2, expect this to backlog at some point. India moved forward about 1 week to March 8, 2005 and the Philippines moved forward about 4 months to April 1, 2011.

Employment Dates for Filing:  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

 

 

 

 

UPDATE: February 2016 Visa Bulletin

As we previously reported, the Department of State released the February 2016 visa bulletin several days ago.  Today, USCIS finally determined which dates (the “final action date” or the “dates for filing” can be used.  Their decision is:

Family Based Cases

You may use the “dates for filing” table to determine if you can file the AOS application.

 

Employment Based Cases

You must use the “final action dates” table to determine if you can file your AOS application.

 

While the above is not a surprise, as it is the same decision the made last month, it is unfortunate that USCIS is still not allowing employment based applications to use the “dates for filing” table.   First, it is clearly more advantageous for individuals to be able to file their adjustment applications earlier.  Second, it would also be advantageous to USCIS as they would be able to get a better handle on how big the backlog is which, in turn, would help make the dates for the visa bulletin more accurate.  Instead, USCIS is more concerned with people being able to file the adjustment “early”, which is short0-sighted on their part.

We will, of course, update you next month as to the March, 2016 visa bulletin.

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.

February 2016 Visa Bulletin -Not Much Movement

imagesThe Department of State just came out with the Visa Bulletin for February 2016.  Unfortunately there was not much movement on either the family or employment front.  Below we summarize what movement there was.

Family Based Immigrant Visas:

Final Action Dates:  Most categories moved forward between 1-2 months.

Dates For Filing:  Again, they moved 1-2 months forward across the board.

 

Employment Based Immigrant Visas:

Final Action Dates:  EB-2 – China moved forward slightly from February 1, 2012 to March 1, 2012.  India moved forward a good bit from February 1, 2008 to August 1, 2008. a jump of 6 months.  EB-3 – Worldwide and Mexico did not move and are still at October 15, 2015.  China moved from July 1, 2012 to October 1, 2012.  India moved from May 15, 2004 to June 15, 2004 and the Philippines moved from November 1, 2007  to January 8, 2008.

DatesFor Filing:  There was no movement on these dates.

 

Dates Used by USCIS:

As you know, USICS has stated that they will inform the public each month as to whether the Final Action Dates or the Dates for Filing can be used by the public in terms of determining when you can file the I-485.

Last month (for January, 2016), USCIS stated the following:

Family Based Cases:               Dates for Filing
Employment Based Cases:   Final Action Dates

For this month, USCIS has not yet stated what they will be following.  Hopefully this information will be released shortly.  As soon as it is we will update you.

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.

 

Does Hiring an Attorney Increase Your Chances of Success with USCIS?

I have had many potential clients ask me this question, and I wish I could give a simimages-1.pngple “yes” or “no” answer. There are two things I can say for sure. First, just the fact that you have an attorney, while it does not make it more likely, in and of itself that the case would be approved, it does make sure that the officer is aware that they cannot (or should not) play games with your case (try intimidation tactics, raise issues not supportable by the statute or regulations, etc.). Second, hiring an attorney can, in most cases, help you get your case together and filed quicker than you would on your own, help to ensure that USCIS will get all information that they need up front to make their decision, and help to ensure that the application is presented in a way that USCIS prefers. All of these things can make it more likely that your case is approved, and approved quicker.

Complex cases (All employment based and self-sponsored green cards, H-1Bs, L-1s, E-1s, E-2s, E-3s, Os) can benefit quite a bit by having an attorney. Most attorney’s you hire for these types of cases will have filed many of these cases, so they are more familiar with what USCIS is looking for, especially in terms of what documents help and what documents hurt your chances of success. Similarly, they are more aware of how USCIS likes the case to be organized, and how it can be organized to prevent (as much as possible) the USCIS mailroom from loosing documents. A good attorney will also be able to help in terms of ensuring that the best evidence is put forth first, as opposed to evidence that, while it may seem important, does not impress USCIS and could, because it is put up front, obscure the better evidence in the packet.

Some other types of cases, such as family based cases, may not benefit quite as much from an attorney as generally, these types of case are more straight forward. However, there are still a couple of considerations to think of. First, many questions on the forms are not clear and easy to make mistakes on. Sometimes this is fine, but in other cases, it could lead to major issues as USCIS could decide that you are trying to commit fraud or make misrepresentations on major issues (or, at least, what they consider a major issue) to get a green card. Second, when more complex issues arise (crimes, time in the US out of status, illegal work, illnesses, etc.) it may be best to get an attorney to help sort out what they law is, and how these actions can affect your eligibility. Lastly, generally an attorney can help get the application together and filed quicker and can usually assure that all required documents are submitted with the application, preventing potential RFEs down the road (although these cannot always be avoided). In addition, an attorney could certainly help if any other issues arise during the case.

Overall, I would say you are certainly well served to meet with an attorney about your case to determine how they can help you with your case, especially if your goal is to get it filed as quickly, and easily as possible.

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.