News

Retrogression challenges for EB-5 Investors from Mainland China as of May 2015

April 22, 2015

May 1, 2015 will be a significant date in the EB-5 program. This will be the date that retrogression will go into effect for certain EB-5 investors.

Retrogression

As was explained in an FAQ on our website, retrogression refers to the situation where previously current dates on the quota bulletin go backwards and become unavailable. It is important to note that retrogression can impact an individual at different times in the overall process because the individual’s priority date must be current at two critical points in time:
(1) on the date that the I-485 application for adjustment of status is filed or application for immigrant visa at an Embassy/Consulate is filed; AND
(2) it must also be current on the date when the case is actually adjudicated (i.e., the immigrant visa cannot be issued or the adjustment of status application cannot be approved if the quota bulletin is not current for the applicable priority date).

It is also important to note that the Visa Bulletin uses “nationality,” not citizenship, to determine how to allocate visas by country. If an individual’s country of birth and country of citizenship are different, that individual’s country of birth determines which country’s visa backlog he or she is counted against.

Retrogression and EB-5

The Chief of the Visa Control and Reporting Division of the U.S. Department of State, Charles Oppenheim, had previously indicated that retrogression in the EB-5 immigrant visa category for investors from mainland China would likely take place in 2015. In April 2015, the Visa Bulletin for May 2015 was published confirming that the retrogression will go into effect for certain EB-5 Chinese investors. This change was illustrated in the fact that for affected EB-5 Chinese investors, the “C” was replaced with the date “May 1, 2013”. The appearance of a date in a category in the Visa Bulletin indicates that only cases that have a priority date that is before the published date will be adjudicated as opposed to being able to be adjudicated right away. In the context of an I-526 immigrant petition, the priority date is the date that the Form I-526, Immigrant Petition by Alien Entrepreneur is received by USCIS. The priority date is indicated on Form I-797, Notice of Action, which USCIS sends after the I-526 petition is received. As such, as of May 1, 2015, EB-5 investors who are nationals of mainland China and who have an approved I-526 immigrant investor petition will have to wait to be able to consular process at a visa post abroad or adjust status in the United States, and only investors who have a priority date (which is indicated on the Form I-797 Notice of Action that is sent after an I-526 petition is received) before May 1, 2013 will be able to proceed with completing the steps necessary to obtain their conditional permanent residency cards.

We have previously posted about some of the ramifications this will cause, including an investor’s dependent child who may be nearing 21 years of age potentially facing “age-out” issues, and the fact that business plans which rely on an investor’s active management may stall if an investor is delayed in entering the United States to direct the business. Other ramifications include the fact that EB-5 projects as a whole may need to be restructured, including their offering and loan documents, if the project timelines need to be adjusted to accommodate the wait times imposed by the Visa Bulletin.

Options for EB-5 Investors from Mainland China

As explained in the aforementioned previously posted article, a provision of immigration law known as “cross-charging” may help some affected EB-5 investors from being subjected to the wait times for their birth countries. Under the cross-chargeability provisions, the principal beneficiary can be charged to his/her spouse’s country of birth if different and thereby take advantage of that country’s visa availability. For example, if an EB-5 investor who was born in mainland China is married to someone who was born in the United Kingdom, the family could “cross-charge” to the United Kingdom and circumvent the retrogression for China. Again, it is the country of birth rather than citizenship which is controlling.


H-1B cap premium processing to begin April 27

April 14, 2015

On April 27, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. USCIS first announced in a news release that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season.

USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B FY2016 Cap Season Web page.

For more information, see our website at http://www.uscis.gov/news/alerts/h-1b-cap-premium-processing-begin-april-27


USCIS: 233,000 H-1B cap petitions received for FY2016

April 13, 2015

On April 13, 2015, USCIS announced that, as of today, the agency had received a total of 233,000 H-1B cap subject petition filings. These numbers are well beyond the allotment of available visas under both the regular statutory cap to 65,000 and the additional 20,000 US master’s cap exemption. The agency has conducted the selection process to determine which cases will be accepted for processing and which will be rejected.

All received petitions were assigned a computer generated number. The cases submitted under the 20,000 US master’s cap exemption were selected through a random selection process (lottery). Those not selected were then included in a similar lottery for the regular cap cases. USCIS will begin issuing receipt notices on selected cases. Please note that it will take the agency time to issue the receipts. After all receipts are issued, the USCIS will then begin to return the petitions that were not selected through the lottery. All returned cases will be returned with the filing fees. A rejected cap case is not the same as a benefit denial.

The USCIS had announced on March 12, 2015, that it would begin processing H-1B cap cases filed under premium processing no later than May 11. This means that the processing time “clock” may not start until that date.

As receipt notices and rejected packages are received, we will notify our employer clients and their employees. Until we have received either a receipt or a rejections, we cannot assume that a case was or was not selected for processing.

You may read the USCIS website here.

As further information comes available, we will provide updates.


USCIS: FY 2016 H-1B cap has been reached

April 7, 2015

Today the USCIS announced that they have received H-1B visa cap petitions well beyond the allotment of available visas under both the regular statutory cap to 65,000 and the additional 20,000 US master’s cap exemption. USCIS will first complete the initial intake for all filings received during the filing period which ended today and then conduct a lottery. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the lottery. USCIS has previously indicated that it may not initiate the premium processing 15-calendar-day period until May 11, 2015.

The cases submitted under the 20,000 US master’s cap exemption will be selected through a random selection process (lottery). Those not selected will then be included in a similar lottery for the regular cap cases.

You may read the posting on the USCIS website here.

As further information comes available, we will provide updates.


J&H welcomes Chrystal Green, Grace Yune, Jin Zhu and Kelly Dixon

April 1, 2015


USCIS to begin accepting cap-subject H-1B petitions on April 1, 2015; will delay premium processing of H-1B cap subject petitions by May 11, 2015

March 27, 2015

On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

As in prior years, USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap, as well as any petitions received after the cap has closed.

About Premium Processing

USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

Premium Processing for H-1B Cap-Subject Petitions

H-1B petitioners may request premium processing together with their H-1B petition. However, USCIS has temporarily adjusted its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season. In order to prioritize data entry for cap subject H-1B petitions, USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 11, 2015During last year’s H-1B lottery, premium processing was delayed to April 28, 2104. Two years ago, premium processing was delayed to April 15, 2013.

 


Canadian passport update

March 18, 2015

Please note that as of May 9, 2015, the Government of Canada has updated the requirements for Canadian travel documents as part of its commitment to protecting security in the following areas:

  1. Photos:
    1. Photos will be valid for six (6) months from the date they were taken. (Currently, the validity permitted is 12 months)
    2. Tinted eye glasses cannot be worn.
  2. Signature:
    1. Applicants must physically sign page 3 in the passport book when new passports printed on or after May 9, 2015 are received. (Currently, preprinted  digital signatures appear on page 2)

Please note that this change has no effect on the security and integrity of the passport. Previous versions of the passport book, which include the signature, remain valid.

 

 


April Visa Bulletin

March 13, 2015

The Department of State (DOS) Visa Bulletin for April 2015 outlining immigrant visa availability has been released. The employment-based second preference category (EB2) for China moved forward again from September 1, 2010 to April 1, 2011. There was also movement in the EB2 category for India, from January 1, 2007 to September 1, 2007. The EB2 category for all other countries, including Mexico and the Philippines, remains current.

There was forward movement in all of the employment-based third preference categories (EB3), except for China. The EB3 category for India moved forward slightly from January 1, 2004 to January 8, 2004. The EB3 category for China retrogressed from October 22, 2011 to January 11, 2011. All other EB3 categories, including Mexico and the Philippines, moved forward from June 1, 2014 to October 1, 2014.

The employment-based first preference category (EB1) continues to remain current for all countries and the DOS has indicated it will remain current in the upcoming months.

The priority date is effectively one’s place in line to immigrate. The priority date is established when a PERM application is filed with the Department of Labor, or for those cases not requiring a PERM application (typically EB1 cases and EB2 applications in the national interest), when the I-140 is filed with the USCIS. For family-based immigration cases, the priority date is established when the I-130 is filed with the USCIS. Individuals with priority dates earlier than the listed cut-off date on the bulletin are eligible to submit applications for adjustment of status (or consular visa applications) or if their applications are already pending may have their cases adjudicated. If ones priority date is not “current” neither agency may accept the case for processing nor adjudicate a pending case because the “visa is not available” if the priority date is not “current.”

Note that DOS looks at your country of birth in determining whether you are a national of a given country, not your country of citizenship. It is country of birth (yours or your spouse) that determines which country to which you are “charged” or “counted” against for purposes of permanent residency. For example, if you were born in India but have since become a citizen of Canada, you are still charged against India and you have to look at advancements for India rather than worldwide numbers. As another example, if you (principal applicant on an employment based process) were born in India but you are married to a person who was born in Canada, both of you can be charged against Canada. This latter example is called “cross-chargeability.”

For general information on visa retrogression, please see our FAQ on this subject. For more information on the Visa Bulletin and country quota movements, including information about movement in the Family-Based Quotas, please see our DOS Visa Bulletin and Quota Movement page, which includes detailed nationality-specific charts of quota movement since 1996. Please also note that while Congress is contemplating new immigration legislation it is far too early to look at the potential changes and their impact on the immigration system. Until new legislation is actually passed and becomes law, we can only look to the current laws for how cases will be processed.


Final DHS rule announced re work authorization for certain H-4 spouses

February 24, 2015

On February 24, 2015, the Department of Homeland Security announced that it is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants.  Effective May 26, eligible H-4 spouses will be able to submit applications for employment authorization to the USCIS. Once the employment authorization document (EAD) is issued, these H-4 spouses will have unrestricted employment in the US.

In order for an H-4 spouse to be eligible for the H-4 EAD, the H-1B spouse must either have an approved Form I-140 or have been granted an extension of status under Section 106 (a) or (b) of the American Competitiveness Act of the 21st Century (this section allows for one year extensions based on the PERM/I-140 being filed before the end of the fifth year of H-1B stay).

Eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 filing fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). Applications will be accepted starting on May 26, 2015. The EAD must be issued and in hand before the spouse commences working in the United States.

You may read the USCIS press release here: http://www.uscis.gov/news/dhs-extends-eligibility-employment-authorization-certain-h-4-dependent-spouses-h-1b-nonimmigrants-seeking-employment-based-lawful-permanent-residence.


March Visa Bulletin

February 9, 2015

The Department of State (DOS) Visa Bulletin for March 2015 outlining immigrant visa availability has been released. As predicted by Charlie Oppenheim (DOS Chief of Visa Control and Reporting Division), the employment-based second preference category (EB2) for China moved forward again from March 15, 2010 to September 1, 2010. There was also movement in the EB2 category for India, from September 1, 2005 to January 1, 2007. The EB2 category for all other countries, including Mexico and the Philippines, remains current.

There was forward movement in all of the employment-based third preference categories (EB3). The EB3 category for India moved forward from December 22, 2003 to January 1, 2004. The EB3 category for China moved forward from September 1, 2011 to October 22, 2011. All other EB3 categories, including Mexico and the Philippines, moved forward from January 1, 2014 to June 1, 2014.

The employment-based first preference category (EB1) continues to remain current for all countries and the DOS has indicated it will remain current in the upcoming months.

The priority date is effectively one’s place in line to immigrate. The priority date is established when a PERM application is filed with the Department of Labor, or for those cases not requiring a PERM application (typically EB1 cases and EB2 applications in the national interest), when the I-140 is filed with the USCIS. For family-based immigration cases, the priority date is established when the I-130 is filed with the USCIS. Individuals with priority dates earlier than the listed cut-off date on the bulletin are eligible to submit applications for adjustment of status (or consular visa applications) or if their applications are already pending may have their cases adjudicated. If ones priority date is not “current” neither agency may accept the case for processing nor adjudicate a pending case because the “visa is not available” if the priority date is not “current.”

Note that DOS looks at your country of birth in determining whether you are a national of a given country, not your country of citizenship. It is country of birth (yours or your spouse) that determines which country to which you are “charged” or “counted” against for purposes of permanent residency. For example, if you were born in India but have since become a citizen of Canada, you are still charged against India and you have to look at advancements for India rather than worldwide numbers. As another example, if you (principal applicant on an employment based process) were born in India but you are married to a person who was born in Canada, both of you can be charged against Canada. This latter example is called “cross-chargeability.”

For general information on visa retrogression, please see our FAQ on this subject. For more information on the Visa Bulletin and country quota movements, including information about movement in the Family-Based Quotas, please see our DOS Visa Bulletin and Quota Movement page, which includes detailed nationality-specific charts of quota movement since 1996. Please also note that while Congress is contemplating new immigration legislation it is far too early to look at the potential changes and their impact on the immigration system. Until new legislation is actually passed and becomes law, we can only look to the current laws for how cases will be processed.