News

Visa systems issues: Update from the DOS website

June 25, 2015

From the DOS website, http://travel.state.gov/content/travel/english/news/technological-systems-issue.html

Technological Systems Issue
June 24, 2015

Visa Systems Issues

The Bureau of Consular Affairs reports that 50 posts, representing nearly three-quarters (73 percent) of our nonimmigrant visa demand worldwide, are now online and issuing visas.

Posts overseas issued more than 60,000 visas on June 23. Mission China alone issued nearly 25,000 visas.

Posts overseas have issued more than 150,000 non-immigrant visas since June 9. For context, if systems had been operating normally, posts would have issued approximately 450,000 visas during the June 9-23 timeframe. We expect to close this gap rapidly over the next few days.

We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including those who applied after the systems problems began on June 9.

We deeply regret the inconvenience to travelers who are waiting for visas.

We continue to post updates to our website, travel.state.gov.

Q: Reports indicate that your backlog is 700,000 visas. Is this accurate?

No. While there is a large backlog of cases to clear, it never approached that level, and we have already made good progress issuing those visas. Many posts are working overtime this week, and we expect to eliminate the backlog in a week or less.

Q: How old is this equipment? And does the age of the equipment and the need to have so many repairs to the hardware mean that this equipment should have been replaced? Is this a funding issue at the base of it?

The hardware that impacted the biometrics system is several years old. The Department was working to move the biometrics system off of this hardware.

The operational requirements to keep this database running for domestic and overseas passport and visa issuances caused delays in upgrading the database according to our planned maintenance schedule.

We have been working to upgrade our systems over the past year.

We will move ahead with planned migration and systems upgrades as soon as we fully restore service.

Q: How did you restore service?

We restored service using a redundant, secondary backup system and other sources. That data allowed us to begin to re-connect posts to the affected portion of the system and synchronize biometric data. This system is running on newer hardware, and has a synchronized standby system in a different Department data center.

In parallel, we are continuing to restore data from backups and overseas post databases. This process is ongoing.

Q: Do you know whether this is equipment that was acquired directly by the State Department, or was this acquired through a third-party contractor?

The equipment was acquired by the Department of State.

Q: What does this mean for travelers seeking visas?

All posts are now interviewing applicants. Please check the website of the nearest embassy or consulate for interview appointment availability and up-to-date messages.

Q: How many people were affected by this outage?

During the past two weeks, consular sections have continued to interview travelers who applied June 8 or earlier. Those posts reconnected to our system are now issuing visas for those applicants.

Q: How are cases being prioritized?

Now that system functionality is being restored, case prioritization will follow our normal procedures.

We apologize to travelers and recognize that this has caused hardship to some individuals waiting for visas.

Q: What about the foreign agricultural workers (H2A visa holders?)

Nearly 1,700 temporary or seasonal workers have been issued new visas in Mexico. These are applicants whose biometric data was captured before the systems went down.

An additional 250 received Port of Entry waivers from Customs and Border Protection (CBP). We are no longer asking CBP to provide port of entry waivers, as we are now able to issue visas at border posts.

We are currently scheduling more than 1,500 H-2 visa applicants for visa interviews.

Visa applicants, including agricultural workers, who have not received a visa should not report to the border. Please contact the nearest embassy or consulate.

Q: What about domestic passports?

Domestic passport operations are functioning, with some processing delays.

The technical problems have affected the intake of some mailed applications and same-day service at our passport agencies; however, we continue to issue routine and expedited passports to U.S. citizens for all overseas travel needs.

Q: What about overseas passports?

Overseas passport applications are being processed. There have been delays in some cases, but posts overseas are able to issue emergency passports in urgent cases.

*Connected Posts

Paris
Monterrey
Ciudad Juarez
Guangzhou
Beijing
Shanghai
Tijuana
Nuevo Laredo
Mexico City
Guadalajara
Mumbai
New Delhi
Sao Paolo
Chennai
Manila
Bogota
Buenos Aires
Rio de Janeiro
Tel Aviv
Merida
Hermosillo
Karachi
Seoul
Lima
Santo Domingo
Kingston
Shenyang
Chengdu
Lagos
Guayaquil
London
Brasilia
Moscow
San Salvador
Quito
Ho Chi Minh City
Hanoi
Kyiv
Djibouti
Cairo
Amman
Toronto
Ankara
Nairobi


Delays in visa issuance due to technical problems

June 16, 2015

On June 15, 2015, the Department of State (DOS) announced that the Bureau of Consular Affairs is currently experiencing technical problems with its overseas passport and visa systems. The issue is not specific to any particular country, citizenship document, or visa category.  These technical problems are affecting the issuance of visas and requiring some visa interviews to be rescheduled.  Individuals with upcoming visa appointments should check the U.S. Embassy’s webpage for specific details on rescheduling appointments.

A hardware failure on June 9 halted the flow of biometric clearance requests from posts to the Consular Consolidated Database (CCD). Individuals who submitted online applications or were interviewed for visas on or after June 9 may experience a delay in the processing. The systems in place to perform required national security checks before visas are issued are experiencing technical difficulties, resulting in the inability to print visas. Consular offices cannot bypass the legal requirements necessary to screen visa applicants before issuing visas for travel, causing a backlog of visas waiting to be processed. These technical problems are  causing delays in printing visas and may mean rescheduling some visa interviews. These technical issues have also disrupted or prevented some of the Department’s primary data-share partners from accessing visa records.

The Department of State is working urgently to restore visa processing and expect the systems to be fully operational again soon. As further information comes available, we will provide updates.


New USCIS guidance for change of worksite of H-1B employees: Filing deadline of August 19, 2015

June 11, 2015

The USCIS issued a news alert on May 21, 2015, and updated its website on May 27, 2015, to publicize updated guidance from the USCIS Administrative Appeals Office (AAO) on employer obligations in the situation of a change of an H-1B employee’s worksite. In Matter of Simeio Solutions, decided on April 9, 2015, the AAO stated that employers must file an H-1B amendment petition whenever a new Labor Condition Application (LCA) filing must be filed with DOL due to a change in the H-1B employee’s worksite. The AAO’s decision is a precedent decision, which means that it is a legally binding agency decision.

A new LCA must be filed with DOL whenever the new worksite is outside the Metropolitan Statistical Area (MSA) or area of intended employment (i.e., normal commuting area). In any situation where a new LCA is required, an H-1B amendment petition must also be filed. The AAO decision and the USCIS web alert state specifically that the amendment petition must be filed before placing the H-1B employee at the new worksite; the web alert clarifies that the change of worksite can take place while the H-1B amendment petition is pending.

USCIS confirmed that as outlined in existing regulations, the LCA posting and therefore the H1B amendment filing requirements do not apply (1) to changes of worksite within the MSA/area of intended employment (although the employer must post notice to employees at the new worksite before the move in this situation), (2) to “short term placements” of either 30 to 60 days per year, (3) to non-worksites such as training locations, or (4) to casual short-term travel to other locations.

A non-binding opinion letter from a former USCIS General Counsel issued in 2003 had given the impression that filing an LCA on its own was sufficient compliance and an H-1B petition filing was not also required. Some companies were following this guidance to not file H-1B petitions and only submit new LCAs in change of worksite situations (Jackson & Hertogs did not follow this guidance and has been filing amended petitions whenever new LCAs were required to effect a change in location). This updated guidance clarifies that the H-1B filing is also required. As some companies had relied upon this previous guidance for years, USCIS has given a “grace period” of 90 days from the date of the web alert, or until August 19, 2015 to file an amended H-1B petition. If an amended petition is denied, the original petition would remain valid and the H-1B employee may return to the previous worksite.

Notably, the web alert specifically addresses the situation of “successive” amendment petitions (e.g., serial filings) which involve a request for extension of H-1B stay. It states that subsequent H-1B amendment petitions, if filed while the previous petition is pending, are dependent upon the approval of the previous petition; as s each successive petition must independently meet the requirements for H-1B “specialty occupation” classification and extension of stay.

Given the updated USCIS guidance, it is advisable for companies employing foreign national employees to review and strengthen systems for updating immigration counsel about all possibly “material” changes to the terms of employment, and specifically about  any change of worksite(s), of those employees.


July 2015 Visa Bulletin

June 10, 2015

The Department of State (DOS) Visa Bulletin for July 2015 outlining immigrant visa availability has been released. The retrogression went into effect for mainland China EB-5 investors in the May 2015 Visa Bulletin, moving from being current to May 1, 2013. This priority date is now September 1, 2013 in the July 2015 Visa Bulletin for mainland China EB-5 investors.

The employment-based second preference category (EB2) for China moved forward again from June 1, 2013 in the June 2015 Visa Bulletin to October 1, 2013 in the July 2015 Visa Bulletin. There was no movement in the EB2 category for India, as the priority date remained October 1, 2008 in the June 2015 Visa Bulletin and  in the July 2015 Visa Bulletin. The EB2 category for all other countries, including Mexico and the Philippines, remains current.

There was forward movement in most of the employment-based third preference categories (EB3). The EB3 category for India moved forward slightly from January 22, 2004 in the June 2015 Visa Bulletin to February 1, 2004 in the July 2015 Visa Bulletin. There was no movement in the EB3 category for China, as the priority date remained September 1, 2011 in the June 2015 Visa Bulletin and  in the July 2015 Visa Bulletin. All other EB3 categories, including Mexico, moved forward from February 15, 2015 in the June 2015 Visa Bulletin to April 15, 2015 in the July 2015Visa Bulletin. However, despite two retrogressions, the EB3 category for the Philippines has become  unavailable  in the July 2015 Visa Bulletin. The State Department has indicated that it may be possible that some unused numbers from the second preference category (EB2) may become available for September use. If EB2  numbers do not become available, however, Philippines third preference (EB3)  numbers will once again be available beginning October 1, 2015 under the FY-2016 annual numerical limitations.

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.  In the EB-5 context, the priority date is the date that the Form I-526, Immigrant Petition by Alien Entrepreneur is  received by 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.


Premium Processing suspended for H-1B extension of stay

May 19, 2015

USCIS announced that it will suspend premium processing for all H-1B extension of stay petitions from May 26, 2015 until July 27, 2015. No requests for premium processing may be filed on any H-1B extension of stay during this period. H-1B extension of stay petitions with Form I-907 premium processing requests filed before May 26, 2015 will continue to be processed. A refund of the premium processing fee will be issued if the premium processing H-1B was filed prior to May 26, 2015 and USCIS did not act on the case within the 15 calendar day period.

USCIS is suspending premium processing in order to implement the Employment Authorization for Certain H-4 Spouses rule and allow for adjudication of H-4 EAD application. The first day that H-4 EAD applications may be filed is May 26, 2015. This suspension to premium processing adjudication will only apply to H-1B extension of stay petitions. All other premium processing will remain available for H-1B petitions, including H-1B cap petitions requesting a change of nonimmigrant status or consular notification.


May and June 2015 Visa Bulletins

May 13, 2015

The Department of State (DOS) Visa Bulletin for June 2015 outlining immigrant visa availability and updating availability from the Visa Bulletin for May 2015 has been released.

The Chief of the Visa Control and Reporting Division at DOS, Charles Oppenheim, is responsible for oversight of immigrant visa usage. He had previously indicated that retrogression in the EB-5 immigrant visa category for investors from mainland China would likely take place in 2015. The retrogression went into effect for mainland China EB-5 investors in the May 2015 Visa Bulletin. In May 2015, immigrant visa availability was no longer “current” and instead retrogressed to May 1, 2013. This date remains unchanged as of the June 2015 Visa Bulletin for mainland China EB-5 investors.

By contrast, there was forward movement in the other immigrant categories. The employment-based second preference category (EB2) for China moved forward from April 1, 2011 to June 1, 2012 in the May Visa Bulletin, and more dramatically, an entire year forward to June 1, 2013 in the June Visa Bulletin.

There was also movement in the EB2 category for India, from September 1, 2007 to April 15, 2008 in the May Visa Bulletin, and again to October 8, 2008 in the June Visa Bulletin.

The EB2 category for all other countries, including Mexico and the Philippines, remains current.

There was forward movement in most of the employment-based third preference categories (EB3) as well. The EB3 category for India moved forward slightly from January 8, 2004 to January 15, 2004 in the May Visa Bulletin, and to January 22, 2004 in the June Visa Bulletin. The EB3 category for China moved forward more from January 1, 2011 to May 1, 2011 in the May Visa Bulletin, and to September 1, 2011 in the June Visa Bulletin.

The “all other counties” and Mexico EB3 categories moved forward from October 1, 2014 to January 1, 2015 in the May Visa Bulletin, and to February 15, 2015 in the June Visa Bulletin.

However, the EB3 category for the Philippines retrogressed  from October 1, 2014 to July 1, 2007 in the May Visa Bulletin, and further retrogressed to January 1, 2005 in the June Visa Bulletin.

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 petitions and EB2 petitions in the national interest), when the I-140 is filed with the USCIS.  In the EB-5 context, the priority date is the date that the Form I-526, Immigrant Petition by Alien Entrepreneur is  received by 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 immigrant visa applications). If these applications were filed and pending but a visa number became unavailable, and then has become available again, these individuals  may  now have their cases adjudicated by USCIS or DOS. If one’s 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 must refer to 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 that may change immigrant visa chargeability and backlogs, 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.

 


USCIS completes data entry of fiscal year 2016 H-1B cap-subject petitions

May 4, 2015

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in its computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.


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.