News from 2014

Technical issues with visa system causing delays

July 30, 2014

The Department of State Bureau of Consular Affairs has provided an update regarding the technical issues that are causing U.S. visa processing backlogs. The technical issues with the global visa processing system have caused delays at U.S. Consulates around the world. The system is technically functional but issuing visas at a reduced capacity. The Department of State is making progress in restoring the nonimmigrant visa system to full functionality. They have implemented a system change aimed at addressing the technical challenges. Please note some Embassies and Consulates may temporarily limit or reschedule nonimmigrant visa interview appointments until the problem is resolved.


August Visa Bulletin

July 10, 2014

The Department of State (DOS) Visa Bulletin for August 2014 has been released, and  again presents good news for the employment-based, second preference (EB2) category for India. The EB2 India category moves forward from September 1, 2008 to January 22, 2009. As we noted in last month’s update, DOS unofficially predicted this forward movement towards the later part of the fiscal year (which ends in September 2014), in order to utilize EB2 visa numbers that were unused by other categories. This rapid movement forward is expected to continue; however the duration of this trend is uncertain and will depend on demand on available visa numbers by applicants with priority dates earlier than the new cut-off date.

This month’s Visa Bulletin also provides for limited movement forward in the EB2 category for China.   The EB2 China category moved forward from July 1, 2009 to October 8, 2009.  The EB2 category for all other countries, including Mexico and the Philippines, remains current.

There is also some forward movement in a few of the employment-based third preference categories (EB3).The EB3 category for the Philippines moved forward from January 1, 2009 to June 1, 2010.The EB3 category for China moved forward from October 1, 2006 to November 1, 2008.

The EB3 category for Mexico remains at April 1, 2011. The EB3 category for India remains in November, pushing forward a few days to November 8, 2003.The EB3 category for all other countries stays at April 1, 2011.

The employment-based first preference category (EB1) continues to remain current for all countries.

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 one’s priority date is not “current,” neither agency may either 1) accept the case for processing, nor 2) adjudicate a filed and pending case, because an immigrant 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.


July Visa Bulletin

June 10, 2014

The Department of State (DOS) Visa Bulletin for July 2014 has been released, and  presents good news for the employment-based, second preference (EB2) category for India. The EB2 India category moves forward dramatically, from November 15, 2004 to September 1, 2008. DOS unofficially predicted this forward movement towards the later part of the fiscal year (which ends in September 2014), in order to utilize EB2 visa numbers that were unused by other categories.

There is also limited movement forward in the EB2 category for China.   The EB2 China category moved forward from May 22, 2009 to July 1, 2009.  The EB2 category for all other countries, including Mexico and the Philippines, remains current.

There is also some forward movement in a few of the employment-based third preference categories (EB3).The EB3 category for the Philippines moved forward from January 1, 2008 to January 1, 2009. The EB3 category for India moved from October 15, 2003 to November 1, 2003.

The EB3 category for Mexico remains at April 1, 2011. The EB3 category for China is also unchanged, at October 1, 2006. The EB3 category for all other countries stays at April 1, 2011.

The employment-based first preference category (EB1) continues to remain current for all countries.

Family based (FB) immigrant visa numbers also demonstrated limited forward movement.

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.


June Visa Bulletin

May 8, 2014

The Department of State (DOS) Visa Bulletin for June 2014 has been released.  There is limited movement forward in some of the employment-based categories. The EB2 China category moved forward from April 15, 2009 to May 22, 2009. The EB2 India category remains at November 15, 2004 while the EB2 category for all other countries, including Mexico and the Philippines, remains current.

There is also limited forward movement in a few of the employment-based third preference categories (EB3). The EB3 category for India moved from October 1, 2003 to October 15, 2003. The EB3 category for the Philippines moved forward from November 1, 2007 to January 1, 2008.

There is significant movement backwards in all other EB3 categories.  The EB3 category for Mexico moved from October 1, 2012 to April 1, 2011. The EB3 category for China moved from October 1, 2012 to October 1, 2006. The EB3 category for all other countries moved from October 1, 2012 to April 1, 2011.

The employment-based first preference category (EB1) continues to remain current for all countries.

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.

 


DHS announces proposals to expand work authorization to some H-4 spouses

May 6, 2014

On May 6, 2014, the Department of Homeland Security (DHS) announced the publication of two proposed rules aimed at attracting and retaining highly skilled immigrants to the United States.

One of the rules would extend work authorization to some spouses of H-1B nonimmigrants. Under current regulations, spouses of H-1B nonimmigrants (H-4 nonimmigrants) are unable to work in the United States. In the situation where an employer is sponsoring an H-1B employee for a green card, the process can take many years to complete, due to processing time delays or immigrant visa priority date backlogs. This proposed rule change would allow certain spouses in this situation to obtain work authorization. It would enable H-4 nonimmigrants, whose spouses are in the process of applying for permanent resident status based on an offer of employment, to work while waiting for the family to immigrate. Specifically, H-4 spouses of H-1B nonimmigrants who are the beneficiary of an approved I-140 immigrant visa petition, or of an H-1B extension of status beyond the six year limit, would become eligible for work authorization.

The other proposed rule changes would better align the H-1B1 (Singapore and Chilean) and E-3 (Australian) work visas to other employment classifications allowing for continued work authorization while applications for extension of stay are pending with the USCIS.

Neither of these regulatory changes is in effect and are simply proposals by the agency.  You may read the press release here.


H-1B cap update

May 2, 2014

On Friday, May 2, 2014, USCIS announced it had completed data entry for all cap-subject H-1B visa petitions which were selected for processing based on the random selection process (lottery).

The USCIS sends receipt notices and rejected petition filings through the United States Postal Service via regular mail. This means that while the data entry phase has been completed receipt notices are still in the process of being delivered. Concurrently, USCIS will start returning petitions that were “rejected,” or not selected in the lottery. All rejected petitions will be returned with the filing fees intact. Notably, receiving a rejection of H-1B cap petition is not the same as a denial of a petition.

As receipt notices and rejected packages are received, we will notify the petitioner and beneficiary. Until we have received either a receipt notice or a rejection, we cannot assume that a case was or was not selected for processing.


CBP upgrades I-94 admission record portal

April 23, 2014

The U.S. Customs and Border Protection (CBP) has upgraded its website to provide for improved correction functionality for correct data input. In addition, the website now provides for the choice of both retrieving the most recent I-94 record of admission, and the option of providing travel history (dates of arrival/departure) over the past five years beginning on May 1, 2009. The five year “look back” period will continue to be available on a rolling basis.

CBP has provided this enhancement in order to reduce the number of Freedom of Information Act (FOIA) requests it receives from foreign nationals for their arrival/departure information. The data available continues to be limited to air and sea travel, and does not extend to arrivals or departures by land.


May Visa Bulletin

April 10, 2014

The Department of State (DOS) Visa Bulletin for May 2014 continues to indicate limited forward movement in one of the employment-based second preference categories (EB2) after a few months of rapid priority date progression. The EB2 China category moved forward from March 8, 2009 to April 15, 2009. The EB2 India category remains at November 15, 2004 while the EB2 category for all other countries, including Mexico and the Philippines, remains current.

There was also limited forward movement in a few of the employment-based third preference categories (EB3). The EB3 category for India moved from September 15, 2003 to October 1, 2003. The EB3 category for the Philippines moved forward from June 15, 2007 to November 1, 2007. All other EB3 categories, including Mexico and China, remain at October 1, 2012.

The employment-based first preference category (EB1) continues to remain current for all countries.

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.


USCIS: 172,500 H-1B cap petitions received for FY2015

April 10, 2014

On April 10, 204, USCIS announced that as of April 7, 2014, the agency had received a total of 172,500 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 announced on March 25, 2014, that it would begin processing H-1B cap cases filed under premium processing no later than April 28. This means that the processing time “clock” does 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.


White House to propose new opportunities for entrepreneurs; includes work authorization for H-4 spouses

April 9, 2014

The White House issued a fact sheet outlining proposals that it will be making to help expand opportunities for entrepreneurs in the United States and abroad. Included among these proposals will be work authorization for the spouses of H-1B nonimmigrants. Under the current law, H-4 nonimmigrants are unable to work in the United States. This can create tensions in families where one spouse’s career must be placed on hold so that the family can come to the United States. This one “small change” would be a significant change for H-1B visa holders and their spouses and bring the category on a par with the L and E categories.

FACT SHEET: Strengthening Entrepreneurship At Home and Abroad

“Let’s do more to help the entrepreneurs and small business owners who create most new jobs in America.”

– President Barack Obama, State of the Union, January 28, 2014

Entrepreneurs play a critical role in expanding the economy and creating jobs.  President Obama is committed to increasing the prevalence and success of entrepreneurs across the country, including through the White House Startup America initiative, an “all-hands-on-deck” effort to expand access to capital, accelerate innovation, and promote private sector efforts to strengthen the Nation’s startup communities.  The United States also runs and funds hundreds of programs to support entrepreneurs globally and maintains a broad coalition of governments, business people, civil society, investors, and academics to educate and support entrepreneurs around the world.

Building on these efforts, today the Administration is announcing a series of new steps to accelerate the success of entrepreneurs in the United States and across the globe:

Presidential Ambassadors for Global Entrepreneurship: Today, President Obama hosted the inaugural meeting of the Presidential Ambassadors for Global Entrepreneurship (PAGE), a group of successful American businesspeople who have committed to sharing their time, energy, ideas, and  experience to help develop the next generation of entrepreneurs at home and abroad. The group is chaired by Secretary of Commerce Penny Pritzker, and the U.S. Department of State and the U.S. Agency for International Development (USAID) are also partners in this effort.

Attracting the World’s Best and Brightest: The Department of Homeland Security (DHS) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness.  These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.

Accelerating Biomedical Entrepreneurs from Lab to Market:  The National Institutes of Health (NIH) and the National Science Foundation (NSF) are launching a new collaboration to empower entrepreneurial scientists and address the critical gap between fundamental research and the development of a commercial entity.  Academic researchers and entrepreneurs who receive Small Business Innovation Research (SBIR) funding from NIH will be eligible to pilot a new version of the NSF Innovation Corps (I-Corps) program that is specially tailored for biomedical technologies.  This intensive, mentor-driven experience is changing the way that NSF-funded researchers think about the commercialization process.  NIH will also help scale up I-Corps by augmenting existing NIH-funded programs, such as the NIH Centers for Accelerated Innovation (NCAI), that focus on promising technologies developed by academic researchers.  Faculty and students who participate in these new I-Corps programs will receive mentorship opportunities, entrepreneurial training, and modest funding to enable them to move their ideas from the lab to the market.

Energizing Entrepreneurs to Help End Extreme Poverty: Fostering entrepreneurs and strengthening entrepreneurial ecosystems are vital elements of USAID’s newly launched U.S. Global Development Lab (The Lab).  The Lab will empower a global network of individuals to help create, solve and scale innovative solutions to global challenges by applying rigorous scientific, business, research, and technological expertise. In the next five years, scientists and technology experts at The Lab will create a new global marketplace of innovations and take them to scale to reach over 200 million people worldwide. The Lab is pioneering open-source development models like Development Innovation Ventures and Grand Challenges that nurture new solvers and players in emerging markets and spurring innovation. The Lab is expanding a Global Development Alliance furthering LGBT equality through entrepreneurship and small and medium enterprise growth in Latin America.  A new USAID Research and Innovation Fellowships Program will send more than 60 young U.S. leaders in science and technology to universities, NGOs, and companies in 12 developing countries this year.

Bolstering Exchanges and Training for Entrepreneurs in the Western Hemisphere: This fall, the State Department will host TechCamps for women in El Salvador, Colombia, and Argentina. These camps will bring together hundreds of women across the region over the course of the year and provide them training to address key challenges in business formation, from financing to marketing. Additionally, the State Department will be launching two new exchange programs for entrepreneurs in the Western hemisphere. The Small Business Network of the Americas (SBNA) Fellowship Program will connect incubators across the hemisphere to share best practices in entrepreneurial development and unlock market access for small businesses across the region. The Professional Fellows Program will bring Salvadorian, Guatemalan, and American officials together for a six-week internship and training program focuses on professional development, problem-solving, and networking.