News from 2014

September Visa Bulletin

August 26, 2014

The Department of State (DOS) Visa Bulletin for September 2014 outlining immigrant visa availability movement has been released.

A major announcement relating to EB-5 investor visas was made by Charlie Oppenheim, the DOS Chief of Visa Control and Reporting Division, which affects the September Bulletin. He announced that effective Saturday, August 23, 2014, the number of EB-5 visas available to those born in China has been reached for the 2014 fiscal year, which ends on September 30, 2014.

The EB2 India category continues to move forward from January 22, 2009 to May 01, 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 the demand on the available visa numbers by applicants with priority dates earlier than the new cut-off date.

The EB2 China category remains unchanged at October 8, 2009.  The EB2 category for all other countries, including Mexico and the Philippines, remains current.

There is also some forward movement in the employment-based third preference category (EB3) for the Philippines. The EB3 category for the Philippines moved forward from June 1, 2010 to April 1, 2011.

The EB3 category for Mexico remains at April 1, 2011.  The EB3 category for China stays at November 1, 2008. The EB3 category for India is still at 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.

Family based (FB) preference categories showed forward movement in some but not all categories for all countries of birth, most prominently the F-2A category (for spouses and children under 21 of lawful permanent residents).

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.


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.