News from 2014

CBP upgrades I-94 admission record portal

April 23, 2014

The U.S. Customs and Border Protection (CBP) has upgraded 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.


Jackson & Hertogs announces new Associate

April 9, 2014


DOS initiates site visits for J-1 intern and trainee categories

April 7, 2014

The Department of State expanded its site visits, which previously had been focused on the J-1 summer work travel category (due to reports such as that issued by the Southern Poverty Law), to the J-1 intern and trainee categories starting in February 2014.

Site visits enable DOS to gather additional information as to which training programs provide J-1 exchange visitors with actual training, as opposed to productive employment, which is not a purpose of the J-1 exchange program, and to verify that Host institutions are including the necessary cultural exchange component. Site visits can take the format of a voluntary “meet and greet” session and completion of questionnaires, to visits at the host institution training site without advance notice.

If interns/trainees or company representatives are being contacted by a DOS representative and would like to consult with a Jackson & Hertogs attorney regarding the site visit, please contact our office.


USCIS reaches FY 2015 H-1B cap

April 7, 2014

USCIS Release Date: April 07, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.


USCIS to accept H-1B petitions for Fiscal Year 2015 beginning April 1, 2014

March 25, 2014

Click here to read story on USCIS website

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2015 cap on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency is prepared to use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. For more information on premium processing for FY 2015 cap-subject petitions, see the USCIS Alert.

H-1B petitioners should follow all requirements to avoid processing delays and possible requests for evidence. USCIS has detailed information, including an optional checklist, to assist in completing and submitting an FY 2015 H-1B petition. The processing worksheet is available on the USCIS website, www.uscis.gov.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit the H-1B FY 2015 Cap Season Web page. Or call the National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TDD for the hearing impaired).

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube, Facebook, and the USCIS blog The Beacon.


USCIS to begin premium processing of H-1B cap-subject petitions by April 28, 2014

March 25, 2014

click here to read story on USCIS website

The filing period for H-1B petitions subject to the fiscal year (FY) 2015 numerical cap begins on April 1, 2014. USCIS will start premium processing of cap-subject H-1B petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher, no later than April 28. This date is based on past levels of premium processing requests and the possibility that the cap will be met in the first five business days of the filing season.

The annual cap is 65,000 H-1B visas, with an exemption for the first 20,000 petitions filed on behalf of those with a U.S. master’s degree or higher.

 

About Premium Processing

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

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, during the time period that premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin no  later than April 28, 2014.
This allows for USCIS to take-in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date that the request is received.


Lobby your U.S. representative for comprehensive immigration reform

March 19, 2014

Congress, or more specifically the House of Representatives, appears unwilling or unable to make the needed changes to our country’s antiquated immigration system. As we enter another season expecting the exhaustion of H-1B cap petitions to occur within the first 5 business days in April, immigration reform must remain a priority issue in Washington. We are urging our clients to be part of our efforts to help bring U.S. immigration policy forward to meet the current and future needs of U.S. businesses.

Comprehensive immigration reform has been among the stated priorities of Congress and of the Obama administration for years. However it has been delayed repeatedly due to political infighting. The House of Representatives rejected the Senate’s comprehensive bill, which was introduced in April 2013 and passed in June 2013. The House leadership is unwilling to move forward with its own comprehensive bill. Meanwhile, our immigration laws have continued to restrict U.S. employers to numeric caps on H-1B visas and immigrant visas (green cards) set over twenty years ago. Employers continue to contend with the anxiety that a valued candidate may not be able to join the organization, or may opt for other employment due to a delayed start date, or that a valued employee may have to be terminated, all because of the H-1B cap. In addition, some of you may have long-term employees who are increasingly unhappy with delays in immigrant visa processing, and who may consider other options outside the U.S. as a result.

Though Congress claims to be focused on “the economy,” a comprehensive reform of our immigration laws is essential to our economic recovery and vibrancy.  One of our attorneys, Atessa Chehrazi, will travel to Washington D.C. to meet with our elected representatives on April 10, 2014 as part of a “Lobby Day” contingent of the American Immigration Lawyers Association (AILA).

We would like you to be part of our lobby day campaign, and we will hand deliver your letters!  We have prepared the attached draft letter focused on the H-1B and immigrant visa shortages for your use. Please insert relevant information regarding your company, print the final letter on your letterhead, sign or arrange for signature, and forward us three final versions of the letter (preferably originals) addressed to your Senators and your Congressional representative for us to hand deliver to your elected representatives. Letters must be received at Jackson & Hertogs by Friday, April 5, 2014.

You can also contact your Congressional representative to ask him/her to stop stalling and move forward on immigration reform via this link.  While e-mails are helpful as well, we believe that original signed letters have a greater impact.  Also, while copies of the letter are also acceptable, original letters are preferable.  If time constraints require that you e-mail scans of the letter, please forward the letters to: achehrazi@jackson-hertogs.com.

Comprehensive immigration reform is a national priority, and we are happy to work with you in advocating immigration legislation that supports U.S. businesses.