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Immigration View

Navigating Complex U.S. Immigration Laws

CIS to Temporarily Suspend Premium Processing for H-1B Extension Petitions from 5/26/15 – 7/27/15

Posted in General Immigration News and Updates, H-1B Temporary Workers

Today USCIS announced that starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

USCIS will refund the premium processing fee if:

  • A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
  • USCIS did not act on the case within the 15-calendar-day period.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

Premium processing remains available for all other Form I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Unexpected surge in EB-2 demand will negatively impact EB-2 India – Visa Office on Priority Dates, Demand, and Predictions

Posted in General Immigration News and Updates, Immigrant Visas, PERM Labor Certification, Permanent Residence, Priority Dates

Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (May 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

Worldwide EB-2. The demand in this category has exploded, far exceeding the historical pattern of the previous five months. There was an 80% increase in demand from February to March, and demand increased more than 100% in April as compared to February. The Visa Office had no advance notice that this demand would materialize, or whether it will be sustained. Despite this unanticipated surge in worldwide EB-2 demand, it is expected that this category will remain current.

While the increase in demand will not impact worldwide EB-2 applications, it will negatively impact EB-2 India in that fewer unused worldwide numbers are likely to be available for EB-2 India. Earlier in the year, Charlie expected that he would be able to advance EB-2 India to July or August 2009 by the end of the fiscal year. That may not be possible now, given the uptick in worldwide usage.

EB-2 and EB-3 China. Demand in EB-2 China has been low and may result in numbers falling down to EB-3 China. In recent months, the China EB-2 cut-off date has been advanced by almost three years. It is hoped that this will spur demand, although it is unclear whether cases can be processed by the end of the fiscal year. Earlier when the cut-off date for China EB-3 was advanced due to insufficient number use, it prompted EB-2s to downgrade to EB-3. Charlie has no visibility as to upgrades or downgrades as no data is available until final action occurs. He continues to watch EB-2 and EB-3 demand very closely.

EB-5 China. The cut-off date of May 1, 2013 that was imposed last month will remain for June. Charlie continues to watch demand for EB-5 China and has no additional predictions for the category at this time. Applicants continue to become documentarily qualified and the level of demand in May was within his targeted projections for June number use. There is huge demand in terms of petitions pending final action at USCIS as well as approved petitions which are already at the NVC. It must be remembered that not all cases with a priority date earlier than May 1, 2013 have been processed to conclusion.

Philippines EB-3 and “Other Worker” Categories. Heavy demand in these categories persists and further corrective action may be necessary before the end of the fiscal year. Like the dramatic increase in worldwide EB-2 demand, the use of more than 2,000 numbers during a two month period was totally unexpected based on USCIS demand from the past year.

Mexico FB-4. This category had a larger number of applicants with early priority dates who were documentarily qualified which prompted Charlie to retrogress this category slightly to March 1, 1997.

Questions and Answers:

QUESTION: What are your thoughts about the interplay between priority date movement and the validity of medical examinations? In categories that tend to advance and retrogress with some frequency (i.e., EB-2 India), it appears that when the cut-off dates are advanced, it takes USCIS 2 to 3 months to get to a particular case, then it issues an RFE for a new medical examination, then the dates retrogress.

ANSWER: The Visa Office is aware that medical exams have limited validity and U.S. Citizenship and Immigration Services (USCIS) shares information regarding the number of pending EB-2 India adjustment of status applications.

Number use during the first six months of the last fiscal year suggested that a significant number of “otherwise” unused EB-1 and EB-2 numbers would be provided to EB-2 India. Therefore, best and worst case scenarios were provided to USCIS regarding the cut-off which might be achieved for FY2014, and USCIS used that information in deciding whether to issue RFEs. The EB-2 India cut-off date advanced very rapidly from July through September, reaching May 1, 2009. Although the worst case scenario cut-off date was surpassed, subsequent increases in EB-1 and EB-2 number use during the summer months did not allow the best case scenario to be achieved. Much of that increase was the result of EB-3 India cases being upgraded to EB-2. The Visa Office has no information regarding the demand that may result from such upgrades until that change is actually reported by USCIS.

The May 1, 2009 cut-off date was held for October, the first month of the new fiscal year, in an attempt to allow final action to occur on cases which had become eligible for processing during the summer months. It was then necessary to retrogress the cut-off date for November in order to limit number use under the FY2015 limits. After discussing the issue with USCIS, the Visa Office decided to begin advancing the cut-off date for EB-2 India much earlier in the fiscal year than in previous years. The hope was that this would provide sufficient time for I-485s that were filed last year to be processed to conclusion prior to the expiration of the medical exams, and provide additional time for those who would be filing this year.

One by-product of the earlier rapid movement of EB-2 India was that the surge in EB-3 to EB-2 upgrades began much earlier than in years past. The Visa Office could not predict volume of demand for upgrades, or the rate at which the increase in demand would be realized. The amount of demand, combined with a staggering increase in overall EB-2 number use during the past two months, will likely slow the advancement of EB-2 India through the rest of the fiscal year. If the March/April demand turns out to be a temporary aberration and demand returns to that which we experienced from October to February, movement of the EB-2 India cut-off date could be more favorable.

QUESTION: What can we expect in the coming months for FB-2A for “All Chargeability Areas?”

ANSWER: The worldwide FB-2A category is expected to continue to advance slowly. It has been advancing a little faster to maximize number use during the first three quarters of the fiscal year. There may be a slight slow-down as we move into the final quarter.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Advancement in EB-2 and EB-3 dates for China and India – June 2015 Visa Bulletin

Posted in General Immigration News and Updates, Immigrant Visas, PERM Labor Certification, Permanent Residence

According to the recently released Department of State (DOS) Visa Bulletin which includes priority date processing information for the month of June 2015, there has been forward movement in both employment-based and family-based categories (for a change).

Although the cut-off date for EB-5 China remained at May 1, 2013, EB-2 China saw significant progress, moving from June 1, 2012 to June 1, 2013 and EB-3 China moved from MAY 1, 2011 to September 1, 2011.  EB-2 India saw some advancement moving from April15, 2008 to October 1, 2008 while EB-3 India moved slightly from January 15, 2004 to January 22, 2004.

In addition, the Kentucky Consular Center (KCC) has registered and notified the winners of the diversity visa lottery (DV-2016).  The Visa Bulletin also includes a statistical breakdown, by country, of the number applicants for the DV-2016 program.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Politics and the non-citizen: do discuss, but do NOT vote

Posted in General Immigration News and Updates

In Pennsylvania, primary elections for Municipal offices will be held in a few days, May 19th to be exact.  Yard signs and TV ads are everywhere. The election for President of the United States is more than a year away, voting day is November 8, 2016, to be exact.  That’s a long time from now, but the campaigns have already begun.  Candidates have announced and the media is full of Hillary this, Cruz that and Jeb the other thing.  Each of the announced candidates and more of the wannabes have issued a pronouncement on Immigration reform.  There will be exciting national discussions in which most people will want to participate, including non-citizens.  Non-citizens may discuss, but not vote.

 In a decision issued May 7th, the Board of Immigration Appeals (BIA) made that point painfully clear.  In Matter of Fitzpatrick (26 I&N Dec 559), the BIA upheld the removal of Ms. Fitzpatrick, a permanent resident of the U.S., for voting in the general election in Illinois in 2006.  Ms Fitzpatrick was applying for naturalization. She truthfully answered the question on the N-400 that she had voted.  She had registered to vote in conjunction with securing an Illinois driver’s license and did vote.    

 The BIA found that her intent didn’t matter. The DHS didn’t need to prove that she knew that she was committing an unlawful act  by voting in the election as the relevant Federal statute contains no specific intent requirement. 

 At election time, there is excitement and a push to register people to vote.  For the non-citizen, getting excited is fine, but voting can be fatal to a non-citizen’s status in the U.S.   

 

FY 2016 H-1B Cap: Receipt Notices and Returned Petitions

Posted in General Immigration News and Updates, H-1B Temporary Workers, Startup Companies

Receipt or return.  The US Citizenship and Immigration Service (USCIS) has indicated that it will now begin returning FY 2016 H-1B cap-subject petitions that were not chosen in the FY 2016 H-1B Lottery (computer-generated random selection process). 

Receipts for H-1B petitions selected for processing have been issued over the past week or so.   In this context a receipt, or I-797 Notice of Action which acknowledges the Immigration Service’s receipt of a petition, indicates that the petition was selected in the FY 2016 H-1B Lottery. 

It’s not clear whether additional receipt notices will still be issued, but hope seems to be diminishing.  Of course, not all cases that were lucky enough to be selected in the lottery will necessarily be approved, so arguably it is still possible that a few more cases may be receipted for processing.

Due to the very high number of filings, a time-frame for the return of the petitions was not provided.  Presumably, petitioners will soon receive returned H-1B petitions that were not selected in the lottery, or perhaps receipt notices (maybe a few more will be issued?!).  The wait may soon be over. 

USCIS requests patience (i.e., restraint from calling to check the status) as they focus their resources on the enormous number of H-1B petitions that reached them.

The Immigration Service indicated that it will make an announcement when all unselected petitions have been returned.

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Ms. Wadhwani is a Partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com

 

FY 2016 H-1B Cap: What are the Odds?

Posted in General Immigration News and Updates, H-1B Temporary Workers, Startup Companies

Last year at about this time, I published a blog post captioned, “FY 2015 H-1B Cap:  What are the Odds?” (http://immigrationview.foxrothschild.com/h-1b-temporary-workers/fy-2015-h-1b-cap-what-are-the-odds/).  According to my very basic calculations, I estimated that the odds of receiving one of the limited FY 2015 H-1B numbers was about 43% under the regular cap, with slightly better chances for those with a Master’s or higher degree.  Overall, if you didn’t deducted the 20,000 advanced degree petitions from the total, chances were about 50/50.

For FY 2016, the odds are worse.  This of course is due to an increased demand on the part of US employers.  Indeed, the US Citizenship and Immigration Service (USCIS) announced that it received “nearly 233,000 H-1B petitions” toward the FY 2016 cap.  That is 60,500 more than last year, and more than enough to fill an entire year’s regular (non-advanced degree) cap if you deduct the numbers set aside for Chile and Singapore.

Simple math shows that the overall odds of receiving a number in the FY 2016 H-1B cap are about 34%.  If you deduct the 20,000 advanced degree “winners” from the total 233,000 petitions, and re-calculate, the odds decrease to 27% for the remaining petitions which include both the unselected advanced degree petitions and the regular cap petitions.

USCIS completed its computer-generated random selection process (i.e., lottery) on April 13th.  The I-797 receipt notices are beginning to arrive.  Petitioning employers and potential H-1B workers anxiously await news of their fate.  That may sound dramatic, but the reality is that of the approximately 233,000 H-1B cap-subject petitions filed for FY 2016, about 154,800 petitions will be rejected and returned.  This is dramatic for the H-1B petitioning employers and prospective employees who are not winners in the lottery even though they presumably filed meritorious petitions.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.

H-1B Cap Premium Processing Clock Will Start on April 27, 2015

Posted in General Immigration News and Updates, H-1B Temporary Workers, Non-Immigrant Visas (other than Es, Ls and H-1B)

The U.S. Citizenship and Immigration Services (USCIS) confirmed yesterday, April 14, 2015, that it will officially begin premium processing for H-1B cap cases on April 27, 2015.  Normally, USCIS guarantees a 15 calendar-day processing time from the date of receipt, however, due to the historic premium processing receipt level combined with the high volume of H-1B cap petitions received in the filing season, USCIS has temporarily adjusted its premium processing practice.  For H-1B cap cases, including the regular cap petitions and advanced degree exempt petitions, the premium processing clock will start on April 27, 2015 regardless of the date of receipt.  For those cases that are not subject to the H-1B cap, the premium process clock will begin from the date of receipt, in accordance with USCIS’ normal procedures.

USCIS received 233,000 H-1B Cap Subject Petitions; Random Selection/Lottery Complete

Posted in General Immigration News and Updates, H-1B Temporary Workers

USCIS has announced that it received a record-breaking 233,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 13, 2014, USCIS completed its computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. See USCIS’ Announcement here.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

USCIS will begin the process of issuing receipt notices for those petitions accepted for processing and returning the complete filings of those petitions rejected/not selected. Until the receipt notice or rejection package received by the attorney or petitioning employer, it is not possible to know whether any particular application has, in fact, been accepted for processing.  Given the volume of cases USCIS has to process, it is reasonable to expect that it will take at least several weeks to be fully completed/all packages or receipts to arrive at their destinations.

As previously announced by USCIS, it will begin the premium processing for H-1B cap cases no later than May 11, 2015. Employers and attorneys will still have to wait for some time before knowing if any particular case has been selected for processing.

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 also not be counted towards the congressionally mandated FY 2016 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.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Employers Must Review Originals: I-9 Compliance

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates

We tend to refer to the I-9 as the most complicated government issued 2-page form.  Employers often have good intentions when onboarding new employees and engaging in the I-9 process, but as a recent decision demonstrates, that’s not always enough to protect against penalties.

We often receive a particular question about how to complete the Form I-9 for employees working in remote locations.  Specifically, situations where there may be only one or two employees working in a certain geographical territory, and the company’s headquarters/HR department is stationed somewhere hundreds or thousands of miles away. “How do I verify their I-9 documents within 3-days of employment…can they fax me a copy?”  As we have been advising, and as a recent situation confirms, reviewing photocopies, or anything less than the actual original document, is NOT the answer.

U.S. v. Employer Solutions Staffing Group II, LLC involved a situation where ICE alleged that the employer failed to ensure that 242 employees properly completed section 1 of the I-9 and/or that the employer itself failed to properly complete sections 2 or 3 of their forms.

Section 2 of the I-9 form contains an attestation section stating, I attest under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and relate to the employee named, that the employee began employment on _______ and that to the best of my knowledge the employee is authorized to work in the United States.

Instead, however, the entity signing the attestation section was only reviewing photocopies of the documents, because the employees were located over 1,000 miles away.   ICE argued that nothing in the statute or regulations proves a basis for examining copies in lieu of original documents, and that 8 C.F.R. § 274a.2(b)(1)(v) (emphasis added) expressly provides that “[t]he individual may present either an original document which establishes both employment authorization and identity, or an original document which establishes employment authorization and a separate original document which establishes identity.”

So, this confirms it and eviscerates any doubt that reviewing photocopies, faxed copies, or anything BUT originals, is not acceptable.  Employer should carefully review their onboarding policies with respect to I-9s to ensure compliance with this recent decision and the regulations.

FY 2016 H-1B Cap Reached as of April 7, 2015

Posted in General Immigration News and Updates, H-1B Temporary Workers, Startup Companies

The H-1B cap for Fiscal Year 2016 (FY 2016) has been reached.  The US Citizenship and Immigration Service (USCIS) made the announcement today.  (http://www.uscis.gov/news/news-releases/uscis-reaches-fy-2016-h-1b-cap)

  • After initial intake, at a date which is to be determined, USCIS will first “randomly select petitions for the advanced degree exemption” of 20,000.
  • Advanced-degree exemption petitions not selected within the 20,000 limit will be added to the selection process for the 65,000 general H-1B petition limit for the fiscal year.
  • USCIS will “reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings”.

Of course, cap-exempt H-1B petitions may continue to be filed as usual.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.