Consular Issues

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Good news.  The Immigration Service (USCIS) announced that starting today, July 13, 2015, it will again accept premium processing requests (Form I-907 Requests for Premium Processing Service) for H-1B extension of stay petitions.

This is ahead of schedule because USCIS had estimated that H-1B extension of stay premium processing would be temporarily suspended until July 27, 2015, due to the need to devote resources to the processing of applications for H-4 work authorization (EADs for certain H-4 Dependent Spouses).

Beginning today, a newly filed H-1B extension of stay petition may again include a premium processing request, and a pending H-1B extension of stay petition may be “upgraded” with the filing of an appropriate I-907 Request for Premium Processing Service.

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

 

The Department of State (DOS) has issued an updated alert to report that 165 posts, representing more than 85% of the nonimmigrant visa demand worldwide, are now online and issuing visas.

On June 25, 2015, DOS updated their alert with the following language:

  • The Bureau of Consular Affairs reports that 165 posts, representing more than 85 percent of our nonimmigrant visa demand worldwide, are now online and issuing visas.
  • Posts overseas issued more than 82,000 visas on June 24.
  • Posts overseas have issued more than 238,000 non-immigrant visas this week. For context, if systems had been operating normally, posts would have issued approximately 540,000 visas since the outage started.
  • We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9.
  • We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9.
  • We deeply regret the inconvenience to travelers who are waiting for visas, as well as their families and U.S. businesses that have been affected.

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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.

Beginning June 9, 2015, U.S. Citizenship and Immigration Services (USCIS) began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters.   Currently, processing times for Forms I-130, I-131, and I-730 are available online.  According to USCIS, if the field office completed less than 10 cases of one of these form types during the reported period, the average processing time will not be displayed.

The processing timeframes displayed show the average length of time it took to complete cases during the period noted on each chart.  The information on this page will be updated around the 15th day of each quarter (January 15, April 15, July 15 and October 15) to reflect current processing times as of the previous six-month period. The processing time of any individual case may vary because of the complexity of the case or the need for the applicant to provide additional information.

Applicants and their attorneys now can easily access this information by visiting USCIS Processing Time Information for International Operations Offices webpage. USCIS intends for availability of this information to aid in managing customer expectations and reduce phone and email inquiries regarding processing times.

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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.

The US Department of State (State Department or DOS) computer systems are not expected to be online again before next week after experiencing “technological systems issues” (a hardware failure) on June 9th. This information came from the State Department yesterday, June 17th, in an update following their initial announcement regarding the problem last Friday, June 12, 2015.

This has caused DOS’s Bureau of Consular Affairs to experience issues affecting overseas passport and visa systems.  This systems issue is without restriction to particular countries, documents or visa types.  Indeed, the effect seems to reach everyone from the nonimmigrant visa applicant, to the US citizen in need of a passport abroad.

Assistance from the State Department is available to nonimmigrant visa applicants who need to travel for urgent humanitarian reasons and DOS has indicated that it is always able to issue an emergency passport to a US citizen who is overseas and has an urgent need to travel.

Yet, one should be prepared that visa appointments and issuance of some visas will be delayed.  A June 15th update from the State Department said that some visa applicants will “be contacted directly to reschedule their appointments”.

Affected parties will want to seek the guidance of immigration counsel to assess potential impacts on employment start dates and such questions as whether in-country processing is available and should be used for a change or extension of nonimmigrant status instead of processing abroad, among other possible issues.

DOS stated that the “failure is preventing the Department from processing and transmitting biometric data checks at visa-issuing embassies and consulates.”  This affects the Department’s ability to meet its legal  requirements to screen  visa applicants before issuing visas for travel.  The State Department offered its apologies to those affected and indicated that it has more than 100 private and public sector computer experts working “around the clock” to resolve the problems as quickly as possible while of course keeping in mind its responsibility to screen visa applicants as part of its critical border security responsibilities.

DOS stated that it will continue to provide regular updates on their website, travel.state.gov.

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

 

The State Department continues to report that “technical problems” with overseas systems preventing the Bureau of Consular Affairs from issuing visas, passports and other travel documents, since last week.

Most U.S. Consulates and Embassies websites contain this (or similar posting):

“The Department of State’s Bureau of Consular Affairs is currently experiencing technical problems with our visa systems. This issue is not specific to any particular country, citizenship document, or visa category. We apologize for the inconvenience and are working urgently to correct the problem and restore full operability. As soon as the situation is resolved, we will update this message.

If you are applying for a nonimmigrant visa and you signed and submitted the nonimmigrant visa application form DS-160 on or after June 9, 2015 we will not be able to process your application. We recommend, therefore, that you continue to monitor this message for updates and only attend the appointment if the situation has been resolved.”   [The Embassy of the United States, London, U.K.]

The State Department has confirmed that the problem is global (not specific to any particular country or visa category) and that it does not believe these problems stem from cyber-security hacking issues. It could not, however, confirm when the system will be back online, other than to advise that “we do not expect the system will be online before next week.”

The State Department advised that issues with the Consular Consolidated Database are affecting passport applications that have been accepted overseas on or after May 26, complicated by a hardware failure that occurred on June 9, preventing biometric clearance requests from posts to the database.  This is preventing Consular Posts from being able to print most nonimmigrant visa applications approved after June 8, 2015 or process new applications submitted on or after June 9.

“The systems in place to perform required national security checks before we issue visas are experiencing technical difficulties,” the notice said. “As a result, we are unable to print visas, regular passports overseas, and other travel documents.”

The State Department indicated that it is working quickly to process the visa backlog and the technical problems have also “disrupted or prevented” data sharing partners from accessing visa records.

Individuals who completed and submitted Form DS-160 on or after June 9, 2015, are advised to monitor the consular post’s website to confirm whether the situation has been resolved prior to attending any scheduled appointment. Nonimmigrant visa applicants who submitted their DS-160 online application prior to June 9, 2015, should plan to attend their scheduled appointment.

Domestic passport operations are not affected.

The State Department added that the current problems are not the same issues that affected the database nearly a year ago. Clearly the current outage is not as sever at last year’s crash since U.S. passports are continuing to be issued (last year, passports were impacted also). See my prior post about the June 2014 outage here. https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/need-a-u-s-visa-or-passport-prepare-to-wait-dos-passport-and-visa-issuance-database-crash-has-worldwide-impact/.  Let’s hope this is not the beginning of a (not-so-great) June tradition.

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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.

 

 

The US Citizenship and Immigration Service (USCIS) has updated its May 19, 2015 alert announcing temporary suspension of premium processing for certain H-1B petitions.  http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Here are the highlights:

  • May 26, 2015 – July 27, 2015*:  Premium processing is suspended for all H-1B extension of stay petitions with extremely limited exceptions for cases meeting the narrow expedite criteria.  See USCIS Expedite Criteria webpage.
  • During this suspension period, premium processing will still be honored for:
    • H-1B extension of stay petitions requesting premium processing prior to May 26, 2015 (but be aware that the announcement states:  “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.”)
    • Change of status H-1B petitions
    • Consular notification H-1B petitions
    • Consular notification H-1B petitions for those who have H-1B status
    • H-1B amendment petitions that do not also request an extension of stay
    • H-1B1 petitions (under the US-Chile and US-Singapore Free-Trade Agreements).

The temporary suspension is intended to enable USCIS to timely implement the Employment Authorization for Certain H-4 Spouses final rule, which became effective on May 26, 2015, and is anticipated to result in “an extremely high volume of Form I-765 applications”.

*USCIS has indicated that it will monitor workloads and if feasible, resume premium processing for H-1B extension petitions prior to July 27, 2015.

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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.

You’ve likely been flooded with information regarding H-1B season from multiple sources.  Yesterday, the US Citizenship and Immigration Service (USCIS) issued its own information(http://www.uscis.gov/news/uscis-will-accept-h-1b-petitions-fiscal-year-2016-beginning-april-1-2015) regarding Fiscal Year 2016 (FY 2016) H-1B petitions.

Here is a summary:

  • USCIS will accept cap-subject FY 2016 H-1B petitions beginning April 1, 2015.
  • The FY 2016 H-1B cap remains at 65,000. The first 20,000 cap-subject H-1B petitions for those with a US master or higher degree do not count toward the 65,000 cap.
  • USCIS anticipates receiving more than 65,000 cap-subject H-1B petitions during the first 5 business days of April 2015. If this happens, USCIS will again use a lottery to randomly select sufficient petitions to meet the cap.
  • USCIS will issue a notice to the public when the FY 2016 H-1B cap has been met.
  • Unselected cap-subject petitions and petitions received after the cap has closed will be rejected.
  • Cases will be deemed accepted on the date when USCIS “takes possession of a properly filed petition with the correct fee.”
  • Petitioners are reminded to follow regulatory requirements, which should help with avoiding delays and requests for evidence (RFEs).
  • Due to the anticipated high volume of FY 2016 cap-subject H-1B petitions and to allow time to prioritize data entry, the 15-day premium processing clock will not begin on receipt of a petition. Instead, USCIS states that for FY 2016 cap-subject H-1B petitions, premium processing will begin no later than May 11, 2015.
  • USCIS will provide” H-1B Cap Season email updates” for which you can subscribe on the H-1B 2016 Cap Season Web Page, which can be found at http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season.

Happy H-1B season.

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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.

National Visa Center (NVC) was previously the domestic point of contact for all immigrant (i.e. permanent residence or ‘green card’) visa cases being processed through a U.S. Embassy or Consulate outside of the United States.  Beginning on Monday, January 12, 2015, the NVC is also the point of contact for all domestic inquiries regarding nonimmigrant visa cases as well.

The Visa Office reports that it choose to designate the NVC as the single point of contact for all visa matters at Consular Posts worldwide in order to improve the efficiency and consistency of responses to the public,

Consular posts will still accept inquires on individual visa cases and Legalnet will remain active and respond to inquiries from attorneys seeking advisory opinions on the interpretation or application of U.S. Immigration Law.

The general public may contact NVC by email at AskNVC@state.gov. Please note NVC will only answer the routine questions about case status and provide general information about the visa process.

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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.

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”, reflecting his analysis of current trends and future projections for the various immigrant preference categories.

When Might We Expect to Learn More About EB-5 China Movement?

Charlie is confident that a cut-off date will be established for EB-5 China and it is just a matter of when it will occur. He is in constant dialogue with USCIS’ EB-5 office and Guangzhou and hopes to have enough information to be able to estimate when the cut-off is most likely to occur by the beginning of February. If so, expect more information in the March Visa Bulletin, which will be published in the second week of February 2015.

EB-2/EB-3 China Priority Dates and EB-3 Downgrades.

The China EB-2 cut-off date moved from January 1, 2010 in the December Visa Bulletin to February 1, 2010 in the January Visa Bulletin. The China EB-3 cut-off date advanced much more dramatically from June 1, 2010 in December to March 1, 2011 in January, but is advancing more slowly than it had in late 2013 and early 2014. The Visa Office expects China EB-3 to continue to advance, until demand begins to increase significantly.

With the EB-3 China cut-off date for January 13 months later than the EB-2 China cut-off date, the Visa Office expects a surge in demand for China EB-3 over the coming months due to EB-2 China beneficiaries filing EB-3 “downgrade” petitions with USCIS. This expected surge in EB-3 demand will ultimately slow advancement, and will most likely result in the retrogression of the China EB-3 cut-off date at some point. Keep in mind that the Visa Office has no visibility to downgrades until such time as USCIS requests a visa number.  These are categories to continue to watch closely.

Will Executive Action Have Any Impact on Priority Dates?

It is not anticipated that the executive action recently announced by the Obama Administration will impact cut-off date movement.  The announcement outlined broad plans for preregistration of adjustment of status applications for individuals whose priority dates are not current.  As this would be limited to USCIS filings and would not render these individuals eligible for an immediate visa number, it would not impact priority dates.  The Visa Office is nevertheless in communication with USCIS regarding the administrative impact of these filings on USCIS workflows and on the system USCIS and DOS have for maintaining the pending demand file.

Executive action promises increased coordination between USCIS and DOS.  Interagency cooperation has been occurring for some time and the Visa Office looks forward to any initiatives which would further enhance information sharing between the agencies.

EB-2 India

The EB-2 India cut-off date has remained steady at February 15, 2005 since November 2014.  Historically, there has been no movement of EB-2 India prior to the summer when information about unused visa numbers from other categories can be more accurately predicted.  The Visa Office is considering whether to begin advancing this category earlier this fiscal year than it has previously done. One of the challenges in doing so is that the resulting increase in number use could ultimately reduce the cut-off date movement that normally occurs during the final quarter of the fiscal year.

Waiting List Report:

The January 2015 Visa Bulletin (http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html) includes in Section D, an “Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2014.”  This report lists the total number of applicants registered at the National Visa Center in the various numerically-limited immigrant visa categories.  AILA received the following question from a member in response to this report:

Question:

Is there any way that the Visa Office could show how many of the applicants have priority dates in the next 6 months, next year, and next 18 months? The raw numbers do not give much help in telling a client there are “x” number of applicants ahead of your priority date.

Visa Office response:

We understand the member’s desire to know how many applicants have priority dates within the next 6, 12 and 18 months.  The Visa Office does not provide this information primarily because doing so would not be as instructive as one might think in predicting when an individual’s priority date will become current.  There are several reasons for this.

It is important to keep in mind that visa demand is constantly changing and the data in such a report would only represent a portion of the possible visa demand.  Specifically, it would not include data on the many cases pending at USCIS. The USCIS numbers represent the vast majority of the demand in the employment-based categories.  Additionally, knowing the number of cases with certain priority dates within a particular IV category could be misleading, since this is only one of several variables which are taken into consideration when determining the monthly cut-off dates.

It is also worth noting that the demand included in such a report would not reflect the number of cases NVC has on file in the family-based categories that could potentially pursue their cases.  For example, at this time, approximately 60% of F-2B applicants never responded to the agent of choice letters sent by the NVC during the period March 2013 through April 2014.  There is no way to know whether these individuals adjusted status through USCIS, whether they did not proceed due to ineligibility, whether they are no longer entitled to status, or whether they are putting off responding for some other reason.

One reason applicants may not respond to an agent of choice letter is that they may not want to pay the fee until their priority date becomes current.  While this is understandable, it can be counterproductive.  When an applicant pays the fee promptly upon receipt of the agent of choice letter, the case is either complete, or there is time to obtain any necessary documents to complete the file so that the case is ready for interview and approval as soon as the priority date becomes current.  When an applicant waits for the priority date to become current before paying the fee, an unanticipated surge in demand could result in the retrogression of the relevant category before the applicant had the opportunity to be interviewed and approved.  Therefore, it is preferable that applicants pay the fee immediately upon receipt of the agent of choice letter and promptly provide any requested documents as soon as possible.  Doing so provides greater visibility of demand, which in turn reduces the potential for erratic movement of the cut-off dates.

Coming Attractions…

Every few months the Visa Office updates its predictions for visa availability in the coming months, as it last did in November.  Expect to see updated predictions in the February 2015 Visa Bulletin.

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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.

The US Government recently streamlined procedures for E visa applications, allowing easier and quicker cross-border travel to the US from Canada.  Applicants applying to renew their E visas may now submit minimal supporting documentation to the consulate, whereas, previously, the consulate required in depth evidence and material prior to setting up a visa appointment.  You can find more information on the U.S. Consulate in Toronto’s E visa processing revised instructions here.

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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.