PERM Labor Certification

On November 18, 2016, US Department of Homeland Security (DHS) published a final rule to “improve aspects of certain employment-based nonimmigrant and immigrant visa programs.” This final rule also “amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” The final rule will take effect on January 17, 2017. We will provide more in depth analysis and information in future posts and today we’ll provide an overview of this comprehensive rule.

First, the final rule clarifies and improve policies and practices related to the following areas:

  • H-1B extensions of stay under AC21. The final rule addresses the ability of H-1B nonimmigrant workers who are being sponsored for LPR status (and their dependents in H-4 nonimmigrant status) to extend their nonimmigrant stay beyond the otherwise applicable 6-year limit pursuant to AC21.
  • INA 204(j) portability. The final rule addresses the ability of certain workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved Form I-140 petitions filed on their behalf.
  • H-1B portability. The final rule addresses the ability of H-1B nonimmigrant workers to change jobs or employers, including: (1) Beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment (“H-1B portability petition”); and (2) allowing H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) and clarifying how these petitions affect lawful status and work authorization.
  • Counting against the H-1B annual cap. The final rule clarifies the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including: (1) The method for calculating when these workers may access so-called remainder time (i.e., time when they were physically outside the United States), thus allowing them to use their full period of H-1B admission; and (2) the method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap.
  • H-1B cap exemptions. The final rule clarifies and improves the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term “related or affiliated nonprofit entity.”
  • Protections for H-1B whistleblowers. The final rule addresses the ability of H-1B nonimmigrant workers who are disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
  • Form I-140 petition validity. The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid, even after the petitioner withdraws the petition or the petitioner’s business terminates, including for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA), 8 U.S.C. 1154(j).

Second, the final rule made the changes consistent with the goals of AC 21 and ACWIA to further provide stability and flexibility in certain immigrant visa and nonimmigrant visa categories in the following areas:

  • Establishment of priority dates. To enhance clarity for the regulated community, the final rule provides that a priority date is generally established based upon the filing of certain applications or petitions. The new regulatory language is consistent with existing DHS practice in establishing priority dates for other Form I-140 petitions that do not require permanent labor certifications (labor certifications)—such as petitions filed under the employment-based first preference immigrant visa (EB-1) category.
  • Retention of priority dates. To enhance job portability for workers with approved Form I-140 petitions, the final rule explains the circumstances under which workers may retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This provision improves the ability of certain workers to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
  • Retention of employment-based immigrant visa petitions. To enhance job portability for certain workers with approved Form I-140 petitions in the EB-1, second preference (EB-2), and third preference (EB-3) categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
  • Eligibility for employment authorization in compelling circumstances. To enhance stability and job flexibility for certain high-skilled nonimmigrant workers in the United States with approved Form I-140 petitions who cannot obtain an immigrant visa due to statutory limits on the number of immigrant visas that may be issued, the final rule allows certain beneficiaries in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization if: 1) They are the principal beneficiaries of an approved Form I-140 petition; 2) An immigration visa is not authorized for issuance for their priority date and; 3) they can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. This employment authorization may only be renewed in limited circumstances and only in one year increments.
  • 10-day nonimmigrant grace periods. To promote stability and flexibility for certain high-skilled nonimmigrant workers, the final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications.
    • The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country.
    • The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • 60-day nonimmigrant grace periods. To further enhance job portability, the final rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
  • H-1B licensing. To provide clarity and certainty to the regulated community, the final regulations codify current DHS policy regarding exceptions to the requirement that makes the approval of an H-1B petition contingent upon the beneficiary’s licensure where licensure is required to fully perform the duties of the relevant specialty occupation. The final rule generally allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The final rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.

Last, this final rule also automatically extends the employment authorization and validity of existing employment authorization documents (EADs) issued to certain employment-eligible individuals for up to 180 days from the date of expiration, as long as: (1) A renewal application is filed based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2) the renewal application is timely filed prior to the expiration of the EAD (or, in accordance with an applicable Federal Register notice regarding procedures for renewing TPS-related employment documentation) and remains pending; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization. Additionally, DHS eliminates the regulatory provisions that require adjudication of the Application for Employment Authorization (Form I-765 or EAD application) within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the 90-day timeframe. These changes provide enhanced stability and certainty to employment-authorized individuals and their employers while reducing opportunities for fraud and protecting the security related processes undertaken for each EAD application.

A copy of the final rule can be found here.

___________________________

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.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (September 12, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories for the beginning of the next fiscal year (October 2016) and beyond.

Check-in with DOS’s Charlie Oppenheim: September 12, 2016

EB-4 and Certain Religious Worker (SR) Preference Categories. As predicted last month, the final action dates for EB-4 India and EB-4 Mexico will be current again in October and the priority dates for EB-4 El Salvador/Guatemala/Honduras will advance to June 15, 2015. While Charlie considered establishing a separate final action date for Guatemala and Honduras due to the higher demand for numbers from El Salvador, all three countries are expected to exceed the per country limitation and rely on the availability of “otherwise unused” EB-4 numbers. Thus, Charlie confirmed that the three countries will continue to be reported together throughout FY 2017.

It is expected that EB-4 India and EB-4 Mexico will remain current for the foreseeable future, until at least late spring, early summer 2017. EB-4 El Salvador/Guatemala/Honduras is expected to advance modestly, by no more than two months at a time in a best case scenario. Charlie notes that there is likely more demand in this category at USCIS to which he does not yet have visibility, so his predictions may change depending on the rate at which such demand begins to materialize.

EB-4 religious workers will be unavailable in October, pending congressional action to reauthorize the program beyond September 30, 2016. Should that occur, El Salvador/Guatemala/Honduras would be subject to a June 15, 2015 final action date, and all other countries would be current.

EB-1 China and India. In October, the EB-1 final action date for all countries will return to current. Due to the brief imposition of a final action date in India and China at the end of FY 2016, there will be high usage in these categories in October. EB-1 India and China can be expected to remain current for the foreseeable future. Charlie will continue monitor this category closely during the second half of the fiscal year if demand remains high.

EB-2 and EB-3. As predicted, EB-2 Worldwide will again be current in October and ahead of EB-3 Worldwide which will have a final action date of June 1, 2016. As there is pent up demand in EB-2 Worldwide due to the retrogression, visa usage in this category will be high in October. Charlie will monitor this category closely during the final quarter of the fiscal year.

Consistent with Charlie’s predictions, in October, EB-2 China will have a final action date of February 15, 2012, almost one year behind EB-3 China’s final action date of January 23, 2013. Thus, the EB-3 downgrade phenomenon should once again be expected for FY2017. Charlie did not advance either of these final action date to the full number use target given the likelihood of demand at USCIS that is not yet visible and to minimize the need for corrective action later in the fiscal year. Charlie hopes to keep the final action dates for EB-2 and EB-3 China as close to one another as possible.

Also consistent with Charlie’s predictions, the final action date for EB-2 India will advance to January 15, 2007 in October. Charlie expects this category will advance at a pace of up to four months at a time. Slower movements of up to a week at a time are anticipated for EB-3 India, which will advance to a March 1, 2005 final action date in October. Number usage for EB-3 India is expected to be high in October, which will decrease the amount of numbers Charlie can allocate in November and December and slow the advancement of this category.

The EB-3 Philippines final action date will be December 1, 2010 in October. Charlie expects this category to initially move up to three weeks per month. He hopes that the final action date will move through 2011 as soon as possible and that it will be well into 2013 by the end of the fiscal year.

EB-5 China. EB-5 China non-regional centers will have a final action date of February 22, 2015 in October. EB-5 China regional centers will be “unavailable” in October pending Congressional reauthorization of the program beyond September 30, 2016. Should this category be reauthorized, the final action date will be set at February 22, 2014. So as not to completely halt visa processing in October, DOS has set tentative Immigrant Visa appointments for the second half of October, which will be remain scheduled in the event that Congress reauthorizes the program.

Family-Based Projections. In October, the final action date for F-2A will be December 22, 2014 for all countries except F-2A Mexico, which will be December 1, 2014. As has been the case during FY 2016, F-2A Mexico is expected to lag behind the rest of the world by about 3 weeks for the rest of the fiscal year. China and India’s final action dates track those for the rest of world in all family-based categories with the exception of F-4. Charlie expects F-4 China to catch up to the final action date for F-4 Worldwide within three to four months. The F-4 India final action date will advance into 2013 for November, but unlike F-4 China, will remain behind F-4 Worldwide for the foreseeable future.

Application Filing Dates. Given higher levels of demand in relation to the expected availability of numbers during FY 2017, the Application Filing Dates in several categories, such as EB-5 China and EB-2 India, have retrogressed. Applicants are reminded to refer to USCIS’s website as to whether it will honor the Application Filing Dates for I-485 applications.

You may access the October 2016 Visa Bulletin here and the September 2016 Visa Bulletin 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.

 

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (August 12, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories through the remainder of this fiscal year (September 2016) and the beginning of the next (October 2016).                                                                                                           

Check-in with DOS’s Charlie Oppenheim: August 12, 2016

EB-2 and EB-3. Presently, the EB-2 Worldwide final action date lags behind EB-3 Worldwide, but this should not create the same EB-3 downgrade phenomenon we have witnessed in recent years in the China EB categories. According to Charlie, members should expect EB-2 Worldwide to become current again in October. Despite the uncharacteristically low demand in EB-3 Worldwide, members should not expect it to become current. Charlie is concerned that there is demand in this category that has not yet materialized.

As predicted last month, the final action date for EB-2 China and EB-3 China will remain the same through the remainder of this fiscal year. In October, EB-2 China is expected to advance to a date in late 2011 or early 2012. EB-3 China’s final action date is expected to reach late 2012 or early 2013. Therefore, it is likely that we will once again see the EB-3 downgrade phenomenon next fiscal year, at least until the increase in EB-3 China demand generated by the downgrades levels out demand between the two categories.

In October, EB-2 India will likely move to a date in early 2007. Slow movements of a few weeks at a time are anticipated for EB-3 India, which is likely to remain at a 2005 date in October. EB-3 India is the last category in which Charlie still has strong visibility (from the summer 2007 adjustment of status filings) into pre-adjudicated demand. As a result, there has not been any erratic movement in the final action date for this category in recent years.

EB-5 China. Charlie is unable to make any predictions at this time as to where EB-5 China dates will fall in the next fiscal year. He expects to have better information by late September to mid-October.

EB-1. It is expected that EB-1 India and EB-1 China, which both had final action cut-off dates imposed late this fiscal year, will become current again in October.

Family-Based Projections. There are some favorable modifications to last month’s predictions for September in the family-based categories. While Charlie thought the final action dates for F-2A and F-4 might require retrogression in September, an increase in returned unused visa numbers in July, and weak demand for these categories has allowed Charlie to hold these dates for the remainder of the fiscal year.

Charlie reports that the infusion of FY 2017 visa numbers will make EB-4 India and EB-4 Mexico current in October. The final action date for EB-4 El Salvador/ Guatemala/Honduras should move to a date sometime in the summer of 2015, and possibly beyond. Given the high applicant demand in this category for El Salvador relative to the other two countries, it is possible that we will see a more advanced final action date for Guatemala and Honduras.

Consistent with Charlie’s predictions last month, F-4 Worldwide advanced slightly. There were also minor advances in all of the family Worldwide categories, and all of the F-2B categories with the exception of F-2B Mexico. F-3 and F-4 Mexico and F-3 and F-4 Philippines also crept slightly ahead to close out the fiscal year.

The family-based categories tend to advance more consistently as the majority of demand in these categories materializes at consular posts. While we expect movements into the next fiscal year to also remain relatively steady, Charlie will continue to comply with the Administration’s Visa Modernization Proposal by advancing the dates as aggressively as possible in the first three quarters of the fiscal year. While doing so helps to ensure that number use is maximized, it also results in few numbers being available for use in the final quarter, which can cause retrogressions, such as those experienced in the F-4 China and India preference categories.

Filing Dates. As we approach the one year anniversary of the new Visa Bulletin format, Charlie did not have any predictions in terms of “filing dates” as he had not yet met with the CIS Ombudsman’s Office at the time of this discussion.

You may access the September 2016 Visa Bulletin here and the August 2016 Visa Bulletin here.

___________________________

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.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (July 20, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the August 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

Check-in with DOS’ Charlie Oppenheim: July 20, 2016

Reflections as We Approach the End of the Fiscal Year. The unveiling of the August Visa Bulletin leads us to contemplate possible Final Action Date movement for September, the final month of the fiscal year. In this month’s column we will review the August Bulletin, and consider predictions for September and prospects for recovery in key retrogressed preference categories in Fiscal Year (FY) 2017. Next month, we will cover predictions for Filing Date movement as we enter FY 2017.

EB-4 and Certain Religious Worker (SR) Preference Categories. The January 1, 2010 cut-off date which was imposed earlier this year for EB-4 El Salvador, Guatemala, Honduras, and Mexico will remain through September, the end of the fiscal year. The imposition of a cut-off date for these countries is largely due to high demand for Special Immigrant Juvenile visas. A January 1, 2010 cut-off date will also be imposed on EB-4 India starting in August, consistent with Charlie’s predictions.

Though EB-4 Mexico and EB-4 India will become current again in October, the prospects for a full recovery for EB-4 El Salvador, Guatemala, and Honduras are much less likely. A 2015 cut-off date will likely be established in these categories for October, with date(s) moving forward slowly through the next fiscal year. However, uncertainty surrounding the movement of the EB-4 Final Action dates for these Central American countries remains, given the lack of visibility into the number of adjustment of status filings that were received in April 2015, prior to the establishment of the cut-off date in May.

Family-Based Projections. In September, most of the family-based categories will likely hold or retrogress from where they are in August. Only F-4 Worldwide has the potential to advance in September. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2015, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.

F-4 China, which previously shared the F-4 Worldwide Final Action date until retrogressing in June to January 1, 2003, will remain at that cut-off date through August. While this category will not advance in September, there should be a full recovery to the prior Final Action date of July 22, 2003 by November.

Similarly, F-4 India also shared the F-4 Worldwide Final Action date until it retrogressed in June. Charlie continues to predict that the Final Action date for F-4 India will remain at January 1, 2001 through September. A full recovery of this category to the Worldwide level will not happen in October. Given the high level of demand, the Final Action date should advance to around November 2002 in October, with a full recovery unlikely to happen prior to June 2017.

Charlie will be watching the F-2A and F-3 preference categories very carefully. Both categories are likely to retrogress temporarily in September, and then return to their respective August 2015 Final Action dates in October.

EB Preference Categories. The Final Action date of January 1, 2010 that was imposed in June for both EB-2 and EB-3 China remains the same in August with no forward movement in either of these categories expected this fiscal year. Although Charlie had hoped for more dramatic forward movement, EB-3 India should advance modestly into a 2005 Final Action date in September. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.

EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.

A February 1, 2014 Final Action date for EB-2 Worldwide was imposed in the August Visa Bulletin, with the hope of holding number use to within the EB-2 annual limit. That date should hold at February 1, 2014 in September and is expected to fully recover to “current” in October. Although Charlie predicts the EB-2 India and EB-2 China cut-off dates will advance in October, they will not fully recover at that time. It is hoped that they will recover fully as soon as possible, with EB-2 China possibly recovering as early as November.

October Final Action dates for the EB-5 Regional Center categories remain uncertain as that category will sunset unless Congress acts prior to the end of the fiscal year. In setting cut-off dates for EB-1 China and EB-1 India, Charlie hoped to avoid having to establish a cut-off date for EB-1 Worldwide. Charlie expects that EB-1 China and EB-1 India will become current again in October, or November at the latest.

You may access the August 2016 Visa Bulletin here and the July 2016 Visa Bulletin here.

___________________________

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.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (June 9, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the July 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

EB-4 and Certain Religious Workers (SR) Preference Categories. As previously predicted, and noted in the July Visa Bulletin, a cut-off date of January 1, 2010 will be imposed in July for EB-4 Mexico. This is the same cut-off date imposed earlier this fiscal year for EB-4 El Salvador, Guatemala, and Honduras. There will be no forward movement in these categories prior to the end of the fiscal year. Despite the cut-off date in these categories, it is expected that EB-4 Mexico will become current in October and EB-4 El Salvador, Guatemala, and Honduras should advance to a 2015 cutoff date. A more precise prediction of the cut-off cannot be made until pending demand in September is reviewed. Charlie predicts that a cutoff date for EB-4 India will need to be imposed for August.

Family-Based Projections. FB-4 China, which shared the FB-4 Worldwide final action date until retrogressing in June to January 1, 2003, will remain at that cut-off date through July. Last month, Charlie raised the possibility of advancement in FB-4 China before October. Of course, any forward movement this fiscal year would require a decrease in demand in the FB-1, FB-2, and FB-3 preference categories. Once there is an infusion of new visa numbers in October, it is expected that the category will recover to the prior cut-off date of July 2003 no later than November.

Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June . However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Charlie predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Charlie anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

China EB-2 and EB-3. In June, the final action date for both EB-2 and EB-3 China retrogressed to January 1, 2010. Charlie reminds us that there will be no forward movement in either of these categories this fiscal year.

EB-2 Worldwide and India. It is likely that a cut-off date will be imposed for EB-2 Worldwide by September due to sustained high demand. In May alone, 4,300 EB-2 numbers were used worldwide (including PRC and EB-2 India demand). The impetus for this demand is unclear; it is unlikely the result of EB-3 upgrades, since the EB-3 date has essentially been “current” for a long time. In May, Charlie allocated EB-2 numbers to more than 1,400 applicants with priority dates of 2014 and earlier.

Charlie anticipates EB-2 India’s final action date will be one week beyond EB-3 India through the rest of the fiscal year. Based on current usage, there should be sufficient available unused EB-3 numbers worldwide to enable moderate forward movement in India EB-3 in the month of September.

Cutoff Date for China and India EB-1 Expected by End of Fiscal Year. In May alone, Charlie received requests for approximately 4,000 EB-1 numbers worldwide (including China and India). Members should expect to see a cut-off date imposed for China EB-1 and India EB-1 this fiscal year in either August or September. Both categories are expected to become current again in October. A cut-off date will not be imposed for EB-1 Worldwide (i.e., rest of the world, besides India and China) this fiscal year.

 

You may access the July 2016 Visa Bulletin here and the June 2016 Visa Bulletin here.

___________________________

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.

 

 

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (April 13, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the May 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

Family-Based Projections. Because most family-based demand is generated at overseas posts, Charlie has greater visibility into those categories and is able to move the final action dates more consistently than the employment-based categories, which has a high percentage of USCIS-based (adjustment of status) filings. As a result, dramatic fluctuations in the family-based categories tend to be rare and typically occur only when there is a surge in family-based applicants responding to the agent of choice letter and becoming documentarily qualified.

As noted in the May Visa Bulletin, the final action dates for FB-4 China and India will remain at July 22, 2003, consistent with the final action date for FB-4 Worldwide. However, we can expect to see changes soon due to an increase in demand in both of these categories in recent months. The FB-4 India final action date will likely retrogress, possibly as early as June. It may also be necessary to hold or retrogress the FB-4 China final action date in late summer.

New Final Action Date for EB-4 and Certain Religious Workers (SR) Preference Categories. In May, a final action date of January 1, 2010 will be imposed for EB-4 and certain religious workers from El Salvador, Guatemala and Honduras. The imposition of a final action date for these countries in these categories is primarily attributable to a spike in demand for adjustment of status over the past two months for Special Immigrant Juvenile (SIJS) applicants. As noted in the Bulletin, any forward movement in these categories this fiscal year is unlikely.

Charlie advises that the per country limit for this category has already been reached for these countries for this fiscal year. Given EB-4 Worldwide demand, it is unlikely that there will be any additional “otherwise unused numbers” to allocate to these countries. Similarly, it is extremely likely that EB-4 India and Mexico will also become oversubscribed at some point during the summer months.

EB-5 China. Although demand in this category is increasing, I-526 petitions are being acted upon more quickly so the final action date may continue to advance slowly. Charlie has good visibility into demand in this category since most of these cases are at the NVC, although they are becoming documentarily qualified at their own pace.

EB-2 and EB-3 Philippines. EB-2 Philippines remains current and Charlie expects it to remain so for the foreseeable future. With regard to EB-3 Philippines, Charlie expects the final action date to continue to advance a few months at a time, consistent with movement over the past few months. He does not foresee it returning to the Worldwide final action date this fiscal year.

There is significant pent up demand in this category and given the greater level of visibility into it, Charlie is able to more the final action date consistently. Currently, the Texas Service Center has more than 1,600 EB-3 Philippines cases in the pending demand file and the Nebraska Service Center has more than 1,200. Demand at the U.S. Consulate in Manila is about half of that at USCIS. Charlie hopes that the EB-3 Philippines final action date will advance as far as mid-2010 by the end of this fiscal year.

EB-2 and EB-3 China. Recently, number usage for EB-3 China has exploded due to the EB-3 downgrade effect that Charlie has been expecting. Although anticipated, there was no advance warning as to when this demand would materialize, to what extent, or for how long. Demand for EB-3 China numbers exceeded 400 in March alone. EB-2 China spiked to 850 in March. April demand in both categories is expected to be at least on par with March demand, and may possibly exceed it. As a result, it would most likely be necessary to retrogress EB-2 and EB-3 China in June in an effort to hold number use within the annual limit.

EB-1 Demand and Impact to Other Categories. EB-1 demand from USCIS increased almost 100 percent from February (2,500+) to March (5,000+) which reflects more than 95 percent of the EB-1 Worldwide demand. This spike leaves fewer numbers to potentially spill down to other categories, which will impact EB-2 final action dates. Members should expect that the EB categories that typically rely on unused EB-1 numbers, such as EB-2 India, will be impacted. It remains to be seen whether a cut-off date will need to be established for any EB-1 countries this fiscal year.

India Employment-Based Final Action Dates. The final action date for EB-2 India will advance modestly, from November 8, 2008 in April to November 22, 2008 in May. Similarly, EB-3 India will creep forward from August 8, 2004 in April to September 1, 2004 in May. EB-3 demand, after the initial allocation of numbers, has been increasing by 100 month over month from January to February and February to March.

A number of factors make it difficult for Charlie to accurately predict movement in these categories. Increased EB-1 usage negatively impacts the supply of available visas for EB-2 India, and upgrades are currently driving EB-2 India demand. As a result of these two factors, there may be fewer numbers available to EB-2 India than previously expected.

When USCIS requests an EB-2 number in an upgrade case, it also asks that the previously requested EB-3 number be cancelled. Charlie has no visibility into EB-2 upgrade demand until USCIS completes adjudication of the I-485, requests an EB-2 number, and cancels the EB-3 number. This lack of visibility can potentially result in unexpected and dramatic changes in the EB-2 India final action date, as well as other employment-based preference categories.

You may access the May 2016 Visa Bulletin here and the April 2016 Visa Bulletin 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.

Congress in 2015 tried to tackle new EB-5 reform legislation, but instead chose to extend the program without any changes until September 30, 2016. This was a result of an impasse on issues relating to increase in the capital threshold amount and the change in the metrics used to determine what is a (“TEA”) targeted employment area. The contentious debate on these issues provided both developers and regional centers one more year of status quo in the program.

What will happen this year is anyone’s guess. What we do know is that Congress is holding hearings on EB-5 reform. These hearings provide the opportunity for individuals in the EB-5 industry to voice their opinion as to the future of the program.

On Wednesday April 13th 2016, the Senate Judiciary Committee held its second hearing of 2016 on the EB-5 Program titled, The Distortion of EB-5 Targeted Employment Areas: Time to End the Abuse.  The Senate Judiciary Committee heard from several witnesses including the Executive Director of IIUSA, Peter Joseph.  IIUSA is the national non-profit trade association representing EB-5 developers, regional centers and other professionals that are in the EB-5 space. Peter Joseph in his testimony pointed to several critical issues that the Committee should consider in the long term reauthorization of the EB-5 legislation. Those issues include:

  • Increase visa capacity to enhance economic impact of EB-5 and address the backlog of

investors currently waiting for visas to be available.

  • Staff commercially viable processing system at USCIS that addresses existing backlogs

and prioritizes predictability and length of processing times for EB-5 related petitions and

applications.

  • Avoid retroactive application of new law and reform to protect the existing EB-5

investors and their families and the billions of dollars in financial commitments and

contractual obligations.

  • Ensure all EB-5 investors with petitions currently filed, or at a later stage in the EB-5

process, are guaranteed adjudication (not approval) and eligibility for immigration

benefits throughout the entire EB-5 process (I-526 petition, EB-5 visa issuance, and I-829 petition)

regardless of future reforms, lapses, or expiration of the program.

  • Continue to allow economic impact models including indirect/induced job creation to

count for EB-5 purposes (using the same econometric models that are generally accepted

as economic policymaking tools by government, academia, and business).

  • Improve program integrity, including through enhanced oversight and reporting

requirements of Regional Centers that are not unduly burdensome, such as site visits

funded by user fees.

  • Clarify geographic (including targeted employment areas (TEAs)), structural, and

industry project characteristics that enable consistent adjudication of EB-5 petitions and

applications.

The issues that Peter Joseph mentioned in his testimony on Capitol Hill clearly mirror the position that most in the EB-5 industry have taken on EB-5 reform. The program has been largely a success with a substantial amount of foreign capital being invested in job creating projects in the United States. Everyone in the EB-5 space would like to see an extension of the EB-5 legislation for at least a five (5) year period.

Since 2008, the Program’s annual contribution to foreign direct investment inbound into the U.S. grew over 1,200% to total almost $5 billion in fiscal year 2015 alone. This investment capital is creating tens of thousands of jobs for U.S. workers in diverse communities by funding projects in a wide variety of industry sectors across the country.

Will Congress take any action this year to reform the current EB-5 legislation? I believe not.

This is a Presidential election year. It is very likely that Congress will defer on making any substantive changes to the EB-5 program until 2017. Immigration reform legislation has never passed both houses of Congress in an election year.

The economic benefits of the EB-5 program are not in dispute. The major issue that Congress needs to address is improving the compliance portion of the legislation. This will provide transparency to the program. Something that is much needed.

 

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (March 10, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the April 2016 Visa Bulletin and provides his projections for monthly final action date movement through the first calendar quarter of 2016.

Final Action Date Movements Consistent with Prior Predictions. The Final Action Dates in the April 2016 Visa Bulletin are consistent with Charlie’s predictions last month (see below).  In February, Charlie predicted that we would continue to see forward movement of up to five months in EB-2 and EB-3 China, and in April, EB-2 China will advance one month and EB-3 China will advance one and a half months. This modest advancement is attributable to an increase in I-485 cases in these categories coming to completion.

Charlie indicates that he has limited to no visibility into immigrant visa demand at USCIS until USCIS completes adjudication of an I-485 and requests a visa number. The difference in USCIS processing times at various offices makes it difficult to predict future demand and thus, difficult to adjust the Final Action Dates in such a way as to avoid volatility over the course of the fiscal year. For example, when the February Final Action Dates were announced in early January, USCIS reported 400 India EB-2 applicants who were eligible for final action, but by the end of February, USCIS had requested an additional 300 of these numbers. When an abrupt increase in demand such as this occurs, it is impossible to know whether it represents a sustained increase in demand in that category, whether it is the result of preference category upgrades or downgrades, or whether it merely represents a one-time reallocation of adjudication resources. Additional transparency and data analytics into pending I-485s would be helpful, and it is hoped that USCIS’ use of the Dates for Filing will eventually provide such insight.

Although it is imperfect, Charlie must make assumptions regarding upcoming demand based on the available data and his prior experience in an effort to stabilize Final Action Date movements. Charlie prefers to advance the Final Action Dates conservatively in the hope of avoiding a retrogression later in the fiscal year, especially in categories that are subject to upgrades and downgrades. Unfortunately the need to generate sufficient demand to use all numbers available under the annual limits often requires aggressive forward movement of the dates. This is the case with the EB-3 Worldwide cut-off date which has advanced 16 months in the past year, and is only one month behind today’s calendar date.

Forward movement in the EB-3 China Final Action Date has been slow due to concerns that EB-3 downgrade cases (from EB-2 China) may soon come to completion and result in a spike in demand in that category.

April movement in the Indian employment-based categories is also consistent with Charlie’s predictions last month. The EB-2 India Final Action Date will advance less than one month in April, moving to November 8, 2008. Forward movement in this category could be slower than originally expected due to increasing demand in this category which can be attributed to upgrades from EB-3 India. Additionally, EB-1 Worldwide usage continues at a steady pace, making it unclear how many numbers might be available to fall down for potential use in EB-2 India. This should become clearer in the coming months as additional demand data becomes available. The EB-3 India Final Action Date will also advance only three weeks to August 8, 2004.

Announcing the NVC EB-5 Investor Assistance Desk. The April Visa Bulletin also included an announcement regarding the new National Visa Center (NVC) EB-5 Investor Assistance Desk. The NVC has created a dedicated email address (NVCeb5@state.gov) to address EB-5 inquiries. This email box will be staffed with officers who are knowledgeable in EB-5 matters in an effort to improve customer service.

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As we did not post Charlie’s predictions from last month, here are his February 2016 predictions:

EB-2 and EB-3 China. Final action dates for EB-2 and EB-3 China will continue to advance in March. EB-2 China will advance five months from March 1, 2012 to August 1, 2012.  Charlie believes that there is potential for EB-2 China to continue to advance monthly at this same rate.  EB-3 China will advance more dramatically in March, from October 1, 2012 to June 1, 2013, and Charlie believes that this category has the potential to continue to advance five months each month.  However, it is extremely important to remember that changes in USCIS demand patterns could drastically alter cut-off date movement and require corrective action at some point.

Charlie is watching these two categories and the interplay between them closely. In the February Bulletin, the EB-3 China final action date was seven months ahead of EB-2 China.  In March, the final action date for EB-3 China will be ten months ahead of the EB-2 China final action date.  Over the past two years, when the final action date for EB-3 China advanced beyond EB-2 China, EB-2 applicants responded by filing new I-140s to downgrade to EB-3, thus shifting the demand from EB-2 to EB-3.  The surge in EB-3 demand slowed the advancement of the cut-off date and ultimately led to retrogression of that category.  Although Charlie expects a similar pattern this year, significant EB-3 China demand has not yet materialized.

Note that while the filing dates for EB-2 and EB-3 India have not changed since last month (they remain at July 1, 2009 and July 1, 2005 respectively), the filing date for EB-2 China will advance five months (from January 1, 2013 to June 1, 2013) and the filing date for EB-3 China will advance 19 months (from October 1, 2013 to May 1, 2015). Charlie indicated that EB-3 China usage is split evenly between consular filings and adjustment of status filings at USCIS.  If USCIS were to permit adjustment of status filings for EB-3 and EB-2 China, it may help generate sufficient demand to balance out the final action dates in both of these categories.

EB-2 India. A fair amount of demand is starting to materialize in EB-2 India, including EB-3 upgrades. This is starting to slow the advancement of the final action date for EB-2 India, which will advance only one and on-half months in March (from August 1, 2008 to October 15, 2008).  Charlie expects this category to advance at a rate of up to three months.  When EB-1 and EB-2 Worldwide demand is assessed in June, more numbers may fall down to this category which could impact its movement.

EB-5 China. Charlie predicts that EB-5 China will continue to advance slowly and at a rate which would avoid the need for a retrogression.

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You may access the April 2016 Visa Bulletin here and the March 2016 Visa Bulletin 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.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (November 12, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the December 2015 Visa Bulletin and provides his projections for monthly final action date movement through the first calendar quarter of 2016.

EB-2 India: In December, the final action dates for EB-2 India will advance ten months to June 1, 2007. This is largely the result of a necessary correction following a roll-back in the date at the end of last fiscal year. As noted in the Bulletin, Charlie projects that EB-2 India may advance monthly by as much as eight months over the course of the next few months. In speaking with AILA, Charlie mentioned that a monthly advancement of eight months would be the best case scenario, but that the actual advancement is likely to be around four to six months at a time. Charlie expects that this movement will spur EB-3 upgrades which will eventually impact demand, slowing EB-2 India advancement. He expects the upgrade demand will start to materialize in December/January which will slow advancement in early 2016. Should the demand fail to materialize at the expected rate, then the “up to eight” month movement could occur.

The EB-2 and EB-3 China Dynamic: The EB-2 China final action date will remain the same in December 2015 and Charlie does not anticipate much, if any movement in this category over the next few months as he already expects that number use will exceed the targeted usage for the first quarter of the fiscal year. Charlie received requests for 600 numbers in October and has already received approximately 200 requests for numbers to date in November. Therefore, holding the cut-off will allow the number use figure to fall back within the targeted level over a period of time.

Since the final action date for EB-3 China is later than the EB-2 China final action date, Charlie expects that some EB-2 China cases will downgrade to EB-3, which will take some of the demand pressure off of EB-2 China. This phenomenon has happened the last two years and ultimately results in increased EB-3 demand which slows movement or even retrogresses that category, while at the same time allowing EB-2 China to advance once again. Charlie expects this rebalancing to occur at some point next year, possibly as early as April.

F-2A and F-2B: Last year, the family-based 2B category advanced very quickly because the demand did not initially materialize. The dates have now advanced to the point where demand is materializing. A similar phenomenon is occurring with regard to F-2A. The agent of choice letters are not spurring sufficient demand, so until demand materializes, we can expect to see continued advancements in this category. As noted previously, the response rate is low in many of the family-based preference categories.

Impact of Addition of “Filing Dates” Concept: It is too soon to determine when the new process will begin to provide the Visa Office with better visibility into immigrant visa demand so as to even out priority date movements in the employment-based categories. While preliminary data does not suggest that the filing dates adopted by USCIS will show enough demand to be meaningful, the impact, if any, is not expected to be known until at least April 2016 when USCIS starts to request visa numbers based upon the October filings.

Coming Attractions . . .

  • Release of Revamped Foreign Affairs Manual (FAM): The December Visa Bulletin included an announcement that the State Department’s internal guidance, known as the Foreign Affairs Manual (FAM), will be replaced with 9 FAM-e, effective November 18, 2015. The new FAM upon release and updates will be available in the coming weeks.
  • Expect to See the “Visa Waiting List” in the January Visa Bulletin: Charlie and his team are currently compiling the “Visa Waiting List” which will provide information on the waiting list at the National Visa Center (NVC) as of November 1, 2015. An announcement should occur in next month’s Visa Bulletin, if not sooner.

You may access the November 2015 Visa Bulletin here and the December 2015 Visa Bulletin 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.

 

Beginning on October 19, 2015, there will be new direct filing addresses for Form I-140 Immigrant Petitions submitted with a Form I-907 Request for Premium Processing Service if the worksite location is in any of the following states:

  • Maryland
  • New Jersey
  • New York
  • Pennsylvania

See http://www.uscis.gov/news/i-140-i-485-workload-transfers-and-change-direct-filing-address-certain-form-i-140-petitions-submitted-together-form-i-907-request-premium-processing.

The US Citizenship and Immigration Service (USCIS or Immigration Service) announced on October 7, 2015, that starting on October 19, 2015, these forms should be filed with the Nebraska Service Center as follows:

Regular Mail: Premium Processing USCIS Nebraska Service Center P.O. Box 87103 Lincoln, NE 68501-7103

or

Express Delivery: Premium Processing USCIS Nebraska Service Center 850 S. Street Lincoln, NE 68508

Seeking Premium Processing should mean that the Immigration Service will take action on the I-140 Immigrant Petition for Alien Worker within 15 calendar days or the $1,225.00 Premium Processing fee will be refunded.

Only certain I-140 Immigrant Petition types are currently eligible for Premium Processing, including:  EB-1 Aliens of Extraordinary Ability; EB-1 Outstanding Professors and Researchers; EB-2 Members of Professions with Advanced Degrees or Exceptional Ability Not Seeking a National Interest Waiver; and EB-3 Workers Other Than Skilled Workers and Professionals; and if designated as available and subject to certain conditions, EB-3 Skilled Workers and EB-3 Professionals.  Premium processing is not available for EB-1 Multinational Executives and Managers nor for EB-2 Members of Professions with Advanced Degrees or Exceptional Ability Seeking a National Interest Waiver.  See http://www.uscis.gov/forms/how-do-i-use-premium-processing-service.

According to USCIS’s October 7, 2015, announcement, in order to upgrade a pending I-140 Immigrant Petition to Premium Processing, the Form I-907 should be sent to the service center that has the pending Form I-140.

Note that only an employer may file a Premium Processing request for an I-140 Immigrant Petition that requires an employer as the petitioner.  The beneficiary of an Immigrant Petition may, however, seek Premium Processing for a self-petition (that is, where the petitioner and beneficiary are the same).  Either party may pay the $1,225.00 Premium Processing filing fee.

USCIS announced that is it making the address change in order to rebalance the workload distribution between the Texas Service Center and the Nebraska Service Center.

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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.