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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 13, 2017), 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 2017 Visa Bulletin and provides his projections for monthly final action date movement through the remainder of this fiscal year.

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

EB-1 China and India. The final action date for EB-1 China and EB-1 India (January 1, 2012) that was imposed in June 2017 remains for July 2017 and is expected to hold through the end of this fiscal year. Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.

EB-2 Worldwide. Since demand declined slightly in the second half of May, and demand during the first week of June was steady, Charlie felt comfortable keeping EB-2 Worldwide current in July. A final action cut-off date will be imposed in this category in August and will be more dramatic than it would have been if a date had been imposed in July. The good news is that this category will become current again on October 1, 2017.

EB-2 India. In July, the final action date for EB-2 India will advance three weeks to July 22, 2008. Charlie expects minimal advancement in this category through the rest of the fiscal year. The best case scenario for this fiscal year would be a final action date of September or October 2008.

Pressure on this category is attributable to high demand in EB-2 India and the lack of otherwise unused numbers under the EB-2 annual limit, which had been prevalent through FY-2015. Charlie noted that approximately 40 percent of the available EB-2 India numbers are being used by beneficiaries who have upgraded from EB-3 India.

EB-2 China and EB-3 China. For the first time this fiscal year, the final action date for EB-2 China is later than the final action date for EB-3 China. EB-2 China advanced three weeks in July to March 22, 2013, and Charlie expects slow progress in this category will continue. By contrast, EB-3 China will retrogress three years in July to January 1, 2012, as a result of a significant amount of EB-3 downgrades. The final action date for EB-3 China Other Workers will hold at July 15, 2006, and this date could also retrogress in August.

The final action date of January 1, 2012, for EB-3 China will hold through the end of this fiscal year, but will advance to October 1, 2014, effective October 1, 2017.

The annual allocation for EB-3 China is only 2,500 because the Chinese Student Protection Act requires an offset of 1,000 numbers from the China employment-based visa annual limit each fiscal year. Three hundred of those numbers are deducted from the EB-3 limit, and seven hundred numbers are deducted from the EB-5 limit.

EB-3 Worldwide. In July, EB-3 Worldwide will advance less than two months to June 8, 2017, keeping this category effectively current.

EB-3 India. In July, EB-3 India will advance five months to October 15, 2005, and should continue to advance. The otherwise unused numbers for EB-3 Worldwide are required to be allocated in order of priority date, meaning that these numbers will fall to EB-3 India, which has the earliest final action date in the EB-3 category.

EB-5 China. The final action date for EB-5 China will continue to hold at June 8, 2014, in July and Charlie expects this category to advance to by one week for August. Some additional forward movement in this category remains possible for September should demand by USCIS be less than estimated.

FB-4 Worldwide. In July, the final action date for FB-4 Worldwide will be May 8, 2004. Charlie hopes to advance this category later this fiscal year, but the data is too close to make a definitive prediction at this time. The response rate to the NVC “Agent of Choice” letters in this and most family-based categories is less than 50%, with less than 35% of those respondents providing all of the information required for a visa interview to be scheduled. Charlie reminds members that it is important to promptly respond to an “Agent of Choice” letter. If individuals who received “Agent of Choice” letters before April 2016 had responded promptly, more than 100,000 of them could have been scheduled for an interview by April 2017.

Special Immigrants. A final action date of August 15, 2015, will be imposed for EB-4 India in July. This date tracks the July final action date for El Salvador, Guatemala, Honduras, and Mexico (which advanced one month from June) and will continue to do so for the remainder of the fiscal year, possibly reaching October 2015. In October, EB-4 India is expected to return to current. A final action date for EB-4 will continue into FY 2018 for the other countries, though Mexico may have different date from El Salvador, Guatemala, and Honduras.

Note: numbers “otherwise unused” under the Worldwide EB-3 limit are allocated in order of priority date without regard to the per-country limitation. Therefore, such numbers would be provided to EB-3 India applicants, which are subject to the earliest final action date.

For July, EB-3 Philippines will advance one year to May 15, 2014, and will likely advance to a date in the fall of 2015 before the end of this fiscal year.

You may access the July 2017 Visa Bulletin here and the August 2017 Visa Bulletin (once available) 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.

Today, Congress submitted a proposed omnibus spending bill to extend funding to the government through September 30, 2017.  The EB-5 Regional Center Program is included in the bill which proposes a clean extension without any of the much-debated reforms.  If approved, the EB-5 Regional Center Program will be extended through September 30, 2017, offering lawmakers and stakeholders additional time to reach a long-term legislative solution.

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 16, 2017), 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 (May 2017) and beyond.                                                                      

Check-in with DOS’s Charlie Oppenheim: April 16, 2017

FB-4 Worldwide. FB-4 Worldwide should be watched closely. Following aggressive movement of the final action date in April, this category is not expected to advance. The April movement seems to have stimulated applicants to take action, and increased demand may require a temporary retrogression in this category later this fiscal year. Should retrogression occur, the category would recover completely in October, the first month of the new fiscal year. The final action dates for all other family-based categories are expected remain stable.

EB-1 and EB-2 Worldwide. As noted in the May 2017 Visa Bulletin, EB-1 and EB-2 Worldwide demand at USCIS has increased dramatically over the past six weeks, signaling the possibility of a future correction to the final action date. Charlie explained that number usage in both of these categories for January and February was about 1,000 higher than earlier months and he expects that it will be at least that high, if not higher, in April. While this is positive in the sense that USCIS is clearing out and approving cases, it may limit the ability for the agencies to take final action on pending cases towards the end of the summer if a correction is required.

EB-1 India and China. Charlie has been predicting the imposition of a final action cut-off date for EB-1 China and India for several months and echoes that warning in the May Visa Bulletin. Charlie tells AILA that the only reason a final action cut-off date has not already been imposed is that thus far, India and China have been able to benefit from “otherwise unused numbers” not currently required for other countries. The use of “otherwise unused numbers” by these two countries will soon end in order to ensure that other countries who have not yet reached their EB-1 per country limit can remain “current.” The worldwide demand and heavy use of EB-4 and EB-5 numbers, which in earlier years had remained unused and had “fallen up” to EB-1, has resulted in the restriction of EB-1 number use strictly to those numbers available to that category on an annual basis.

Charlie predicts that a final action cut-off date will be imposed for EB-1 China and India no later than July. When that occurs, both countries will have the same final action date. While these categories will not technically become “unavailable,” the date that is imposed will effectively shut off the use of additional numbers.

EB-2 India. March demand for EB-2 India doubled from February. Based on this spike in demand, Charlie can no longer say with confidence that this category will recover to last year’s level. However, there may still be some room for the date to advance further, and based on current demand patterns, the absolute best case scenario would be for the final action date to reach December 2008. The wildcard factor is whether EB-3 upgrades will subside or continue at the same or faster pace. Charlie lacks visibility into EB-3 upgrade demand until a visa number is requested, and therefore cannot plan final action date movements with as much precision as he would like.

The China EB-3 Downgrade Phenomenon. The gap between EB-2 China and EB-3 China continues to widen in May, with EB-3 China advancing six months to October 1, 2014 and EB-2 China advancing less than one month to February 8, 2013. Consistent with this trend, AILA members should not expect any significant advancement in the final action date for EB-2 China this fiscal year. By contrast, we may continue to see a healthy advancement of EB-3 China until or unless the expected EB-3 downgrade phenomenon materializes.

Based on current data, Charlie predicts that the final action date for EB-2 China may advance as far as a date in spring or summer 2013 before the end of this fiscal year.

EB-4 Religious Workers and EB-5 Investors (I5 and R5). Both the EB-4 Religious Worker and EB-5 Investor Programs will sunset on April 28, 2017 unless reauthorized by Congress. As such, the May Visa Bulletin notes that both of these categories will be unavailable in May unless Congress acts. Should Congress reauthorize both programs, EB-4 will return to current with the exception of EB-4 El Salvador, Guatemala, Honduras and Mexico, which would be subject to a July 15, 2015 final action date. With regard to these countries, and despite healthy demand, Charlie maintains that it is still possible that the final action date may advance before the end of the fiscal year.

If the Investor Program is reauthorized, all countries except China would become current, with a final action date of June 1, 2014 for EB-5 China (I5 and R5).

You may access the May 2017 Visa Bulletin here, the April 2017 Visa Bulletin here, and the March 2017 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.

Today, USCIS announced it has completed the H-1B cap FY 2018 random selection process (also known as the H-1B lottery).  This means USCIS has completed the lottery and has selected enough petitions to meet the 65,000 regular-general cap and the 20,000 cap under the advanced degree exemption.   USCIS will reject and return all unselected H-1B cap petitions.  The government reported receiving a total of 199,000 H-1B cap petitions during the H-1B cap FY 2018 filing period, which started on April 3, 2017. This is remarkably less when compared with the 236,000 H-1B cap petitions filed during the FY 2017 period, which started on April 1, 2016.

As a reminder, effective March 3, 2017, USCIS temporarily suspended premium processing for all H-1B petitions for up to six months.  As such, no H-1B cap FY 2018 petition will be processed using the expedited premium processing, commonly utilized in prior years.  We will report back once USCIS has reinstated premium processing for H-1B petitions.

The Trump Administration issued a revised Executive Order on travel with an apparent desire to survive a court challenge by modifying some of the elements that judges found troubling in the January 27 travel ban.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

Issued March 6, the new ban, captioned “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” has an effective date of Thursday, March 16 — allowing a 10-day window for foreign nationals, federal agencies and others to prepare for the changes.

The Executive Order imposes a 90-day “temporary pause” on entry into the United States by nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen. Notably, Iraq has been removed from the list, but “additional scrutiny” measures in the new ban will apply to those from Iraq.

Subject to certain “categorical exceptions and case-by-case waivers,” the new travel ban is narrower than the previous broad-sweeping measure and applies only to those from the listed countries who:

  • are outside the United States on the effective date, Thursday March 16
  • did not have a valid visa by 5 p.m. (U.S. EST) on Jan. 27, 2017
  • do not have a valid visa on Thursday, March 16.

Exceptions Recognized

In contrast to the prior Executive Order on travel (Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry into the United States), which this new Order revokes as of March 16, the revised ban also recognizes six categories of individuals from the listed countries:

  • Lawful permanent U.S. residents
  • Any foreign national admitted to or paroled into the U.S. on or after the effective date, Thursday, March 16
  • Any foreign national who has a document (other than a visa) that is valid on or issued on any date after the effective date, that permits the holder to travel to, and seek entry or admission to, the US such as an advance parole travel document
  • Any dual national of one of the six countries when travelling on a passport issued by a non-designated country
  • Any foreign national travelling on a diplomatic-type visa, NATO visa, C-2 for UN travel, or G-1 – G-4 visa
  • Any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Presumably, these exceptions will reduce concern by the larger group of travelers, including nationals of countries not listed in the Executive Order. Yet, the new Executive Order leaves open the possibility that restrictions may be imposed on nationals of additional countries at some point in the future.

Additional highlights of the Order include:

  • A call for enhanced vetting procedures during the adjudications process
  • 120-day suspension of the US Refugee Admissions Program for FY 2017, subject to waivers, and with a call for enhanced vetting
  • Expedited completion of the biometric entry-exit tracking system
  • Suspension of the “visa interview waiver program”
  • A review of visa reciprocity agreements
  • Making certain data available to the public
  • Clarifications regarding visa revocations, and more

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” (January 13, 2017), 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: January 13, 2017

QUESTION: What can we expect in terms of movement of FB-2 Final Action Dates?

ANSWER: All of the family-based categories will continue to move at a rate that is consistent with the current pace. I do not expect any dramatic forward movement or slowing down in the coming months. FB-2A should continue to move an average of three weeks each month.

The only family-based categories which may change in terms of the rate of forward movement are the Philippines categories. There is very low demand for FB-2B and F-4 Philippines. Cut-off dates for the other Philippines FB categories have advanced at a faster pace initially, but if demand for FB-2B and F-4 starts to increase, movement in the other categories may start to slow.

F-4 China will reach the F-4 Worldwide date in March.

F-4 India will continue to move but is not expected to reach the F-4 Worldwide date until summer. If there are unused numbers from the other preference categories that fall down to F-4 India, the cut-off date may advance more quickly.

Movements in the family-based Final Action Dates may start to slow in the second half of the fiscal year. Updated projections will appear in the next Visa Bulletin.

QUESTION: Can we expect to see any movement in the “filing” dates during the fiscal year, or is movement generally confined to the beginning of the fiscal year?

ANSWER: I monitor these dates throughout the fiscal year and there may be some updates in the coming months. Changes in the filing dates tend to be more dramatic at the beginning of the fiscal year, but changes are sometimes required in the second half of the year based on demand patterns and future needs.

GENERAL OBSERVATIONS. Number usage to date is higher than last year across the board.

EB-4 EL SALVADOR, GUATEMALA, HONDURAS AND MEXICO. Since our last column, Charlie has received information that potential demand for EB-4 El Salvador, Guatemala, Honduras and Mexico prior to the current Final Action Date could be significant. For example, there are more than 1,500 pre-adjudicated applications for EB-4 El Salvador alone. Because there is already enough pre-adjudicated demand beyond the current date to reach the annual targets, the Final Action Date will continue to hold. If the date were to advance now and there was a subsequent flood of demand with earlier priority dates, this could cause the date to retrogress.

EB-1. Demand in this category remains strong and a cut-off date for EB-1 India and EB-1 China will need to be imposed later this fiscal year. Charlie will hold off doing so for as long as possible, but is confident that it will happen. When it does, members should not expect the date to retrogress quite as far back as last fiscal year when the date rolled back to 2010. Charlie continues to expect that the imposition of a Final Action cut-off date in these categories will be relatively short-lived and that EB-1 China and India will return to “Current” in October when the FY 2018 numbers become available.

EB-2. Tremendous demand resulting from EB-3 upgrades means EB-2 India will not advance in February and will likely hold at the current Final Action cut-off date of April 15, 2008 in March. If demand for EB-2 Worldwide remains strong, it is unlikely that EB-2 India will be able to benefit from any unused numbers and may be restricted to its 2,800 per country limit. If the trend in demand continues, EB-2 India is unlikely to recover to last year’s date. Members should not expect any significant movement in this category until at least July or August. Charlie continues to monitor this very closely. If the current surge in demand is not sustained, and Worldwide demand, or India demand with early priority dates subsides, more forward movement than what is currently projected may be possible.

Unlike EB-2 India, EB-2 China did advance somewhat to November 15, 2012 since demand in this category is not currently exceeding the monthly target.

EB-3. EB-3 Worldwide demand has subsided. The decrease in demand that allowed Charlie to advance the Final Action cut-off date earlier this fiscal year continues, and allowed him to advance the date again to October 1, 2016. While this trend may continue, due to current USCIS processing times, additional forward movements after March are unlikely to impact number usage in this category this fiscal year.

EB-3 China downgrades have not yet materialized at the level which had been experienced in past years. Nevertheless, Charlie is not advancing the Final Action date in this category significantly in an effort to avoid retrogression if demand from downgrades materializes in the coming months as expected.

Members should expect consistent forward movement in the EB-3 Philippines Final Action Date. Charlie expects this category to recover significantly but does not expect it to reach the Worldwide date.

EB-5. The EB-5 China categories should continue to advance at the rate of 1 to 2 weeks at a time.

You may access the February 2017 Visa Bulletin here and the January 2017 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.

Ali Brodie writes:

Today, January 13, the Department of Homeland Security (DHS) will expand upon the notice of proposed rulemaking released on January 11, 2017 by publishing a Notice of Proposed Rulemaking in the Federal Register, titled ‘EB-5 Immigrant Investor Program Modernization,’ addressing a variety of policy issues including Targeted Employment Area (TEA) designation and minimum investment amounts.  Notably, minimum investment amounts may increase from $500,000 to $1.35 million for TEA investments, and from $1 million to $1.8 million for non-TEA investments.

Changes to TEA designation include eliminating the method of designation by which states designate areas of high unemployment, and limiting how census tracts can be aggregated to qualify for high unemployment designation.  These regulatory changes will impact both EB-5 Regional Center projects and EB-5 Direct projects.   The deadline for stakeholders to submit comments on the proposals is April 11, 2017.  EB-5 investors or those interested in pursuing an EB-5 investment opportunity should consider acting quickly.

Ali Brodie is counsel in the Denver and Los Angeles offices of Fox Rothschild LLP.

On October 24, 2016, the United States Citizenship and Immigration Service (USCIS) published a final rule confirming an increase to the processing fees for most of the applications and petitions it handles. This is a result of USCIS’ comprehensive review of the fee schedule for the fiscal year 2016/2017 the first USCIS fee increase since November 2010. The new fees will go into effect on December 23, 2016, which means that all applications or petitions postmarked on or after this date must include the new fees, or they will not be accepted by USCIS for processing.

According to the Department of Homeland Security, USCIS’ operational funding comes almost entirely from the user fees, and the current fees do not cover the full cost of services provided by the agency; the average fee increase of 21% is necessary to recover costs and maintain adequate level of services to the immigration benefits seekers.

While some applications see a relatively slight increase of $30 or $45, the cost of others, such as the Application for Adjustment of Status (I-485), Application for Naturalization (N-400), and Petition for a Nonimmigrant Worker (I-129) will go up by more than $100, which undoubtedly may affect certain applicants and petitioners, such as households with limited incomes or small employers. As a relief measure, simultaneously with the overall increase of the cost of services provided by USCIS, the agency now offers a reduced filing fee for the naturalization applicants (N-400) whose family income falls between 150% and 200% of the Federal Poverty Guidelines, which is adjusted annually by the U.S. Department of Health and Human Services to determine eligibility for certain federal programs. An additional benefit of the new rule is that USCIS will no longer automatically reject an immigration or naturalization benefit paid with a dishonored check or missing the required biometrics fee. Instead, applicants will be provided an opportunity to correct the deficient payment (i.e., USCIS will attempt to resubmit the insufficient check to the applicant’s bank once again) or by paying the required biometrics fee during their biometrics appointments or immigration interview. The new rule will not affect charge free services provided to refugees and asylum applicants, as well as other customers eligible for fee waivers or exemptions.

This chart lists some of the key new USCIS’ fees effective December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016, must include these new fees or USCIS will reject the submission.  You can find the complete new fee schedule here.

Immigration Benefit Request New Fee ($) Old Fee ($)
I–90 Application to Replace Permanent Resident Card 455 365
I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 445 330
I–129/129CW Petition for a Nonimmigrant worker 460 325
I–129F Petition for Alien Fiancé(e) 535 340
I-130 Petition for Alien Relative 535 420
I-131/I-131A Application for Travel Document 575 360
I–140 Immigrant Petition for Alien Worker 700 580
I–290B Notice of Appeal or Motion 675 630
I–360 Petition for Amerasian Widow(er) or Special Immigrant 435 405
I–485 Application to Register Permanent Residence or Adjust Status 1,140 985
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 750 635
I–526 Immigrant Petition by Alien Entrepreneur 3,675 1,500
I–539 Application to Extend/Change Nonimmigrant Status 370 290
I–600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition 775 720
I–751 Petition to Remove Conditions on Residence 595 505
I–765 Application for Employment Authorization 410 380
I–824 Application for Action on an Approved Application or Petition 465 405
I–829 Petition by Entrepreneur to Remove Conditions 3,750 3,750
I–924 Application for Regional Center Designation Under the Immigrant Investor Program 17,795 6,230
I–924A Annual Certification of Regional Center 3,035 0
N–400 Application for Naturalization* 640 595
N–470 Application to Preserve Residence for Naturalization Purposes 355 330
N–565 Application for Replacement Naturalization/Citizenship Document 555 345
N–600/N–600K Application for Certificate of Citizenship 1,170 600/5503
USCIS Immigrant Fee 220 165
Biometric Services Fee 85 85

*Certain low-income naturalization applicants may pay a filing fee of $320 plus the $85 biometric services fee. For eligibility details and filing instructions, see Form I-942, Request for Reduced Fee and Form N-400, Application for Naturalization.

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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.

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.

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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” (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.