Today, December 23, 2016, USCIS posted a large number of new form versions. The forms all have an effective date of today, December 23, 2016, and the website indicates that no other versions of the forms are acceptable, with the exception of Form I-129.  It appears USCIS is continuing to accept prior version of Form I-129. No prior notice of these changes was given, and there was no alert sent to stakeholders today.

Because USCIS elected to deviate from its normal procedures and did not provide notice to stakeholders or provide any grace period during which prior form versions could be submitted, it will pose some challenges to form vendors who will not have time to reprogram the case management software systems and applicants/petitioners who may remain unaware. 

USCIS has indicated to The American Immigration Lawyer’s Association (AILA) that ,while it strongly encourages people to use the new version of the forms, it is aware that there may be older editions of the forms that have already been completed and are in the queue to be mailed and/or filed. USCIS said that it will be flexible and will apply discretion when receipting forms, rather than rejecting them outright.

Affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

Please also note that regardless of the form edition submitted, applications and petitions postmarked or filed on or after December 23, 2016, must include the new fees or USCIS will reject the submission.

___________________________

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

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

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

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

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

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

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

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

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

Questions and Answers:

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

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

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

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

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

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

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

___________________________

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.

Are you that “certain someone”?  That “certain spouse” of an H-1B worker who will be eligible for H-4 work authorization?  Not sure?  Here’s the scoop.

At long last, on Wednesday, February 25, 2015, the US Department of Homeland Security (DHS) published a Federal Register Notice captioned, “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule”.   Per the much-awaited Notice, on May 26, 2015 (NOT earlier), USCIS will begin accepting applications from eligible applicants in H-4 status, but H-4 work authorization will not be available to all who hold H-4 status.  The chosen few, those “certain spouses” who will be eligible for H-4 work authorization include:

  • An H-4 spouse of an H-1B worker with an approved I-140, or
  • An H-4 spouse of an H-1B worker who has been granted a 7+ year extension of H-1B time pursuant to AC21 Sections 106(a) and (b).  (Note that an H-4 spouse of an H-1B worker granted a 7+ year extension under AC21 Section 104(c) would be covered under the first bullet point.)

So, not all H-4 dependent spouses will qualify to apply for an H-4 EAD (employment authorization document).  H-4 children are also ineligible.

An H-1B worker who is running out of H-1B time may want to consider whether it makes sense to change to H-4 status and seek work authorization—that is, if married to an H-1B worker who would enable the work authorization criteria to be met. Fortunately, there is a provision for concurrent filing of the H-4 application and the EAD application.

Typically, it takes about 90 days from the date of USCIS receipt of an EAD application for the EAD card to be issued.  It’s not clear whether it will take longer given that there is likely to be a very large number of filings seeking H-4 work authorization.

Careful consideration and strategizing must be undertaken to determine eligibility, the best course of action, and timing.  Please feel free to contact us if you need assistance.

____________________

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