Tag: visa

Department of State Releases September 2014 Visa Bulletin

Morgan Lewis logo

The bulletin shows continued forward movement in the EB-2 India category while the cutoff dates in most other employment-based categories remain unchanged.

The U.S. Department of State (DOS) has released its September 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the September 2014 Visa Bulletin Say?

After several months of significant movement in both directions, the September Visa Bulletin shows no movement in any of the employment-based categories other than continued forward movement in the EB-2 India and EB-3 Philippines categories. Such continued forward movement in the EB-2 India category cannot be guaranteed; once significant demand in this category occurs, the cutoff date is likely to once again retrogress.

The cutoff date for F2A applicants from all countries will advance significantly in September.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date of January 22, 2009 for applicants in the EB-2 category chargeable to India will advance by slightly more than three months to May 1, 2009. The cutoff date of October 8, 2009 for applicants in the EB-2 category chargeable to China will remain unchanged. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date of November 8, 2003 for applicants in the EB-3 category chargeable to India will remain unchanged. The cutoff date of November 1, 2008 for applicants in the EB-3 category chargeable to China will also remain unchanged. The cutoff date of June 1, 2010 for applicants in the EB-3 category chargeable to the Philippines will advance by 10 months to April 1, 2011. The cutoff date of April 1, 2011 for applicants chargeable to Mexico and the Rest of the World will remain unchanged.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: November 1, 2008 (no movement)
India: November 8, 2003 (no movement)
Mexico: April 1, 2011 (no movement)
Philippines: April 1, 2011 (forward movement of 10 months)
Rest of the World: April 1, 2011 (no movement)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The September Visa Bulletin indicates no change to these categories. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through September 2014.

China

The August Visa Bulletin indicated a cutoff date of October 8, 2009 for EB-2 applicants chargeable to China. The September Visa Bulletin indicates no change to this cutoff date. This means that applicants in the EB-2 category chargeable to China with a priority date prior to October 8, 2009 may file AOS applications or have applications approved in September 2014.

India

The August Visa Bulletin indicated a cutoff date of January 22, 2009 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates a cutoff date of May 1, 2009, reflecting forward movement of 99 days. This means that applicants in the EB-2 category chargeable to India with a priority date prior to May 1, 2009 may file AOS applications or have applications approved in September 2014.

The September Visa Bulletin notes that the use of potentially “otherwise unused” employment-based visa numbers prescribed by section 202(a)(5) of the Immigration and Nationality Act has allowed the cutoff date in the EB-2 India category to advance rapidly in recent months. The Visa Bulletin warns that continued forward movement of this cutoff date in upcoming months cannot be guaranteed, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in demand in this category, it will be necessary to retrogress the cutoff date, possibly as early as November, to hold numbers within the fiscal year 2015 annual limit. 

Developments Affecting the EB-3 Employment-Based Category

China

The August Visa Bulletin indicated a cutoff date of November 1, 2008 for EB-3 applicants chargeable to China. The September Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to China with a priority date prior to November 1, 2008 may file AOS applications or have applications approved in September 2014.

India

The August Visa Bulletin indicated a cutoff date of November 8, 2003 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates no change to this cutoff date. This means that only EB-3 applicants chargeable to India with a priority date prior to November 8, 2003 may file AOS applications or have applications approved in September 2014.

Rest of the World

The August Visa Bulletin indicated a cutoff date of April 1, 2011 for EB-3 applicants chargeable to the Rest of the World. The September Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to April 1, 2011 may file AOS applications or have applications approved in September 2014.

Developments Affecting the F2A Family-Sponsored Category

The August Visa Bulletin indicated a cutoff date of March 15, 2011 for F2A applicants from Mexico. The September Visa Bulletin indicates a cutoff date of April 22, 2012, reflecting forward movement of 404 days. This means that applicants from Mexico with a priority date prior to April 22, 2012 will be able to file AOS applications or have applications approved in September 2014.

The August Visa Bulletin indicated a cutoff date of May 1, 2012 for F2A applicants from all other countries. The September Visa Bulletin indicates a cutoff date of January 1, 2013, reflecting forward movement of 245 days. This means that worldwide, F2A applicants with a priority date prior to January 1, 2013 will be able to file AOS applications or have applications approved in September 2014.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the September 2014 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian
Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
 
OF
Morgan, Lewis & Bockius LLP

Update on USCIS Processing Time for I-526, I-829 and I-924 Petitions

Greenberg Traurig Law firm

On July 17, 2014, USCIS released updated processing times for EB-5 related petitions. The following chart provides the average processing times for cases being adjudicated by the Immigrant Investor Program Office (IPO), as May 31, 2014:

Form Processing Timeframe
as of May 31, 2014

I-526, Immigrant Petition by Alien Entrepreneur

 13.2 months

I-829, Petition by Entrepreneur to Remove Conditions

 7.9 months
I-924, Application for Regional Center 5.4 months

USCIS reminds I-526 applicants that case status can be checked online at www.uscis.gov or through an email to USCIS.ImmigrantInvestorProgram@uscis.dhs.gov.

Article By:

Ali Brodie
Of:
Greenberg Traurig, LLP

Department of State Releases August 2014 Visa Bulletin

Morgan Lewis logo

The bulletin shows minor advancement in the EB-2 category for applicants chargeable to India and China as well as significant advancement in the EB-3 category for applicants chargeable to China and the Philippines, minor advancement for applicants chargeable to India, and no change for applicants chargeable to Mexico or the Rest of the World.

The U.S. Department of State (DOS) has released its August 2014 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the August 2014 Visa Bulletin Say?

In August, the cutoff date for applicants in the EB-2 India category will advance by a little more than four months, while the cutoff date for applicants in the EB-2 China category will advance by a little more than three months. Meanwhile, the cutoff date in the EB-3 China category will advance by slightly more than two years, while the cutoff date in the EB-3 Philippines category will advance by 17 months. The EB-3 India category will advance by one week, while the cutoff date for EB-3 Mexico and the Rest of the World will remain unchanged. The cutoff date in the F2A category for applicants from all countries will also remain unchanged.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will advance by a little more than four months to January 22, 2009. The cutoff date for applicants in the EB-2 category chargeable to China will advance by slightly more than three months to October 8, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by one week to November 8, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by a little more than two years to November 1, 2008. The cutoff date for applicants in the EB-3 category chargeable to the Philippines will advance by one year and five months to June 1, 2010. The cutoff date for applicants chargeable to Mexico and all other countries will remain unchanged at April 1, 2011.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: November 1, 2008 (forward movement of two years and one month)
India: November 8, 2003 (forward movement of one week)
Mexico: April 1, 2011 (no movement)
Philippines: June 1, 2010 (forward movement of one year and five months)
Rest of the World: April 1, 2011 (no movement)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The August Visa Bulletin indicates no change, meaning that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through August 2014.

China

The July Visa Bulletin indicated a cutoff date of July 1, 2009 for EB-2 applicants chargeable to China. The August Visa Bulletin indicates a cutoff date of October 8, 2009, reflecting forward movement of three months and one week. This means that applicants in the EB-2 category chargeable to China with a priority date prior to October 8, 2009 may file AOS applications or have applications approved in August 2014.

India

In December 2013, the cutoff date for EB-2 applicants chargeable to India retrogressed significantly to November 15, 2004 because of unprecedented demand in this category. This cutoff date remained constant through June. There was significant movement forward of nearly four years in the July Visa Bulletin. The August Visa Bulletin indicates a cutoff date of January 22, 2009, reflecting forward movement of another four months and three weeks. This means that applicants in the EB-2 category chargeable to India with a priority date prior to January 22, 2009 may file AOS applications or have applications approved in August 2014.

Developments Affecting the EB-3 Employment-Based Category

China

In late 2013 and early 2014, the cutoff date for EB-3 applicants chargeable to China advanced significantly to generate demand in this category. In June, to regulate demand, this cutoff date retrogressed by six years to October 1, 2006 and remained the same for July. The August Visa Bulletin indicates a cutoff date of November 1, 2008, reflecting forward movement of two years and one month. This means that only applicants in the EB-3 category chargeable to China with a priority date prior to November 1, 2008 may continue to file AOS applications or have applications approved in August 2014.

India

The July Visa Bulletin indicated a cutoff date of November 1, 2003 for EB-3 applicants chargeable to India. The August Visa Bulletin indicates a cutoff date of November 8, 2003, reflecting forward movement of one week. This means that only EB-3 applicants chargeable to India with a priority date prior to November 8, 2003 may file AOS applications or have applications approved in August 2014.

Rest of the World

From September 2013 through April 2014, the cutoff date for EB-3 applicants in the worldwide category advanced by 3.75 years. In June, to regulate high demand, the cutoff date in this category retrogressed by 549 days to April 1, 2011. The August Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to April 1, 2011 may file AOS applications or have applications approved in August 2014.

Developments Affecting the F2A Family-Sponsored Category

In March, as a result of heavy demand in the F2A category from applicants chargeable to Mexico, the cutoff date in this category retrogressed significantly to April 15, 2012. In June, this cutoff date retrogressed again to March 15, 2011 and remained the same in July. The August Visa Bulletin indicates no change to this cutoff date. This means that only those applicants from Mexico with a priority date prior toMarch 15, 2011 will be able to file AOS applications or have applications approved in August 2014.

During fiscal year 2013, in an effort to generate demand in the F2A category from applicants from all countries other than Mexico, the cutoff date in this category advanced significantly. This advance resulted in a dramatic increase in demand, followed in June by a further retrogression of the cutoff date to May 1, 2012. The August Visa Bulletin indicates no change to this cutoff date. This means that only those F2A applicants from countries other than Mexico with a priority date prior to May 1, 2012will be able to file AOS applications or have applications approved in August 2014. Further retrogression of the worldwide F2A category should not be ruled out.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the August 2014 Visa Bulletin in its entirety, please visit the DOS website.

Article By:

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
Of:
Morgan, Lewis & Bockius LLP

Department of State Releases July 2014 Visa Bulletin

Morgan Lewis logo

Bulletin shows nearly four years of advancement in the EB-2 category for applicants chargeable to India and minor advancement for applicants chargeable to China as well as significant advancement in the EB-3 category for applicants chargeable to the Philippines, minor advancement for applicants chargeable to India, and no change for applicants chargeable to China, Mexico, or the Rest of the World.

The U.S. Department of State (DOS) has released its July 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the July 2014 Visa Bulletin Say?

In July, the cutoff date for applicants in the EB-2 India category will advance by nearly four years, while the cutoff date for applicants in the EB-2 China category will advance by only 40 days. Meanwhile, the cutoff date in the EB-3 India category will advance by 17 days, while the cutoff date in the EB-3 China category will remain unchanged. The cutoff date in the F2A category for applicants from all countries will also remain unchanged.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will advance by nearly four years to September 1, 2008. The cutoff date for applicants in the EB-2 category chargeable to China will advance by 40 days to July 1, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by 17 days to November 1, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will remain unchanged at October 1, 2006. The cutoff date for applicants in the EB-3 category chargeable to the Philippines will advance by one year to January 1, 2009. The cutoff date for applicants chargeable to Mexico and all other countries will remain unchanged at April 1, 2011.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: October 1, 2006 (no movement)
India: November 1, 2003 (forward movement of 17 days)
Mexico: April 1, 2011 (no movement)
Philippines: January 1, 2009 (forward movement of 366 days)
Rest of the World: April 1, 2011 (no movement)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The July Visa Bulletin indicates no change, meaning that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through July 2014.

China

The June Visa Bulletin indicated a cutoff date of May 22, 2009 for EB-2 applicants chargeable to China. The July Visa Bulletin indicates a cutoff date of July 1, 2009, reflecting forward movement of 40 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to July 1, 2009 may file AOS applications or have applications approved in July 2014.

India

In December 2013, the cutoff date for EB-2 applicants chargeable to India retrogressed significantly to November 15, 2004 because of unprecedented demand in this category. This cutoff date remained constant through June. The July Visa Bulletin indicates a cutoff date of September 1, 2008, reflecting forward movement of nearly four years (1,386 days). This means that applicants in the EB-2 category chargeable to India with a priority date prior to September 1, 2008 may file AOS applications or have applications approved in July 2014.

Developments Affecting the EB-3 Employment-Based Category

China

In late 2013 and early 2014, the cutoff date for EB-3 applicants chargeable to China advanced significantly to generate demand in this category. In June, to regulate demand, this cutoff date retrogressed by six years to October 1, 2006. The July Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to China with a priority date prior to October 1, 2006 may continue to file AOS applications or have applications approved in July 2014.

India

The June Visa Bulletin indicated a cutoff date of October 15, 2003 for EB-3 applicants chargeable to India. The July Visa Bulletin indicates a cutoff date of November 1, 2003, reflecting forward movement of 17 days. This means that only EB-3 applicants chargeable to India with a priority date prior to November 1, 2003 may file AOS applications or have applications approved in July 2014.

Rest of the World

From September 2013 through April 2014, the cutoff date for EB-3 applicants in the worldwide category advanced by 3.75 years. In June, to regulate the high demand, the cutoff date in this category retrogressed by 549 days to April 1, 2011. The July Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to April 1, 2011 may file AOS applications or have applications approved in July 2014.

Developments Affecting the F2A Family-Sponsored Category

In March, as a result of heavy demand in the F2A category from applicants chargeable to Mexico, the cutoff date in this category retrogressed significantly to April 15, 2012. In June, this cutoff date retrogressed again to March 15, 2011. The July Visa Bulletin indicates no change to this cutoff date. This means that only those applicants from Mexico with a priority date prior to March 15, 2011 will be able to file AOS applications or have applications approved in July 2014.

During fiscal year 2013, in an effort to generate demand in the F2A category from applicants from all countries other than Mexico, the cutoff date in this category advanced significantly. This advance resulted in a dramatic increase in demand, followed in June by a further retrogression of the cutoff date to May 1, 2012. The July Visa Bulletin indicates no change to this cutoff date. This means that only those F2A applicants from countries other than Mexico with a priority date prior to May 1, 2012will be able to file AOS applications or have applications approved in July 2014. Further retrogression of the worldwide F2A category should not be ruled out.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the July 2014 VisaBulletin in its entirety, please visit the DOS website here.

Article by:
Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
Of:
Morgan, Lewis & Bockius LLP

U.S. Consular Posts in Canada Temporarily Suspend Nonimmigrant Visa Processing for TCNs (Third Country Nationals)

Morgan Lewis

Third Country Nationals may be unable to schedule nonimmigrant visa appointments at U.S. consulates and embassies throughout Canada this summer.

U.S. consular posts in Canada have temporarily suspended nonimmigrant visa processing for Third Country Nationals (TCNs) during June, July, and August because of staffing issues. In this context, “TCN” refers to any non-Canadian national applying for a U.S. nonimmigrant visa in Canada. The status of TCN visa application processing in Canada is as follows:

  • The only posts with remaining availability during the month of September are Calgary and Vancouver.
  • The Toronto and Ottawa posts are currently scheduling visa appointments in October and do not plan to release any earlier appointments during the summer months.
  • Applicants whose appointments have already been scheduled during the summer months will not be affected.
  • Applicants who reside in Canada with Canadian immigration status will also not be affected.

The Ottawa post may assist in scheduling appointments for applicants who hold senior or executive positions with their U.S. employers.

Article By:

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
Of:
Morgan, Lewis & Bockius LLP

June 2014 Visa Bulletin Released, Shows Significant Retrogression for EB-3 Worldwide, China and Mexico

GT Law

Below is a summary of the U.S. State Department June 2014 Visa Bulletin:

  • EB-1 remains current across all filing categories;
  • EB-2 for Worldwide, Mexico and Philippines all remain current. The EB-2 India cut-off remains at November 15, 2004 (this has remained stagnant since the December 2013 Visa Bulletin). EB-2 China moves forward to May 22, 2009; and
  • EB-3 Worldwide, China and Mexico retrogress significantly (see below). EB-3 Worldwide and EB-3 Mexico move back to April 1, 2011 and EB-3 China moves back by 6 years to October 1, 2006. EB-3 Philippines moves forward by 2 months to January 1, 2008, while EB-3 India moves forward by only 2 weeks to October 15, 2003.

Dramatic Retrogression for EB-3 China

The Department of State stated in the Visa Bulletin that the “unexpected and dramatic increase in demand being received from U.S. Citizenship and Immigration Service Offices during the past several months has resulted in number use approaching the annual limit for this category. As a result, it has been necessary to retrogress the Worldwide, China and Mexico cut-off dates for the month of June.”

Beginning with the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in the People’s Republic of China (China) had a more recent cut-off date than the second preference employment-based category (EB-2). Accordingly, many foreign nationals chose to “downgrade” their case from EB-2 to EB-3 to shorten their wait time. However, this has had a negative impact on the EB-3 category and has resulted in the severe retrogression (six years) as reported above. Applicants who are still preparing their I-485 Adjustment Applications for this filing category should file before the end of the month, before the retrogression occurs on June 1, 2014.

Employment-Based Projections

The American Immigration Lawyers Association (AILA) reported that on Monday April 21, 2014, Mr. Charlie Oppenheim of the Department of State’s Visa Office (VO) spoke to AILA regarding what his office is currently seeing with regard to visa demand and what might be expected in terms of Visa Bulletin movement at this time. While these “projections” can (and often do) change based on usage and/or new developments, below is a summary of the outlook based on AILA’s conversation with Mr. Oppenheim (note: Mr. Oppenheimer discussed both Family-Based and Employment-Based projections; however, we only report the employment-based projections here):

Employment Based 5th Preference China (EB-5)

  • China EB-5 could retrogress later this year, possibly August or September.
  • Retrogression for China EB-5 in the 2015 fiscal year seems almost inevitable, as there are more than 7,000 I-526 applications pending and 80% are from China.

Employment Based 1st Preference (EB-1)

  • It is still a little early in the fiscal year to know how many unused cases will drop down into EB-2. EB-1 usage is heavier this year than last year.

Employment Based 2nd Preference India (EB-2)

  • It is possible in August, but more likely in September, that India EB-2 will open at 1/1/2008 or perhaps later in 2008, in order to utilize the rest of the EB-2 visa numbers that were unused by the Worldwide categories.
  • How many numbers will be utilized depends on EB-1 and EB-2 usage in the Worldwide categories for the rest of the fiscal year (it could be 5,000 or more). This would be less than what was available in fiscal year 2013.
  • No expected changes for Worldwide EB-2.

Employment Based 3rd Preference Worldwide (EB-3)

  • The VO has limited knowledge as to the number of eligible applicants, and USCIS has encouraged DOS to “move the category forward” over the last five months. Demand appears to be increasing, thus, it is unlikely in the short run that the category will move forward. In fact, if current demand continues, something may have to be done as early as May 2014 to slow the demand in this category.
  • The last quarter of the fiscal year for 2014 does not look good, and no movement, or retrogression, is possible.

Employment Based 3rd Preference China (EB-3)

  • Many Chinese nationals who were waiting in the EB-2 category have been filing to “downgrade” from EB-2 to EB-3, and the result of these requests will be reflected in the coming months.
  • High demand is expected to continue in this category and a correction may be reflected as early as the May or June Visa Bulletin, depending on demand.

Why Are Priority Dates Important Anyway?

The issue of a visa number’s “availability” is tied to the U.S. preference system for permanent residence. The U.S. maintains limits on those who can apply to enter as permanent residents; these limits apply by type of immigrant visa sought for permanent resident as well as country of origin. From time to time, backlogs occur in certain categories of employment-based visas, for all persons or for persons from certain countries (backlogs are almost always present for family-based visas) as there are more people applying in those categories from those countries than there are visa numbers available. The setting of the preference is based upon the position’s minimum requirements, not the qualifications of the employee. The net result is that persons who have applications from those countries in the third preference are not able to move on to the final step of the permanent residence process until their “priority date” (or “place in line”) moves to the front of the line for immigrant visas. The line is set by the Department of State and is reviewed monthly. In many cases, this step can take eight years or more depending on the filing category.

The VO’s projections can give hope to some applicants, who in the coming months, may be eligible to move to the final step of the permanent residence process, after waiting for years on hold. But for others, the outlook is not very promising. While the future movement of the immigrant visa availability remains hazy, one thing is clear. Immigration Reform is needed to help eradicate these extreme and unnecessary delays for individuals who continue to contribute to the U.S. economy; and for employers, who are forced to continue filing multiple temporary work extensions in order to retain valuable employees. We will continue to watch the movement in the Visa Bulletin and provide updates.

Article By:

Patricia A. Elmas
Of: 
Greenberg Traurig, LLP

EB-5 Visas: A Source of Funding for US Businesses But Not Without Risk

Poyner Spruill

China’s wealthy investors are known for seeking secure havens for their money overseas.  In addition to being considered a secure environment for their money, the US offers the EB-5 program providing the investor and his or her immediate family with permanent US residence, known as getting “green cards” in return for making an investment.

Basically, in return for an investment of either $500,000 or $1,000,000, which can be shown to the satisfaction of the US Citizenship and Immigration Services to create 10 US jobs per investment over a two year period, the investor and his family get green cards.  Since it started in 1990, the EB-5 visa program has brought approximately $6.7 billion to the US and has created 95,000 jobs.  In fact, the EB-5 visa program was not very popular until the 2008 financial crisis when traditional sources of financing became more difficult to obtain.  Since then, numerous businesses have attempted to use the EB-5 program to raise money.  For example, Vermont’s Trapp Family Lodge of “Sound of Music” fame advertises that it seeks EB-5 investors to open a beer hall and renovate its existing resort facilities.

There are two distinct EB-5 routes — the Basic Program and the Regional Center Pilot Program. Both programs require that the immigrant make a capital investment of either $500,000 or $1,000,000 (depending on whether the investment is in a Targeted Employment Area [TEA]) in a new commercial enterprise located within the United States.  A TEA is defined by law as “a rural area or an area that has experienced high unemployment of at least 150% of the national average.”  The new commercial enterprise must create or preserve 10 full-time jobs for qualifying US workers within two years (or under certain circumstances, within a reasonable time after the two year period) of the immigrant investor’s admission to the US as a Conditional Permanent Resident.

Entrepreneurs across the nation have set up regional centers for foreign investment to market local EB-5 projects to investors.  There are over 230 such regional centers, some of which are state-run  like Vermont’s Jay Peak. The flexibility offered by a regional center is attractive to both the investor and developer since the investor does not have to play a role in the company. With a direct EB-5 investment, the investor must have some sort of “managerial” function.  Seeing a lucrative opportunity when connecting an investor with regional centers, an industry has sprung up, particularly in China, to connect US businesses with potential investors. These go-betweens charge the regional center as much as $175,000 per investor for making the introduction.

Some projects have not produced the requisite number of jobs that would prompt US immigration authorities to withhold green cards – resulting in exposure to lawsuits from the investor against the developer or regional center that has solicited the investment.  Approximately 31 investors, 15 from China, filed a federal lawsuit alleging the only thing they had to show for a $15.5 million investment was an undeveloped plot of land across the Mississippi River from New Orleans.  In San Bruno, California, three Chinese investors alleged in a lawsuit filed last year that they lost $3 million when an EB-5 developer disappeared with his associates concocted a story about his death.

In contrast, the Marriot and Hilton hotel chains have successfully solicited and obtained EB-5 investment funds to build new hotels; Sony Pictures Entertainment and Warner Brothers have used the EB-5 program to raise funds for film projects; and the new home of the NBA’s Brooklyn Nets, Barclay Center, was funded through EB-5 investment.

Even if successful, EB-5 visa approval has become much slower due to suspicion of fraud and developers’ inaccurate estimate of creating 10 jobs per investor.  With the economic downturn, the USCIS has hired economists and securities lawyers to review EB-5 applications. Now showing it that it means business, the Securities Exchange Commission has filed its first lawsuit against an EB-5 project alleging that the promoters of a Chicago hotel and convention center project fraudulently sold more than $145 million in securities and collected $11 million in administrative fees from over 250 Chinese investors.

The Canadian government has decided recently to halt its immigrant investor program due to the number of Chinese applications.  This has left Chinese investors potentially turning their attention to the US equivalent as they seek a financially and politically stable haven for themselves and their families.

Article By:

Jennifer G. Parser
Of:
Poyner Spruill LLP

Department of State Releases May 2014 Visa Bulletin

Morgan Lewis logo

 

Bulletin shows minor forward movement in the EB-2 China category and the EB-3 India category, with no movement in the EB-2 India category or the EB-3 China category.

The U.S. Department of State (DOS) has released its May 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the May 2014 Visa Bulletin Say?

The May Visa Bulletin indicates minor forward movement of the cutoff date in the EB-2 China category and no movement in the EB-3 China category. The May Visa Bulletin also indicates minor forward movement of the cutoff date in the EB-3 India category and no movement in the EB-2 India category.

A cutoff date of April 15, 2012 will remain in effect for individuals in the F2A category chargeable to Mexico, while a cutoff date of September 8, 2013 will remain in effect for individuals in the F2A category chargeable to all other countries.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date of November 15, 2004 for individuals in the EB-2 category chargeable to India will remain unchanged from the April Visa Bulletin. The cutoff date for individuals in the EB-2 category chargeable to China will advance by 38 days to April 15, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for individuals in the EB-3 category chargeable to India will advance by 16 days to October 1, 2013. The cutoff date for individuals in the EB-3 category chargeable to China will remain unchanged at October 1, 2012. The cutoff date for individuals in the EB-3 category chargeable to the Philippines will advance by 139 days to November 1, 2007. The cutoff date for individuals chargeable to Mexico and the Rest of the World will remain unchanged at October 1, 2012. We note that the EB-3 China category remains ahead of the EB-2 China category.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: October 1, 2012 (no movement)
India: October 1, 2003 (forward movement of 16 days)
Mexico: October 1, 2012 (no movement)
Philippines: November 1, 2007 (forward movement of 139 days)
Rest of the World: October 1, 2012 (no movement)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for individuals chargeable to all countries other than China and India has been current since November 2012. The May Visa Bulletin indicates no change to these categories. This means that individuals in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through May 2014.

China

The April Visa Bulletin indicated a cutoff date of March 8, 2009 for EB-2 individuals chargeable to China. The May Visa Bulletin indicates a cutoff date of April 15, 2009, reflecting forward movement of 38 days. This means that individuals in the EB-2 category chargeable to China with a priority date prior to April 15, 2009 may file AOS applications or have applications approved in May 2014.

India

In December 2013, the cutoff date for EB-2 individuals chargeable to India retrogressed by 3.5 years to November 15, 2004 due to unprecedented demand for EB-2 visa numbers from applicants in this category. This cutoff date has since remained constant, and the May Visa Bulletin again indicates no change. This means that only individuals in the EB-2 category chargeable to India with a priority date prior to November 15, 2004 may file AOS applications or have applications approved in May 2014.

Developments Affecting the EB-3 Employment-Based Category

China

From September through December 2013, the cutoff date for EB-3 individuals chargeable to China advanced by 2.75 years, and, from January through April, this cutoff date advanced by an additional 366 days. The May Visa Bulletin indicates a cutoff date of October 1, 2012, reflecting no change to the cutoff date from April. This means that individuals in the EB-3 category chargeable to China with a priority date prior to October 1, 2012 may continue to file AOS applications or have applications approved in May 2014.

India

In March, the cutoff date for EB-3 individuals chargeable to India advanced by 14 days to September 15, 2003. There was no change to this cutoff date in April. The May Visa Bulletin indicates a cutoff date of October 1, 2013, reflecting forward movement of 16 days. This means that only EB-3 individuals chargeable to India with a priority date prior to October 1, 2003 may file AOS applications or have applications approved in May 2014.

Rest of the World

From September through December 2013, the cutoff date for EB-3 individuals chargeable to the Rest of the World advanced by 2.75 years, and, from January through April, this cutoff date advanced by an additional 366 days. The May Visa Bulletin indicates a cutoff date of October 1, 2012, reflecting no movement of this cutoff date. This means that individuals in the EB-3 category chargeable to the Rest of the World with a priority date prior to October 1, 2012 may continue to file AOS applications or have applications approved in May 2014.

Developments Affecting the F2A Family-Sponsored Category

Beginning in October 2013, a cutoff date of September 1, 2013 was imposed for F2A spouses and children of permanent residents from Mexico, and a cutoff date of September 8, 2013 was imposed for F2A spouses and children of permanent residents from all other countries. In March, as a result of heavy demand in the F2A Mexico category, the cutoff date for F2A applicants born in Mexico retrogressed by 504 days to April 15, 2012; the cutoff date for F2A applicants from all other countries remained unchanged. There was no change to these cutoff dates in April, and the May Visa Bulletin again indicates no change to these cutoff dates. This means that those applicants from Mexico with a priority date prior to April 15, 2012 will be able to file AOS applications or have applications approved in May 2014, and those applicants from the Rest of the World with a priority date prior to September 8, 2013 may file AOS applications or have applications approved through May 2014.

The May Visa Bulletin indicates that demand in the F2A category continues to increase dramatically and that the cutoff date for individuals from Mexico and all other countries is therefore likely to retrogress in the coming months.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the May 2014 Visa Bulletin in its entirety, please visit the DOS website here.

USCIS Strictly Enforcing the Statutory Provisions in Adjudicating H-1B Petitions Filed Under the 20,000 Advanced Degree Cap

GT Law

 

A separate cap of 20,000 H-1B’s is allotted for those foreign nationals who were awarded advanced degrees in the U.S. However, not all degrees qualify under this provision. Recently, USCIS has been enforcing this provision very strictly, issuing requests for evidence, denials, and even initiating revocation proceedings for previously approved petitions under the advanced degree cap.

Immigration and Nationality Act (INA) Section 214(g)(5)(c) provides that those foreign nationals who earned a master’s or higher degree from a United States institution of higher education can file under the 20,000 cap, which is separate from the 65,000 cap reserved for all other H-1B petitions, with the exception of colleges, universities, and qualifying affiliated institutions who are exempt from the cap altogether. This section further states that only degrees awarded by those institutions which fit the definition set forth in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). This section of the law, in turn, defines a U.S. institution of higher education as a public or other non-profit institution accredited by a “nationally recognized accrediting agency or association” or “granted a pre-accreditation status”. Degrees received from institutions which do not fit this definition, though located in the U.S. and award advanced degrees, do not qualify an H-1B petition to be filed under the 20,000 cap.

In the past USCIS has been liberal in reading this section, rarely rejecting filings made under this cap where the foreign national held an advanced degree awarded in the U.S. However, recently, in following its new policy of strict interpretation and observance of the immigration laws and regulations, USCIS has begun to closely scrutinize these filings, issuing requests for evidence, and even denials where it finds that the institution does not fit within the requisite definition to qualify. What’s more, Greenberg Traurig has been informed that USCIS has begun revocation proceedings for previously approved H-1B petitions, where it determined that it previously approved H-1B petitions under the advanced degree cap in error.

This year’s H-1B filings are once again expected to surpass the amount allotted under both caps within the first week, with USCIS conducting a random lottery to choose H-1B petitions for adjudication, similarly to last year. If a petition is filed erroneously requesting adjudication under the advanced degree cap and is rejected by USCIS, with both caps having been exhausted within the first week of the filing season, it is unlikely to be re-filed for the same fiscal year. Therefore, it is very important to provide all of the academic credentials in connection with the H-1B filing to your GT business immigration and compliance attorney and make sure to speak with them about the requirements involved with the H-1B petition cap filings.

Article by:

Nataliya Rymer

Of:

Greenberg Traurig, LLP

Prepare Now for Foreign Talent Acquisition: H-1B Cap Demand Projected to Reach Five-Year High

GT Law

 

I. FISCAL YEAR FOR 2015 H-1B CAP

U.S. Citizenship and Immigration Services (“USCIS”) will start accepting new H-1B petitions for Fiscal Year 2015 on Tuesday, April 1, 2014. As such, employers must start identifying current and future employees who will need to be sponsored for new H-1B petitions as soon as possible, as it is likely that this year’s H-1B quota (“H-1B cap”) will be met within one week of it opening and USCIS will then stop accepting new petitions until next year’s H-1B cap opens on April 1, 2015. Once the H-1B cap closes, employers will need to look at alternative visa options for affected employees to assess whether a viable option is available. Please note that only new H-1B petitions are affected; H-1B petitions involving someone who is already in H-1B status or has previously held H-1B status are not affected by the H-1B cap.

By way of background, U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The number of initial H-1B visas available to U.S. employers (the “H-1B cap”) is 65,000, with an additional 20,000 numbers set aside for individuals who have obtained a U.S. master’s degree or higher. This year’s H-1B cap will leave employers unable to secure all of the highly skilled workers needed to remain competitive and will no doubt re-ignite the debate about the need to implement a comprehensive immigration reform.

The rate at which USCIS has received cap-subject H-1B petitions in the past few years has dramatically increased. The usage of the H-1B program is strongly connected to the health of the U.S. economy, and the increase in the H-1B usage rate corresponds with the economic recovery following the 2008 Economic Recession. In keeping with this trend, business immigration practitioners are predicting that the H-1B quota will be reached by the second quarter of 2014, if not much sooner. In fact, it is possible that initial demand for H-1B visas will exceed the 85,000 supply during the first week of the filing season, April 1, 2014 through April 4, 2014.

If USCIS receives more than 85,000 H-1B Cap Petitions during the first week of availability, then a lottery will be conducted to select the petitions that will be processed under this cap. Those petitions not selected in the lottery will be rejected. Should such a rejection occur, an affected foreign national seeking immigration and employment authorization sponsorship with an employer will be unable to obtain an H-1B petition until October 1, 2015 (with the filing season beginning April 1, 2015). Affected foreign nationals may also be required to forego employment with employers and possibly leave the United States.

II. HISTORICAL CONTEXT

As an historical example, in FY 2009 (October 1, 2008 – October 1, 2009), approximately 163,000 H-1B petitions were filed within the five-day filing period at the beginning of April 2008 and a lottery was needed to select the petitions which would enjoy processing under that year’s cap.

Last year, the FY 2014 H-1B cap was reached within the first week of filing. USCIS received a total of 124,000 H-1B petitions and therefore had to conduct a lottery in order to select the petitions needed to meet the regular cap of 65,000 and master’s cap of 20,000.00

The markedly higher demand for H-1B visa petitions in the FY 2014 season is indicative of an improving job market and economy in the United States, and the economy and need for highly skilled workers have picked up over the last year. Accordingly, we project that the demand for H-1B visas this year will be even greater than last year with up to 40% of all H-1B petitions filed by employers rejected by USCIS pursuant to a randomized lottery system.

III. RECOMMENDED ACTION

Based upon the above, we strongly urge employers to file H-1B cap-subject petitions with USCIS on the earliest possible start date in FY 2015: April 1, 2014. This will allow for the mailing of H-1B cap-subject petitions to USCIS on March 31, 2014, for delivery to USCIS on Tuesday, April 1, 2014, the very first day of filing. This will provide the best possible chance for acceptance of the H-1B petition. It can take two to four weeks or more to gather all of the necessary information and documentation and prepare the requisite forms and supporting documentation for filing of an H-1B petition. Therefore, we recommend that H-1B cases should be initiated immediately.

Article by:

Of:

Greenberg Traurig, LLP