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Department of State Releases May 2015 Visa Bulletin

Cutoff dates for EB-3 Philippines retrogress by six years and nine months, cutoff dates for EB-5 China retrogress by two years, cutoff dates in the EB-2 India category advance by seven and a half months, cutoff dates in the EB-2 China advance by 14 months, cutoff dates for EB-3 China advance by four months, and cutoff dates for EB-3 for the Rest of the World advance by three months.

The US Department of State (DOS) has released its May 2015 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 US embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the May 2015 Visa Bulletin Say?

The May 2015 Visa Bulletin shows an advancement of seven and a half months for the EB-2 India category. EB-3 cutoff dates for the worldwide category will advance by three months, the EB-2 cutoff dates for China will advance by 14 months, the EB-3 cutoff dates for China will advance by four months, and the EB-3 cutoff dates for the Philippines will retrogress by six years and nine months. In addition, the EB-5 cutoff dates for China retrogress by two years.

The cutoff date for F2A applicants in all categories will advance by one month in May.

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 to April 15, 2008. The cutoff date for applicants in the EB-2 category chargeable to China will advance to June 1, 2012. 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 January 15, 2004. The cutoff date for applicants in the EB-3 category chargeable to China will advance by four months to May 1, 2011. The cutoff date for applicants in the EB-3 category chargeable to Mexico and the worldwide category will advance by three months to January 1, 2015. The cutoff date for applicants in the EB-3 category chargeable to the Philippines will retrogress by six years and nine months to July 1, 2007.

EB-5: The cutoff date for applicants in the EB-5 category chargeable to China will retrogress by two years. The cutoff dates for applicants in the EB-5 category chargeable to the worldwide category remain current.

The relevant priority date cutoffs for foreign nationals in the EB-2 category are as follows:

China: June 1, 2012 (forward movement of 427 days)
India: April 15, 2008 (forward movement of 227 days)
Mexico: Current
Philippines: Current
Rest of the World: Current

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

China: May 1, 2011 (forward movement of 120 days)
India: January 15, 2004 (forward movement of 7 days)
Mexico: January 1, 2015 (forward movement of 92 days)
Philippines: July 1, 2007 (retrogression of 2,649 days)
Rest of the World: January 1, 2015 (forward movement of 92 days)

The relevant priority date cutoffs for foreign nationals in the EB-5 category are as follows:

China: May 1, 2013 (retrogression of 730 days)
Rest of the World: Current

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 May Visa Bulletin indicates no change to this trend. 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 May 2015.

China
The April Visa Bulletin indicated a cutoff date of April 1, 2011 for EB-2 applicants chargeable to China. The May Visa Bulletin indicates a cutoff date of June 1, 2012, reflecting forward movement of 14 months. This means that applicants in the EB-2 category chargeable to China with a priority date prior to June 1, 2012 may file AOS applications or have applications approved in May 2015.

India
The April Visa Bulletin indicated a cutoff date of September 1, 2007 for EB-2 applicants chargeable to India. In May, the cutoff date for EB-2 applicants chargeable to India advances by seven and a half months to April 15, 2008. This means that applicants in the EB-2 category chargeable to India with a priority date prior to April 15, 2008 may file AOS applications or have applications approved in May 2015.

Developments Affecting the EB-3 Employment-Based Category

China
The April Visa Bulletin indicated a cutoff date of January 1, 2011 for EB-3 applicants chargeable to China. In May, the cutoff date for EB-3 applicants chargeable to China advances by four months to May 1, 2011. This means that applicants in the EB-3 category chargeable to China with a priority date prior to May 1, 2011 may file AOS applications or have applications approved in May 2015.

India
The April Visa Bulletin indicated a cutoff date of January 8, 2004. The May Visa Bulletin will advance slightly, with a cutoff date of January 15, 2004, an advancement of one week. This means that EB-3 applicants chargeable to India with a priority date prior to January 15, 2004 may file AOS applications or have applications approved in May 2015.

The Philippines
The April Visa Bulletin indicated a cutoff date of October 1, 2014. The May Visa Bulletin will retrogress by six years and nine months, with a cutoff date of July 1, 2007. This means that only EB-3 applicants chargeable to the Philippines with a priority date prior to July 1, 2007 may file AOS applications or have applications approved in May 2015.

Rest of the World
The April Visa Bulletin indicated a cutoff date of October 1, 2014 for EB-3 applicants chargeable to the worldwide category. The May Visa Bulletin indicates a cutoff date of January 1, 2015, reflecting forward movement of three months. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to January 1, 2015 may file AOS applications or have applications approved in May 2015.

Developments Affecting the F2A Family-Sponsored Category

The April Visa Bulletin indicated a cutoff date of July 8, 2013 for F2A applicants from Mexico. The May Visa Bulletin indicates a cutoff date of August 8, 2013, reflecting forward movement of one month. This means that applicants from Mexico with a priority date prior to August 8, 2013 will be able to file AOS applications or have applications approved in May 2015.

The April Visa Bulletin indicated a cutoff date of August 1, 2013 for F2A applicants from all other countries. The May Visa Bulletin indicates a cutoff date of September 1, 2013, reflecting forward movement of one month. This means that F2A applicants from all other countries with a priority date prior to September 1, 2013 will be able to file AOS applications or have applications approved in May 2015.

Developments in the Coming Months

Regarding the retrogression of visa numbers for EB-5 China, the DOS notes that “It is extremely likely that this category will remain subject to a cut-off date indefinitely.”

Regarding the retrogression of visa numbers for EB-3 Philippines, the DOS notes that “This cut-off date had also been advanced very rapidly in an effort to generate sufficient demand to fully utilize all available numbers. The current rate of increase in demand has required the retrogression of this cut-off date for the month of May, in an attempt to hold number use within the annual limit for this preference category.”

F2A Family-Sponsored Category

The cutoff date in the F2A category will likely advance by three to four weeks per month.

Employment-Based Second Preference Category

The worldwide category will likely remain current.
The cutoff date in the EB-2 China category will likely advance by three to six weeks per month.
The cutoff date in the EB-2 India category will likely advance by four to six months.

Employment-Based Third Preference Category

The cutoff date in the EB-3 worldwide category will most likely be adjusted in the coming months as demand increases.
The cutoff date in the EB-3 China category is expected to advance by three to six weeks per month.
The cutoff date in the EB-3 India category will advance up to two weeks.
The cutoff date in the EB-3 Mexico category will remain at the worldwide date.
The cutoff date in the EB-3 Philippines category will advance slightly. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

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 2015 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord

Lisa Stephanian Burton

Tracy Evlogidis

Eleanor Pelta

A. James Vázquez-Azpiri

Roland C. Lechner

Morgan, Lewis & Bockius LLP

USCIS Resumes H-2B Adjudications

The Department of Homeland Security (DHS) has announced that it will resume adjudications of H-2Bpetitions, even though it will continue to suspend premium processing until further notice.

The March 17, 2015, announcement follows the filing of an unopposed motion on March 16 by DOL to stay until April 15the U.S. District Court ruling in Perez v. Perez. That order vacated DOL’s H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue them. DHS suspended H-2B adjudications while it reviewed the decision. As stated in the motion, DHS will resume adjudicating H-2B petitions based on temporary labor certifications issued by DOL.

The DHS announcement follows pressure mounted by stakeholders to resume processing of H-2B petitions already filed, and to accept and process H-2B petitions supported by temporary labor certifications issued prior to March 4, 2015. The court in Perez enjoined DOL from enforcing DOL’s 2008 H-2B regulations. It did not invalidate H-2B temporary labor certifications already issued by the DOL, nor did it direct USCIS to end processing of H-2B petitions supported by previously issued temporary labor certifications. The stakeholders have argued that Perez does not require USCIS to cease processing of their H-2B petitions. They have lamented that the suspension of processing could potentially have a significant impact on a wide range of industries, including resort and hospitality, seafood, landscaping, grounds maintenance, and forestry, to name but a few. Businesses that use the H-2B program to supplement workforce needs will face serious labor shortages, and the potential for significant economic loss across several industries is tremendous.

To fill the regulatory gap occasioned by the court order, DOL and DHS announced on March 13, that they intend to issue a joint interim final rule by April 30, 2015.

ARTICLE BY

Otieno B. Ombok

Jackson Lewis P.C.

Modest Changes Announced in March Visa Bulletin

The Department of State’s March Visa Bulletin announced only a few modest changes in employment-based visa processing. Most significantly, the EB-3 subcategory for professionals and skilled workers will advance by six months for “All Other Countries,” with priority dates moving up from Jan. 1, 2014, to June 1, 2014. This brings adjudications under this subcategory just shy of eight months of being current.

Additionally, Indian nationals seeking classification under the EB-2 preference category will rejoice at the 16-month advancement announced for March, moving from Sept. 1, 2005, up to Jan., 1, 2007. Even with this considerable jump, the government is still virtually experiencing a “delay” of eight years. Priority dates for Chinese nationals under EB-2, in comparison, only advanced six months to Sept. 1, 2010.

Processing of petitions under the EB-5 immigrant investor program continue to be current for the time being, however, the possibility of visa retrogression for Chinese nationals remains a looming specter, as Greenberg Traurig reported on an earlier EB-5 Insights blog.

EB Category	All Other Countries	China	India
EB-1	Current	Current	Current
EB-2	Current	9/1/2010	1/1/2007
EB-3 (prof. & skilled workers)	6/1/2014	10/22/2011	1/1/2004
EB-3 (other workers)	6/1/2014	8/15/2005	1/1/2004
EB-5	Current	Current	Current

ARTICLE BY

Business Immigration & Compliance

Greenberg Traurig, LLP

USCIS to Accept Expanded Deferred Action for Childhood Arrivals Applications Starting February 18, 2015

President Barack Obama’s November 20, 2014, Executive Order addressed many significant issues of immigration law and allowed more individuals to qualify under the Deferred Action for Childhood Arrivals program. Consequently, on January 29, 2015, the U.S. Citizenship and Immigration Service (USCIS) announced that it will start accepting applications for expanded DACA beginning on February 18, 2015. To be eligible to apply for expanded DACA, an applicant must be in the U.S. without lawful status, have entered the U.S. before his 16^th birthday, and meet certain other criteria.

In the spring of 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum on the new Deferred Action for Childhood Arrivals program as a measure of relief to “Dreamers” when the DREAM Act failed to pass in Congress. Since 2012, DACA has allowed thousands of young people to obtain work authorization and offered safety from deportation.

ARTICLE BY

Jessica Feinstein

Jackson Lewis P.C.

Business Immigration: 2016 H-1B Cap, You’ve Been Warned, Now Here Are This Year’s Key Dates

Fiscal Year 2016 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) will start accepting new H-1B petitionsfor fiscal year 2016 on Wednesday, April 1, 2015. Employers must immediately start identifying current and future employees who will need to be sponsored for new H-1B petitions.

This chart identifies the absolute latest cut-off dates to file Labor Condition Applications (LCAs) and H-1B petitions for this year’s H-1B quota (H-1B cap).

It is extremely likely that this year’s H-1B quota (H-1B cap) will be met within five business days of it opening and USCIS will then stop accepting new petitions until next year’s H-1B cap, which will open on April 1, 2016. If USCIS receives more petitions than are available in the quota, then a lottery will be conducted to select the petitions that will be processed under the H-1B cap.

Please note that only new H-1B petitions are affected by the H-1B cap; H-1B petitions involving someone who has already been counted against the H-1B cap or who has previously held H-1B status are not affected by the H-1B cap.

H1-B Key Dates

By way of background, U.S. businesses use the H-1B program to employ foreign workers in specialty occupation positions 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.

The usage of the H-1B program is strongly connected to the health of the U.S. economy. The rate at which USCIS has received cap-subject H-1B petitions in the past few years has dramatically increased as the economy has improved. For example, last year USCIS received 172,500 H-1B petitions within the first week of filing, requiring a lottery in order to select the petitions needed to meet the regular cap of 65,000 and master’s cap of 20,000. Business immigration practitioners are predicting that this year’s H-1B demand will be even greater than last year (perhaps 200,000 or more filings during the first week of the filing season, April 1, 2015, through April 7, 2015) and as a result more than half of all H-1B petitions filed by employers may be rejected by USCIS due to the randomized lottery system.

Petitions not selected in the H-1B 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 visa until at least Oct. 1, 2016, (with the filing season beginning April 1, 2016). Affected foreign nationals may also be required to forego employment with employers and possibly leave the United States. In such cases employers will need to look at alternative visa options for employees unable to secure an H-1B visa.

Recommended Action

Based upon the above, Greenberg Traurig’s Business Immigration & Compliance group strongly urges employers to file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2016: mailing of H-1B cap-subject petitions to USCIS on March 31, 2015, for delivery to USCIS on Wednesday, April 1, 2015, the very first day of filing. This will provide the best possible chance for acceptance of the H-1B petition.

It also is recommended that H-1B cases should be initiated immediately. 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. Required information from the employer will include: (1) job title; (2) job description; (3) job location; (4) minimum education and experience required for the position; and (5) offered wage/salary. Required information from the employee will include: (1) resume; (2) educational documents (diplomas and transcripts); and (3) any documents related to prior or current U.S. immigration status.

ARTICLE BY

Scott T. Decker

Ian R. Macdonald

Greenberg Traurig, LLP

Department of State Releases February 2015 Visa Bulletin

Cutoff dates in the EB-2 India category advance by six and a half months, cutoff dates in EB-3 for the Rest of the World advance by five months, cutoff dates for China advance by six months, and EB-3 China is still ahead of EB-2 China.

The U.S. Department of State (DOS) has released its February 2015 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 February 2015 Visa Bulletin Say?

The February 2015 Visa Bulletin shows an advance of six and a half months for the EB-2 India category. EB-3 cutoff dates for the worldwide category will advance by five months, and the EB-3 cutoff dates for China will advance by six months.

The cutoff date for F2A applicants from all countries will advance slightly in February.

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 to September 1, 2005. The cutoff date for applicants in the EB-2 category chargeable to China will advance toMarch 15, 2010. The EB-2 category for all other countries will remaincurrent.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to December 22, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by six months to September 1, 2011, which remains ahead of the cutoff date for EB-2 China. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the worldwide category will advance by seven months to January 1, 2014.

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

China: September 1, 2011 (forward movement of 184 days)
India: December 22, 2003 (forward movement of 7 days)
Mexico: January 1, 2014 (forward movement of 214 days)
Philippines: January 1, 2014 (forward movement of 214 days)
Rest of the World: January 1, 2014 (forward movement of 214 days)

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 February Visa Bulletin indicates no change to this trend. 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 February 2015.

China

The January Visa Bulletin indicated a cutoff date of February 1, 2010 for EB-2 applicants chargeable to China. The February Visa Bulletin indicates a cutoff date of March 15, 2010, reflecting forward movement of 45 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to March 15, 2010 may file AOS applications or have applications approved in February 2015.

India

The cutoff date for EB-2 applicants chargeable to India advances by six and a half months to September 1, 2005. This means that only applicants in the EB-2 category chargeable to India with a priority date prior to September 1, 2005 may file AOS applications or have applications approved in February 2015.

Developments Affecting the EB-3 Employment-Based Category

China

The January Visa Bulletin indicated a cutoff date of March 1, 2011. The February Visa Bulletin shows a cutoff date of September 1, 2011, an advancement of six months. This means that applicants in the EB-3 category chargeable to China with a priority date prior to September 1, 2011 may file AOS applications or have applications approved in February 2015.

India

The January Visa Bulletin indicated a cutoff date of December 15, 2003. The February Visa Bulletin will advance slightly, with a cutoff date ofDecember 22, 2003. This means that EB-3 applicants chargeable to India with a priority date prior to December 22, 2003 may file AOS applications or have applications approved in February 2015.

Rest of the World

The January Visa Bulletin indicated a cutoff date of June 1, 2013 for EB-3 applicants chargeable to the worldwide category. The February Visa Bulletin indicates a cutoff date of January 1, 2014, reflecting forward movement of 214 days. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to January 1, 2014 may file AOS applications or have applications approved in February 2015.

Developments Affecting the F2A Family-Sponsored Category

The January Visa Bulletin indicated a cutoff date of February 22, 2013 for F2A applicants from Mexico. The February Visa Bulletin indicates a cutoff date of April 22, 2013, reflecting forward movement of 59 days. This means that applicants from Mexico with a priority date prior to April 22, 2013 will be able to file AOS applications or have applications approved in February 2015.

The January Visa Bulletin indicated a cutoff date of April 15, 2013 for F2A applicants from all other countries. The February Visa Bulletin indicates a cutoff date of May 8, 2013, reflecting forward movement of 23 days. This means that F2A applicants from all other countries with a priority date prior to May 8, 2013 will be able to file AOS applications or have applications approved in February 2015.