Category: Immigration

Immigration Reform Efforts Are Still Alive

GT Law

Despite the recent resignation announcement of the House Majority Leader, immigration reform is still very much alive.

As reported just this week, the call to reform the country’s immigration system is louder than ever on and off The Hill. Immigration reform continues to garner strong and vocal support by CEOs, industry leaders and more. Placing the success or failure of immigration reform on the shoulders of one elected official is not an accurate metric. Indeed, several elected officials who strongly support immigration reform, and have for many years, won their respective primary with few challenges stemming from their support of immigration reform. Now is the time to move forward and refocus efforts to reform our country’s immigration system.

Article By:

Laura Foote Reiff
Of:
Greenberg Traurig, 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

Congress and the President Spar over Immigration Reform Prospects: Tempest in a Teapot

Jackson Lewis Logo

At a recent White House law enforcement event, President Barack Obama took the opportunity to pressure Republicans in the House of Representatives to present an immigration reform bill this summer in advance of the November mid-term elections.

House Speaker John Boehner (R-Ohio) has made comments supportive of immigration reform and issued a “statement of principles” developed by House Republican leadership addressing immigration reform in January. As reported by the Cincinnati Inquirer, the Speaker was careful earlier this month to distinguish that proposed roadmap to legal status for some illegal aliens from an outright amnesty.  ”I reject that premise. … If you come in and plead guilty and pay a fine, that’s not amnesty,” he said.  Regardless of how reform measures are characterized, though, patience is flagging and significant progress remains stubbornly elusive.

The President’s comments on immigration reform, while also asking his secretary of the Department of Homeland Security, Jeh Johnson, to delay releasing details of a recent study on the country’s deportation system, were seen as giving lawmakers time to propose and debate new legislation,   but continuing to hold out the threat of an executive order should Congress fail to act.  Activists on the left are pressuring the President to act. They urge an executive order similar to the one issued in 2012 extending temporary status and work authorization to some unauthorized aliens brought to the U.S. as children. The new measure for example, could extend the same type of protection to parents of those children, advocates contend.

Nearly two million illegal immigrants have been deported since the President took office, according to a New York Times review and official records. The President asked the DHS secretary to evaluate how to make the deportation system more humane.  Further executive action on immigration may spur additional controversy and make comprehensive immigration reform negotiations in Congress more difficult.

An example of this type of challenge is in seen in the obstacles besetting the bi-partisan “ENLIST Act“(H.R. 2377), a bill designed to extend legal permanent residence to immigrants who were brought to the U.S. illegally as children and who enlist in the U.S. armed forces.  Hopes for easy passage have been set back.    Contrary to the expectations of many supporters, including the bill’s sponsor, Rep. Jeff Denham (R-Calif.), the measure was not taken up for discussion as part of the annual defense bill.   This is discouraging for proponents of reform.   Political brinksmanship, rather than a genuine willingness address the nation’s dysfunctional immigration system, appears to be the order of the day.

Article By:

Sean G. Hanagan
Of:
Jackson Lewis P.C.

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

Work and Travel Guidance for F-1 Students with Pending H-1B “Change of Status” Applications and “Cap-Gap” Employment Authorization

MintzLogo2010_Black

This advisory summarizes key travel and employment issues if you are an F-1 studentwith Optional Practical Training (OPT) employment eligibility and an H-1B filing on your behalf has been accepted by US Citizenship and Immigration Services (USCIS).USCIS will adjudicate these visa petitions over the next few months and approved petitions will have an October 1, 2014 start date. The good news is that your OPT employment card is automatically extended, by operation of law, with validity to September 30, 2014 under the “cap-gap” OPT extension rule. This means you can continue working legally even after the expiration of your OPT employment card. We recommend that you alert your school’s international student office by providing that office with a copy of the H-1B receipt notice. The international student office will use this receipt information to update your I-20 to show the extension of your OPT.

International travel between now and October 1 is complicated, and whether you can travel and return to work before October 1 depends on your specific situation. As a general rule, it is safest not to travel during the cap-gap period. In all cases, travel as an F-1 student with OPT requires a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US (employer letter and/or recent pay slips).

Please note that any international travel carries risks. If your F-1 visa has expired and you need to apply for a new one, you may face delays for extra security clearances (221(g) administrative processing), or you may not be able to prove you have nonimmigrant intent, which is required for F-1 visa applications. Furthermore, even with a valid F-1 visa, admission to the US is up to the discretion of the US Customs and Border Protection (CBP) officer at the port of entry. We therefore caution you to carefully consider the need to travel as an F-1 student with OPT and list below some of the common scenarios and our recommendations.

1. My OPT employment card has not expired and my H-1B petition has been accepted, but not yet approved.

If you travel outside the US in this situation, the change of status part of your H-1B petition will be abandoned. This means that even when the H-1B is approved, your status will not change to H-1B because you departed the US while the H-1B “change of status” petition was pending. Your employment eligibility will end on September 30, 2014 with expiration of the cap-gap extension, and you will need to depart the US, apply for an H-1B visa stamp based on the petition approval, and reenter after October 1, 2014 to activate your status as an H-1B worker.

2. My OPT employment card has not expired and my H-1B has been approved.

In this situation, according to guidance from USCIS, it is possible to travel and not abandon the change of status because it has already been approved and is for a date in the future. Since there is no abandonment, once you return to the US on your F-1 visa, your change of status will be effective on October 1. However, there is a very real risk in traveling in this scenario as upon approval by USCIS of your H-1B petition, the Student and Exchange Visitor Information System (SEVIS) may no longer reflect that you are an F-1 student and you may have difficulties entering the US in F-1 status.

3. My OPT employment card has expired.

In this situation, you are eligible to remain in the US and continue working under the cap-gap extension rule discussed above. However, there is no provision or guidance from USCIS that allows for reentry during this cap-gap period once your EAD has expired. Therefore, if you must depart the US during this period, you will not be able to return to the US until you obtain an H-1B visa stamp based on approval of the H-1B petition. Initial entry into the US on an H-1B visa is allowed up to 10 days in advance of the start date of the petition approval. So, for an October 1 start date, this entry date can be as early as September 21. However, you will not be able to resume employment until October 1, 2014. Unless there is an emergent need to travel and arrangements can be made for remote work outside the US, you should make no plans to travel after expiration of your OPT employment card.

4. I need to depart the US and will not return until October 1 or later and will apply for the H-1B visa.

You can apply for the H-1B visa stamp any time after approval of the H-1B petition as soon as you can schedule an appointment at the US Embassy or Consulate. The visa will not be effective until October 1, 2014, but you can, and are encouraged to, apply for it as soon as possible to avoid the rush in September. Please note H-1B nonimmigrants are allowed to enter the US up to 10 days in advance of the petition validity. However, you cannot start employment in H-1B status until October 1. This 10-day time period is intended to allow you to get settled in the US before starting employment.

5. My H-1B petition was denied by USCIS.

If your H-1B petition is denied and your OPT EAD is still valid, you are authorized for ongoing employment in the US until your EAD expires. However, cap-gap employment eligibility after expiration of the EAD is only valid while the H-1B petition is pending with USCIS. Therefore, you are no longer eligible to continue working in the US if your H-1B petition is denied and your OPT EAD has expired.

The examples above all deal with the situation where the H-1B filing has been accepted by USCIS out of the quota. If the H-1B petition filed on your behalf was rejected, you may choose to travel if you have a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US in the form of an employer letter and/or recent pay slips. You may also stay in the US for 60 days after the expiration of your F-1 OPT status, but only for purposes of settling your personal affairs and domestic travel within the US. You are not allowed to work during this 60-day grace period. If you travel outside the US during the 60-day grace period, even if you do not plan to work upon your return, you will not likely be readmitted because you will be deemed to have departed the US at the conclusion of your F-1 program, thus fulfilling the need for the 60-grace period. The 60-day grace period is not meant to facilitate international travel and reentry — it is designed to allow F-1 students to remain in the US at the end of the F-1 program to settle their affairs until they are ready to depart the US.

Article By:

Susan J. Cohen
William L. Coffman
Of: 
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

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.

Leaders in Higher Education Call for Immigration Reform

GT Law

As the immigration reform debate endures in the House of Representatives, leaders in higher education are continuing their call for improvements to the nation’s immigration system.

Most recently, presidents of 28 Catholic and Jesuit colleges and universities united in a fast for immigration reform on Ash Wednesday (March 5, 2014). In doing so, they joined the “Fast for Families” movement, which reignited the immigration debate last fall when the movement’s leaders, supported by many members of Congress and The President, fasted for twenty-two days on the National Mall in Washington, D.C. Students have not been far behind in the campaign to reform the nation’s immigration system. In February, one hundred and fifty students from nine Catholic colleges and Universities held a Student Summit on Immigration Reform.

These are just a few of the continuing calls made by members of the higher education community for Congress to pass immigration reform. In late 2013, leaders of more than one hundred colleges and universities across the United States wrote to their Congressional representatives to support the overhaul of the immigration system.

In many ways, our nation’s colleges and universities are on the front lines of our broken immigration system. Roughly a third of their graduate students in STEM fields are foreign nationals – in some states it is well over half. Leaders in higher education see how often our immigration policies prevent the nation from retaining and capitalizing on these talented individuals and create obstacles to growth.

The higher education community is hopeful that its continuing efforts will prompt the Congressional leadership to renew its efforts to pass meaningful immigration reform.

Article by:

Nataliya Rymer

Of:

Greenberg Traurig, LLP

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