The US Department of State (DOS) has released its January 2017 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

What Does the February 2017 Visa Bulletin Say?

The February 2017 Visa Bulletin includes both a Dates for Filing Visa Applications chart and an Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visas, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If US Citizenship and Immigration Services (USCIS) determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications.

It is not yet clear which chart the USCIS will select for February 2017 filings. To be eligible to file an employment-based (EB) adjustment application in February 2017, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from the last two months’ Visa Bulletin dates are shown in yellow). In January 2017, USCIS announced that EB applications should be filed using the Application Final Action Dates chart.

Application Final Action Dates

Dates for Filing Visa Applications

How This Affects You

On the Application Final Action Dates chart, the cutoff dates for EB-1 will remain “current” for all chargeable countries, including India and China.

The EB-2 cutoff dates for the worldwide allotment as well as El Salvador, Guatemala, Honduras, Mexico, and the Philippines will also remain “current.” Cutoff dates will remain at April 15, 2008 for EB-2 India and will advance by one month for EB-2 China to November 15, 2012.

The EB-3 cutoff dates for the worldwide allotment as well as El Salvador, Guatemala, Honduras, and Mexico will advance by two months to October 1, 2016. Cutoff dates will advance by three weeks to October 1, 2013 for EB-3 China. The cutoff date for EB-3 India will advance by one week to March 22, 2005. The cutoff date for EB-3 Philippines will advance by nearly three months to October 15, 2011.

The EB-5 China cutoff date will advance by one week to April 15, 2014.

As confirmed by the DOS, the EB-1 allotment should remain current in the coming months.

Read the February 2017 Visa Bulletin.

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On Oct. 5, 2016, the U.S. Department of State (DOS) issued an unclassified cable on the Continuing Resolution signed into law on Sept. 29, 2016 that extends several important immigration programs, including the Conrad State 30 Program, the non-minister special immigrant religious worker program (SR visa), and the EB-5 Regional Center program. The House and Senate passed the Continuing Resolution on Sept. 28, 2016, and the president signed the bill into law on Sept. 29, 2016 (H.R.5325; P.L. 114-223).

The DOS cable explains that the EB-5 Regional Center program (immigrant visa categories R51 and I51) now is set to expire on Dec. 9, 2016.  The DOS has clarified that all EB-5 immigrant visas based upon investments made in regional center projects must be issued by close of business Dec. 9, 2016; the expiration date also applies to dependent spouses and children.  The DOS has instructed all visa issuing posts to hold in abeyance any pending R51 and I51 immigrant visa applications beginning on Dec. 10, 2016, if there is no extension of the EB-5 Regional Center program on or before that date.  The cable also clarifies that immigrant visas for investors not investing through a regional center (T51 and C51), i.e., the “direct” or “non-regional center” program, can continue to be issued as that program remains valid beyond Dec. 9, 2016.

In addition, the DOS cable confirms that extension of the EB-5 Regional Center program through Dec. 9, 2016 will allow priority dates to immediately become “current” for October for all countries except mainland China.  The “current” priority date for China-mainland born I5 and R5 applicants is Feb. 22, 2014.  Accordingly, China mainland-born investors with an I-526 Petition filed after Feb. 22, 2014, do not have immigrant visas immediately available to them and they must wait until the priority dates in the Visa Bulletin advance further.

The cable further discussed the expiration of the Conrad State 30 Program, which also will expire on Dec. 9, 2016. The Conrad 30 program allows medical doctors on J-1 visas to apply for a waiver of the two-year home residence requirement under INA §212(e) upon completion of the J-1 exchange visitor program.  The cable clarifies that applicants who entered or were granted J-1 status on or before Dec. 8, 2016, may still apply for a Conrad State 30 waiver.

Finally, DOS stated in the cable that authorization for the SR visa, which is for professional and non-professional workers within religious vocation or occupation categories other than the vocation of a minister, will expire on Dec. 9, 2016.  This expiration relates to immigrant visa recipients and their accompanying spouses and children only, and does not affect any nonimmigrant categories such as R-1 visas.  Individuals seeking SR visa status are required to have applied for such status and be admitted into the United States prior to Dec. 9, 2016. DOS has instructed visa issuing posts that the validity of any SR visa issued, therefore, must be limited to Dec. 8, 2016, to coincide with the expiration of this classification.  Posts that have issued SR visas in recent months should consider informing the recipients that they must travel by Dec. 8, 2016. Moreover, Posts that issue SR visas in December should consider informing the individual of the expiration date and necessity of traveling before the expiration date. If the visa holder is not admitted into the United States before the program expires, replacement visas cannot be issued. Beginning Dec. 9, 2016, posts are advised by the DOS to hold in abeyance any pending SR application.

The cable also explains that the DOS Visa Office (VO) will continue to provide guidance as the appropriations process continues.  In December, following the federal elections, Congress is expected to reconvene for a “lame duck” session.  At that time, Congress will once again consider the extension of these vital visa programs.

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Employment-based China and India First Preference and Worldwide Second Preference cutoff dates become “current” once again.

The US Department of State (DOS) has released its October 2016 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

What Does the October 2016 Visa Bulletin Say?

The October 2016 Visa Bulletin includes a Dates for Filing Visa Applications chart and an Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visas, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If the US Citizenship and Immigration Services (USCIS) determine that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications. It is not yet clear which chart the USCIS will select for October 2016 filings. To be eligible to file an employment-based (EB) adjustment application in October 2016, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from last month’s Visa Bulletin dates are shown in yellow).

Application Final Action Dates

Dates for Filing Visa Applications

How This Affects You

On the Application Final Action Dates chart, the cutoff dates for EB-1 will once again be “current” for all chargeable countries, including India and China. EB-2 cutoff dates for the worldwide allotment, El Salvador, Guatemala, Honduras, Mexico, and Philippines will be “current” as well. Cutoff dates for EB-2 India and EB-2 China will advance by slightly more than two years (China to February 15, 2012 and India to January 15, 2007).

EB-3 final action cutoff dates for the worldwide allotment, El Salvador, Guatemala, Honduras, and Mexico will advance by one month to June 1, 2016. The final action cutoff date for EB-3 China will advance by more than three years to January 22, 2013. EB-3 India will advance by two weeks to March 1, 2005, and EB-3 Philippines will advance by five months to December 1, 2010. The EB-5 China cutoff date will remain unchanged at February 15, 2014.

The DOS confirmed that the EB-1 allotment should remain current in the coming months, the allotments for China should see modest advancement of three months, and the allotment for India will advance by up to four months. EB-1 allotments will return to “current” status for October. The EB-3 category may see retrogression in the worldwide classification with advancements of up to three months for EB-3 China and up to one week for EB-3 India.

Read the entire October 2016 Visa Bulletin.

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• The Worldwide EB-1 category remains current, but for individuals born in India and Mainland China, there continues to be a cutoff date in the EB-1 category of Jan. 1, 2010 (a change implemented in the August 2016 Visa Bulletin).

• The cutoff date for Worldwide chargeability in the EB-2 category is still Feb. 1, 2014, but it is likely to return to current in October 2016 at the start of FY2017. The cutoff date for Mainland China remained constant at Jan. 1, 2010. However, there was significant movement in the EB-2 category for India, which moved forward from Nov. 15, 2004, to Feb. 22, 2005.

• In the EB-3 category, the cutoff date for Worldwide chargeability, as well as El Salvador, Guatemala, Honduras, and Mexico moved more than a year (from March 15, 2016 to May 1, 2016). The cutoff date for Mainland China stayed constant at Jan. 1, 2010. However, the cutoff date for India in the EB-3 category advanced several months from Nov. 8, 2004, to Feb. 15, 2005, and the cutoff date for the Philippines moved over a year from May 15, 2009, to July 1, 2010.

• For those in the EB-5 category, the priority date remains current for all applicants other than those born in Mainland China, which maintains a cutoff date of Feb. 15, 2014.

With regards to those seeking to file applications for adjustment of status, the U.S. Citizenship & Immigration Service (USCIS) website indicates that the “Final Action Dates” chart for employment-based applications must be used in determining when an applicant is eligible to file Form I-485.

The September 2016 Final Action Dates for Employment-Based Preference Categories are as follows:

Finally, the Department of State also determined the Family and Employment preference numerical limits for FY2016, as outlined in Section 201(c) and (d) of the Immigration and Nationality Act (INA) as follows:

Worldwide Family-Sponsored preference limit:          226,000

Worldwide Employment-Based preference limit:        140,338

         TOTAL                                                                     366,338

The per-country limit is fixed at 7 percent of the combined annual limits or 25,644 for FY2016. The dependent area annual limit is fixed at 2 percent of the combined annual limits or 7,327 for FY2016.

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This is astonishing when you consider that the EB-1 group represents some of the most talented foreign nationals that are immigrating to the US. Specifically, the EB-1 category includes:

• Individuals of Extraordinary Ability – to qualify the individual must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.

• Outstanding Researchers – to qualify the individual must demonstrate international recognition for his/her outstanding achievements in a particular academic field. The individual must have at least 3 years’ experience in teaching or research in that academic area and must be in the United States in order to pursue research in the field.

• Multinational Managers/Executives – to qualify the individual must have been employed as a manager or executive outside the United States in the 3 years preceding the petition for at least 1 year by a parent, affiliate or subsidiary of a U.S. company where they will serve in the U.S. in a managerial or executive capacity.

There are additional delays for other nationalities and categories as well see: https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-august-2016.html. The most common employment based visa categories, beyond EB-1, are Second (EB-2) and Third (EB-3) preference. EB-2 is applicable for jobs that require an advanced degree or equivalent as a minimum, exceptional ability in the arts, sciences or business, and National Interest Waivers for individuals whose work is in the national interest. The EB-3 classification is for skilled workers, professionals and unskilled workers.

Chinese nationals are being treated the same this August, whether first, second or third preference. All three categories have a January 1, 2010 priority date. For Indian nationals, EB-1 is still the best category, but with the January 1, 2010 priority date – the news is not good! The EB-2 and EB-3 categories have a priority date of November 2004. Can you imagine waiting more than twelve years to complete a process once started?

Notably, the EB-2 “all other” category retrogressed to February 1, 2014 which is worse than the third preference category at March 15, 2016. So, EB-3 all other is better than EB-2! We haven’t see this type of movement in the “all other” category for a significant period of time.

What this Visa Bulletin represents is a “shutting off” of the flow of immigrant visas being issued for what is expected to be the remainder of the fiscal year. Fiscal Year 2017 starts on October 1, 2016 and new visa numbers will be available. In the August Visa Bulletin, the Department of State indicates that the EB-1 category will be opening back up in October. Assuming the State Departments calculations are generally on target, we should see movement in October or later in the fall that will resemble the dates where we left off in July 2016.

The Visa Bulletin and lack of visa numbers for skilled workers continues to be a daunting problem for employers and foreign nationals alike. The system for foreign nationals who want to “follow the rules” has broken down.   Further, there is no relief, or comprehensive immigration reform, in sight. Expect more whiplash inducing movement in the future.

ARTICLE BY Valarie H McPherson of Proskauer Rose LLP

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The Department of State (DOS) has released the June 2016 Visa Bulletin that includes the “Application Final Action Dates” and “Dates for Filing Applications.”

For both family-sponsored and employment-based filings, the United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for May 2016.

Please see below for the Application Final Action Dates for both family-sponsored and employment-based preference filings:

Application Final Action Dates for Family-Sponsored Visa Applications

Movement from the May 2016 Visa Bulletin shows gradual but insignificant jumps in processing dates for this category, with the exception of China, F4 dates retrogressing from July 22, 2003 to January 1, 2003.

Application Final Action Dates for Employment-Based Preference Cases

Of particular note is that China EB-2 and EB-3 preference categories saw a retrogression from September 1, 2012 to January 1, 2010; and August 15, 2013 to January 1, 2010, respectively; and India EB-2 preference category also experienced a four-year retrogression from November 22, 2008 to October 1, 2004.

• See more at: http://www.natlawreview.com/article/june-2016-visa-bulletin-update#sthash.svy3O7QO.dpuf

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The US Department of State (DOS) has released its May 2016 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals. A new geographic sector encompassing El Salvador, Guatemala, and Honduras has been added to the employment-based (EB) charts.  A new geographic sector that includes El Salvador, Guatemala, and Honduras has been added.

What Does the May 2016 Visa Bulletin Say?

The May 2016 Visa Bulletin includes both a Dates for Filing Visa Applications and Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visa, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If the US Citizenship and Immigration Services (USCIS) determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications. For May 2016, USCIS announced that EB applicants must use the Application Final Action Dates chart.

Application Final Action Dates

To be eligible to file an EB adjustment application in May 2016, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from last month’s Visa Bulletin dates are shown in yellow):

How This Affects You

Most countries saw a relatively minor advancement in priority cutoff dates, generally three weeks at most. The largest changes in the Application Final Action Dates chart are in the EB-3 and Other Workers Philippines category, which advanced by three and a half months to August 8, 2008.

The Third Preference final action date for EB-3 China has been “held” for the month of May, with no change in priority date cutoff. The DOS indicated that continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY2016 annual limit. It is extremely likely that the India and Mexico Employment Fourth Preference categories will also become oversubscribed at some point during the summer months.

The addition of the El Salvador, Guatemala, and Honduras category is a result of extremely high demand in the E4 and SR categories for applicants from these areas. A determination about whether these countries will remain subject to E4 and SR final application dates under the FY2017 annual numerical limitation will be made in early September. Read the entire May 2016 Visa Bulletin.

Article By Eleanor Pelta & Eric S. Bord

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The Department of State (DOS) has released the May 2016 Visa Bulletin with the Application Final Action Date chart for employment-based applications which reflects some modest movement for some applicants.

The second and third preference categories for China-mainland born applicants had no movement. The second and third preference categories for India move ahead a few weeks to Nov. 22, 2008, and Sept. 1, 2004.  There was no movement in the third preference for all chargeability areas except those listed, and no movement for Mexico. The third preference and other workers categories for the Philippines move ahead a few months to Aug. 8, 2008.

There was no movement in the Dates for Filing chart for employment-based categories with the exception of the other workers category for China-mainland born applicants, which moved up several months to April 1, 2008.

The May 2016 Visa Bulletin states that “during the past month, there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status. If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.” The DOS also notes an oversubscription of applicants from El Salvador, Guatemala, and Honduras.

As previously reported, last month prospective adjustment of status applicants have been advised to use the Application Final Action Date chart to determine their eligibility to file applications, despite previous guidance that the Dates for Filing chart could be used. Greenberg Traurig will continue to monitor the movement of Visa Bulletins and consequences on eligibility for filing.

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

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The March 2016 Visa Bulletin is now available online.  The significant news arises in the EB-3 category with respect to dates for filing visa applications: EB-3 Worldwide is now current. EB-3 China has advanced from Oct. 1, 2013, to May 1, 2015, making the native Chinese EB-3 and EB-5 filing dates identical. Compared to February, March 2016 brings modest-to-moderate movement forward in the “final action dates” for the employment-based cases.

Below are the two charts for March 2016:

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The Visa Bulletin also put forth the following projection of EB visa availability in the coming months, setting the expectations for stakeholders:

• EB-1 : Projected to stay current

• EB-2:

  • Worldwide: Projected to stay current

  • China: Movement up to five months

  • India: Movement up to three months

•  EB-3:

  • Worldwide: Recent forward moment will generate demand – once materialized it will be necessary to establish a cut-off date

  • China: Movement up to five months

  • India:  Movement up to one month

  • Mexico: Will remain at worldwide date

  • Philippines: Movement up to four months

• EB-4: Current “for most countries”

• EB-5:

  • All countries (except China): Will remain current.

  • China: “Slow forward movement”

The post Department of State Issues March 2016 Visa Bulletin – China EB-3 Now Even with EB-5, Expectations Set For Coming Months appeared first on The National Law Forum.

Overall, 2015 saw a three precent increase of total applicants compared against last year, increasing from a total of 4,422,660 for 2014 to 4,556,021 for 2015. This total includes both family-based green cards and employment-based green cards. Employment-based green card applicants only accounted for roughly 100,000 of the 4.5 million. When compared against 2014, the percentage of employment-based applicants waiting to apply for their green cards increased from 90,910 to 100,747—an increase of 10.8 percent.

While a 10.8 percent increase seems like a marginal increase, examining specific categories individually reveals that certain categories—namely Employment First, Second, and Fifth—have grown in popularity with employers and investors. Employment First encompasses green card applications for aliens of extraordinary ability, outstanding researchers, and multi-national managers or executives. From 2014 to 2015, the Employment First category saw an increase of 27.1 percent on the waiting list, from 2,733 to 3,474. Employment Second is reserved for Aliens of Exceptional Ability, which is measured by positions that require a U.S. Master’s degree (or higher), or a Bachelor’s degree and five years of progressive experience.  In 2015, there was an increase of 36.5 percent for Employment Second, with 11,440 on the waiting list as opposed to 8,380 in 2014. Finally, Employment Fifth is reserved for investors and entrepreneurs who invest substantial capital into the U.S. economy, among other requirements. Employment Fifth saw the greatest increase from 2014 to 2015—175.2 percent. The specific wait list numbers, broken down by category, are below:

At first glance, the 140,000 of expected employment-based green card approvals this year seems like it would clear the existing backlog of green card applications of 100,747 left from 2015, but this is not the case because there is a seven percent per-country limit, which visa issuances to any single country, including China and India, cannot exceed. What this looks like for applicants from countries such as China and India is that the wait for green cards will only increase, absent legislative or executive action.

Reviewing the 2015 Annual Immigrant Visa Report by country reveals that India and China remain the world’s largest applicants across each Employment Category, a trend that will likely continue into 2016. For Employment First, China represents more than 25 percent of all applicants, with India coming in a distant second at 9.6 percent.

For Employment Second, India accounts for a two-thirds of all applicants at 66.8 percent; China, on the other hand, accounts for only 7.8 percent, falling just behind South Korea at 8.4 percent.

For Employment Fifth, China leads the applicant-pool with 89.6 percent of all applications.  The next two countries—Hong Kong S.A.R., and Vietnam, only account for 1.4 percent each.

For 2016, approximately 140,000 employment-based green cards are projected to be approved, meaning that the wait will continue for most of the 100,747 who are already waiting for their priority date to become current so that they can obtain their green cards. As the U.S. economy continues to rebound, it is safe to assume that only more applicants, especially from India and China, will continue to apply for employment-based green cards in the higher preference categories—Employment First, Second, and Fifth—where the wait is shorter as compared to Employment Third and Fourth, reserved for skilled workers, and special immigrants, respectively.

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