Tag: Mexico

The New Paradigm in Mexico for Damage Claims in Industrial Property.

The Federal Law for the Protection of Industrial Property, in force since the 5th of November of 2020, is distinguished from its predecessor, among other things, by the particularities in the claims of a compensation for damages caused by the infringement of industrial property rights.

Currently, individuals may claim a compensation for damages through the administrative venue, before the Mexican Institute of Industrial Property (IMPI), or through the civil venue before the corresponding Courts in the matter. This implies that the holder of infringed exclusive rights may opt for two procedures and authorities of different nature, which has its benefits and disadvantages.

Before the IMPI, the compensation action is exercised in an ancillary proceeding, provided that such authority has previously issued a declaration of administrative infringement that is enforceable. Alternatively, it is still possible for the action to be brought directly before the Civil Courts, once the resolution from IMPI is final.

Although the exercise of the action for compensation before the administrative authority implies that a specialized authority in the matter is to hear the case, it has the disadvantages that its ancillary proceeding requires the prior prosecution of an administrative infringement claim before the same administrative authority (IMPI) and the lack of experience to quantify damages and losses. Additionally, the time required for the enforcement of the resolution issued by the IMPI before the Federal Courts in Civil Matters must be added to the time required for the substantiation of the action.

Thanks to the entry into force of the new Law, individuals may also resort directly to the civil Courts to claim infringement of their industrial property rights and compensation for damages, without the need for a prior declaration of infringement by the IMPI. This implies that a Judge, an expert in civil law, will have to delve into complex, specialized and technical issues, specific to industrial property.

Additionally, it is provided that the proceeding of the civil action will be suspended if an invalidity claim is filed before the IMPI against the right basis the civil claim, as long as the administrative authority does not issue a final resolution to such nullity action. This counteracts the advantage of a civil proceeding whose resolution may be quicker than before IMPI.

The new landscape for the claim for damages requires a careful study of the particularities of each specific case to determine the suitability of each route, since this is influenced, among other factors, by the complexity, the sophistication of the counterparty, the causes and technical considerations of the violation caused, among others.

© 2005-2024 OLIVARES Y COMPAÑIA S.C.
For more news on Damage Claims in Industrial Property in Mexico, visit the NLR Real Estate section.

Mexico’s Minimum Wage Set to Increase on January 1, 2023

On December 1, 2022, Mexican President Andrés Manuel Lopez Obrador announced that, unanimously, the business and labor sectors, as well as the government, had agreed to increase the minimum wage by 20 percent for 2023, which will be applicable in the Free Zone of the Northern Border (Zona Libre de la Frontera Norte or ZLFN), as well as the wage applicable in the rest of the country. The increase will become official when it is published in the Official Gazette of the Federation (Diario Oficial de la Federación).

Before the increase was determined, the Mexican National Commission on Minimum Wages (Comisión Nacional de los Salarios Mínimos, or CONASAMI) applied an independent recovery amount (Monto Independiente de Recuperación or MIR) in accordance with the following:

  • MIR for the ZLFN: MXN $23.68
  • MIR for the rest of the country: MXN $15.72

On top of the MIR, the CONASAMI approved a 10 percent increase from the 2022 rate to the daily minimum wage applicable to the ZLFN and the rest of the country, resulting in MXN $312.41 (approximately USD $16.11) for the ZLFN and MXN $207.44 (approximately USD $10.69) for the rest of the country. The new rates would be effective as of January 1, 2023.

The MIR and the 10 percent increase—combined—would represent a 20 percent increase in the daily minimum wage rate which translates to more than MXN $30 per day.

Finally, Secretary of Labor Luisa Maria Alcalde stated that the above increases would directly benefit 6.4 million workers in Mexico.

Article By Pietro Straulino-Rodriguez, Nora M. Villalpando Badillo, and Ana Paula Delsol Espada of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more labor and employment legal news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Legal Standing in Trademark Non-Use Cancellation Actions

In recent years the Mexican Patent and Trademark Office (IMPI) allowed the possibility that complainants credit their legal standing on trademark non-use cancellation proceedings through the existence of a trademark application without the need of initially demonstrating that such application was blocked to registration in view of the prior existence of third parties’ confusingly similar registered marks, as long as the official action citing the conflicting registration as pertinent barrier was submitted as subsequent evidence in the proceeding.

Accordingly, it started to be a common practice to file non-use cancellation actions submitting as evidence a certified copy of the trademark application serving as a basis to attack the registration not being used accompanied with the results of an availability search showing the existence of the registration subject to the proceeding.

Nonetheless, such criteria adopted by IMPI was revoked by the Federal Court of Administrative Affairs and by Federal Circuit Courts sustaining that legal standing must be credited initially along with the complaint without being possible to do it at a later stage by submitting the evidence attesting that IMPI objected the registration of complainant’s trademark application on grounds of likelihood of confusion because of the existence of defendant’s registration.

The Court’s reasonings behind the revocation of such criteria were mainly based on legal certainty arguments stating that legal standing can only born when a formal objection is raised by IMPI communicating to the applicant the existence of a citation based on likelihood of confusion.

Therefore, IMPI is now starting to analyze and solve non-use cancellation actions following the Court’s legal reasonings stating that legal standing must be credited initially along with the complaint, without enabling complainants to credit such standing subsequently.

Consequently, it is advisable that titleholders file non-use cancellation actions only after being served with the official actions communicating the existence of pertinent barriers blocking the registration.

Article By Jaime Rodríguez of OLIVARES

For more intellectual property legal news, click here to visit the National Law Review.

© 2005-2022 OLIVARES Y COMPAÑIA S.C.

Reform Bill Proposal to Article 8 of The Federal Law of Cinematography in Mexico

A proposal was published in the Gazette of the Chamber of Senators on February 9, 2022, to reform Article 8 of the Federal Law of Cinematography, signed by María del Carmen Escudero Fabre together with other members of the PAN Parliamentary Group.

The intention of the proposed bill is to reform Article 8 of the Federal Law of Cinematography, which may guarantee access to audiovisual material exhibited in movie theaters for people who suffer from some degree of visual disability.

The explanatory memorandum of the proposal states that the General Law for the Inclusion of Persons with Disabilities establishes that the denial of reasonable adjustments constitutes a discriminatory act on the grounds of disability, a provision expressly prohibited in the first article of the Constitution.

It further details that it is necessary to recognize that people who suffer from disability may face difficulties when exercising their rights, such as access to health, work, education, transportation, communications, to culture, tourism, among others, being the responsibility of the State to design a normative framework that allows its access in equitable conditions.

The bill’s author comments that this would be an advancement for Mexicans with some degree of visual impairment, with the understanding that auditory stimuli can be used to compensate for visual ones and build the ideas of the spectators based on them, and that access to educational and recreational material for this group continues to be a challenge under the current legislation.

She continues that for this reason and being aware of the difficulties faced by a person with any type of disability, efforts like this can help reduce barriers found in society, highlighting the importance of adapting places, services, and information, so they are accessible to this sector of the population, ensuring their full inclusion and participation.

The bill proposes that films should be shown to the public in their original version, dubbed and subtitled in Spanish, under the terms established by the Regulations. Those classified for children and educational documentaries must be shown dubbed and always subtitled in Spanish.

This proposal may be unfeasible, since the Federal Law of Cinematography cannot govern by itself in the field corresponding to the Federal Law of Copyright. Forcing audiovisual works in certain categories to be exhibited dubbed, eliminating the possibility of being exhibited in their original language, would constitute a limitations of copyrights, which should be regulated, where appropriate, by the law of the matter, in accordance at all times, to what is established in international treaties that Mexico is a part of.

The protection of copyright and related rights comes from various international treaties considered by the court as human rights treaties, so the proposal would not only constitute a direct violation of the LFDA but of various treaties as well.

The control of conventionality is understood as the tool that allows countries to specify the obligation to guarantee human rights in the internal sphere through the verification of the conformity of national norms and practices with the American Convention on Human Rights and its Jurisprudence. Therefore, the reform to our fundamental law of June 10, 2011 on human rights, orders that the interpretation of the norms related to this subject be carried out in accordance with the Constitution of Mexico and the international treaties that the nation has signed in this matter, observing at all times the pro homine principle.

There are specific treaties that deal with limitations to Author’s Right, such as the Marrakesh Treaty, but what the Legislator intends to reform is not a specific case.

To conclude, this reform would create a direct impediment to access to culture and education, since forcing people to appreciate certain genres of audiovisual productions only in Spanish and not in their original languages, would also create direct harm to those who seek to expand their knowledge and learning of new languages and cultures.

© 2005-2022 OLIVARES Y COMPAÑIA S.C.
Article By Luis C. Schmidt with OLIVARES
For more articles on the arts, visit the NLR Entertainment, Art & Sports section.

Mexico Mandates Protection From Workplace “Psychosocial Risks”

Globalization, technology developments, and the world’s economy, among other factors, have changed our day-to-day dynamics and have transformed the way we work. This means that employees must deal with emotions and circumstances that in the past were not significant but today are studied and classified by scientists as “psychosocial risks.”

The World Health Organization (WHO) and the International Labour Organization (ILO) define psychosocial risks as the interactions within the work environment, content of the work, conditions of the organization and capacities, needs and culture of the employee, and personal considerations—external from work—based on perceptions and experience that can negatively influence health, performance at work, and labor satisfaction.

International organizations are trying to create a broad awareness of psychosocial risks and thereby prevent such risks from damaging employee health, both physical and psychological.

Mexico’s Regulation of Psychosocial Risks at Work

Mexico has taken a big step in the protection of employees with the amendment to the Federal Labor Law on November 30, 2012. This amendment incorporates into the law the concept of “decent and dignified work,” which encompasses respect for the human dignity of employees and, in consequence, the prevention of harm that employees may suffer because of the activities they perform at work.

The amendment and subsequent obligations agreed upon by the current federal government in its national development plan, as well as internationally, compelled the Mexican Ministry of Labor and Social Welfare to issue the Federal Regulation of Health and Safety at Work. Its goal is to establish health and safety provisions, which must be observed at the workplace, “in order to have the conditions to prevent risks, and as a consequence, guarantee employees their right to perform their activities in an environment that assures their lives and health, according to the Federal Labor Law.”

What to Expect in 2019 and 2020: The Psychosocial Risk Factors Standard

Based on the above and with the purpose of complying with current legislation, the Ministry of Labor and Social Welfare developed the Official Mexican Norm: NOM-035-STPS-2018 “Psychosocial Risk Factors at Work – Identification, Analysis and Prevention.” Its main objective is to “identify, analyze and prevent psychosocial risk factors, as well as to promote a favorable organizational environment at workplaces.”

Though the rule has been valid since October 23, 2018, the Ministry of Labor and Social Welfare will not review employers’ compliance with the rule until the October 2019 or October 2020, depending on the employer’s size. Since this matter requires specialist analysis and evaluation, employers may want to contact a specialist on psychosocial risks in order to achieve compliance.

The following are employers’ main obligations under the rule:

  • Establish, maintain, and disseminate among the employees a psychosocial risks prevention policy

  • Identify psychosocial risk factors and evaluate the organizational environment (applicable to work places with more than 50 employees)

  • Use questionnaires to identify psychosocial risk factors (applicable to work places with 16–50 employees)

  • Disseminate to employees the policy and measures adopted to reduce psychosocial risks

  • Identify the employees subject to psychosocial damages while working or derived from their work

  • Provide a registry where employees can learn about psychosocial risk factors and corrective actions taken

  • Maintain a confidential complaint system so the employees can inform the employer about psychosocial risk factors

  • Take actions to prevent psychosocial risk factors and corrective measures if psychosocial damage occurs

Co-Authored by Natalia Merino, a law clerk in the Mexico City office of Ogletree Deakins.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Learn more about International Legal issues on the National Law Review Global page.

Trade Trouble – East, West, and South, But North is Settled For Now!

Agriculture Secretary Perdue recently stated the trade damages to be addressed in a new round of farm aid is $15 to $20 billion! The general press is replete with stories about how, as these tariffs continue, companies are making sourcing changes that will be hard to reverse. So, what is the latest news?

First, there is trade with China. It seems clear that unless there is a breakthrough at the G-20 meeting in Tokyo, or shortly thereafter, the anecdotal headaches we hear about will get far more costly. The American Chamber of Commerce in China and the American Chamber of Commerce in Shanghai conducted a survey before List 3 was announced. Even at that point, American companies operating in China acknowledged higher production costs, decreased demand for products, reduced staffing, reduced profits, increased inspections at importation, increased bureaucratic oversight and regulatory scrutiny, slower approval of licenses and permits, higher product rejections, and increasing plans to relocate (but not back to the U.S.).

On a point one can consider only marginally helpful, those with goods on List 3 now have until June 14th to file their entries. To be clear, the goods still must have left China before May 10, and the entry filed no later than June 14th for the 10% to apply. Otherwise, you pay the 25%.

On a somewhat more positive note, if you found the May 21, 2019 Federal Register notice, it published the submission by the U.S. Trade Representative (USTR) to the Office of Management and Budget of a request for expedited approval of a form to be used for List 3 exclusion requests. In that notice, USTR stated it expected the window to open for List 3 exclusion requests around June 30, 2019, which is 10 days after the Tokyo G-20 meeting. If they have not already done so, companies would be wise to start the data gathering process. Among the information to be submitted are product details, whether the product or one comparable can be purchased in the U.S. or other sources outside China, the value and quantity of the product imported in 2017, 2018 and Q1 2019 distinguished by sourcing from China, other third countries and domestically, the degree of severe economic harm caused by the tariffs, and whether or not the applicant submitted any exclusion requests regarding products on List 1 or 2. Those who have prepared exclusion requests for goods on Lists 1 and 2 will instantly recognize the data requirements.

Complicating U.S.-China relations further, on May 15, 2019, a Presidential Document was issued entitled Securing the Information and Communications Technology and Services Supply Chain. It forms the framework permitting the Administration to name companies barred from doing business with U.S. entities on national security grounds. On May 21, 2019, the Bureau of Industry and Security published a Federal Register notice adding Huawei Technologies Co., Ltd. and various affiliates (68 in total) to the Entity List on the ground there is reasonable cause to believe that Huawei “has been involved with activities contrary to the national security or foreign policy interests of the United States.” A May 22, 2019 Federal Register notice reversed that position and issued a Temporary General License effective between May 20, 2019 and August 19, 2019 for these same entities. See Supplement 7 to 15 CFR part 744.

Underscoring that tit-for-tat is very real, China announced on June 1, 2019 the creation of its own “unreliable” entities list. The initial rollout of this new policy took the form of a press briefing. That coverage made clear the criteria which China will rely upon is typically opaque: “foreign enterprises, organizations and individuals could land on this list because they do not obey market rules, violate contracts and block or cut off supply for non-commercial reasons, severely damage the legitimate interests of Chinese companies” or “pose a threat or potential threat to national security.” Almost immediately thereafter, it was announced that FedEx is under investigation in China for misdelivering some packages for Huawei (including returning them to sender or improperly routing them to the U.S.). China stated the purpose of the “unreliable entities list” was to “protect international economic and trade rules and the multilateral trading system, to oppose unilateralism and trade protectionism, and to safeguard China’s national security, social and publish interests,” according to a Ministry of Commerce spokesman.

Then there is the issue of China’s supply of rare earth minerals. China’s official press points out it is only a matter of time before China rolls out a plan to severely limit its exports of these metals which are used to make a variety of electronic products or accessories (including lithium batteries) along with items for U.S. military purposes such as to manufacture night vision goggles, precision-guided weapons and communications/GPS equipment. The latest numbers show that 52% of these metals are found in China and Russia (neither is exactly a friend to the U.S. right now), whereas 18% can be found in Brazil, but only about 1% in the U.S.

Add to this the announcement on May 30th, there will be tariffs imposed on “all goods imported from Mexico.” Even a few days later the most basic questions remain unanswered. Does this statement literally mean all goods from Mexico? What about American products returned which are duty free because unchanged? How about American products used to assemble the final product in Mexico but qualifying for duty free on the American components in the final product? [For you trade nerds – think 9801 and 9802.] What about goods which are of not of Mexican origin? Or are NAFTA qualifying?

Right now, all we have is the timeline – 5% on June 10%, 10% on July 1, 15% on August 1, 20% on September 1 and 25 % on October 1. Every indication right now is these tariffs will be imposed. Then the question becomes: are there grounds on which the tariffs would be removed? The only answer we have right now is if Mexico does “enough” to satisfy President Trump that all reasonable action was taken to stem the tide of migration, the tariffs would be removed. However, the determination as whether “enough” has been done is solely within the discretion of the President in the current proposal.

Having declared in February 2019 the migration situation at the U.S. southern border to be a matter of national security, President Trump has chosen now to invoke IEEPA to support the current action. IEEPA is the International Emergency Economic Powers Act, see 50 U.S.C. 1701 et seq. It authorizes the President to act in the national security interest of the country if dealing with “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.”

 Article 302 of NAFTA as currently enacted provides: “… no Party may increase any existing customs duty, or adopt any customs duty, on an originating good.” In other words, the imposition of this additional tariff on NAFTA-qualifying goods violates NAFTA and presents yet another reason why a precisely-worded policy is needed and a claim is possible. Can we also expect a World Trade Organization claim, assuming the bilateral discussions between the two countries do not diffuse the situation?

How does any of this help hardworking American business owners (of any size and in any industry) to keep their companies operating and profitable? This situation makes us all wonder how long it will take for the American public to wake up and realize China and Mexico are not paying these tariffs?

 

© 2019 Mitchell Silberberg & Knupp LLP
This post was written by Susan Kohn Ross of Mitchell Silberberg & Knupp LLP.
Read more on Trade on our Antitrust and Trade Regulation Page.

Trump Administration Notifies Congress of Intent to Renegotiate NAFTA

The White House formally notified Congress on Thursday of the Trump administration’s intent to renegotiate the North American Free Trade Agreement (NAFTA). The notification letter from U.S. Trade Representative Robert Lighthizer marked the start of a 90-day window to consult with members of Congress on developing negotiation priorities before beginning formal negotiations with Canada and Mexico as early as August 16, 2017.NAFTA, USA, Mexico, Canada

Currently, there is no indication that renegotiations will impact NAFTA-related immigration programs. However, under the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, the administration’s negotiation objectives are required to be made public 30 days before formal negotiations begin. While the letter to Congressional leadership did not discuss any specific changes to NAFTA, the administration indicated that it would aim to modernize outdated chapters of the agreement and address challenges faced by U.S. consumers, businesses, and workers.

NAFTA Immigration Programs

Among other economic and trade relationships established under NAFTA, the agreement created the TN nonimmigrant classification, which allows certain citizens of Canada and Mexico to work temporarily in the United States in a professional capacity. The agreement also provides an expanded range of permissible business activities for Canadian and Mexican citizens in B-1 visitor status and permits Canadian citizens to submit L-1 intracompany transferee petitions directly at U.S. ports of entry and pre-flight inspection stations for adjudication by U.S. Customs and Border Protection.

Whether the Trump administration intends to alter existing immigration programs under NAFTA is not yet known.

This post was written by Kara Kelly of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

NAFTA: Mexican Trucking Program

NAFTA Mexican carriers long-haul deliveriesPresident Trump’s plans to renegotiate the North American Free Trade Agreement (NAFTA) may also impact a controversial program that allows Mexican carriers to make long-haul deliveries in the U.S.

As part of the NAFTA agreement, the U.S. and Mexico agreed to allow trucks from each country to carry goods across the border for deliveries anywhere inside each of their respective countries, but the program faced challenges from the get-go.  In 2007, the George W. Bush Administration launched a trial program to expand Mexico’s trucking operations beyond the border. However, the program ended in 2009 after Congress defunded the program following pressure from labor unions.

Following retaliatory tariffs imposed by Mexico, the Obama Administration established a new pilot program in 2011 that would allow long-haul operations in the United States by Mexican drivers, beyond the 25-mile “buffer zone” that allows U.S. truckers to transfer and begin transport of merchandise further into U.S. territory.   U.S. labor unions objected but failed in their legal challenges against the program, and it was made permanent in January 2015.  The International Brotherhood of Teamsters, together with other groups, sued the Department of Transportation in 2015 over a report that they argued was not based on sufficient data to allow for these long-haul deliveries.  The program remains in effect while that case is still pending.

Safety has been one of the biggest concerns raised by critics of the program.  However, a 2014 Congressional Research Service report suggests safety likely has less to do with whether the truck originates in the U.S. or Mexico, and more to do with the type of truck being used:

Drayage carriers, whose trucks make short-haul movements and spend much time idling while awaiting customs processing, tend to use older equipment. Long-haul trucks tend to carry relatively high-value goods or temperature-controlled cargo, because lower-value goods and less time-sensitive goods can be carried over long distances much more economically by rail or water. If shippers are willing to pay a substantial premium over rail or water transport to truck their product long distances, it seems plausible that they would choose a reliable trucker with modern equipment to avoid risk of delay or spoilage.

Opponents of the program are almost certain to call for its repeal as part of any new NAFTA negotiations.  Representative Peter DeFazio (D-Oregon), Ranking Member of the House Transportation Committee, opposes the long-haul program and has already said he plans to raise the issue with Trump Administration officials.

ARTICLE BY Mayte Gutierrez of Squire Patton Boggs (US) LLP

© Copyright 2017 Squire Patton Boggs (US) 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

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