Tag: visa

USCIS Issues Guidance on H-1B Petition Adjudication, Announces ‘Targeted’ Site Visits

H-1b petitionUSCIS issued a policy memorandum to increase scrutiny of H-1B petitions for computer-related positions and an announcement regarding increased H-1B employer site visits—what will these changes mean for foreign worker visa programs?

In a policy memorandum dated March 31, United States Citizenship and Immigration Services (USCIS) announced that it is formally rescinding the 2000 Immigration and Naturalization Guidance Memo on H-1B Computer Related Positions issued to Nebraska Service Center employees adjudicating H-1B petitions. USCIS considers the 2000 memo to adopt an “obsolete” view of the types of computer-related occupations that qualify as specialty occupations for H-1B purposes (based on the memo’s inaccurate reading of the Occupational Outlook Handbook) and also to not “properly” apply the regulatory criteria that govern qualification for H-1B status. Specifically, the policy memorandum calls attention to the fact that the rescinded memo, while observing that “most” computer programmers hold bachelor’s degrees, did not note in which “specific specialties” such degrees were held. The rescinded memo is also criticized for not mentioning that only “some” computer programmers hold degrees in computer science or information systems, and for inaccurately presenting the fact that some jobs held by computer programmers require only two-year or associate’s degrees. The memo is further criticized for not clarifying that entry-level computer programmers will generally not qualify for H-1B status. Thus, the policy memorandum concludes that an H-1B petitioner cannot rely on the Occupational Outlook Handbook to establish that a computer programmer position is a specialty occupation and that “other evidence” must be provided to establish the specialty occupation.

Several immigration lawyer groups have raised concerns that this new policy memorandum may constitute a first step by the Department of Homeland Security (DHS) to carry out the previously announced intentions of the presidential administration to make foreign worker visa eligibility more restrictive. The new memorandum, by withdrawing a little-known memo, may well make it more difficult for H-1B petitions filed for persons working in computer-related positions to be approved. Its practical effect is that companies in the IT industry seeking H-1B status for their employees will likely have to prove that the positions at issue are not entry-level computer programming positions and that the employees’ degrees and education are specifically related to such positions. Extensive Requests for Evidence (RFEs) seeking such proof are expected to become commonplace, as are denials for failure to offer such proof. As an indication of the scrutiny and limited focus that H-1B petitions for persons working in computer-related positions are now receiving, apparently a number of RFEs questioning the relevance of a degree in electrical engineering to a computer engineer position have been issued recently.

Since the policy memorandum took effect immediately, all H-1B petitions subject to the 2018 fiscal cap will be adjudicated under its provisions, even though no advance notice of its publication was provided.

USCIS Announces ‘More Targeted’ H-1B Site Visits

In a separate announcement issued April 4, USCIS stated that, effective immediately, it will embark upon a “more targeted” campaign of site visits to the worksites where H-1B beneficiaries are employed. Such site visits have been conducted by officers of the USCIS Office of Fraud Detection and National Security since 2009. Under the new initiative, H-1B site visits will focus on three categories of employers:

  • H-1B dependent employers (generally, employers with 51 or more employees with at least 15% of their workforce composed of H-1B beneficiaries)
  • Employers filing petitions for employees who will be assigned to work at the worksites of different companies
  • Employers whose business information cannot be verified through commercially available data (including, primarily, the Validation Instrument for Business Enterprises (VIBE) tool, which is based on a Dun & Bradstreet database

In addition, the announcement notes that “random” site visits will continue to occur.

The practical effect of this announcement may be that site visits to the workplaces of employers that do not fall into one of these categories will diminish, while site visits to employers that do fall into one of these categories will spike sharply and possibly be all but certain. All employers of H-1B beneficiaries are encouraged to adequately prepare for such site visits by ensuring that

  • information contained in H-1B petitions is at all times accurate and up to date, and
  • thorough site visit protocols that govern in detail how such visits will be handled are in place.

The announcement notes that the targeted site visit program is intended to identify employers engaging in fraud and abuse of the H-1B category, not to punish individual H-1B employees. To serve this purpose, USCIS has established an email address, reportH1Babuse@uscis.dhs.gov, that will allow both American and H-1B workers to notify the agency, presumably anonymously, of instances of such fraud and abuse.

What Do These Changes Mean?

On January 24, 2017, a draft executive order titled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” was publicly circulated. This draft executive order essentially mandates a top-to-bottom review of all foreign worker visa programs to make certain that such programs are not administered in a way that creates a disadvantage to US workers. Although the order has not been finalized to date, it would appear that the presidential administration has started the process of reviewing certain visa classifications, and it is likely that DHS will issue further guidance on other visa classifications in the near future.

ARTICLE BY A. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP
Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Is H-1B Reform On Its Way?

h-1b reformTwo bipartisan bills to reform professional-level visa classifications were introduced into Congress this past July. Given the charged nature of the national discourse on immigration issues this election year, it seems unlikely either bill will be enacted before the presidential election. The bipartisan nature of both bills, however, suggests Congress may be able to coalesce, in the near future, around new H-1B legislation. If these or similar reforms are enacted under a new administration, the information technology (IT) sector, specifically, and all employers who rely on outsourced labor or who contract with H-1B dependent employers may face significant changes to their operations.

Overview of the H-1B program

Through the H-1B program, U.S. employers can sponsor up to 85,000 new foreign workers each fiscal year for employment in “specialty occupations.”1 Generally speaking, a “specialty occupation” is a professional-level position that requires a bachelor’s level education (or higher) in a specific field of study. Common specialty occupations include white-collar professions such as accountants, teachers, doctors, engineers and numerous IT positions including software developers, computer programmers and systems analysts. With the exception of H-1B workers whose employers are sponsoring them for legal permanent residence (green cards), H-1B workers are allowed to remain in the U.S. for up to six years of employment.

The H-1B program has been heavily oversubscribed the last few years. In fact, in each of the last two years, employers filed approximately 230,000 petitions against the 85,000 H-1B visas available. Because extension petitions for employees who have already been granted H-1B status are not counted against the numerical cap, the total number of H-1B workers in the U.S. at any given time is estimated to be around 600,000.2

IT workers constitute the bulk of H-1B employees in the U.S. For fiscal years 2013 and 2014, for example, U.S. Citizenship & Immigration Services (USCIS) reports that close to two-thirds of workers in each fiscal year were employed in computer-related occupations.3 The significance of the H-1B program to the IT sector and entrepreneurship is such that over the years many leading entrepreneurs and IT innovators, including Michael Bloomberg, Mark Zuckerberg and Bill Gates have vocally called for increases in the number of annual H-1Bs available, among other reforms.4

The H-1B program is regulated by both the U.S. Citizenship & Immigration Services (USCIS) and the Department of Labor (DOL). The program requires, among other elements, that the employer make a binding promise to pay the sponsored H-1B worker the higher of the actual wage the employer pays to similarly-situated workers or the prevailing wage for the occupation in the area of intended employment.

In addition, an employer who relies significantly on H-1B workers, called an “H-1B dependent” employer,5 must attest to having tried to recruit a U.S. worker for the position and must promise that the intended H-1B employment will not displace a U.S. worker within 90 days before and 90 days after the employer files the H-1B petition in support of the H-1B worker.6 An H-1B dependent employer, however, can exempt itself from the U.S. recruitment and non-displacement limitations for petitions in which the company pays the H-1B worker at least $60,000 or for petitions in which the employer files on behalf of an H-1B worker with at least a master’s degree in the specialty occupation.

The potential displacement of U.S. workers by H-1Bs has been a periodic concern since the beginning of the modern H-1B program. Displacement has recently been brought back into the spotlight by allegations some U.S. employers replaced several hundred U.S. IT workers with foreign nationals.7 The U.S. workers are also alleged to have been forced to train their foreign-worker replacements as a precondition to receiving a severance package.8 A subsequent investigation by the DOL into allegations of H-1B program violations related to at least one of those U.S. employers, Southern California Edison, appears to have been resolved in favor of the company and its IT consulting vendor.9 

H.R. 5801: Limiting U.S. worker displacement by H-1B dependent employers

On July 14, 2016, Representative Darrell Issa (R-CA) introduced H.R. 5801, the “Protect and Grow American Jobs Act,” which has been referred to the House Judiciary Committee. The bill proposes to reduce H-1B dependent employers’ ability to avoid U.S. worker recruitment and non-displacement provisions. Under this bill, H-1B dependent employers would be bound by the provisions unless they promised H-1B workers a salary of at least $100,000 (increased from the current $60,000). The bill would also eliminate the Master’s degree exemption. The bill has bipartisan support and is co-sponsored by Rep. Peters (D-CA), Rep. Polis (D-CO), Rep. Vargas (D-CA), Rep. Farenthold (R-TX), Rep. Smith (R-TX), Rep. Hunter (R-CA) and Rep. Davis (D-CA).

H.R. 5657: Limiting U.S. worker displacement by any H-1B employer

On July 7, 2016, Representative Bill Pascrell, Jr. (D-NJ) introduced H.R. 5657, the “H-1B & L-1 Visa Reform Act of 2016,” which has been referred to both the House Judiciary and House Education and the Workforce committees. This bill proposes largescale changes to the H-1B program, including eliminating H-1B dependent employers as a separate classification. This change would subject all H-1B employers to the U.S. worker recruitment and non-displacement provisions that currently apply only to H-1B dependent employers.10 The bill would also double the non-displacement window from the 90 days before and after filing the petition to 180 days on each side of the filing.

In addition, under this proposal an H-1B worker would be authorized to perform services only at his or her employer’s work location unless the employer first obtained a waiver from the DOL.11 This provision would directly, and adversely, impact the business model of modern consulting companies and their clients; moreover, the new waiver requirement would seemingly prevent most staffing companies from accessing the H-1B program.12 

The bill is co-sponsored by Rep. Rohrabacher (R-CA).

What would these proposals mean?

For IT consulting companies and their corporate clients, these proposed changes could force significant changes. At a minimum, the cost to hire an H-1B worker would increase. And, if consultant-vendors are limited in placing H-1B workers at a client site, the end-client may need to scramble to fill positions that can no longer be filed by their consultant-vendor.

ARTICLE BY Monica Santa Maria of Godfrey & Kahn S.C.
Copyright © 2016 Godfrey & Kahn S.C.

1 Universities and certain nonprofit research facilities are exempt from the 85,000 numerical limitation.
2 See, e.g., Immigration Reforms to Protect Skilled American Workers: Hearing Before the S. Judiciary Comm., 114th Cong. (2015) (testimony of Professor Ron Hira).
3 U.S. Citizenship and Immigration Servs., Characteristics of H-1B Specialty Occupation Workers: Fiscal Year 2014 Annual Report to Congress 12, Table 8A (2015).
4 Matthew DeLuca, Tech Demands More H1-B Visas as Critics Cry Foul (Apr. 10, 2014).
5 For an employer with at least 51 workers, if 15% or more are H-1B workers, the employer is classified as H-1B dependent.  8 U.S.C. §1182(n)(3)(A)(iii).  There are separate calculations for smaller employers.  Id. §§1182(n)(3)(A)(i) and (ii).
6 8 USC §§1182(n)(1)(E) and (G).
7 See Matthew Thibodeau, Southern California Edison IT Workers ‘Beyond Furious’ Over H1-B Replacements, Computerworld (Feb. 4, 2015); Sara Ashley O’Brien, Disney Sued for Replacing American Workers with Foreigners, CNN Money (Jan. 26, 2016).
8 Id.
9 Press Release, Infosys, U.S. Dep’t of Labor Concludes Investigation, No Violations by Infosys Found.
10 H.R. 5657, sec. 101(d)(1).
11 Id. sec. 101(e).
12 See, id. sec. 113(a) (making the waiver dependent, in part, on a DOL finding that the “placement of the H-1B [worker] is not essentially an arrangement to provide labor for hire for the [third-party] employer with which the H-1B [worker] will be placed.”)

July 2016 Visa Bulletin Released

july 2016 visa bulletinProjections include EB-1 Cutoff Date for China and India, Slow EB-2 and EB-3 Movement, EB-4 Backlogs for Latin America to ease, and EB-5 China to advance slightly.

 

This week, the Department of State (DOS) has released the July 2016 Visa Bulletin. We are three months from the end of the fiscal year and the dwindling visa numbers remaining are likely to bring about tepid advancement in many employment-based categories before October. This Bulletin brings several particular items of note relating to the anticipated movement of final action dates:

  • For the first time in recent collective memory, the State Department is predicting that EB-1 (which is usually “Current”) will have a cutoff date “no later than September” for China and India, but becoming current again in October 2016. Worldwide is expected to remain Current through all relevant times.

  • In the EB-2 category, a date for Worldwide chargeability is likely to be “imposed by September” with a return to “current” in October. The State Department predicts that there will be no forward movement for China EB-2, and India EB-2 will only move one week beyond India EB-3.

  • Limited movement is predicted in EB-3, with the exceptions of India reaching early 2005 and Philippines reaching late 2009 or early 2010.

  • Mexico, El Salvador, Guatemala, Honduras, and Mexico face an EB-4 priority date of Jan. 1, 2010. Although this 6.5 year backlog may appear daunting, the State Department does caution the following:

“Readers should be aware that the establishment of the Employment Fourth preference Final Action date of January 1, 2010 does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries under the FY-2016 annual limit, not to indicate how long it will be before applicants will be eligible for final action.”

In October, Mexico EB-4 is projected to become current. El Salvador, Guatemala, and Honduras are anticipated to have a 2015 cutoff date.

  • In the EB-5 realm, China has not advanced from June 2016. The “best case” scenario is a March 1, 2014, cutoff date by September.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for filing Form I-485.

The July 2016 Final Action Dates for Employment-Based Applications are as follows:

July 2016 visa bulletin 1

Likewise, the July 2016 Dates for Filing are:

Jule 2016 visa bulletin 2

ARTICLE BY Matthew T. Galati of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

Draft Form I-765V, EAD Application for Abused Nonimmigrant Spouse: Comments Open

nonimmigrant spouseOn May 27, USCIS posted for comment on the Federal Register draft versions of Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse and its instructions. Under section 106 of the Immigration and Nationality Act, abused spouses of certain nonimmigrants are eligible for employment authorization: i.e., the spouses of foreign nationals in the following nonimmigrant categories:

  • A-1, A-2, and A-3 (foreign government diplomats and officials and their immediate family members, attendants, servants, and personal employees);

  • E-3 (Australian specialty occupation workers);

  • G-1, G-2, G-3, G-4, and G-5 (employees of foreign governments and international organizations and their immediate family members, attendants, servants, and personal employees);

  • and H-1B, H-1B1, H-2A, H-2B, H-3, and H-4 (specialty occupation workers, Free Trade Agreement professionals from Chile and Singapore, temporary agricultural and non-agricultural workers, trainees and special education exchange visitors, and immediate family members of specialty occupation workers).

Earlier this year, March 8, 2016, USCIS released a Policy Memorandum regarding the eligibility of such applicants. Pursuant to the memo, along with the Form I-765V EAD application, credible evidence should be presented to prove various eligibility factors, including that the applicant resides in the United States, that the applicant is or was (under specific circumstances) married to the qualifying principal nonimmigrant spouse, that the applicant was last admitted to the United States in nonimmigrant status, and that the applicant or the applicant’s child was abused or subject to extreme cruelty by the principal nonimmigrant spouse. If approved, the EAD should be granted for two years. Supporting documentation should include copies of the marriage certificate, evidence of the abuse, and I-94 records and biographical identification documents of both the applicant and the principal spouse.

The draft EAD application Form for abused nonimmigrant spouses is six pages, while the regular Form I-765 used by applicants eligible for employment authorization under other bases is only one page. Form I-765V requests information not only on the applicant’s immigration status, but also on biographical physical features including ethnicity, race, height, weight, and eye and hair color. Form I-765V also allows for information to be completed regarding a safe mailing address and an interpreter. Further, the draft Form requests an Applicant’s Certification regarding the authenticity of documents and release of information. USCIS estimates that completing the application Form and preparing the documentation will take three hours per response.

USCIS encourages comments on the draft Form I-765V. Specifically, USCIS seeks feedback regarding whether the proposed collection of information on the form is necessary, the burden on the applicants to compete the form, the accuracy of USCIS’ estimate of the burden of the proposed collection of information, and the clarity, quality, and utility of the information to be collected. Comments will be accepted for 60 days, until July 26, 2016. All comments should reference OMB Control number 1615-NEW and Docket ID USCIS-2016-0004. Comments can be made online, by email, or by mail.

Article By Lauren A. Tetenbaum of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

Department of State Releases May 2016 Visa Bulletin

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):

EB

All Charge-
ability
Areas Except
Those Listed

China
(mainland
born)

El Salvador,
Guatemala,
and Honduras

India

Mexico

Philippines

1st

C

C

C

C

C

C

2nd

C

01SEP12

C

22NOV08
(was 08NOV08)

C

C

3rd

15FEB16

15AUG13

15FEB16

01SEP04
(was 08AUG04)

15FEB16

08AUG08
(was 01May08)

Other Workers

15FEB16

22APR07
(was 01MAR07)

15FEB16

01SEP04
(was 08AUG04)

15FEB16

08AUG08
(was 01May08)

4th

C

C

01JAN10

C

C

C

Certain Religious Workers

C

C

01JAN10

C

C

C

5th
Nonregional
Center
(C5 and T5)

C

08FEB14
(was 01FEB14)

C

C

C

C

5th
Regional
Center
(I5 and R5)

C

08FEB14
(was 01FEB14)

C

C

C

C

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

Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

H-1B Cap: The Receipts Are Trickling In!

The July 2015 Visa Bulletin Brings Little ChangeOn April 7, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it received more H-1B petitions than available under the statutory cap of 65,000 general-category visas and 20,000 U.S. Master’s visas for the fiscal year. Another record-breaking year: USCIS received over 236,000 H-1B petitions during the filing period.

This is the fourth consecutive year that the H-1B quota has been reached during the first five business days of April. Before that, the last time the cap had been reached during the first week was in April 2008 for FY 2009. The decreased demand after FY 2009 was due to the effects of the financial crises. H-1B petition submissions have increased each year, as outlined below:

FY 2017

236,000

FY 2016

233,000

FY 2015

172,500

FY 2014

124,000

On April 9, USCIS ran the computer-generated lottery to select enough petitions to meet the 65,000 general-category cap and the 20,000 Master’s cap. As such, USCIS began issuing Receipt Notices for those cases that “won” the lottery this week. They are slowly “trickling” in. Once the case is “receipted” it still must undergo review and adjudication by USCIS. USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

Any cases not selected in the lottery will be returned with their filing fees.

We appreciate that, during this period, employers and foreign national employees will be anxious while awaiting the lottery results. Proskauer will continue to update its clients directly and through alerts as to H-1B cap developments.

Article By David Grunblatt, Hallie A Cohen, Erica Loomba, Valarie H McPherson, Praveena N Swanson & Jennifer Wexler of Proskauer Rose LLP

© 2016 Proskauer Rose LLP.

Department of State Releases March 2016 Visa Bulletin

Employment-based second- and third-preference China categories show significant advancement.

The US Department of State (DOS) has released its March 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 March 2016 Visa Bulletin Say?

The March 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 March 2016, it is not yet clear whether employment-based (EB) applicants may use the Dates for Filing Visa Applications chart or the Application Final Action Dates chart. USCIS will announce its decision within the next week.

Application Final Action Dates

To be eligible to file an EB adjustment application in March 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):

EB All Chargeability
Areas Except
Those Listed		 China
(mainland born)		 India Mexico Philippines
1st C C C C C
2nd C 01AUG12—
(was 01MAR 12)		 15OCT08
(was 01AUG08)		 C C
3rd 01JAN16
(was 01OCT15)		 01JUN13

(was 01OCT12)

 15JUL04
(was 15JUN04)		 01JAN16
(was 01OCT15)		 15MAR08
(was 08JAN08)
Other Workers 01JAN16
(was 01OCT15)		 01FEB07
(was 22DEC06)		 15JUL04
(was 15JUN04)		 01JAN16
(was 01OCT15)		 15MAR08
(was 08JAN08)
4th C C C C C
Certain Religious Workers C C C C C
5th
Nonregional
Center
(C5 and T5)		 C 22JAN14
(was 05JAN14)		 C C C
5th
Regional
Center
(I5 and R5)		 C 22JAN14
(was 15JAN14)		 C C C

Filing Dates

The chart below reflects dates for filing visa applications within a timeframe that justifies immediate action in the application process. Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used in March for filing applications for adjustment of status.

EB All Chargeability
Areas Except
Those Listed		 China
(mainland born)		 India Mexico Philippines
1st C C C C C
2nd C 01JUN13
(was01Jan13)		 01JUL09 C C
3rd C (was
01JAN16)		 01MAY15
(was 01OCT13)		 01JUL05 C (was
01JAN16)		 01JAN10
Other Workers C (was
01JAN16)		 01AUG07
(was 01JAN07)		 01JUL05 C (was
01JAN16)		 01JAN10
4th C C C C C
Certain Religious Workers C C C C C
5th
Nonregional
Center
(C5 and T5)		 C 01MAY15 C C C
5th
Regional
Center
(I5 and R5)		 C 01MAY15 C C C

How This Affects You

The largest changes in the Application Final Action Dates chart are in the EB-3 China category, which has advanced by eight months to June 1, 2013, and in the EB-2 China category, which has advanced by five months to August 1, 2012. The EB-2 India category advanced by three and a half months to October 15, 2008. The EB-3 category for the worldwide preference and Mexico categories advanced to January 1, 2016. The largest changes in the Dates for Filing Visa Applications chart are in the EB-2 and EB-3 China categories, which advanced by six months each. Other classification categories saw only minimal advancement of one week to one month. Read the full March 2016 Visa Bulletin.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP
Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Department of State Issues March 2016 Visa Bulletin – China EB-3 Now Even with EB-5, Expectations Set For Coming Months

The July 2015 Visa Bulletin Brings Little ChangeThe 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

Department of State Issues March 2016 Visa Bulletin – China EB-3 Now Even with EB-5, Expectations Set For Coming Months

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

Department of State Issues March 2016 Visa Bulletin – China EB-3 Now Even with EB-5, Expectations Set For Coming Months

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”

Article By Matthew T. Galati of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

2017 H-1B Visas – Need to Begin Process Now

visaEmployers may first apply for Fiscal Year 2017 H-1B visas for individuals not currently in H-1B status on April 1, 2016 for a start date of October 1, 2016.

United States Citizenship and Immigration Services (USCIS) received approximately 233,000 H-1B petitions during the first week applications were accepted for the Fiscal Year 2016 H-1B visa cap and conducted a random lottery to select the 85,000 petitions for the H-1B cap (65,000 for the general category and 20,000 for the US advanced degree category). We anticipate similar high demand again this year.

This H-1B cap limitation does not apply to extensions of H-1B status or those obtaining H-1B status to teach at colleges, universities, related nonprofit or government research organizations or J waiver physicians.

Article By Kimberly A. Clarke & Nina Thekdi of Varnum LLP

© 2016 Varnum LLP

A Preview of Business Immigration in 2016: H-1B

From proposals to slash the H-1B cap to overhauling the EB-5 investor program, 2016 is already proving to be an interesting year for business immigration. In a series of posts, we will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our first post we will discuss the H-1B visa and proposed reforms. 

A new wave of bills on Capitol Hill may lead to greater scrutiny of the H-1B program for high-skilled temporary workers in 2016. Since November, senators on both sides of the aisle have introduced legislation related to the visa category. One comes from Republican presidential candidate and Senator Ted Cruz (R-TX), who hopes to reform the program by creating a “layoff cool-off period” under which employers could not hire any H-1B workers within two years of layoffs, furloughs, or employee strikes. The “American Jobs First Act of 2015” would also end the Optional Practical Training program, which allows certain foreign students or graduates to temporarily work in the United States. Bill co-sponsor Senator Jeff Sessions, (R-AL), said the H-1B program has become a “backdoor method for replacing American workers.”

Senator Sessions, known as an immigration hardliner, also co-sponsored the “Protecting American Jobs Act” with Senator Bill Nelson (D-FL) to reduce the annual cap on H-1B visas from 65,000 to 50,000. If more than 50,000 petitions are filed within a fiscal year, the bill would require DHS to prioritize workers with the highest wages. “This bill directly targets outsourcing companies that rely on lower-wage foreign workers to replace equally qualified U.S. workers,” stated Senator Nelson. His legislation directly opposes fellow Florida Senator and Republican presidential candidate Marco Rubio’s earlier 2015 bill that would triple the H-1B cap to between 115,000 and 195,000 visas.

Another bipartisan effort comes from Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Senate Minority Whip Dick Durbin (D-IL), who recently introduced legislation that would greatly reform and increase enforcement of the H-1B program. Their bill would prohibit companies from hiring H-1B workers if they have more than 50 employees and over half are H-1B and L-1 visa holders.

Whether any of these bills will actually pass remains the biggest question for H-1Bs in 2016, particularly as certain bills—and legislators—oppose one another, both in the Senate and in presidential campaigns.

Article By Susan J. Cohen of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Parnia Zahedi assisted with this post.

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