Tag: visa

Department Of State Releases September 2015 Visa Bulletin

Cutoff dates for EB-2 China and India retrogress to January 1, 2006. Cutoff dates for EB-3 China, India, and the Philippines advance to December 22, 2004.

The US Department of State (DOS) has released its September 2015 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a US embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does The September 2015 Visa Bulletin Say?

The September 2015 Visa Bulletin shows a large retrogression of visa numbers for EB-2 China and India, and an advancement of six and a half months for the EB-3 China, Philippines, and India allotments. The cutoff date for F2A applicants in China, India, Philippines, and the worldwide categories will advance by two and a half months in September. The cutoff date for F2A applicants from Mexico will advance by three months.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to China will retrogress by nearly eight years, and the cutoff date for applicants in the EB-2 category chargeable to India will retrogress by two years and nine months. For both categories, the cutoff date has been set at January 1, 2006. 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 the worldwide category and Mexico will advance by one month to August 15, 2015. The cutoff date for applicants in the EB-3 category chargeable to China, India, and the Philippines will advance by six and a half months to December 22, 2004.

EB-5: The cutoff date for applicants in the EB-5 category chargeable to China will advance by three weeks to September 22, 2013. The cutoff dates for applicants in the EB-5 category chargeable to the worldwide category remain current.

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

China: January 1, 2006 (retrogression of 2,905 days)
India: January 1, 2006 (retrogression of 1,004 days)
Mexico: Current
Philippines: Current
Rest of the World: Current

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

China: December 22, 2004 (forward movement of 204 days)
India: December 22, 2004 (forward movement of 204 days)
Mexico: August 15, 2015 (forward movement of 31 days)
Philippines: December 22, 2004 (forward movement of 204 days)
Rest of the World: August 15, 2015 (forward movement of 31 days)

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

China: September 22, 2013 (forward movement of 21 days)
Rest of the World: Current

Developments Affecting The Eb-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The September Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through September 2015.

China

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for EB-2 applicants chargeable to China. The September Visa Bulletin indicates a cutoff date of January 1, 2006, reflecting a retrogression of 2,905 days (nearly eight years). This means that applicants in the EB-2 category chargeable to China with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of October 1, 2008 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates a cutoff date of January 1, 2006, a retrogression of two years and nine months. This means that applicants in the EB-2 category chargeable to India with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

Developments Affecting The Eb-3 Employment-Based Category

China

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to China. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to China with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to India. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to India with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

The Philippines

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to the Philippines. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to the Philippines with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

Mexico

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to Mexico. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to Mexico with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Rest of the World

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to the worldwide category. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Developments Affecting The F2a Family-Sponsored Category

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from Mexico. The September Visa Bulletin indicates a cutoff date of February 1, 2014, an advancement of three months. This means that applicants from Mexico with a priority date prior to February 1, 2014 may file AOS applications or have applications approved in September 2015.

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from all other countries. The September Visa Bulletin indicates a cutoff date of March 1, 2014, reflecting forward movement of two and a half months. This means that F2A applicants from all other countries with a priority date prior to March 1, 2014 may file AOS applications or have applications approved in September 2015.

Developments In The Coming Months

It is anticipated that EB-2 visa numbers for China and India will advance again at the start of the 2016 fiscal year (October).

Regarding the Diversity Visa (“DV”) program, the US Department of State has warned that “[e]ntitlement to immigrant status in the Diversity Visa (“DV”) category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015. . . Numbers could be exhausted prior to September 30.”

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

ARTICLE BY Eleanor Pelta & Eric S. Bord of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Spring Forward, but Fall Behind: The September 2015 Visa Bulletin Brings Unwelcome News for Indian and Chinese “Green Card” Applicants in the Employment-Based Second Preference Category

Today, the Department of State (DOS) released the last visa bulletin for the 2015 fiscal year. Notably, major retrogressions are seen in the employment-based second preference category (EB-2) for both India and China. The EB-2 India category has retrogressed from October 1, 2008 toJanuary 1, 2006. The EB-2 China category has retrogressed almost eight years, from December 15, 2013 to January 1, 2006.

The employment-based third preference category (EB-3) for Mexico and Worldwide advances by one month. EB-3 China advances by six months and EB-3 India also saw an almost six- month advancement as well.

September is the last month of the government’s fiscal year and DOS has evaluated how many visa numbers are left to be issued. After performing this calculation, DOS adjusts the cutoff dates accordingly. Over the past six months, we have seen significant forward movement in the EB-2 category for India and China, and as such more petitions were filed and numbers were used. The retrogression stops this forward momentum for September, however once the new fiscal year begins October 1st more visa numbers should become available.

ARTICLE BY Michele D. Frangella of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

H-1B Update – New Petition Required When Work Location Changes – the World is Global, but U.S. Immigration is Local

While the 21st Century is a time of globalization, a time where with telecommuting and virtual offices there is a re-examination of whether there is still significance to your geographical location, United States Citizenship and Immigration Services (USCIS) is decidedly “retro” in firmly planting its feet in the 20th Century, pursuant to an AAO decision (Matter of Simeio Solutions, LLC) published April 9, 2015, which declares that any worksite change which triggers the requirement to obtain a labor condition attestation requires an employer to amend the underlying H-1B petition.

The real irony is that this was never USCIS or former INS policy, even during such times when geographical location was more meaningful than it is now.

USCIS initially intended to apply this policy retroactively. However, it backed off and in guidance published on July 21, 2015, coyly announced that it would “generally not take adverse action against employers that failed to file amended petitions”, so you as an employer are now left to decide what “generally” means. The guidance provides a new deadline of January 15, 2016 for those that decide to file amended petitions and for those where the geographical location change occurs between April 9, 2015 to August 19, 2015.

I guess those companies that have a high volume of geographical changes will do the cost benefit analysis and rely on “generally” and not amend. Other companies where volume of change is much more modest may likely choose to play it safe and file amended petitions.

This is a sorry state of affairs where a government agency relies on “ambiguity” as a tool of enforcement. USCIS has always had a hard time finding a way to deal with change and what constitutes a material change and it is understandable that as an agency, it feels that the difficulty in tracking where an H-1B employee undercuts its enforcement prerogatives, such as its FDNS “site visit” program.

The Simeio case itself involved an FDNS site visit where the H-1B beneficiary was not found at the designated site, accidentally discovered, only because of the site visit.

However, distorting the H-1B program by requiring the filing of an amended petition every time an employee moves from one location to the other seems to be a clumsy, cumbersome and inefficient way to notify USCIS of a geographical change in light of the burden of this process, including filing fees, legal fees, and document preparation. All this just to notify USCIS of a relatively simple, routine change in the course of business!

The AR-11 Model

Ironically, USCIS already has a program in place, which requires nonimmigrants in the United States to notify the agency when they change geographic locations via a simple form completed on paper or online, Form AR-11. The program works quite well. I see no reason why this very same concept cannot be adopted to a notification requirement for an H-1 job location change, avoiding the disproportionate burden placed upon all by insisting on an H-1B amendment every time a there is a change in job locations .

Maybe then, USCIS can protect its enforcement prerogative while still remaining a citizen of the 21st Century!

ARTICLE BY David Grunblatt of Proskauer Rose LLP
© 2015 Proskauer Rose LLP.

August Visa Bulletin – Monthly ‘Check-In’ with Charlie Oppenheim, Chief of the Visa Control and Reporting Division, DOS

Charles Oppenheim, chief of the Visa Control and Reporting Division of the U.S. Department of State, held his monthly meeting with AILA to shed light on the data in the recently released August Visa Bulletin.  Among the highlights of meeting are the following:

1. China EB-3 Retrogression.  The August Visa Bulletin shows that the EB-3 China category will have a cut-off date of June 1, 2004, a retrogression of seven years.  One reason for this retrogression is that earlier in the year the EB-3 China category had advanced which generated sufficient demand to bring the overall number within the allowable annual limit.  According to Charlie, the good news is that this category will progress forward in the beginning of the new fiscal year to a 2010 or maybe even a 2011 cut-off date.

2. Other EB-3 News.  EB-3 Other Worker will retrogress to Jan. 1, 2004 (an additional two-year retrogression from where it is currently).  There is a potential that the EB-3 category for China, India and the Philippines will move slightly forward (a few months) in September.  EB-3 Worldwide and Mexico, Charlie predicts, will continue to advance in September, but hold steady for a few months at the beginning of the new fiscal year in October 2015.

3. EB-2 China and India. As predicted earlier by Charlie, EB-2 India remained unchanged and is not likely to change until October.  EB-2 China moved forward to Dec. 15, 2003, a move of 2 1/2 months.  This date is likely to move slightly forward or remain unchanged for September

4. F-2A Worldwide.  Due to lack of demand in this category (Spouses and Children of Permanent Residents), the cut-off date for F-2A worldwide is advancing and is likely to continue to advance until demand increases.  The worldwide August cut-off date for this category is Dec. 15, 2013

ARTICLE BY Shaoul Aslan of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Sunlight is the best disinfectant: SEC charges oil company for fraud on EB-5 investors

In a recent action, SEC v. Luca International Group, LLC et al. (“SEC v. Luca“), the Securities and Exchange Commission (SEC) has charged a California-based oil and gas company and its CEO with violations of securities laws in connection with a $68 million Ponzi scheme and affinity fraud. The target of the fraud was the Chinese American community. Additionally, a portion of the funds raised by the defendants came from EB-5 investors seeking green cards through the EB-5 Program. The SEC issued both a press release and cease and desist order this week in connection with this most recent action. We think that this case highlights two important and relevant points for our readership, and that the SEC exposing the defendant schemers/fraudsters in SEC v. Luca is good for the EB-5 industry and integrity of the EB-5 program.

Prosecution efforts are going global– government agencies in Hong Kong and China assisted the SEC’s efforts 

Now more than ever before, the SEC is on the path to closing down actors in the EB-5 context that engage in deception and fraud. We are in a new era of enforcement, with the SEC becoming more familiar with the EB-5 Program. We think that this enforcement trend will move at an even faster clip as the SEC and United States Citizenship and Immigration Services (USCIS) become more agile in cooperating and responding to credible allegations of fraud.

EB-5 regional centers and issuers need to put into place sound and workable policies to ensure that marketing practices are in line with securities laws. Note that in SEC v. Luca, there was cooperation with the SEC and two foreign agencies, namely the Hong Kong Securities and Futures Commission and the China Securities and Regulatory Commission. Enforcement and prosecution efforts in this context are going global. Regional centers and issuers should ensure that any offshore sales efforts are in compliance with the laws of the countries in which sales activities are performed.

Overlooked federal and state investment adviser registration requirements  

SEC v. Luca is a reminder that investment adviser requirements may apply broadly in EB-5 transactions and require federal or state registration by regional centers, issuers and/or EB-5 deal facilitators. In SEC v. Luca, the SEC asserted that the defendants acted as “investment advisers” within the meaning of Section 202(a)(11) of the U.S. Investment Advisers Act of 1940 (“Advisors Act”) [15 U.S.C. Section 80(b)-2(a)(11), but had no registrations with the Commission. Confusion over investment adviser registration requirements is a commonplace problem in the EB-5 space. In SEC v. Luca, the defendants were in the business of providing investment advice concerning securities for compensation. According to the SEC, these key facts triggered registration requirements under the Advisers Act.

We will soon be providing an extensive alert with regulatory advice to EB-5 regional centers and issuers on the applicability of both federal and state investment adviser registration requirements. The applicability of such requirements should be made on a case-by-case with qualified securities counsel. There is no “one size fits all” advice. States have their own considerations in interpreting investment adviser registration requirements. And the SEC has its own interpretive guidance on the parameters of the registration requirements of the Advisers Act apply.

Conclusion

The egregious pattern of unlawful behavior by the defendants in SEC v. Luca included deceit in the marketing process, fraud in offering materials, comingling and misappropriation of funds, and violation of registration requirements. These are issues not just in the EB-5 context, but with private placements generally. Affinity fraud is also common in private placements.

EB-5 stakeholders should be aware that we are seeing a visible uptick in securities related prosecutions. No issuer, regional center or deal facilitator is immune from scrutiny. The SEC and USCIS are also working together more nimbly with foreign securities agencies. Sound policies, securities compliance and meaningful due diligence by experts are important in EB-5 offerings.

Sunlight is the best disinfectant. This adage is true for the EB-5 program. Stakeholders who promote a transparent and strong EB-5 program should applaud the SEC’s efforts.

ARTICLE BY Douglas Hauer of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

US Department of State Visa Systems Continue to Experience Technical Failures

Expect delays in the coming weeks in US visa and passport issuance.

The US Department of State (DOS) announced yesterday that it is experiencing technical problems with visa issuance at US embassies and consulates around the world. The DOS stated that officials are working “around the clock” to fix the problem, noting that it does not expect to have the problem fixed before next week. The DOS further noted that the system failure stems from a hardware issue that began on June 9 that is preventing the DOS from processing and transmitting biometric data checks at visa-issuing embassies and consulates. Domestic passport operations are functioning, and the DOS continues to issue passports to US citizens with urgent overseas travel needs.

Please be aware that many posts have had to reschedule visa appointments this week as a result of this outage. Urgent medical and other humanitarian cases are being prioritized, along with H-2A agricultural workers.

Be aware that this outage may cause a delay in visa issuance throughout the consular system. Although the DOS expects to fix the issue shortly, the delays may affect visa processing for the next several weeks. Please keep this in mind when making travel plans this summer, and allow for extra time when scheduling visa appointments or requesting visa reissuance by mail.

The DOS will continue to post regular updates on its website.

ARTICLE BY Eleanor Pelta & Eric S. Bord of Morgan, Lewis & Bockius LLP
Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

SEVIS and SEVP System Outage – J, F, and M Students Travel Warning: Student and Exchange Visitor Information System

The Student and Exchange Visitor Information System (SEVIS) is used by the Department of State and The Student and Exchange Visitor Program (SEVP) to monitor nonimmigrant exchange visitors and students during their time in the United States.  SEVIS is a web-based system used for critical processes such as issuance of documentation necessary to obtain visas, payment of fees required to participate in exchange programs, and evidence of maintenance of status required to re-enter the United States after travel.

A SEVIS system update is scheduled to be released on Friday, June 26, 2015.  While the planned update/upgrade will provide improved functionality for users, it will also result in a service outage from 8:00 p.m. EDT Friday, June 26, 2015, to 8:00 pm EDT, Sunday, June 28, 2015.  During the outage it will not be possible to access the system to input and/or update records.  It will also not be possible for immigration officers to verify active SEVIS records.  For this reason, it is recommended that J, F, and M visa holders refrain from non-essential travel requiring their re-entry to the United States during the outage.  Visa holders who must travel during the outage should be prepared for long waits at the airport upon re-entry.  Finally, it will not be possible to pay SEVIS fees necessary for the J visa program.  J visa sponsors are recommending that these fees be paid prior to the outage in order to avoid any delays in proceeding with visa issuance.

ARTICLE BY Courtney B. Noce of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

DOS June 2015 Visa Bulletin – Department of State

The Department of State’s June Visa Bulletin on a whole brought relatively few changes of note.

Progress was made in the EB-2 category, where priority dates for Indian nationals advanced six months from April to October 1, 2008. Similarly, Chinese nationals experienced forward movement of one year in priority dates, with the Department of State (DOS) now processing cases with priority dates of June 1, 2013 or before.

The EB-3 category remains virtually unchanged across all areas, with the exception of the Philippines which retrogressed nearly two and half years from July 2007 to January 2005. Filipinos whose immigrant petitions were filed under the EB-3 skilled and professional workers category are now subject to a ten-year retrogression backlog.

In the EB-5 category, Chinese nationals with approved I-526 petitions carrying a priority date of May 1, 2013 or earlier are now current.  Those with later priority dates will have to wait until their number is called and there are no timeline estimates available at this time.

Those individuals that have been impacted by a visa retrogression of any kind are encouraged to check the DOS Visa Bulletin each month in order to see if visa processing dates have moved under their approval category.

DOS Visa Bulletin june 2015

ARTICLE BY Shaun K. Staller of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

Department of State Releases May 2015 Visa Bulletin

Morgan, Lewis & Bockius LLP.

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

The US Department of State (DOS) has released its May 2015 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a US embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the May 2015 Visa Bulletin Say?

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

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

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will advance to April 15, 2008. The cutoff date for applicants in the EB-2 category chargeable to China will advance to June 1, 2012. The EB-2 category for all other countries will remain current.

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

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

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

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

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

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

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

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

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World 
The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The May Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through May 2015.

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

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

Developments Affecting the EB-3 Employment-Based Category

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

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

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

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

Developments Affecting the F2A Family-Sponsored Category

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

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

Developments in the Coming Months

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

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

F2A Family-Sponsored Category

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

Employment-Based Second Preference Category

  • The worldwide category will likely remain current.

  • The cutoff date in the EB-2 China category will likely advance by three to six weeks per month.

  • The cutoff date in the EB-2 India category will likely advance by four to six months.

Employment-Based Third Preference Category

  • The cutoff date in the EB-3 worldwide category will most likely be adjusted in the coming months as demand increases.

  • The cutoff date in the EB-3 China category is expected to advance by three to six weeks per month.

  • The cutoff date in the EB-3 India category will advance up to two weeks.

  • The cutoff date in the EB-3 Mexico category will remain at the worldwide date.

  • The cutoff date in the EB-3 Philippines category will advance slightly. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the May 2015 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Eleanor Pelta
A. James Vázquez-Azpiri
Roland C. Lechner
Morgan, Lewis & Bockius LLP

USCIS Resumes H-2B Adjudications

Jackson Lewis P.C.

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

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

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

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

ARTICLE BY

Otieno B. Ombok
Jackson Lewis P.C.