Tag: visa

USCIS Strictly Enforcing the Statutory Provisions in Adjudicating H-1B Petitions Filed Under the 20,000 Advanced Degree Cap

GT Law

 

A separate cap of 20,000 H-1B’s is allotted for those foreign nationals who were awarded advanced degrees in the U.S. However, not all degrees qualify under this provision. Recently, USCIS has been enforcing this provision very strictly, issuing requests for evidence, denials, and even initiating revocation proceedings for previously approved petitions under the advanced degree cap.

Immigration and Nationality Act (INA) Section 214(g)(5)(c) provides that those foreign nationals who earned a master’s or higher degree from a United States institution of higher education can file under the 20,000 cap, which is separate from the 65,000 cap reserved for all other H-1B petitions, with the exception of colleges, universities, and qualifying affiliated institutions who are exempt from the cap altogether. This section further states that only degrees awarded by those institutions which fit the definition set forth in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). This section of the law, in turn, defines a U.S. institution of higher education as a public or other non-profit institution accredited by a “nationally recognized accrediting agency or association” or “granted a pre-accreditation status”. Degrees received from institutions which do not fit this definition, though located in the U.S. and award advanced degrees, do not qualify an H-1B petition to be filed under the 20,000 cap.

In the past USCIS has been liberal in reading this section, rarely rejecting filings made under this cap where the foreign national held an advanced degree awarded in the U.S. However, recently, in following its new policy of strict interpretation and observance of the immigration laws and regulations, USCIS has begun to closely scrutinize these filings, issuing requests for evidence, and even denials where it finds that the institution does not fit within the requisite definition to qualify. What’s more, Greenberg Traurig has been informed that USCIS has begun revocation proceedings for previously approved H-1B petitions, where it determined that it previously approved H-1B petitions under the advanced degree cap in error.

This year’s H-1B filings are once again expected to surpass the amount allotted under both caps within the first week, with USCIS conducting a random lottery to choose H-1B petitions for adjudication, similarly to last year. If a petition is filed erroneously requesting adjudication under the advanced degree cap and is rejected by USCIS, with both caps having been exhausted within the first week of the filing season, it is unlikely to be re-filed for the same fiscal year. Therefore, it is very important to provide all of the academic credentials in connection with the H-1B filing to your GT business immigration and compliance attorney and make sure to speak with them about the requirements involved with the H-1B petition cap filings.

Article by:

Nataliya Rymer

Of:

Greenberg Traurig, LLP

Prepare Now for Foreign Talent Acquisition: H-1B Cap Demand Projected to Reach Five-Year High

GT Law

 

I. FISCAL YEAR FOR 2015 H-1B CAP

U.S. Citizenship and Immigration Services (“USCIS”) will start accepting new H-1B petitions for Fiscal Year 2015 on Tuesday, April 1, 2014. As such, employers must start identifying current and future employees who will need to be sponsored for new H-1B petitions as soon as possible, as it is likely that this year’s H-1B quota (“H-1B cap”) will be met within one week of it opening and USCIS will then stop accepting new petitions until next year’s H-1B cap opens on April 1, 2015. Once the H-1B cap closes, employers will need to look at alternative visa options for affected employees to assess whether a viable option is available. Please note that only new H-1B petitions are affected; H-1B petitions involving someone who is already in H-1B status or has previously held H-1B status are not affected by the H-1B cap.

By way of background, U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The number of initial H-1B visas available to U.S. employers (the “H-1B cap”) is 65,000, with an additional 20,000 numbers set aside for individuals who have obtained a U.S. master’s degree or higher. This year’s H-1B cap will leave employers unable to secure all of the highly skilled workers needed to remain competitive and will no doubt re-ignite the debate about the need to implement a comprehensive immigration reform.

The rate at which USCIS has received cap-subject H-1B petitions in the past few years has dramatically increased. The usage of the H-1B program is strongly connected to the health of the U.S. economy, and the increase in the H-1B usage rate corresponds with the economic recovery following the 2008 Economic Recession. In keeping with this trend, business immigration practitioners are predicting that the H-1B quota will be reached by the second quarter of 2014, if not much sooner. In fact, it is possible that initial demand for H-1B visas will exceed the 85,000 supply during the first week of the filing season, April 1, 2014 through April 4, 2014.

If USCIS receives more than 85,000 H-1B Cap Petitions during the first week of availability, then a lottery will be conducted to select the petitions that will be processed under this cap. Those petitions not selected in the lottery will be rejected. Should such a rejection occur, an affected foreign national seeking immigration and employment authorization sponsorship with an employer will be unable to obtain an H-1B petition until October 1, 2015 (with the filing season beginning April 1, 2015). Affected foreign nationals may also be required to forego employment with employers and possibly leave the United States.

II. HISTORICAL CONTEXT

As an historical example, in FY 2009 (October 1, 2008 – October 1, 2009), approximately 163,000 H-1B petitions were filed within the five-day filing period at the beginning of April 2008 and a lottery was needed to select the petitions which would enjoy processing under that year’s cap.

Last year, the FY 2014 H-1B cap was reached within the first week of filing. USCIS received a total of 124,000 H-1B petitions and therefore had to conduct a lottery in order to select the petitions needed to meet the regular cap of 65,000 and master’s cap of 20,000.00

The markedly higher demand for H-1B visa petitions in the FY 2014 season is indicative of an improving job market and economy in the United States, and the economy and need for highly skilled workers have picked up over the last year. Accordingly, we project that the demand for H-1B visas this year will be even greater than last year with up to 40% of all H-1B petitions filed by employers rejected by USCIS pursuant to a randomized lottery system.

III. RECOMMENDED ACTION

Based upon the above, we strongly urge employers to file H-1B cap-subject petitions with USCIS on the earliest possible start date in FY 2015: April 1, 2014. This will allow for the mailing of H-1B cap-subject petitions to USCIS on March 31, 2014, for delivery to USCIS on Tuesday, April 1, 2014, the very first day of filing. This will provide the best possible chance for acceptance of the H-1B petition. It can take two to four weeks or more to gather all of the necessary information and documentation and prepare the requisite forms and supporting documentation for filing of an H-1B petition. Therefore, we recommend that H-1B cases should be initiated immediately.

Article by:

Of:

Greenberg Traurig, LLP

Department of State Predicts EB-5 Visa Retrogression for China

GT Law

 

Based upon the demand for EB-5 visa numbers and the volume of approved I-526 Petitions, the Department of State has issued a preliminary warning that a cut-off date may need to be established for China. No other countries in the EB-5 category will be impacted. If a cut-off date is established, it will not take effect until sometime after July 2014. This will only affect those born in mainland China and does not apply to those born in Hong Kong, Macau or Taiwan.

Despite this preliminary warning, EB-5 investors should think hard before delaying the filing of an I-526 Petition or taking any other actions directly related to the possibility of EB-5 retrogression in China. In December 2012 the Department of State also predicted the establishment of a cut-off for China, but then reversed itself in February 2013. New EB-5 visas will become available on the first day of the next fiscal year, October 1, 2014, and the extremely slow processing of I-526 Petitions could spread the demand for EB-5 visas into the next fiscal year. It is important to note, the slow I-526 Petition processing times has also impaired the ability of the Department of State to predict whether EB-5 visa retrogression will occur.

On the flip side, if U.S. Citizenship & Immigration Services (USCIS) speeds up I-526 processing the possibility of EB-5 visa retrogression will increase. As we have noted before, whether or not EB-5 visa retrogression takes place will have no effect on the processing of I-526 Petitions by USCIS. If the EB-5 visa does retrogress, it will likely delay individuals with approved I-526 Petitions from entering the U.S. and obtaining conditional permanent residency. This also may affect the way jobs are allocated to those EB-5 investors in the regional center context. Furthermore, once an I-526 Petition is approved, a child who is a derivative beneficiary of that I-526 Petition does not receive protection under the Child Status Protection Act. This could result in some children of EB-5 investors “aging out” if an I-526 Petition is approved but there are no EB-5 visas available.

In the regional center context, EB-5 visa retrogression may affect EB-5 investors from other countries. Some regional center projects involve loans which cannot be paid off until each EB-5 investor in that project has had their respective I-829 Petition adjudicated. Similarly, many new commercial enterprises in the regional center context have clauses in their operating agreements which prevent distributions from occurring until every EB-5 investor in that new commercial enterprise has had their respective I-829 Petition adjudicated.

Article by:

Dillon R. Colucci

Of:

Greenberg Traurig, LLP

Department of State Releases February 2014 Visa Bulletin

Morgan Lewis

 

Bulletin shows no movement of cutoff dates in the EB-2 and EB-3 India categories; the cutoff dates in the EB-2 and EB-3 China categories show minor forward movement with EB-3 China continuing to move ahead of EB-2 China.

The U.S. Department of State (DOS) has released its February 2014 Visa Bulletin.The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow ofadjustment 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 U.S. embassies or consulates abroad, provided that their priority dates are before the respective cutoff dates specified by the DOS.

What Does the February 2014 Visa Bulletin Say?

At the end of fiscal year 2013, there were considerable advancements in cutoff dates in the EB-2 and EB-3 India categories. In order to regulate the large increase in demand that followed, these cutoff dates retrogressed significantly in December. In January, there was no movement in cutoff dates for the EB-2 and EB-3 India categories; meanwhile, cutoff dates for the EB-3 China category continued to move ahead of those for the EB-2 China category. The February 2014 Visa Bulletin again indicates no movement in cutoff dates for the EB-2 and EB-3 India categories with continued advancement of cutoff dates for the EB-3 China category ahead of the EB-2 China category.

A cutoff date of September 1, 2013 for individuals in the family-based F2A category from Mexico, as well as a cutoff date of September 8, 2013 for individuals in the F2A category from all other countries, remains in effect.

EB-1: Cutoff dates for all EB-1 categories will remain the same.

EB-2: The cutoff date for individuals in the EB-2 category chargeable to India will remain unchanged from last month at November 15, 2004. The cutoff date for individuals in the EB-2 category chargeable to China will advance by 31 days to January 8, 2009. Cutoff dates for the EB-2 category for all other countries will remain the same.

EB-3: The cutoff date for individuals in the EB-3 category chargeable to India will remain unchanged from last month. The cutoff date for individuals in the EB-3 category chargeable to China will advance by 61 days. The cutoff date for individuals in the EB-3 category chargeable to the Philippines will advance by 59 days. The cutoff date for individuals chargeable to Mexico and the Rest of the World will advance by 61 days.

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

China: June 1, 2012 (forward movement of 61 days)
India: September 1, 2003 (no movement)
Mexico: June 1, 2012 (forward movement of 61 days)

Philippines: April 15, 2007 (forward movement of 59 days)
Rest of the World: June 1, 2012 (forward movement of 61 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The cutoff dates for EB-2 individuals chargeable to all countries other than China and India has been the same since November 2012. The February 2014  Visa Bulletin indicates no change to these categories. This means that EB-2 individuals chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through February 2014.

China

The January 2014 Visa Bulletin indicated a cutoff date of December 8, 2008 for EB-2 individuals chargeable to China. The February 2014 Visa Bulletin indicates a cutoff date of January 8, 2009, reflecting forward movement of 31 days. This means that EB-2 individuals chargeable to China with a priority date before January 8, 2009 may file AOS applications or have applications approved in February 2014.

India

Between August and September 2013, the cutoff date for EB-2 individuals chargeable to India advanced by approximately three and a half years. This was followed in December 2013 by retrogression of the cutoff date by three and a half years to November 15, 2004 due to unprecedented demand for EB-2 visa numbers from applicants chargeable to India. The cutoff date remained unchanged in the January 2014 Visa Bulletin, and the February 2014 Visa Bulletin again indicates no change. This means that only EB-2 individuals chargeable to India with a priority date before November 15, 2004 may file AOS applications or have applications approved in February 2014.

Developments Affecting the EB-3 Employment-Based Category

There were significant advancements in cutoff dates for EB-3 individuals chargeable to most countries in the latter half of 2013. In January, the cutoff date for individuals in the EB-3 category from China, Mexico, and the Rest of the World advanced by 183 days, and the cutoff date for individuals in the EB-3 category chargeable to India remained unchanged.

China

From September through December 2013, the cutoff date for EB-3 individuals chargeable to China advanced by 2.75 years. The January 2014 Visa Bulletin indicated a cutoff date of April 1, 2012, reflecting forward movement of 183 days. The February 2014 Visa Bulletin indicates a cutoff date of June 1, 2012, reflecting additional forward movement of 61 days. This means that EB-3 individuals chargeable to China with a priority date before June 1, 2012 may file AOS applications or have applications approved in February 2014. As noted above, this cutoff date remains later than that imposed for individuals chargeable to China in the EB-2 category.

India

In the January 2014 Visa Bulletin, the cutoff date for EB-3 individuals chargeable to India was September 1, 2003. The February 2014 Visa Bulletin indicates no movement of this cutoff date. This means that EB-3 individuals chargeable to India with a priority date before September 1, 2003 may continue to file AOS applications or have applications approved through February 2014.

Rest of the World

From September through December 2013, the cutoff date for EB-3 individuals chargeable to the Rest of the World advanced by 2.75 years. The January 2014 Visa Bulletin indicated forward movement to April 1, 2012. The February 2014 Visa Bulletin indicates a cutoff date of June 1, 2012, reflecting additional forward movement of 61 days. This means that EB-3 individuals chargeable to the Rest of the World with a priority date before June 1, 2012 may file AOS applications or have applications approved in February 2014.

Developments Affecting the F2A Family-Sponsored Category

In October 2013, a cutoff date of September 1, 2013 was imposed for F2A spouses and children of permanent residents from Mexico, and a cutoff date of September 8, 2013 was imposed for F2A spouses and children of permanent residents from all other countries. There was no movement of these cutoff dates in December or January. The February 2014 Visa Bulletin again indicates no movement. This means that AOS applicants with a priority date that falls on or after the applicable September cutoff date will be unable to file AOS applications or have applications approved in February 2014.

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 the same. 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 February 2014 Visa Bulletin in its entirety, please visit the DOS website.

Article by:

Of:

Morgan, Lewis & Bockius LLP

Updates from the January 2014 Visa Bulletin

GT Law

 

The Department of State (“DOS”) recently released the January 2014 Visa Bulletin, which contains some very interesting developments that affect foreign workers in the Employment-Based 2nd and 3rd categories, particularly those who are citizens of China. The Visa Bulletin is issued by the DOS on a monthly basis and informs applicants when they are eligible to apply for U.S. Permanent Residence (commonly referred to as “Green Card”). Each fiscal year, each country is issued an equal number of immigrant visa numbers. However, as there are more applicants seeking green cards from certain countries (i.e. India, China, Mexico and Philippines) than there are numbers available, the citizens of affected countries experience significant delays in getting their green cards. This is known as visa retrogression. Affected applicants cannot adjust their statuses to green card holders until the priority dates on their respective cases become current. Each month the DOS publishes the Visa Bulletin, which indicates what priority dates are current and who is eligible to apply for the final stage of the green card process. Wait times published in the Visa Bulletin range from a few months to 10 or more years.

The January 2014 Visa Bulletin is unusual because the EB-3 category is moving faster than the EB-2 category for Chinese citizens. (To qualify for the EB-2 category, the offered position must require a Master’s degree or Bachelor’s degree and five years of experience; EB-3 requires a Bachelor’s degree.) For example, a Chinese national whose EB-3 PERM application was filed on or before March 31, 2012 is now eligible to adjust status, whereas a Chinese national whose EB-2 PERM application was filed on the same date is not. Historically, China EB-2 has moved faster than China EB-3, which is why this month’s visa bulletin is unique. As a result, many employers may see an increase in requests from employees for an EB-3 green card process. If the employee already has an approved EB-2 I-140 (second phase of the employment based green card process), the company can consider filing an amended I-140 and request EB-3 classification while retaining the priority date. If the amended I-140 will make the applicant’s priority date current, the applicant is eligible to concurrently file an Adjustment of Status application (the final phase of the green card process). We’ll continue to monitor Chinese EB-3 movement on this blog. Unfortunately, for Indian nationals we saw no change from the December 2013 to January 2014 Visa Bulletin. The February Visa Bulletin is expected to be released in the next 12 -14 days, and we will report on any pertinent developments.

Employment-Based Visa Bulletin Predictions

The Department of State also issued predictions in Visa Bulletin movement for the next few months. For the EB-2 category, the Department of State predicted no forward movement for India EB-2, slight movement of 3-5 weeks for EB-2 China, and Worldwide will remain current.

For the EB-3 category, the Worldwide category has experienced rapid movement forward, which is expected to end in February 2014. China and Mexico will likely continue to match the Worldwide dates. No forward movement is estimated for India, and the Philippines is projected to have slight movement forward of 3-6 weeks.

EB-1 is expected to remain current.

EB-3 Worldwide, China, and Mexico applicants with a current priority date should consider filing their Adjustment of Status applicants now as EB-3 priority dates may retrogress in the next few months.

December Visa Bulletin (includes DOS projections for upcoming months): http://travel.state.gov/visa/bulletin/bulletin_6211.html

January Visa Bulletin: http://www.travel.state.gov/visa/bulletin/bulletin_6228.html

Article by:

Emily R. Liss

Of:

Greenberg Traurig, LLP

Impact of Sequester on Immigration-Related Government Services

The National Law Review recently featured an article by Eric S. Bord, Lisa Stephanian Burton, Tracy Evlogidis, Malcolm K. Goeschl, Eleanor Pelta, and A. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP regarding Sequester and Immigration:

Morgan Lewis logo

 

The automatic spending cutback is expected to result in diminished immigration-related services.

It is anticipated that the sequester (the automatic spending cutback that went into effect on March 1, 2013) may result in diminished immigration-related services provided by federal departments and agencies, as outlined below.

The U.S. Department of State (DOS), which is responsible for the adjudication of U.S. visas at consular posts abroad, may experience significant delays in the visa adjudication process, particularly at high-volume posts in India and China. In its press briefing on February 27, 2013, DOS noted that it is difficult to anticipate exactly how the sequester will impact delays at consular posts in each individual country. Nevertheless, foreign nationals should anticipate the possibility of considerably longer wait times when applying for U.S. visas and should plan ahead to minimize the impact of visa service delays to travel.

U.S. Customs and Border Protection, which conducts inspections of individuals arriving at U.S. ports of entry, may experience delays in the inspection of arrivals at U.S. ports of entry. Individuals traveling outside the United States should anticipate possible delays during inspection upon their return.

The U.S. Department of Labor (DOL), which processes prevailing wage determinations, Program Electronic Review Management (PERM) labor certifications, and labor condition applications (LCAs), may also experience delays in processing times as a result of the sequester. DOL certification of H-1B LCAs is governed by a regulation that mandates a decision within seven days of filing. It is therefore presumed, at the present time, that DOL will honor its legal obligation and not permit the sequester or any related budget cuts to impact the timing of LCA certification.

U.S. Citizenship and Immigration Services (USCIS), which is responsible for adjudicating immigrant and nonimmigrant petitions and applications, funds its services largely through filing fees rather than congressional appropriations. As a result, the likelihood of USCIS processes being impacted by the sequester is less than that of other agencies.

It remains to be seen exactly how the sequester will affect these immigration-related matters. We will provide updates as developments occur.

Copyright © 2013 by Morgan, Lewis & Bockius LLP

2013 H-1B Visas

Posted in The National Law Review recently was an article by Kimberly A. Clarke, Nina Thekdi, and Luis E. Avila of Varnum LLP regarding H1B Visas:

Varnum LLP

Employers may first apply for 2013 H-1B visas for individuals not currently in H-1B status on April 2, 2012 with a start date of October 1, 2012.  While the 2012 H-1B visa cap for individuals not currently in H-1B status was not reached until November 2011, in previous years the cap has been reached within the first five days applications were accepted.

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.

If your company has potential H-1B candidates working on post-education employment authorization that will expire prior to October 1, 2013, please contact us to prepare H-1B petitions for these individuals as soon as possible to secure an available visa.

© 2012 Varnum LLP

Pending Final Rule: Issuance of Full Validity L Visas to Qualified Applicants

The State Department published a pending final rule that permits the issuance of L visas with validity periods based on the visa reciprocity schedule.

Current State Department regulations require that L visa duration be limited to the validity period of the petition, which, under Department of Homeland Security (DHS) regulations, cannot exceed three years. Petitioners may apply to USCIS for extension of petition validity in increments of up to two years, but the total period of stay may not exceed five years for foreign nationals employed in a specialized knowledge capacity or seven years for foreign nationals employed in a managerial or executive capacity.

As a result of the change, L visa validity will be governed by 22 CFR § 41.112, rather than 22 CFR § 41.54(c), which provides that a nonimmigrant visa shall have the validity prescribed in schedules provided to consular officers by the State Department. These schedules reflect the reciprocal treatment the applicant’s country accords U.S. nationals, U.S. permanent residents or foreign nationals granted refugee status in the United States. The change will mostly benefit beneficiaries of petitions for L status who are nationals of countries for which the reciprocity schedule prescribes visa validity for a longer period of time.

©2002-2012 Fowler White Boggs P.A.