Labor Immigration Law

United States Labor Immigration Law News and Analysis

Visa Bulletin Updates from Mr. Charles Oppenheim (May 2015)

Our office closely monitors not only each monthly Visa Bulletin but also any developments and updates from here in Washington, DC which may give us some idea on upcoming movements and surprises.   Our goal is to share any and all credible information with our clients and readers in order to allow proper planning and to set expectations as realistically as possible.

Mr. Charles Oppenheim, who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and the person who prepares and publishes the monthly visa bulletin, has provided some thoughts and his expectations for the upcoming few months’ Visa Bulletin movements.    These comments are as of May 14, 2015.

EB-2 Worldwide (ROW)

Mr. Oppenheim indicated that there is significant increase in the demand of visa numbers in this category with demand far in excess of the historical patterns of the previous five months.    As an example, Mr. Oppenheim indicated that there was 80% demand increase from February to March 2015 and demand increased more than 100% between February and April 2015.     Despite this significant increase in demand in EB-2 ROW visa numbers, it is not expected at this time that there will be a cutoff date for this category and it is likely to remain current.

EB-2/EB-3 China

Demand in EB-2 China has been low and may result in numbers “falling down” and being allocated to EB-3 China.   Recently, the EB-2 China cut-off date has been advanced by almost three years with the hope that this kind of movement will create demand.   Earlier when the cut-off date for China EB-3 was advanced due to insufficient number use, it prompted EB-2s to downgrade to EB-3. Mr. Oppenheim does not have good “visibility” over the number of upgrades or downgrades as no data is available to him until final action occurs on the petition.   This makes it difficult to predict reliably how many China candidates are ready for EB-2 or EB-3 adjudication – as a result, sudden movements in the cutoff dates are possible.

While our office has been helping a number of EB-2 China applicants downgrade to EB-3 in order to take advantage of the dates over the past few months, we have always cautioned that this kind of downgrade is not for everyone and that over long-term, EB-2 China would still be the better category for ultimately the fastest green card approval.

EB-5 China

The cut-off date of May 1, 2013 that was imposed in the May 2015 Visa Bulletin will remain for June. Mr. Oppenheim continues to monitor demand for EB-5 China and has no additional predictions for the category at this time.  Applicants continue to become documentarily qualified and the level of demand in May was within his targeted projections for June number use. There is huge demand in terms of petitions pending final action at USCIS as well as approved petitions which are already at the NVC. It must be remembered that not all cases with a priority date earlier than May 1, 2013 have been processed to conclusion.

EB-3/Other Workers Philippines

Heavy demand in these categories continues and further corrective action (retrogression) may be necessary before the end of the fiscal year. Like the dramatic increase in worldwide EB-2 demand, the use of more than 2,000 numbers during a two-month period was totally unexpected based on USCIS demand from the past year.   This kind of surge in the demand of Philippine visa numbers is likely to cause long wait times for EB-3/OW candidates.

EB-2 India

The increase in demand for EB-2 ROW visa numbers which we mentioned above would mean that there will be fewer visa numbers remaining available for allocation to EB-2 India.   Mr. Oppenheim had previously indicated that he expects to advance EB-2 India to July/August 2009 by the end of the fiscal year (September 30, 2015); however, given the high demand for EB-2 ROW visa numbers and fewer available visas for EB-2 India, this kind of forward movement in EB-2 India may not be possible over the next few months.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.   Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.

We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

USCIS Releases H-4 Spouse EAD Filing Process Clarifications and Guidance

On the eve of the H-4 Spouse EAD filing window (which opens on May 26, 2015), USCIS  has released a set of clarifications and guidance in connection with the H-4 Spouse EAD process.     Our office has been very active in the H-4 Spouse EAD process ever since the benefit was announced as a proposed rule in the summer of 2014 and we welcome USCIS’s providing guidance on a number of key issues.   Please see our separate article regarding eligibility rules and filing mechanics.

Four Outstanding Questions Answered (Mostly)

About a month ago, on April 23, we released a list of four major unanswered questions to USCIS in connection with the H-4 Spouse EAD process.   Specifically, we raised the question as to whether there would be concurrent H-4 status and H-4 EAD approval, whether there will be a way to deal with the “gap” between non-concurrent approval of H-4 status and H-4 EAD work authorization, whether H-4 EAD would apply for H-1B extensions beyond the sixth-year when part of the current H-1B/H-4 term is still within the initial sixth-year term and whether travel internationally during the time H-4 EAD remains pending would affect the process.

We now have answers to almost all of these questions and we appreciate USCIS’s efforts to provide clarifications.

Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications Will Not be Approved Concurrently

USCIS has confirmed that they would permit concurrent filing of H-4 status (change or extension) applications together with H-4 Spouse EAD applications.   In fact, it is now possible to file concurrently H-1B, H-4 and H-4 EAD applications.

However, USCIS is not expected to be able to adjudicate the H-4 EAD application concurrently with the H-4 (and H-1B, if applicable) change or extension of status applications.  USCIS has indicated that they would first adjudicate the underlying H-4 status application (together with any H-1B petition, if any) and only then they would turn to the concurrently-filed H-4 Spouse EAD application.    In this scenario, the 90-day EAD “clock” would not begin until a decision is made on the H-4 status application.

This suggests that there will likely be a significant work authorization gap between H-4 status approval and H-4 EAD approval.   USCIS, in their FAQ document, specifically clarify that the validity of the H-4 EAD will not be “backdated” from the H-4 status approval date and any employment before the H-4 EAD is approved will be considered unauthorized employment and violation of H-4 status.

These gaps in employment authorization are problematic for applicants who are switching from work-authorized status (such as H-1B, F-1 OPT/CPT and similar) to H-4 and are seeking continued work authorization.       We suggest very careful planning of any such H-4 status and H-4 EAD applications to avoid or minimize the period during which there is likely to be a gap in employment authorization.   One possible solution may be to try to file (significantly) ahead of time and request future starting date of the H-4 status and H-4 EAD.    Please contact us if we can analyze your case and provide options.

The H-4 Spouse EAD Will be Allowed When the Primary H-1B Spouse Is Extending Beyond the Sixth-Year Maximum But When Part of the New H-1B Term Includes Periods of the Initial Six-Year Term

We had raised this question last month and we are glad to see that USCIS addressed it.    USCIS have confirmed that in cases where the primary H-1B and the derivative H-4 period includes a portion of the initial six-year term plus time beyond the six-year term based on PERM or I-140 pending for more than 365 days under AC21 Sections 106(a) and (b), the H-4 EAD validity term will match the validity term of the H-4 status, including any period which is within the initial six-year term.

International Travel When an H-4 EAD Application Remains Pending Is Generally Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S. As Long as the H-4 EAD Was Filed When the H-4 Holder Was in the U.S.

USCIS has confirmed that the H-4 spouse must be in the U.S. at the time of filing to apply for the H-4 EAD – the reason is that the H-4 holder must be physically in the U.S. in order to provide evidence of H-4 status, which is a requirement.   A person who is outside of the U.S. does not have H-4 “status”.

USCIS has also confirmed that travel outside of the U.S. and reentry on H-4 status are permitted while the I-765 H-4 Spouse EAD application remains pending.   USCIS cautions, however, that H-4 spouses who have filed for EAD must meet all H-4 admission requirements, including having an H-4 visa stamp in their passports.     Additionally, H-4 Spouse EAD applicants who travel during the time their I-765 is pending should understand that if USCIS sends a request for information (request for evidence, RFE, or notice of intent to deny, NOID) on the case, they will need to ensure that the response is submitted timely (often within 30 or 84 days).

USCIS previously indicated that no Application Support Center (ASC) biometrics will be required as part of the H-4 Spouse EAD process.   The FAQ released today seems to contradict this by mentioning that travel while outside of the US may create “delays if [USCIS will] need to reschedule your appointment at an [ASC].”     We still believe that USCIS will not require biometrics to be completed as part of the H-4 Spouse EAD process but we will seek a confirmation on this point and provide an answer as soon as we can.   Please sign up to our newsletter to get updates.

Finally, with respect to travel, USCIS has cautioned that concurrent H-4 status and H-4 EAD applicants should not travel while they wait for their H-4 status and H-4 EAD applications to be approved.   Traveling outside of the US while an application for status is pending is likely to cause this status application to be denied due to abandonment.      Denial of the H-4 status application will also cause denial of the concurrently-filed H-4 EAD application.

Revised Form I-765 and Instructions Still Pending

The revised Form I-765 and the accompanying filing instructions are still not released for public use.   We expect this to happen at any day now, and likely on May 26th.     The current version of the I-765 form should remain valid for H-4 Spouse EAD filings until a new version of the form is released (and then during the transition period which is to be announced as well).

Unrestricted H-4 EAD Employment

USICS has confirmed that the H-4 EAD, once approved, will allow unrestricted employment to the H-4 spouse.   This means that the H-4 spouse can take any job, regardless of the qualifications of the H-4 spouse and regardless of the requirements of the position.   The job can be temporary or permanent, part-time or full-time, or an independent contractor position.    Additionally, self-employment and starting, owning a business, including hiring other people are allowed.    Please see our dedicated article on the types of employment permitted on H-4 EAD.

However, H-4 EAD holders should understand that they are authorized to work only during the validity of their H-4 EAD card.    This makes it critical to keep track of the expiration dates and to file extensions well (4 months, or more) in advance to avoid gap in employment authorization.

H-4 EAD Is Not a Travel Document

USCIS, and our office, would also like to caution that the  H-4 EAD is not a travel document and H-4 EAD holders who travel outside of the U.S. would need to have a valid H-4 visa stamp in their passport and be otherwise eligible for H-4 admission into the U.S. in order to be able to travel and enter the U.S.

Conclusion

As we are getting closer to the May 26th H-4 Spouse EAD “opening day” we are hoping for smooth and clear H-4 EAD filing process, especially within the first days and weeks after May 26th.    USCIS has already announced that they are expecting a high number of H-4 EAD filings and they have suspended premium processing service for some H-1Bs to allow them to allocate more resources to the H-4 EAD process.

We will continue to provide information on this rule and answers to these questions as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

USCIS Temporarily Suspends Premium Processing of H-1B Extension of Stay Petitions

USCIS has announced that effective May 26, 2015, they are temporarily suspending the premium processing for all H-1B extension of stay petitions for two months, or until July 27, 2015.     This surprising announcement comes in light of the anticipated heavy demand and number of filings for H-4 Spouse EAD when the filing window for this new work permit begins on May 26, 2015.

Premium Processing Not Available for New Filings of H-1B Extensions

During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.  USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.   Although USCIS has not specifically confirmed this in their announcement, USCIS is expected to continue to allow premium processing of H-1B petitions requesting initial terms of stay or consular processing.

Reasons for Temporarily Suspending H-1B Premium Processing

The rationale behind this two-month temporary suspension of the premium processing option for H-1B extension of stay petitions is the anticipated heavy demand and high number of H-4 Spouse EAD filings on and shortly after May 26th.    This is the earliest date when applications under the new H-4 Spouse EAD program can be filed and it is expected that there will be tens of thousands applications filed over the first weeks or months of eligibility.

Only H-1B Extension of Stay Applications Are Affected

We should highlight one more time that the temporary suspension of premium processing applies only to H-1B extension of stay petitions.    These types of petitions are expected to include H-1B extensions with the same employer or H-1B transfer petitions where an extension of stay is also being sought.

Petitions Not Affected.  H-1B petitions requesting change of status, H-1B amendments without extension of stay, petitions for L-1 (and other visa types eligible for premium processing) should remain unaffected with premium processing service available.

Premium Processing Fee Refunds Will be Offered to Affected Cases

For H-1B premium processing cases filed prior to May 26, 2015, USCIS will refund the premium processing fee if USCIS is unable to act on the case within 15 calendar days of filing.     We expect that USCIS will reject the premium processing component of H-1B affected H-1B petitions during this period (assuming the premium processing fee is in the form of a separate filing fee check).

What Else May Be Affected?

Given this unexpected announcement and in the fact of really high number of H-4 Spouse EAD filings on or after May 26th, it is likely that the USCIS processing timelines across the board may increase, at least at USCIS Service Centers which are dealing with H-4 Spouse EAD applications.   For example, we expect receipt notices to take longer to be issued and mailed out and we expect processing times to generally increase.      We urge proper planning and early filing to avoid problems caused by any processing delays.   Contact us if we can assist in any way.

Conclusion

This extraordinary (and unexpected, at least to us) announcement suggests that USCIS is bracing for a very high rate of H-4 Spouse EAD filings next week after May 26th.    This also suggests that there may be wider delays and possible disruption of processing times/services by USCIS which may go beyond H-1B extension filings.   We urge H-1B employers who have filed or are planning to file H-1B petitions, including extensions or change of status applications, to plan carefully and consider the possibility that H-1B petition adjudication times would increase.

Similarly, H-1B workers who are seeking an extension in order to prepare for an H-4 Spouse EAD filing or perhaps to travel abroad for stamping are now likely to see increased processing times and non-availability of the premium processing service.

Please do not hesitate to contact us if we can be of any help in preparing for this unanticipated H-1B premium processing disruption of service.    We are also assisting many H-4 Spouse EAD applicants and we are happy to offer information and a quote of our H-4 Spouse EAD filing services.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

Travel Alert: Passport Validity Date May Affect Duration of Authorized Stay (I-94) Upon Entry into the U.S.

The summer has traditionally been a busy traveling season and as the summer start to approach and many of our clients and readers start making international travel plans, we see an increased flow of inquiries and consultations regarding travel and passport expiration dates.  Most often the question is, What should be the duration of the passport for purposes of (re)entering the U.S. after travel abroad?

At Least Six Months Passport Validity Required

As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement.  When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required.   Please read our article on the Six-Month Club for more information.

Passport Expiration Date Before Petition Expiration Date

The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc.  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP, by regulation, should issue a Form I-94 card with expiration date equal to the passport expiration.

However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date.  This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.

By the way, CBP no longer issues paper I-94 cards upon entry into the U.S.   Effective May 2013,  the only evidence of status would be the passport stamp and status expiration date endorsement on the actual passport.   The I-94 card is electronic and can still be printed by going to https://i94.cbp.dhs.gov/.  In fact, we encourage our clients and readers to always try to print (on paper or save electronic copy for your records) their Form I-94 information any time they enter the U.S.

My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?

As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 (and endorse the passport) with expiration of status date equal to the passport expiration.  As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected.   In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.

Option 1 – Form I-94 “Correction” by CBP.  Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card.    This approach has worked for some of our clients in the past.  However, some CBP offices refuse to issue such corrections because, technically, the  initially issued Form I-94 had the proper expiration date.

Option 2 – Application for Extension of Status.  Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date.  This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.

Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status.  8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”

Option 3 – Leave the U.S. and Reenter with a Renewed Passport.  Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S.   If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.

The best option would certainly depend on each individual case’s circumstances, especially whether or not the I-94 status validity date has already expired, and we certainly recommend careful analysis and review before selecting one of these options.

Consequences of Overstaying Form I-94 Expiration

It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP.  Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.

First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp.   In addition, filing for an extension of status after I-94 expiration has a significant chance of denial.    We have been able to obtain successful “nunc pro tunc” (with retroactive date) status approvals, but not every situation may allow this kind of filing and successful approval.   Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).

Travel Preparations — Ensure Passport Has Sufficient Validity

We urge our readers and clients, especially those who plan to enter the U.S. on the basis of a USCIS-approved petition, to ensure that their passport has validity greater than the expiration date of their petition approval notice.    Also, we always recommend that when a traveler arrives into the U.S. and during border control, to verify his or her passport stamp (and later, their online Form I-94 card) expiration date, as noted by the CBP officer, and to address any questions or concern at that time with the CBP officer.    Addressing issued at a later time is usually complicated (and often, costly).

Conclusion

The status validity date stamp and endorsement in the passport is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station.   If you feel that you have not been issued status validity (and Form I-94) with a correct date, ask the CBP agent or ask to speak with a supervisor.  Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on their passport/Form I-94 would be the same.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help.   Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

June 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 Philippines Another Major Retrogression

The U.S. State Department has just released the June 2015 Visa Bulletin which is the ninth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued significant (5.5 months) forward movement in EB-2 India and the 12-month forward movement in EB-2 China.    EB-3 Philippines moves back again by two and a half years.

Summary of the June 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the June 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India moves forward significantly by five and a half (5.5) months to October 1, 2008.  EB-2 China moves forward by twelve (12) months to June 1, 2013.
  • EB-3 ROW and Mexico advance by six (6) weeks to February 15, 2015.   EB-3 Philippines retrogresses (again!) by over two and a half (2.5) years back to January 1, 2005.   EB-3 China moves forward by four (4) months to September 1, 2011 while EB-3 India  advances by only one (1) week to January 22, 2004.
  • The “other worker” categories for ROW and Mexico advance by six (6) weeks to February 15, 2015 while Philippines retrogresses (again) by two and a half (2.5) years back to January 1, 2005.   Other workers China moves forward by six (6) weeks to January 1, 2006 while India  advances by only one (1) week to January 22, 2004.
  • EB-5 China now has a cutoff date of May 1, 2013.

Summary of the June 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the June 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India move forward by only two (2) weeks to September 1, 2007.   FB-1 Mexico moves forward by one (1) week to November 15, 1994 while FB-1 Philippines retrogresses by about five years to March 1, 2000.
  • FB-2A moves forward again, this month the forward movement is by one (1) month to October 1, 2013 for ROW, China, India and Philippines.  It remains unchanged at August 8, 2013  for Mexico.

Another EB-2 India Significant (but Slowing) Forward Movement

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of five and a half months which is a bit less than last two months’ forward movements of about eight months.    Overall, EB-2 India has by about three years over the last few months so this is certain a good sign.      EB-2 India applicants with a priority date earlier than October 1, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).    However, it should be noted that the rate of forward movement is slowing down, suggesting that the Department of State may be trying to account for increasing demand in new filings and approvals in EB-2 India.

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the summer months  so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

EB-2 China Advances Significantly; EB-3 China Moderate Forward Movement

EB-2 China continues to advance this month.  This month’s forward movement of 12 months, combined with last month’s movement of fourteen months, are among the more significant movements in EB-2 China for some time.   EB-3 China also advances this month (after a significant retrogression two months ago) by four months.    We had noted in our earlier Visa Bulletin alerts that the demand in EB-3 China is expected to rise with the forward date movement and it now seems that the Department of State is trying to moderate the demand by retrogressing (two months ago) and then advancing gradually (last two months) the cutoff dates.

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State had introduced a cutoff date for EB-5 China in the last month’s Visa Bulletin.   EB-5 China remains unchanged this month at May 1, 2013.   Further retrogression is also possible (not immediately expected) based on the number of demand from Chinese nationals in this category (which demand has been very strong recently).

EB-3 Philippines (Another) Major Retrogression

Unfortunately for many EB-3 Philippines applicants, the EB-3 category moves back by another two and a half years this month, in addition to last month’s retrogression by over seven years.  This is a significant retrogression caused by high demand in this category and the Department of State has indicated that additional retrogression may be needed as well.

It is important to note that EB-3/OW Philippines applicants who have a cutoff date which is current now and who would no longer be current as of June 1st to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3/OW Philippines candidates who have a priority date between July 1, 2007 and January 1, 2005 will be affected — please contact us for a consultation and analysis of your personal case situation.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the June 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the June 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

Green Card Holder and “I-327 Advised” Passport Notation – What To Do?

Lawful Permanent Residents (LPRs) who travel frequently outside of the U.S. and spend extended periods of time at a time (during a single trip or through pattern of shorter but frequent trips abroad) are often questioned at the Customs and Border Protection (CBP) U.S. port of entry about their residence and intention to remain a U.S. permanent resident.     What happens at the CBP port of entry has major implications on the ability to retain one’s green card and continue to travel freely outside of the United States as a green card holder.

Border Scrutiny on the Rise

A significant (and seemingly growing) portion of our reentry permit practice group’s first-time callers are green card holders (who do not have a reentry permit) who have been questioned at the CBP port of entry during their recent entry into the U.S.    Often such CBP interactions are unpleasant, really long and very stressful to the subject green card holder.   During this secondary CBP port of entry inspection and questioning, border officers often ask questions trying to understand the period of time spent by the green card holder outside of the U.S., in addition to the reasons for such trips and maintenance of current and future ties to the U.S.   In other words, the CBP officer is trying to establish whether the green card holder has abandoned their U.S. permanent residency.

As a result of this kind of secondary inspection, a green card holder who has spent extended period of time outside of the U.S. or has demonstrated a pattern of frequent (but not so long) travels abroad may come with a verbal or written warning that they should consider obtaining a reentry permit document – or “I-327 Advised” notation in their passport.

What is the “I-327 Advised” Passport Notation?

“I-327″ is the official form number of the reentry permit document.    When a reentry permit (which looks a little bit like a U.S. passport booklet) is issued, its official document name is “I-327.”   This is why when a CBP officer recommends a reentry permit, after observation that a green card holder is spending too much time outside of the U.S., they would write “I-327 Advised” in the passport.

The purpose of this notation is to reflect a warning that CBP has determined that the green card holder may be spending too much time outside of the U.S. and that the actual green card may be put in danger.   The notation is a recommendation by CBP to the foreign national to obtain a reentry permit in order to avoid risking their green card validity.

I Received “I-327 Advised” Notation – What Should I Do?

We recommend that you consider obtaining a reentry permit as soon as possible.  Depending on the travel plans and how long the applicant will plan on staying in the U.S., there may be a number of filing strategies.  We certainly recommend that a reentry permit is, at a minimum, filed before departing the U.S. so that during the next entry into the U.S. there will be a proof that steps have been taken to comply with the “I-327 Advised” notation.     Please see our article on Reentry Permit Timing Strategies and Considerations as it discussed important factors and requirements – including the requirement to file the actual reentry permit while the applicant is physically in the U.S. and to complete the required biometrics (which can be done in the U.S. territories only).

Green card holders who are given an “I-327 Advised” passport notation (or its verbal equivalent warning) but do not apply for a reentry permit as soon as possible and while they are in the U.S. take the risk that upon their next entry into the U.S. CBP may subject them to increased scrutiny and perhaps even consider green card abandonment proceedings.    And even if the CBP questioning does not result in more serious consequences, for most people who travel abroad frequently the ability to avoid the secondary CBP questioning  process altogether by flashing a reentry permit upon initial CBP inspection is worth the effort to obtain a I-327 reentry permit document.

Conclusion

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments or complete the case evaluation and quote form if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Immigration Relief Options for Nepal Nationals Impacted by the Recent Disaster

After the recent earthquake in Nepal, our office is receiving a number of inquiries by Nepali nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Nepali nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Nepali nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Nepali students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Fee Waivers

USCIS would entertain requests to have certain immigration fees waived based on the applicant’s inability to pay or similar hardship.

Immediate Relatives Immigrant Petitions

USCIS may permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Nepali nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Nepali nationals who are impacted by the earthquake.   Our office stands ready to assist affected Nepali nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

USCIS Completes Data Entry and Receipting of H-1B Cap Petitions

Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.    As USCIS has been issuing receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an update as to how long will H-1B petitioners and applicants wait to hear whether their H-1B petition has been selected for processing under the H-1B cap.

H-1B Completes H-1B Petition Data Entry on May 4, 2015

USCIS has just announced that they have completed the data entry and receipting of all selected H-1B cap petitions.  This means that the last set of receipt notices are about to be sent out.   Here’s USCIS’s announcement:

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.

Based on this announcement, we expect that it may take another week or so to expect to receive H-1B cap receipt notices for selected cases.   Afterwards, USCIS will turn its attention to sending out the H-1B non-selection notices and document packages back.

Receipt of Rejection Packages Can Take Weeks

Please note that given the number of rejections USCIS will have to send out (~150 thousand), we expect that it may take at least several weeks before all H-1B lottery rejection packages are sent back and before knowing with certainty that a case did not make it under the H-1B cap lottery.

Was My Case Selected for Processing Under the H-1B Lottery This Year?

  • If your case was filed under premium processing and a receipt notice was not issued by now, chances are that the H-1B cap case was not selected under the lottery.
  • If your case was filed under regular processing, we should know that your case was selected under the H-1B cap lottery by mid-May.
  • If your case was filed under regular processing and we do not have news by mid-May, it is likely that your case was not selected under the H-1B cap lottery; however, the actual rejection notice may take several weeks.

Conclusion

Our office will continue to monitor developments relating to the H-1B cap  season.    For those who did not make it under the H-1B cap lottery, we have provided an article describing some common H-1B cap alternative options.     In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

H-4 Spouse EAD Lawsuit Update: H-4 EAD Program Still on Track

Our office has been receiving a number of inquiries about a lawsuit challenging the H-4 Spouse EAD program as it is about to become effective on May 26th.    We have been monitoring this lawsuit and related developments very closely as our office is helping many H-4 Spouse EAD applicants and as of the time of this article, we believe that the H-4 EAD program will come into effect as planned on May 26th.

The Lawsuit

The lawsuit was filed last week by a group of U.S. high tech workers and seeks to block the H-4 Spouse EAD program.   The main claim in the lawsuit is that the U.S. Department of Homeland Security/USCIS do not have the authority to implement this type of a rule.     The lawsuit seeks to invalidate the H-4 Spouse EAD program.    The lawsuit is Save Jobs USA v. DHS, Civil Action No. 1:15-cv-615, United States District for District of Columbia, filed on April 23, 2015.

Immediate Impact of the H-4 EAD Lawsuit

Our attorneys, in consultation with colleagues in the field,  have reviewed and analyzed carefully the complaint and it appears that the arguments put forth in this lawsuit so far may not be sufficient for blocking of the H-4 EAD rule.   For example, the arguments in this lawsuit mirror arguments made in similar prior lawsuits challenging other similar regulations, for example, challenges to the 17-month OPT STEM work permit extension rule.    Obviously, the 17-month OPT STEM extension rule is still valid, years after its implementation.    At this time, there does not appear to be hearing scheduled on this lawsuit.

Rule Expected to Become Effective, as Planned

At this time, we do not believe that there is cause for panic among the significant numbers of H-4 EAD qualified applicants and we believe that the H-4  Spouse EAD rule will continue and will become effective as planned on May 26th.

We will continue to provide information on this rule and the pending lawsuit  as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

This Year’s H-1B Cap Has Been Reached – What Are the Alternative Visa Options?

Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  This year’s number of filings (233,000) is at an all-time high, meaning that about 1 in 3 H-1B cap applications will be selected for review.    As USCIS is starting to issue receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an overview of the alternative visa options for those H-1B employers and employees whose H-1Bs did not get selected under the H-1B cap lottery.

The H-1B Cap Season Numbers

This year there were 233,000 applications filed for the 85,000 available H-1B cap visas, resulting in a simple calculation of about 36% average chance than an application will be selected for processing under the H-1B cap.    U.S. master’s degree holders have higher change, while the rest of the applicants have slightly lower chance due to the way U.S. master’s degree holders’ H-1B cap cases are given priority at the lottery.   This 36% chance is significantly lower than last H-1B cap year’s 50% average chance of H-1B cap selection.     As a comparison, there were 172,500 H-1B applications filed last year (which translates to 35% more H-1B cap applications filed this year compared to last year’s H-1B cap season).

As a result,  many employers and prospective employees who wanted to take advantage of the H-1B program this year are unable to do so — either because they were unable to file between April 1st and 7th or because their application was not picked by the H-1B lottery.     We seek to describe some alternative visa options.

Alternatives to H-1B Cap Petitions

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2015, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2016 is the earliest a cap-subject H-1B application can be filed under next year’s cap).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  A cap-exemption case may be made even if the actual H-1B employer does not meet these requirements but the placement of the H-1B worker will be at the location of a cap-exempt employer.    Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations.  The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS.    Please see more information on the TN visa classification.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training  (CPT)

Many of the H-1B cap candidates are F-1 student visa holders who are already in the U.S. and for them there may be ways to continue to stay on F-1 status while having work authorization.    OPT holders who have completed a STEM degree (See Which Degrees are on the STEM List?) are eligible to apply for a 17-month STEM OPT extension.    There are certain requirements to qualify for the 17-month STEM OPT extension (employer must be E-Verified company, extension must be filed before the current OPT expires, and others) but this is a great way for F-1 students to continue to be able to work in the U.S.

Additionally, certain schools and F-1 degree programs allow an F-1 student to engage in employment related to their field of study under the Curricular Practical Training, CPT, program.    Availability and eligibility varies by school and program; but when available, the F-1 CPT option may allow continued employment authorization.

File for a Permanent Residency/Green Card Directly

For some employers and their foreign workers filing for an employment-based green card may be  viable option.   Normally, employers seek to hire a foreign worker on H-1B status and then the employer does a green card sponsorship.    However, it is also possible to do a green card directly, without going through the H-1B visa option.      This option may work best for foreign workers who have a master’s degree OR a bachelor’s degree and five years of experience and are nationals of a country other than China or India.   This option may work well even for holders of a bachelor’s degree from a country other than China or India.     Unfortunately, this direct green card filing option may not work so well for India or China nationals because of the significant waiting time for a visa number to become available (4-5+ years).

For example, it may be possible to secure a PERM Labor Certification approval in 9-12 months.   For many EB-2 (and even for some EB-3) candidates, the way the Visa Bulletin cutoff dates have advanced means that the second and third stages of the green card process (which also grants permission to stay in the U.S. and EAD permission to work) can be filed within a year (or possibly even less) after starting the green card process.    While the foreign national will need to be able to maintain valid status in the U.S. during this time, the direct filing of a green card may be a good alternative to simply skip the H-1B work visa filing process.     Obviously, the suitability of this option depends on a number of factors, including education, experience, country of nationality and the ability to maintain status in the U.S.     We are happy to provide a more personalized overview of this option – please contact one of our attorneys for more information.

H-1B Program Changes by Congress Possible, Although Timing is Uncertain

It has become a pattern that after every H-1B cap season ends, resulting in a high number of disappointed employers and employees who did not make it under the lottery, there is increased talk about raising the H-1B cap limit.     There are proposals and much talk here in Washington, DC about this kind of a chance in the H-1B program; however, as of this time, there is no proposal or law which would become law any time soon.    As we have done in the past, our office would continue to monitor and report on any developments relating to relief to H-1B employers and workers, so stay tuned.

Wait and File on April 1, 2016 for the FY2017 Cap

For some of our clients, waiting until April 1, 2016 to file a new cap-subject H-1B petition may be the best (or only?) option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, and assuming any proposed immigration reform is not enacted by then, the FY2017 H-1B cap is expected to be the same as it was for the FY2016 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

Next Page »