Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for March, 2014

Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.     According to our sources (which includes clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 7th.

What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?

We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap.    The answer is that it varies, depending on many circumstances.    If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th.    The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days.  New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed.   As a result, while it may be possible to start a new H-1B case as late as March 24, 2014,  there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.

Our strong recommendation to employers is to consider filing all LCAs (even for planned but unconfirmed positions) over the next few days to keep the best possible options for a timely H-1B cap case filing.    Our office is happy to guide you on the timing process to give you the highest possible chance of making the cap.

H-1B Applications Filed Over the First Five Business Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first business five days in April to be subject to the random lottery.  Last year, in April 2013, there was also a random lottery to allocate the approximately 130,000 H-1B filings among the total of 85,000 H-1B visas.

H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned

H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start At a Later Date

In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS is likely to indicate that that for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, the premium processing “clock” will begin later in April, most likely around April 15th.     This means that even for cases filed on April 1, 2014, the premium processing 15-day response window would not start until later in April.   Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

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April 2014 Visa Bulletin – EB-2 and EB-3 India Unchanged; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A

The U.S. State Department has just released the April 2014 Visa Bulletin which is the seventh Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB-2 India, the continued forward  movement in EB-3 ROW, China and Mexico, and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the April 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the April 2014 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 remains unchanged at November 15, 2004 and is expected to remain at this level for some more time (with possible forward movement later in the fiscal year).  EB-2 China moves forward by three (3) weeks to March 8, 2009 (indicating that the forward movement trend is slowing down and is likely to reverse soon).
  • EB-3 ROW, China and Mexico move forward by one (1) month to October 1, 2012.  EB-3 Philippines moves forward by six (6) weeks to June 15, 2007, while EB-3 India  remains unchanged at September 15, 2003.
  • The “other worker” moves forward by one (1) month to October 1, 2012 for ROW, China and Mexico.  It moves forward by six (6) weeks to June 15, 2007 for Philippines and remains unchanged at September 15, 2003 for India.

Summary of the April 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the April 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to February 22, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 1, 1993 and FB-1 Philippines moves forward by two and a half (2.5) months to November 1, 2001.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remain unchanged for Mexico at April 15, 2012
  • FB-2B ROW, China and India all move forward by seven (7) weeks to October 22, 2006.  FB-2B Mexico remains unchanged at May 1, 1993 while FB-2B Philippines also remains unchanged at June 8, 2003.

EB-2 and EB-3 India Remain Unchanged

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement is the significant demand and pending cases at USCIS.   Last fall we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent several Visa Bulletins, confirm our predictions.

The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until this summer).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 China Continues to be Ahead of EB-2 China

Over the past three months or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (October 1, 2012) is more advanced than the date for EB-2 China (March 8, 2009).

In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.   Also not entirely unexpected is the retrogression in FB-2A for Mexican nationals — the Department of State has been cautioning that they see significant demand in this category and a retrogression would be forthcoming.

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 April 2014 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 significant forward movement in the cutoff dates.    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 April 2014 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.

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