Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for April, 2014

Visa Bulletin Predictions and Comments by Charles Oppenheim – EB-2 India to Advance, Finally (April 2014)

On behalf of our clients and readers we are always trying to obtain any reliable information on the movements in the cutoff dates for the upcoming Visa Bulletins.    The best source of this information is the Mr. Charles Oppenheim who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and who is actually the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.    Mr.  Oppenheim had just recently shared some thoughts about the anticipated cutoff date movements in the next few Visa Bulletins and we are happy to share this information with our clients and readers.

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.   Also, it is too early in the fiscal year to be able to determine how many unused EB-1 visa numbers there will be to “drop down” into the EB-2 category.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year.

EB-2 India.  This is the major headline from Mr. Oppenheim’s comments –  EB-2 India is likely to move forward to January 1, 2008 during the August or (more likely) September Visa Bulletin.   This movement will aim to utilize all of the available visa numbers for the fiscal year that may be unused by other categories (possibly 5,000 or more, but fewer compared to prior years).

EB-3 Rest of World (ROW).  This category has seen increased demand over the past few months (due to the significant movements) and it is unlikely that there will be forward movement in the short term.  In fact, if demand continues at its current pace, there may be a retrogression as early as June 2014.   Retrogression is possible for the last quarter of fiscal year 2014 (Jul-Sep 2014) and this is a call for all EB-3 ROW applicants who are current to file their I-485s as soon as possible.

EB-3 China.    As a result of many EB-2 China applicants “downgrading” to EB-3 it is expected that EB-3 China will see some retrogression over the next month or two.

EB-5 China.  Mr. Oppenheim suggested that the demand for EB-5 is high and a cutoff date may be introduced in August or September.   Retrogression for EB-5 China is “inevitable” given the high number of EB-5 pending applications for Chinese nationals.

Visa Bulletin Predictions – Family-Based

Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.

FB-2A.   Demand is starting to increase; as a result, FB-2A Mexico will retrogress soon.  FB-2A ROW is also likely to retrogress, perhaps back to 2012 in the June or July 2014 Visa Bulletin.

FB-2B.  Due to low demand currently, additional forward movement is expected.

Note on Timing of NVC Fee Invoices

Mr. Oppenheim noted that the National Visa Center (NVC) is sending our requests for fee payments about 8 to 12 months in advance of the priority date becoming current (this is change to the previous practice of doing so 12-18 months in advance).    When applicants pay the fee earlier after receipt of the fee invoice, Mr. Oppenheim is able to “see” the demand earlier and adjust the demand in the category accordingly, eliminating the need of major forward movement, followed by a retrogression.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  We understand, as Mr. Oppenheim does, that his comments and predictions would give hope to some, while disappoint others.   Our EB-2 India clients would find Mr. Oppenheim’s predictions encouraging given the fact that there was no movement in EB-2 India for a long time.  A forward movement in this category would allow EB-2 India and China applicants to become eligible to file I-485 applications who would later be eligible to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

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.

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May 2014 Visa Bulletin – EB-2 India and EB-3 ROW/China Remain Unchanged; FB-2A Remains Unchanged

The U.S. State Department has just released the May 2014 Visa Bulletin which is the eighth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is, well, the lack of movement in many of the major categories:  no movement in EB-2 India, no movement in EB-3 ROW/China and no movement in FB-2A.

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

Below is a summary of the May 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 (again!) at November 15, 2004 and is expected to remain at this level for some more time (but with possible forward movement later in the fiscal year).  EB-2 China moves forward by five (5) weeks to April 15, 2009.
  • EB-3 ROW, China and Mexico remain unchanged at October 1, 2012.  EB-3 Philippines moves forward by three and a half (3.5) months to November 1, 2007, while EB-3 India  moves forward by only two (2) weeks to October 1, 2003.
  • The “other worker” categories for ROW, China and Mexico remain unchanged at October 1, 2012.   Philippines moves forward by three and a half (3.5) months to November 1, 2007, while India  moves forward by only two (2) weeks to October 1, 2003

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

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

  • FB-1 ROW, China and India all move forward by two (2) weeks to March 8, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 15, 1993 and FB-1 Philippines moves forward by three (3) months to February 1, 2002.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remains unchanged for Mexico at April 15, 2012.

EB-2 India and EB-3 ROW/China 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 ROW/China remain unchanged this month after several nice forward movements over the past few months.  This is an indication that USCIS is seeing an increased (and perhaps sufficient) number of filings (I-485/NVC) in this category so that they have enough cases to distribute the annual number of green cards.    This slowdown in EB-3 ROW/China is likely to suggest that there would not be much significant forward movement, and perhaps that there may be a possible retrogression in these categories.

Perhaps a tiny glimmer of light in this, otherwise gloomy Visa Bulletin, is the presence of (a small) forward movement in EB-3 India.

EB-3 China Continues to be Ahead of EB-2 China, but EB-3 is Slowing Down

Over the past several months 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 (April 15, 2009).

What we saw in this month’s Visa Bulletin should give some pause to those who believe that they may be able to get a green card faster under EB-3 China than under EB-2 China.    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 reiterate our caution to EB China 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, and especially given the slowdown in EB-3 China, we 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.

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 May 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 May 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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Alert: FY2015 H-1B Cap Reached on April 7th

The U.S. Citizenship and Immigration Service (USCIS) announced earlier this afternoon that, as of today, April 7th, they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2015 fiscal year (FY2015).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 7, 2014 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2015 cap-subject petitions received between April 1 and April 7, 2014.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees (unless there were duplicate filings by the same employer for the same beneficiary, in which case no fees will be returned).

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 28 and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2015 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2015 H-1B cap season, including filing statistics, as they become available.   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, please feel free to contact us.

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