Archive for October, 2014
November 2014 Visa Bulletin – EB-2 India Major Retrogression to February 2005; EB-3 Advances Significantly
The U.S. State Department has just released the November 2014 Visa Bulletin which is the second Visa Bulletin for the FY2015 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the major retrogression in EB-2 India (February 2005) and the significant forward movement in EB-3 (except India).
Summary of the November 2014 Visa Bulletin – Employment-Based (EB)
Below is a summary of the November 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 retrogresses significantly by almost four (4) years to February 15, 2005. EB-2 China moves forward by three (3) weeks to December 8, 2009.
- EB-3 ROW, Mexico and Philippines advance by eight (8) months to June 1, 2012. EB-3 China advances by eight (8) months to January 1, 2010 while EB-3 India advances by only one (1) week to November 22, 2003.
- The “other worker” categories for ROW, Mexico and Philippines advance by eight (8) months to June 1, 2012. EB-3 China remains unchanged at July 22, 2005 while EB-3 India advances by only one (1) week to November 22, 2003.
Summary of the November 2014 Visa Bulletin – Family-Based (FB)
Below is a summary of the November 2014 Visa Bulletin with respect to family-based categories:
- FB-1 ROW, China and India all move forward by two (2) weeks to June 8, 2007. FB-1 Mexico moves forward by two (2) weeks to July 8, 1994 and FB-1 Philippines moves forward by two (2) months to November 1, 2004.
- FB-2A moves forward again (but not as much as last month) – it moves forward by one (1) month to March 1, 2013 for ROW, China, India and Philippines. It also moves forward by two (2) months to September 22, 2012 for Mexico.
Expected Major EB-2 India Retrogression
After the significant forward movement over the past few months in EB-2 India, and the recent signals about the upcoming EB-2 India retrogression, this months’ Visa Bulletin major retrogression for EB-2 India was expected.
Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office had expected some movement to occur towards the end of the last fiscal year (September 30th). Our office has been increasingly busy with new I-485 filings (for those who are becoming current this or next month) or for handling I-485 requests for evidence (for those who had pending I-485 applications but had expired medicals).
There are still many EB-2 India applicants who are current as of October 2014 and who have not filed (or interfiled) their or their dependents’ I-485 applications. We urge all of these applicants to consider filing I-485 over the next couple of weeks before the retrogression in EB-2 India from November 1.
EB-3 Moves Forward Significantly
Another notable development in the November 2014 Visa Bulletin is the notable forward movement in the EB-3 categories. Most of the EB-3 categories have advanced by eight months, on top of the significant forward movement in the October 2014 Visa Bulletin. This should be welcome news to many EB-3 applicants (except EB-3 India) who may be eligible for I-485 filings or processing of their immigrant visas at the U.S. Consulates abroad. We are happy to provide a free quote for preparing and filing your I-485 application.
Anticipated Visa Bulletin Employment Cutoff Date Movements
Below are the anticipated movement of the cutoff dates over the next several months.
EB-1. This category is expected to remain current throughout the fiscal year.
EB-2 Rest of World (ROW). This category is expected to remain current throughout the fiscal year; however, depending on demand, a cutoff date towards the end of the fiscal year may be introduced.
EB-2 China. This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.
EB-2 India. No forward movement.
EB-3 Rest of World (ROW). After this month’s significant forward movement, it is possible to see certain additional forward movement to stimulate “demand” for the next several months. Afterwards, the movement may stop or even retrogress.
EB-3 China. Rapid forward movement expected.
EB-3 India. Little, if any, forward movement expected.
EB-3 Philippines. Expected to track the EB-3 ROW 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 November 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. Similarly, EB-2 India applicants who would be affected by the retrogression and who haven not filed I-485 applications must do so before November 1, 2014.
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 November 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.No comments
Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.
The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of October 6, 2014.
Current PERM Processing Times
This month does not bring much change in the PERM processing times – regular PERM cases still take around five months. The processing time of PERM applications in audit remains unchanged compared to our prior report from a month ago.
The processing times, as reported by DOL, are as follows:
- Regular processing: May 2014. DOL is processing PERM applications with priority dates of May 2014. There is no change in the expected duration of a PERM case compared to the September 2014 report. Accordingly, regular PERM processing times should be around five months. Our office has experienced PERM approvals consistent with this timeline and we can confirm it. We hope that this continues the trend of (slight) improvement in the processing time for PERM cases.
- Audited applications: April 2013. DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of April 2013. There is no change in the expected PERM audit review time compared to last month’s report. Accordingly, audited PERM applications are processed approximately 18-19 months after the initial PERM was filed and the priority date established.
- Appealed applications (requests for reconsideration to the Certifying Officer): October 2014. DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in October 2014. There is no change in this category, compared to our last report. Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
- “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline. However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the “government error” queue or under the regular appeal queue. As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response. If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue. If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.
The October 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to a month ago. We had noticed gradual decrease in the PERM processing times earlier in the year; however, the last one or two monthly reports suggest that the processing times remain steady. We are hopeful that the trend of improvement in the processing times would continue in the next months.
Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you. Also, we will continue monitoring the PERM processing times and analyze any updates. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
Our office handles a substantial number of H-1B work visa petitions for a variety of U.S. employers and we often share our direct experiences with the H-1B work visa program. This article is intended to share our experience and the current trends with respect to H-1B work visa petitions where there is a change in the job location once the H-1B work visa petition has been approved and during its validity term. The lack of clear, direct and consistent guidance by USCIS makes it ever more important to carefully analyze a particular H-1B change in job site situation to avoid H-1B status disruption and/or revocation.
The Problem – H-1B Workers Changing Job Locations
Many companies, and especially IT consulting companies who hire H-1B workers and place them at third-party client sites, are well familiar with this situation. It is very common for these H-1B workers to change projects, end clients or simply to relocate to a different client site during their H-1B validity period (which is 3 years most often). In such cases, the question arises, What should be done to ensure that the H-1B employer and employee remain in compliance with the relevant H-1B regulations?
There is fair amount of confusion among H-1B employers and workers with respect to their obligations when there is a change in the work location. Below we discuss what is the currently recommended approach and also recent USCIS developments in this area.
The Law: Material Change in Terms of Employment Requires H-1B Amendment
The relevant regulations are fairly clear — 8 CFR 214.2(h)(2)(i)(E) states:
The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.
Also, petitioners are required to notify USCIS immediately if the terms and conditions of the H-1B petition “may affect eligibility”. 8 CFR 214.2(h)(11)(i)(A) (emphasis added) states:
The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary.
In this context the question arises, Does a change in the place of employment only, without any additional changes in the terms of employment (salary, title, duties) constitute a material change and/or whether such change “may affect eligibility” for H-1B?
The LCA/H-1B Amendment Guidance Evolution
In the past, some H-1B employers have been able to rely on unclear guidance by USCIS as to whether a new LCA for a new jobsite location requires an amendment. For example, in an October 23, 2003 Letter from Efren Hernandez III, Dir., Bus. and Trade Branch of USCIS, Mr. Hernandez specifically expresses guidance that H-1B amendment is not required where the H-1B worker is placed at a new location as long as there is an LCA for this new jobsite. Over the past years, however, this guidance has been slowly and gradually superseded by a more strict interpretation of the H-1B regulations.
However, in California Service Center discussions from 2011, some of which were prompted by a number of “Notice of Intent to Revoke” notices, it became apparent that the California Service Center started to consider a change in the job location a “material change” and, as a result, requiring an H-1B amendment to be filed. According to the California Service Center, as of August 10, 2011, “it is the position of [California Service Center] Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”
As a result of the lack of clear guidance from USCIS headquarters, the California and Vermont Service Centers (the two service centers responsible for H-1B) had adopted their own and different approaches. California took the more stringent position that a new LCA due to change in the jobsite is a material change requiring amendment, while Vermont had been more lenient in this interpretation. This has caused many employers to rely on the relaxed Vermont treatment and proceed for an LCA only when an H-1B worker changes jobsites. Even during the last few years, our recommendation had been to err on the side of caution and consider filing an H-1B amendment with USCIS at all times, even for Vermont Service Center H-1 cases.
Change in Job Location Requiring a New LCA Is Material Change and Requires H-1B Amendment Filing
Recent trends coming from the Vermont Service Center and from recent Administrative Appeals Office (AAO) indicate that USCIS may be adopting a more uniform and more stringent approach to handling H-1B petitions with a job location change. This means that USCIS is adopting the California Service Center approach of requiring H-1B amendment for each LCA jobsite change. For example, in a non-precedent AAO decision dated as of July 23, 2014, USCIS explicitly overruled the 2003 Hernandez letter and took the position that the Vermont Service Center properly revoked an H-1B petition where there was a jobsite change and LCA without an H-1B amendment filing.
Based on recent trends we see in both the California and Vermont Service Center H-1B cases, it is becoming clear that the best approach to H-1B compliance in change of worksite situations is to consider a new LCA and an H-1B amendment filing before the beginning of the new worksite placement.
We understand that the H-1B amendment filing incurs an additional cost but this cost of compliance should be compared to the possibility of H-1B revocation and the significantly higher monetary and business opportunity cost of H-1B status and business relationship disruption in the event of H-1B audit or revocation proceeding.
We are aware that USCIS is working on official guidance on this topic which would, hopefully, provide more clear guidance applicable to both service centers. Unfortunately, there is no known or anticipated release date. In the meantime, based on recent developments and trends we see, we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite. We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance. H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans. Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.No comments
Visa Bulletin Predictions and Updates from Charles Oppenheim – Major Retrogression in EB-2 India; EB-3 ROW and China to Advance (October 1, 2014)
Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim. Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State. For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards. He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month. Our access and proximity to Mr. Oppenheim allows us to provide immediate updates on expected Visa Bulletin movements and we are proud to be among the first to report.
We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current. As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa number trends.
Summary of Mr. Oppenheim’s Key Points
EB-2 India will retrogress significantly in the November or December 2014 Visa Bulletin — going back to early 2005. EB-3 India will move very slowly in the near term but EB-3 ROW and China are expected to move forward significantly.
General Visa Number Trends
Mr. Oppenheim spent a few minutes to describe the visa number allocation process and reiterated the fact that in the employment-based context, especially, the demand for visa numbers is greater because of dependents being added — each green card application case is, therefore, “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children). For example, approximately 45% of the visa numbers are used by the primary beneficiaries with the balance of 55% taken up by derivative beneficiaries (spouses and children). For example, Mr. Oppenheim indicated that in the not-so-distant past, each employment-based India case took 1.4 visa numbers on average while right now, each employment-based India case takes on average 2.5 visa numbers.
As a result, and in recognition of the additional fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed, particularly for Indian nationals.
He also indicated that there is a significant number of EB-3 to EB-2 India porting cases and the mechanics of the EB-3 to EB-2 porting does not allow advance notification to the Department of State’s Visa Office. This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back to accommodate such porting case. Additionally, Mr. Oppenheim shared that in addition to EB-3 to EB-2 porting cases for Indian nationals, who are the majority of such cases, he sees an increasing number of EB-3 to EB-2 porting cases from nationals of other countries under the “Rest of World” (ROW) category.
Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India. Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India will retrogress significantly (to early 2005) in either the upcoming November Visa Bulletin or in the following December Visa Bulletin. EB-2 India is then expected to remain at early 2005 for a significant time – no forward movement is expected until June 2015 or so.
Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years. He cited EB-5, and specifically EB-5 China, category where demand has been growing steadily and where, for the first time ever, all EB-5 visa numbers have been used. This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India forward movement.
On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).
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.
EB-2 Rest of World (ROW). This category is expected to remain current throughout the fiscal year.
EB-2 China. This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.
EB-2 India. This is the major headline from our meeting with Mr. Oppenheim – EB-2 India is expected to retrogress significantly – by several years back to early 2005 as early as the next Visa Bulletin. It is expected that EB-2 India will remain at that level (early 2005) until the summer of 2015. The rationale behind this severe retrogression 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 until USCIS and DOS are able to approve the pending cases and “clear the demand.”
EB-3 Rest of World (ROW). This category is expected to move forward significantly over the next months to stimulate “demand” for the following several months.
EB-3 China. Rapid forward movement is expected – perhaps advancing to late 2009 or early 2010 over the next few months.
EB-3 India. Unfortunately, this category continues to be oversubscribed and there is very little or no forward movement expected in the next months. Forward movement of 1-2 weeks per month should be the normal. The simple reason is that there are many EB-3 India cases which are waiting a visa number – there are 25,000-30,000 preadjudicated EB-3 India cases with a priority date before July 2007 waiting for a visa number. With annual limit for this category of about 2,800, it would take a long time to clear this backlog and be able to advance the priority date beyond July 2007.
However, as a positive sign, as many EB-3 India applicants are porting into EB-2, there is some possibility that some EB-3 visa numbers may be “freed” simply because some EB-3 candidates will drop out of the EB-3 demand line after receiving a green card under a newly ported EB-2 category.
EB-5. Mr. Oppenheim suggested that the demand for EB-5 is at the highest level ever. For the next fiscal year EB-5 is expected to be current for everyone except EB-5 China (which takes about 85% of all EB-5 immigrant visas). It is possible to introduce an EB-5 cutoff date for China which may mean one or two year wait for a visa number (including issues relating to minor dependents aging out).
On Predicting the Visa Bulletin Cutoff Dates
Mr. Oppenheim shared his thoughts on the ability of others outside of his office to predict reliably the cutoff date movements. He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim. There are many variables that affect the demand. For example, the retrogression of EB-2 India in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases. Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down or retrogress EB-2 India to be able to accommodate EB-2 India applicants with early priority dates.
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 are going to cause significant disappointment in EB-2 and EB-2 India applicants, specifically. Our EB-2 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year. Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.
Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2. We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.
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.No comments