Archive for March, 2015
A recent report by the National Foundation for American Policy (NFAP) focused on the denial rates for the L-1B visas. In its March 2015 report NFAP analyzes denial rates over a number of years and for a number of different beneficiaries, from a variety of countries. The conclusion is that the denial rate for L-1B petitions is at an all-time high, with about 35% of all L-1B petitions being denied. For Indian nationals, the L-1B denial rate is an astonishing 56%.
Notable Points of the L-1B Denial Analysis
The overall denial rate for the 2014 fiscal year (FY2014) is 35%, a five-fold increase from the 7% denial rate in FY2007. The denial rate for L-1B petitions to transfer employees from Indian origin is 56%, while it is 13% for all nationals of all other countries. Canadians are at 4%, British nationals are at 16%.
L-1B extension petitions for workers who are already in the U.S. (and were granted L-1B once) have a higher denial rate (41%) than initial applications (32%) There is no clear explanation or reason behind this — presumably, once USCIS has granted an L-1B visa initially, an extension should be easier (in relative terms) to get approved. Apparently, this is not the case.
Requests for Evidence (RFE)s have continued to be at a very high rate – 45% of all L-1B petitions face an RFE, often requiring a very lengthy and time-consuming response. Some may think back to FY2004 when only 2% of the L-1B petitions faced an RFE.
The NAFP analysis, based on date obtained from USCIS under the Freedom of Information Act (FOIA), provides a fairly detailed overview of the challenges ahead of L-1B employers, especially those who wish to bring foreign employees from India. Our office witnesses first-hand the extremely time-consuming RFEs for a number of L-1B petitions and we share the concerns of our L-1B employer clients who face severe uncertainty in bringing key personnel to the U.S. on L-1B.
The concerns are particularly acute over the last two to three years where the annual H-1B cap has been exhausted over the first five days and has limited the options for bringing qualified foreign employees to the United States. With the H-1B cap gone in five days and extremely challenging L-1B adjudication process, foreign employers find in increasingly difficult to be able to bring talent to the U.S.
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.No comments
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 March 13, 2015.
The significant retrogression in EB-3 China in the April 2015 Visa Bulletin has essentially put an end to the EB-3 China “downgrade” trends which saw many EB-2 China applicants downgrade their case to EB-3 in order to take advantage of the more favorable EB-3 China cutoff dates. With the retrogression in EB-3 China we see a more “natural” positioning of the EB-2 and EB-3 China cutoff dates.
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.
If demand in EB-2 China does not increase significantly as a result of the April 2014 forward movement, it is expected to see another notable forward movement in EB-2 China in the next month or two.
Retrogression is likely to occur no later than June 2015.
EB-2 India has advanced significantly over the last two months – 16 months in the March 2015 Visa Bulletin and eight months in the April 2015 Visa Bulletin. On top of this, Mr. Oppenheim expects that India would advance at a steady pace for another couple of months before a possible slowdown towards the end of the fiscal year (which ends September 30, 2015). We read this to mean that forward movements of about 4-6 months per Visa Bulletin are likely over the next one to two months.
Unfortunately, Mr. Oppenheim cannot share much good news as he expects EB-3 India to move by one to (possibly) two weeks per month. The reason is that there is a significant amount of preadjudicated EB-3 India I-485 applications (more than 9,100) with a priority date before January 1, 2005 (when the annual limit is 2,875 immigrant visas). Therefore, we expect very slow forward movement in EB-3 India.
EB-3 ROW, Mexico and Philippines
After the notable forward movement in April, Mr. Oppenheim expects that there will be more significant forward movement in the May Visa Bulletin. Great news for EB-3 applicants from these countries.
While it is not expected that EB-3 ROW would become current any time soon, it is likely for this category to get into 2015 – which means that this category will be close to current and, in effect, for many, by the time candidates obtain PERM and I-140 approvals, they may already be current and be able to file their I-485 adjustment applications. We call on all EB-3 applicants to either start their PERM applications soon or, for those who have applications underway, to be ready to take advantage of a possible current priority date over the next few months.
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.No comments
April 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 China Significant Retrogression
The U.S. State Department has just released the April 2015 Visa Bulletin which is the seventh Visa Bulletin for the FY2015 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the significant eight-month forward movement in EB-2 India and the seven-month forward movement in EB-2 China. EB-3 also moves forward nicely with the notable exception of EB-3 China which goes back by 9 months.
Summary of the April 2015 Visa Bulletin – Employment-Based (EB)
Below is a summary of the April 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 eight (8) months to September 1, 2007. EB-2 China moves forward by seven (7) months to April 1, 2011.
- EB-3 ROW, Mexico and Philippines advance by four (4) months to October 1, 2014. EB-3 China retrogresses by about nine (9) months back to January 1, 2011 (from October 22, 2011) while EB-3 India advances by only one (1) week to January 8, 2004.
- The “other worker” categories for ROW, Mexico and Philippines advance by four (4) months to October 1, 2014. EB-3 China remains unchanged at August 15, 2005 while EB-3 India advances by one (1) week to January 8, 2004.
Summary of the April 2015 Visa Bulletin – Family-Based (FB)
Below is a summary of the April 2015 Visa Bulletin with respect to some family-based categories:
- FB-1 ROW, China and India all remain unchanged at August 1, 2007. FB-1 Mexico moves forward by one (1) week to November 1, 1994 while FB-1 Philippines remains unchanged at February 1, 2005.
- FB-2A moves forward again, but by not as much – it moves forward by five (5) weeks to August 1, 2013 for ROW, China, India and Philippines. It also moves forward by six (6) weeks to July 8, 2013 for Mexico.
Another EB-2 India Significant Forward Movement But By Not as Much as Last Month
This month’s Visa Bulletin brings another significant forward movement in EB-2 India of eight months; however, it is not as significant as the forward movement in last month (April) visa bulletin (of sixteen months). Overall, however, EB-2 India has advanced by two years over the last two months so this is certain a good sign. EB-2 India applicants with a priority date earlier than September 1, 2007 can now move forward (or expect news, hopefully approval) with their applications.
The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the next few months so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.
EB-2 China Advances while EB-3 China Retrogresses Significantly
While EB-2 China advances nicely by seven months in this Visa Bulletin, EB-3 China moves back by almost ten months to January 1, 2011. This retrogression is caused by the high number of EB-3 China filings over the last weeks and months, caused by the rapid advancement in the EB-3 China date over the recent 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 “sees” sufficient demand to stop the rate of filings by moving back the cutoff date.
It is important to note that EB-3 China applicants who have a cutoff date which is current now and who would no longer be current as of April 1 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 China candidates who have a priority date between October 22, 2011 and January 1, 2011 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 April 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 April 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.No comments
As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are receiving many questions and concerns as to what kind of employment would be permitted by the H-4 Spouse EAD, once the actual work permit is approved. The quick answer is, “Any employment should be permitted.” Here are some details.
Background of the H-4 Spouse EAD Rule
The new H-4 Spouse EAD rule allows certain H-4 spouses to apply for and obtain a work permit which would allow them to work in the United States while they are waiting for their H-1B spouse’s permanent residency (green card) process to be approved. Not all H-4 spouses are eligible: only spouses of H-1B workers who have an approved I-140 petition OR have a pending PERM or I-140 petition for more than 365 days and have extended their H-1B past their six-year H-1B limit are eligible. More on the rule, eligibility and other details. The earliest an H-4 Spouse EAD application can be filed is May 26, 2015.
EAD Must be Approved and Valid for Employment to be Authorized
It is important to note that the EAD work permit must be approved and valid for the H-4 spouse to be authorized to work. This means that a pending EAD application or expired EAD work permit do not authorize employment. As a result, careful planning of the filing process, especially for renewals, is essential.
What Kind of Work is Permitted?
The EAD work permit, once approved, is unrestricted. It allows employment in any sector, in any job, without regard to the H-4 spouse’s education, experience or skills. There is no requirement that the position be “skilled” or “professional.” There is no requirement that the H-4 spouse must have a minimum degree. There is no requirement that the job must be permanent or full-time. Part-time positions are permitted. Taking contract-based, temporary or independent contractor employment opportunities is also allowed with the H-4 Spouse EAD work permit.
Self-Employment or Running Own Company on H-4 Spouse EAD Is Permitted
The H-4 Spouse EAD work permit would also permit self-employment which would include being engaged as an independent contractor (1099) or running own business as a sole proprietor. Similarly, the H-4 Spouse EAD rule allows its holder to establish, own and operate a business such as a corporation or a limited liability company.
Minimum Salary Requirements
There are no specific minimum salary requirements for an H-4 Spouse EAD worker other than the federal and state minimum wage laws when the employment if structured as regular (W-2) employment. Some people mistakenly believe that the H-1B prevailing wage must be paid for the employment of an H-4 spouse who has an EAD under the new rule — this is incorrect. While the H-1B prevailing wage requirement still applies to the H-1B worker spouse, the H-4 Spouse does not have to be paid the prevailing wage as long as they are paid the applicable federal/state minimum wage.
The H-4 Spouse EAD work permit is very flexible and allows many different types of employment, including self-employment and owning and operating a business. In fact, this has been one of the government’s motives in proposing this rule and allowing for unrestricted EAD — stimulating the U.S. economy by allowing qualifying H-4 spouses to work in the field of their qualification, including running companies who would hire other employees. The H-4 Spouse EAD, however, must be valid at all times for employment to be authorized. This makes it critical to plan very well for filings and extensions to avoid any gaps in employment authorization which, in turn, may cause employment without authorization and violation of the H-4 status.
We will continue to provide information on this rule as it becomes available. 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.No comments
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, 2015, 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 2014, there was also a random lottery to allocate the approximately 180,000 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, 2015, 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.
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.
We 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.No comments