Labor Immigration Law

United States Labor Immigration Law News and Analysis

March 2015 Visa Bulletin – EB-2 India Advances Significantly by Sixteen Months; EB-3 Advances But More Slowly

The U.S. State Department has just released the March 2015 Visa Bulletin which is the sixth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant (16-week) forward movement in EB-2 India and the continued forward movement in the EB-3 preference category (even though some slowdown is noticeable).

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

Below is a summary of the March 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 sixteen (16) months to January 1, 2007.  EB-2 China moves forward by four and a half (4.5) months to September 1, 2010.
  • EB-3 ROW, Mexico and Philippines advance by five (5) months to June 1, 2014.   EB-3 China advances by seven (7) weeks to October 22, 2011 while EB-3 India  advances by only one (1) week to January 1, 2004.
  • The “other worker” categories for ROW, Mexico and Philippines advance by five (5) months to June 1, 2014.   EB-3 China remains unchanged at August 15, 2005 while EB-3 India  advances by one (1) week to January 1, 2004.

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

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

  • FB-1 ROW, China and India all move forward by only one (1) week to August 1, 2007.   FB-1 Mexico moves forward by three (3) weeks to October 22, 1994 and FB-1 Philippines moves forward by three (3) weeks to February 1, 2005.
  • FB-2A moves forward again  – it moves forward by six (6) weeks to June 22, 2013 for ROW, China, India and Philippines.  It also moves forward by one (1) month to May 22, 2013  for Mexico.

Another EB-2 India Significant Forward Movement

Most people who follow closely the movements in the Visa Bulletin with respect to EB-2 India were surprised last month when the Department of State announced that EB-2 India would move forward by four to six months per month over the next several months.   This month’s Visa Bulletin brings another (good for EB-2 India) surprise – the forward movement this month is of sixteen months, to January 1, 2007.    EB-2 India applicants with a priority date earlier than January 1, 2007 can now move forward (or expect news, hopefully approval) with their applications.

We continue to anticipate significant forward cutoff date movements for the next few  months – by four to six months per Visa Bulletin.

EB-3 Continues to Move Forward Significantly

Another notable and important development in the March 2015 Visa Bulletin is the continued notable forward movement in the EB-3 categories.    Most of the EB-3 categories have advanced by five months, with EB-3 China moving forward by only seven weeks.     This should be welcome news to many EB-3 applicants (except EB-3 India where the forward movement is only of one week) 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 to those EB-2 India and EB-3 applicants (and other) who are seeing an advancing and current (or soon to be current) priority date.

While it appears that the rate of forward movement in EB-3 is decreasing, it should be noted that these categories have been advancing rapidly over the last few months and some slowdown should be expected.

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 March 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 March 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.

Client Success Story: How Premium Processing of an H-1B Petition Helped Us Reverse USCIS Error and Save Our Client Time and Money

One of the main areas of expertise of our firm is handling H-1B petitions for a number of organizations around the United States.   Our readers are aware that the H-1B petition allows the election of a premium processing service which, for an additional government filing fee of $1,225.00, guarantees that the government will provide a response on the petition within 15 calendar days.     Often we are asked by our clients t advise whether premium processing must be chosen or the regular process (which can vary between 2-5  months) is sufficient.

In many cases this determination is easy – premium processing must be used when there is a requirement for fast employment start, especially in change of status cases.   In other cases, however, the decision to use premium processing is not so easy.    We would like to share one of our recent client success stories to highlight some of the additional benefits of using premium processing.

The Client Situation

Our office was contacted by an individual and their employer after they had filed the H-1B petition internally.   The employer sought to petition for H-1B transfer and to extend the beneficiary’s current H-1B status.    Due to a number of reasons, the employer had filed the H-1B transfer petition a few days after the optimal filing time and, as a result, USCIS had issued a request for evidence seeking evidence that the beneficiary had maintained valid status as of the time of filing of the H-1B petition.     Our office was engaged to respond to the RFE and complete the case in the best possible way.

Upgrading to Premium Processing Together with the RFE Response

We worked with the client to prepare the best possible RFE response and we worked to draft a number of legal arguments providing a justification of the delay and asking for USCIS discretion in excusing the late H-1B petition filing by the client.   At the same time, we upgraded the H-1B petition from regular to premium processing.    The rationale for this premium processing upgrade was partially to force the decision faster so that the client can seek alternatives in case the USCIS response was negative.

At the same time, by upgrading to premium processing, as attorneys, we gained a few additional and often overlooked benefits of the premium processing service.    First, we are given a direct access to the USCIS service center, including a direct email and phone contact with immigration officers at the service center.   This kind of access is essential when working with USCIS to address any issues or concerns relating to a case promptly and efficiently.

By way of comparison, USCIS provides a customer service phone line to all regular processing cases but handling case issues, especially complex ones,  through the regular customer service avenue is often very slow and sometimes, especially for more complex situations, even impossible.

Initial USCIS Decision:   Both Petition and Extension of Status Requests Denied

In response to our premium processing upgrade and RFE response, USCIS provided a prompt decision but not the decision our client hoped for.   USCIS determined that because the beneficiary had not maintained valid status at the time the H-1B petition has been filed, they are denying both the H-1B classification petition and the extension of status request.

At that time, our attorneys immediately spotted a USCIS error.   In cases where the beneficiary is not proven to be in valid status at the time of filing of an H-1B petition, USCIS has the option of denying the status component of the H-1B petition.  However, if there are no other outstanding issues regarding the H-1B petition, USCIS should approve the H-1B classification component of the petition.

As a result, our office realized that USCIS should have approved the H-1B petition, with consular notification option, even though the status component of the petition was denied.   We sought to correct this situation for our client.

Case Problem and Error Resolution for Premium Processing Cases

Normally, when USCIS denies an application, the normal route is to file for an I-290B motion to reopen/reconsider or even appeal at the Administrative Appeals Office.   This application must normally be filed within 30 days of the denial decision date, often with a fee, and often has a processing timeline of 4-6 or more months.    This kind of case denial resolution option is often inadequate, especially for H-1B petitions, because of the significant period of uncertainty.    Many employers decide to refile their H-1B petition with a new set of fees even when they feel that the denial is reversible on appeal.

Understanding the challenges of a new refiled petition in terms of time and cost for our client, we sought to convince the service center that they have made a wrong decision.    Immediately upon receipt of the denial notice, our office reached out to the service center’s premium processing unit responsible for the case and we explained in detail the legal reasons as to why their decision to deny the H-1B classification portion of the petition was wrong.     We explained that under relevant guidance a finding that the beneficiary had not maintained valid status at the time of filing should not cause the classification portion of the H-1B petition to be denied.   Instead, in this kind of cases, the H-1B petition should still be approved, albeit with consular processing.

Several days later our office received notification from the service center that a supervisor had reviewed our arguments in the case and had issues a corrected decision — to approve the H-1B petition with consular processing.   As a result, we were able to achieve complete and favorable case resolution for the full benefit of our client within a few days and without any additional cost to our client (this kind of service is normally included in our H-1B petition flat fee arrangement).   We were able to save time and money to our client by not having to use the I-290B motion/appeal case resolution avenue.

Is Premium Processing Worth It In All Situations?

The moral of this story is not to imply that premium processing should be used in all situations – in fact, there are cases where premium processing may impact an H-1B filing strategy negatively.    The moral of the story is that premium processing service should be considered not only when a fast decision is required but also where the case may have complexities or issues.

Certainly we suggest all H-1B petitioners to discuss the pros and cons of premium processing with their attorneys before filing to understand and confirm that a premium vs. regular processing filing option is the best for that particular case.

Conclusion

We hope that this client success story is helpful to our clients and readers to understand the alternative ways to resolve a case where premium processing has been used.    Our hope is that case difficulties would not happen in the first place, but if or when they do, using premium processing service may allow for one extra layer of case resolution options.

Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements

The OPT Cap-Gap Rule: Extension of Post-Completion OPT and F-1 Status for Eligible Students Applying for Cap H-1B

Spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned.  On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas under the H-1B cap.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options.   In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the current fiscal year starting on October 1st.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

What Is “Cap-Gap”?

The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the F-1 work permit (OPT) and beginning of the H-1B status on October 1st that might otherwise occur if F-1 status was not extended for qualifying students.   For example, a student whose OPT is set to expire on July 15th will have a “gap” between this date and October 1st when a new H-1B cap petition would begin (once approved).

How to Invoke the “Cap-Gap”?

Most importantly, an H-1B cap petition must be timely filed on behalf of an eligible F-1 student.  This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B cap acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected under the H-1B cap lottery and approved, the student’s F-1 OPT will be considered extended and will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected under the H-1B lottery or not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Is Proof of Cap-Gap Status Necessary?

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until October 1st.  Students whose approved period of OPT already extends beyond October 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence.  However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired.  Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans accordingly.

Conclusion

The OPT cap-gap provisions for F-1 international students can be complex and may apply in different ways in different situations.    Additionally, the cap-gap rule only applies if there is a timely-filed H-1B petition under the H-1B cap.    While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window.    In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1, 2015 H-1B petition filing.

If you wish to start a new H-1B work visa petition under this year’s quota, if you have any questions or concerns about the OPT cap-gap rule or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application, together with helping you navigate through the OPT cap-gap rules and situations.

PERM, H-1B and Prevailing Wage Case Processing Statistics from the Department of Labor (FY2015 Q1)

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2015 (October 1, 2014 to December 31, 2014) on their processing of PERM, H-1B LCA and prevailing wage determination cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (First Quarter, 2015 Fiscal Year)

PERM

According to the PERM case report, during the quarter, there were 23,133 new cases received (an increase of 7% from the prior quarter and a significant 31% increase compared to the same period of the previous year), 16,192 certified (slight increase over the previous quarters), 1,322 denied (increase, but in proportion of the rate of new filings) and 1,104 withdrawn (about the same as the prior quarter).

There are 64,810 applications pending as of December 31, 2014 which is about 8% increase in the pending case load.   Out of these cases, approximately 60% are in analyst review stage (no change to prior quarter), 30% under audit review (no change) and 8% on appeal (slight decrease.)

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 38,000 prevailing wage determination requests filed — of those, 29,870 were for PERM cases (increase of 27% compared to prior year’s period), 1,476 were for H-1B cases (increase of 5%) and 6,334 were for H-2B cases (increase of 38%).     In terms of activity, 31,946 prevailing wage determinations were issued during the first quarter and the pending load has increased from 14,619 during the prior quarter to 18,282 in the first quarter of FY2015.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers and the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is lower compared to other quarters during the year, and especially Q2 of 2014.  Even then, there were 80,520  H-1B LCA filings in the first quarter, noting a decrease of about 13% compared to the prior quarter.   During the quarter, there were 77,691 LCAs certified for 169,282 positions (one LCA can include more than 1 position).

According to DOL, 100% of the LCAs are processed timely within seven days of receipt.     The rate of LCA denial is fairly low (1,761 out of 89,367 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The first quarter of the FY2015 shows a significant increase in the number of DOL filings in a number of categories.  Perhaps most notable is the increase in PERM filings – 31% increase over the prior year and 7% increase over the prior quarter.   Similarly, the PERM prevailing wage requests rose by 27% over the prior year period, signaling continued strong rate of upcoming PERM filings.   Thus, in turn, is likely to translate increase in the PERM case processing times.    We are hopeful that DOL would continue to work on decreasing its load and processing times, especially for the PERM cases (see the most recent PERM processing times report).

We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again, contact us, or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

Is my Degree a STEM-designated Program? Updated STEM Degree List.

STEM Degree ListMany of our readers, and especially those foreign students on F-1 status who are in a technical field, are aware of the regulations which allow holders of Science, Technology, Engineering and Math (STEM) degrees to obtain an additional 17-month OPT work permit extension, in addition to the 12-month post-completion OPT work permit.    Understanding the eligibility rules and especially understanding if one’s degree is a STEM degree is critical in planning for subsequent immigration steps, including whether to file for an H-1B petition.

The Immigration and Customs Enforcement (ICE) is the agency tasked with maintaining the STEM degree list and the list has been revised on a few occasions to add additional degrees.   Most recently, on May 11, 2012, ICE announced the most recent expansion of the list STEM degree programs.  Previously, some degrees were added in May 2011.

Current STEM-designated Programs

Please see the list of STEM-designated programs as of January 2015, as published by the Immigration and Customs Enforcement agency (which has jurisdiction over the Student and Exchange Visitor Program, SEVP).   The list incorporates the 2011 and 2012 additions and is current as of the date of this article, according to ICE.    We caution our readers to double-check the most current STEM-designated program list by contacting SEVP to ensure that their degree is STEM-designated before applying for or relying on STEM-designation and benefits.   Our office can offer phone or in-person consultations to assist in this kind of analysis.

STEM-Designation Has Great Benefits

Why is a STEM designation so important?   On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training (OPT) by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.    As a result, a STEM degree allows for a total OPT time of 29 months, compared to only 12 months for non-STEM degrees.

This is important for a number of reasons.   Most importantly for many folks — the OPT holder has the chance to apply for a cap H-1B petition two, sometimes even three, times.   In a time where the annual H-1B cap is oversubscribed and the available H-1B visas are distributed by lottery, having more chances to apply for an H-1B under the cap is certainly better.    Additionally, eligible OPT holders have more time to obtain better skills and this provides greater flexibility in job hunting — employers are more likely to consider a candidate with more experience and longer work authorization term.

Is My Degree a STEM-Designated Degree Program?

The first step is to find the classification number of your degree.  The Classification of Educational Programs, a database provided by the Department of Education is helpful in looking up the CIP code for a specific degree.  Also, the degree and its CIP code are often listed on the top of page 3 (“Primary Major” line) of a student’s SEVIS Form I-20.

Once the CIP classification of the degree is determined, an F-1 or OPT holder should look at the list of STEM-designated programs as of January 2015 and see if the CIP code of the degree is listed as a STEM-designated program.    Finally, the F-1/OPT student should ensure that there are no STEM designation changes – perhaps by consulting SEVP, the university or an immigration attorney.

It should be noted, however, that in some situations the CIP code of the degree on the I-20 does not accurately reflect the degree which the F-1 student completed.    Sometimes, there are slight degree variations and changes which may not be reflected in the I-20 record.    If the student believes that there is a discrepancy between the actual degree obtained and the degree noted on the SEVIS I-20 form, the student should seek to correct any such discrepancy with the university’s designated school official (DSO) as soon as possible and definitely before filing a 17-month STEM OPT extension application.

Conclusion

The question whether a given degree is STEM-designated has a significant importance and our office handles many inquiries and consultations on this topic.     We are hopeful that this article and the current list (as of the date of this article) we are sharing will allow many F-1/OPT students to evaluate their options with respect to 17-month OPT extensions and/or possible H-1B cap filings.

Our office has developed as a leading practice in F-1/OPT/H-1B matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

Current PERM Processing Times (January 7, 2015)

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 January 7, 2015.

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 also remains unchanged compared to our prior monthly report.

The processing times, as reported by DOL, are as follows:

  • Regular processing: August 2014.  DOL is processing PERM applications with priority dates of August  2014.  There is no change in the expected duration of a PERM case compared to the December 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.    The PERM processing times have remained steady at five months — we hope that DOL will be able to decrease their regular PERM processing times over the next months.
  • Audited applications: June 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of June 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 19-20 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):January 2015 .  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in January 2015.  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.

Conclusion

The January 2015 PERM processing times report shows that the PERM processing times remain largely unchanged over the last couple of months.  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.

U.S. Permanent Residents (and Citizens) Must Declare and Pay U.S. Taxes on Worldwide Income

The United States is one of the few (if not the only one) countries in the world which taxes its citizens and permanent residents on the basis of their worldwide income.  As a result, U.S. permanent residents (and citizens) who decide to live and work outside of the U.S. on a temporary basis are normally required to declare and pay U.S. tax on their foreign income regardless of the source of such income.  This is true whether or not the U.S. green card holder receives a Form W-2, 1099 or similar tax document.  This article focuses on the tax filing of U.S. permanent residents and the immigration implications of their tax filings (or the lack thereof).

U.S. Permanent Residents Must File Tax Returns Even if Residing and Working Abroad

A U.S. citizen or, for the purpose of this article, permanent resident alien (green card holder) living or traveling outside the U.S., is generally required to file U.S. income tax returns, estate tax returns, and gift tax returns and pay estimated tax in the same way as those taxpayers residing in the United States.

The permanent resident is required to file a U.S. tax return if their gross income from worldwide sources is at least the amount shown for their filing status in the Filing Requirements table in Chapter 1 of Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad.  For example, for 2014, single taxpayers who have worldwide income from all sources in excess of $10,150 must file a tax return with the IRS.  Factors such as taxpayer’s income, filing status, and age generally determine whether a permanent resident (regardless of residence or source of income) must file a tax return.  Please review Publication 54 mentioned above for more details.

Gross Income Must be Declared

Now that we know that a U.S. green card holder living temporarily abroad must declare their worldwide income, the question is, What kind of income is included?

IRS requires that all income received in the form of money, goods, property, and services that is not exempt from tax be included and declared. In determining whether a U.S. permanent resident must file a tax return, the taxpayer must consider as gross income any income that was excluded as foreign earned income or as a foreign housing amount. If the taxpayer is self-employed (in the U.S.  or abroad), their gross income includes the amount on the Gross Income line of Schedule C (Form 1040), Profit or Loss from Business, or the Gross Receipts line of Schedule C-EZ (Form 1040), Net Profit from Business.

Foreign Bank and Financial Accounts Disclosure Required

Additionally, FinCEN Report 114, Report of Foreign Bank and Financial Accounts (“FBAR”) (formerly TD F 90-22.1), must be filed if a taxpayer has had a financial interest in, or signature or other authority over, a bank, securities, or other financial account in a foreign country, the value of which exceeds $10,000. A report is not required if the assets are with a U.S. military banking facility operated by a U.S. financial institution or if the combined assets in the account(s) are $10,000 or less during the entire year.

Foreign Earned Income Exclusion and Foreign Housing Exclusion and Deduction

As discussed herein, U.S. citizen and U.S. permanent residents living abroad are taxed on their worldwide income. However, they may qualify to exclude from income up to $99,200 of their foreign earnings. In addition, they can exclude or deduct certain foreign housing amounts.

There are certain eligibility requirements for these exclusions and deductions so a tax professional’s help may be required.  We should caution, however, that from immigration standpoint, a U.S. permanent resident’s use of such exclusions may be an indication that the taxpayer is not maintaining their U.S. residence during the tax period in question – therefore, preventing or at least delaying a possible U.S. naturalization application.

Timing of Tax Return Filing

U.S. citizen or green card holders (and certainly military members) who are residing overseas are allowed an automatic 2-month extension to file their tax return and pay any amount due without requesting an extension.  For a calendar year tax return, the automatic 2-month extension is June 15. If the taxpayer qualifies for this 2-month extension, penalties for paying any tax late are assessed from the 2-month extended due date of the payment (June 15 for calendar year taxpayers). However, even if the taxpayer is allowed an extension, the taxpayer will have to pay interest on any tax not paid by the regular due date of the tax return (April 15 for calendar year taxpayers).

U.S. Permanent Residents’ Tax Obligations and Immigration

The filing requirements outlined above, especially as they are applicable to U.S. permanent residents, have important (and often overlooked) implications with respect to immigration.  Most frequently, the issues arise in the context of an application for a reentry permit or for naturalization application to become a U.S. citizen.

I-131 Reentry Permit Applications

Permanent residents who are spending an extended period of time abroad often apply for and obtain a reentry permit which allows them to spend an extended period of time abroad without losing their green card.  The reentry permit application seeks to establish the permanent resident applicant’s compliance with the U.S. tax laws, and specifically to determine whether the permanent resident applicant has filed U.S. taxes as a non-resident OR if they have not filed U.S. taxes because they considered themselves as non-residents.

It is important to note that sometimes, as described in this article, U.S. permanent residents residing abroad and deriving foreign income may not have to file for a U.S. tax return (for example, as mentioned above, if the permanent resident is single and has less than $10,150 then they may not even have to file a tax return).  However, if the permanent resident derives worldwide income requiring them to file a tax return, the U.S. government would expect that such tax return be filed as a U.S. permanent resident.

If a U.S. permanent resident has filed a U.S. tax return as a non-resident  or if a tax return was not filed because the U.S. permanent resident considered themselves to be a non-resident for tax purposes, a reentry permit application may face significant scrutiny or even a denial.  Our office will be happy to assist in evaluating reentry permit applications and any associated risks.

N-400 Naturalization Application to Become a U.S. Citizen

The issue of payment of taxes on foreign income makes often makes an appearance in U.S. citizenship applications, N-400.  One of the relevant requirements for qualifying for U.S. citizenship is that the U.S. permanent resident applicant must have resided in the U.S. for the last five (three in certain cases of immediate relatives to U.S. citizens) years.

In certain situations, especially when the U.S. permanent resident applicant has spent considerable period of time outside of the U.S., tax returns for the last five years may have to be submitted with the N-400 citizenship application.  If the immigration service sees foreign income exclusion on the tax return for one of the recent years they may conclude that claiming such exclusion was done because the permanent resident applicant has spent considerable period of time abroad and is claiming their tax home to be that of a different country.  This, the U.S. immigration service may conclude, is an indication that the U.S. permanent resident applicant has not been maintaining U.S. residency for tax and, more importantly, for U.S. citizenship application purposes and deny the N-400 citizenship application.

To be clear, claiming foreign income exclusion does not automatically prevent a U.S. citizenship application from being approved; however, it increases the risk of scrutiny and/or denial.  Our office will be happy to assist in evaluating U.S. citizenship applications and any associated risks.

Conclusion

The purpose of this article is to correct a possible misconception that U.S. permanent residents who work abroad do not have to pay U.S. taxes.   This is not true.   As discussed above, U.S. citizens and permanent residents must declare all worldwide income in their tax filings.  Subject to certain limited exceptions, tax returns should still be filed by U.S. citizens and permanent residents living and working abroad.

Our office is ready and available to help U.S. permanent residents understand how their tax payment history may affect their U.S. reentry permit or U.S. citizenship applications.  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 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.

Please note that this is not legal advice and please also note that our practice is limited to U.S. immigration law.  We handle U.S. immigration matters (such as reentry permit, naturalization applications and many more) but we do not handle tax issues or questions.  We suggest you contact a CPA or a tax attorney for any questions pertaining to U.S. tax laws.

H-1B Work Visa Cap Season Is Underway – Opens for New Filings on April 1, 2015

On April 1, 2015 the U.S. Citizenship and Immigration Services (USCIS) will start accepting applications for one of the most popular U.S. work visas, H-1B, for fiscal year (FY) 2016.    Our intelligence and past experience suggest that this year’s H-1B cap season will be very short — five business days.   Our office is already preparing a number of H-1B applications for our clients and we urge employers to prepare for a very short H-1B season by identifying and initiating H-1B sponsorship cases now.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2016 starting on October 1, 2015.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

The H-1B Quota and Expectations for This Year

H-1B Calendar April 2015As discussed above, the H-1B cap “opens” on April 1, 2015 and will remain open for new H-1B filings until the 65,000 H-1B limit (plus the 20,000 for U.S. masters degree holders) is reached.  While it is impossible to predict exactly when the FY2016 H-1B cap will be reached, it is helpful to provide some context.  During the last two years, the H-1B cap was met the first week (five business days) of filing, and we anticipate that this will be the case this year as well.

Historically, for FY2015 (last year), there were 172,500 applications and the cap was reached over the first five days.   Previously, in FY2014, there were 130,000 applications and the cap was also reached over the first five days of the filing season.    This increasing trend in the rate of H-1B cap filings, together with the improving economy in the United States, suggests that this year’s H-1B cap will also be oversubscribed even after only five filing days and will be subject to a random computer-generated lottery.

While it is impossible to predict with certainly at this time how quickly the cap will be reached, it is our expectation that the H-1B cap  will be open for only 5 business days and we are advising our clients to be prepared for H-1B cap case filing on April 1, 2015.

Over the next two months our office will monitor very carefully the H-1B application demand and we will be providing timely updates on the H-1B cap filing season, including on cap demand and expectations.   Please check back with us often or subscribe to our Weekly Newsletter to receive news and updates related to this H-1B filing season.

High H-1B Cap Demand Expected:   How and When to Prepare?

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).  First-time H-1B employers should allow an additional 3-5 days.   Therefore it is critical to plan ahead to maximize your chances of success.

We recommend that employers start working with their immigration attorneys (our office is happy to help – contact us) NOW to review the prospective H-1B candidates and to start the preparation process.     Some employers may respond that it is too early to start the H-1B process — we disagree.    Starting the process as early as January is the perfect time to ensure that an unanticipated issue would not derail the one-time opportunity to file an H-1B under the cap.   For example, some employers’ federal tax ID (FEIN) will have to be “registered” with the DOL database in order to even file an LCA.   Some job positions run into prevailing wage issues which can take weeks to clear with DOL and even if all goes well, it is always best to be ready with the process and the paperwork early.

Proposed H-1B Cap Timeline

  • January – employers work on identifying prospective H-1B candidates for April 1 filings, those include students working on F-1 OPT, new college hires in F-1 status and new hires from abroad.  Some employers may have L-1 workers whom they may want to switch to H-1B.
  • February 1-15 – employers work with attorneys and employees to gather the required information from the company and employee.
  • February 15-28 – attorneys file the Labor Condition Application (LCA) with DOL (DOL takes up to seven business days to process an LCA; and if the employer’s FEIN has not previously been verified, this may take additional 3-5 days.)
  • March 1-15 – attorney finalizes relevant H-1B documents;  employers sign and complete the paperwork and send it to the attorney’s office (original documents are required for submission with USCIS and early courier delivery should give enough time for unanticipated – even in March – weather delays).
  • March 15-30 – attorney assemble final petition filing packages and complete final quality assurance checks.
  • April 1 – attorney files the H-1B petition with USCIS by courier delivery.

Action Items

We urge all employers who are considering filing H-1B petitions under this year’s H-1B cap to start the preparation process.   Our office stands ready to assist employers in the process and our office is already in “H-1B cap mode” for a number of our clients have already started the preparation process.    Please contact us if we can help you in evaluating and, possibly, in preparing an H-1B cap case this April.

On February 18, 2015, our office will also hold a free webinar on the H-1B cap season to discuss H-1B cap preparation and filing strategies.   This is one of our most popular webinars for the year and while registration is free, space is limited so interested H-1B employers should register early.

Conclusion

While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window.    In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1, 2015 H-1B petition filing.

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 as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

February 2015 Visa Bulletin – EB-2 India Advances Significantly; EB-3 Continues to Advance Significantly

The U.S. State Department has just released the February 2015 Visa Bulletin which is the fifth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant (and somewhat unexpected) forward movement in EB-2 India and the continued forward movement in the EB-3 preference category.   Also, EB-2 India is expected to move forward significantly in each of the next few months.

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

Below is a summary of the February 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 (and finally!) by six and a half (6.5) months to September 1, 2005.  EB-2 China moves forward by one and a half (1.5) months to March 15, 2010.
  • EB-3 ROW, Mexico and Philippines advance by seven (7) months to January 1, 2014.   EB-3 China advances by six (6) months to September 1, 2011 while EB-3 India  advances by only one (1) week to December 22, 2003.
  • The “other worker” categories for ROW, Mexico and Philippines advance by seven (7) months to January 1, 2014.   EB-3 China moves forward by three (3) weeks to August 15, 2005 while EB-3 India  advances by one (1) week to December 22, 2003.

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

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

  • FB-1 ROW, China and India all move forward by two (2) weeks to July 22, 2007.   FB-1 Mexico moves forward by two (2) weeks to October 1, 1994 and FB-1 Philippines moves forward by two (2) weeks to January 8, 2005.
  • FB-2A moves forward again  – it moves forward by three (3) weeks to May 8, 2013 for ROW, China, India and Philippines.  It also moves forward by two (2) months to April 22, 2013  for Mexico.

Surprising EB-2 India Significant Forward Movement

The expectations set over the last few months by the State Department had been that EB-2 India would likely remain unchanged at the (severely retrogressed) February 15, 2005 date until the summer of 2015.    Fortunately, the February 2015 Visa Bulletin brings great news for EB-2 India applicants with the six-and-a-half month forward movement.   EB-2 India applicants with a priority date earlier than September 1, 2005 can now move forward (or expect news, hopefully approval) with their applications.

Additionally, the anticipated cutoff date movements for the next months suggest that EB-2 India will continue to move forward at a great pace (four to six months per Visa Bulletin) over the next few months.

EB-3 Continues to Move Forward Significantly

Another very notable and important development in the February 2015 Visa Bulletin is the continued notable forward movement in the EB-3 categories.    Most of the EB-3 categories have advanced by seven months, with EB-3 China moving forward by six months, on top of the significant forward movement in the past few visa bulletins. This should be welcome news to many EB-3 applicants (except EB-3 India where the forward movement is only of one week) 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 to those EB-2 India and EB-3 applicants (and other) who are seeing an advancing and current (or soon to be current) priority date.

Short-term Expectations and Predictions for Cutoff Date Movements

The February 2015 Visa Bulletin also provides some predictions on the movement of the cutoff dates for the next few months.  Note that these figures reflect monthly potential movement.

EB-1.   This category is expected to remain current throughout the rest of the fiscal year.

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

EB-2 India.   This category is expected to move by four to six months per visa bulletin.

EB-2 China.   Three to six weeks forward movement per month.

EB-3 Rest of World (ROW).     Rapid forward movement is expected for the next month or two.   Such rapid movement can be expected to generate a significant amount of new demand, with the impact not being felt for three to five months. Therefore, the cut-off date will be held until it can be determined what level of demand is to be expected, and whether it is likely to be sustained.

EB-3 China.  Similar to EB-3 ROW – rapid forward movement expected, with a corrective “action” (retrogression) possible in the next six month or so.

EB-3 India.  Up to three weeks at a time.

EB-3 Mexico.  Likely to remain the same as EB-3 ROW.

EB-3 Philippines.   Likely to remain the same as EB-3 ROW.

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 February 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 February 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.

Reentry Permit Timing Strategies and Considerations

U.S. permanent residents (green card holders) who spend extended period of time are likely (or should be) aware that the reentry permit is a document, issued by U.S. Citizenship and Immigration Service (USCIS) allowing its holder to remain outside of the U.S. for an extended period of time without causing their green card to be considered abandoned (or facing hostile questioning at the U.S. port of entry).       However, during the reentry permit application process, one of the main factors of success is the careful planning for the application filing and completing the required biometrics.

Filing of Reentry Permit Requires Physical Presence in the United States

The reentry permit regulations require that the green card holder applicant be in the U.S. physically at the time of filing.   The time of filing refers to the date USCIS receives the reentry permit application and start processing it – and normally this is the day FedEx delivers the application documents to USCIS.

Because of this requirement, reentry permit applicants, and especially those who are abroad and are considering filing a reentry permit application, must carefully plan the timing of their travels to the U.S. and coordinate their reentry permit application filing (with their attorneys, if they use an attorney for the filing).   It is generally okay for the application to be received by USCIS on the day the applicant has landed in the U.S.  In fact, our office routinely plans the filing of reentry permit applications for our green card holders who reside abroad in such way to ensure the application is filed on the day of arrival or the first available business day afterwards in order to maximize the time the green card holder has in the U.S. in order to complete the required biometrics appointment during the same trip to the US.

The Required Biometrics Must be Done in the U.S. Only

In addition to the requirement that the applicant must be in the US at the time of filing of the reentry permit application, the reentry permit process requires the applicant to submit to required biometrics – digital fingerprinting and digital photo.   This is a required step and must be completed even if the applicant has done biometrics previously (even if it was recently).    Normally, several weeks after filing USCIS issues a biometrics appointment notice and mails to the applicant inviting them to appear and have their biometrics taken.

When our office files reentry permit applications and when we request expedited processing of the biometrics appointment (which we often do), USCIS is able to schedule the biometrics appointment in anywhere between two and four weeks from the filing date.   As a result, reentry permit applicants should consider the timing of their biometrics process when they plan for reentry permit.     One option is to plan to remain in the US for at least 3-4 weeks in order to do the filing and the biometrics during the same trip to the US.

Another option is to do two trips – one short trip to the US for filing of the application and then, within no more than 120 days of the date of filing, taking another trip to the US to complete the required biometrics.   Traveling to the US again for biometrics makes this an expensive alternative, but it is an option nonetheless for green card holders who are unable to remain in the US for 3-4 weeks at a time to do filing and biometrics during a single trip.    In addition to continental US, the required biometrics can be completed in Guam or Hawaii which makes it a desirable alternative to green card holders residing temporarily in the Asian region.

Conclusion

The reentry permit application process may be deceivingly straightforward, especially for green card holders who must depart the US relatively quickly or for green card holders who reside abroad.    We urge careful and early planning for the various stages of the reentry permit application process and we also urge using the services of an attorney who can coordinate the process and assist from within the US should any issues with the process arise.

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 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.

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