Labor Immigration Law

United States Labor Immigration Law News and Analysis

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Happy New (Fiscal) Year – Immigration Implications of the New Government Fiscal Year

While few, if any, of our clients and readers will be planning major celebrations, October 1st is an important date as it marks the beginning of the new government fiscal year.     This has some immigration implications for many folks — for example, H-1B cap petitions are becoming effective and the quotas for green card visa numbers are being reset for the new fiscal year.

Approved H-1B Cap Petitions (and Change of Status) Becoming Effective

October 1st is the earliest starting date for an H-1B petition filed in April under the annual cap.     As a result, almost all H-1B cap petitions have a starting date of October 1.

Notes for H-1B Employers.   Employers who have sponsored H-1B cap cases and have received approvals with change of status can now employ their workers on H-1B status.      In fact, such H-1B employers must provide employment to H-1B beneficiaries whose status was changed to H-1B on October 1st — not offering employment and pay may cause issues due to possible benching without pay claims.

If the H-1B cap petition was approved on the basis of “consular processing” (no I-94 card issued as part of the approval), then H-1B employers will need to have their workers either (a) obtain H-1B visa stamp at a US Consulate abroad and travel to the U.S. on H-1B status or, if the worker is in the US, (b) file for a change of status to H-1B  from within the U.S. and wait for an approval before H-1B employment can legally start.

Notes for H-1B Workers.   Workers who have received H-1B cap approval with change of status (I-94 card attached to the bottom of H-1B approval notice) should understand that on October 1 their status in the U.S. would automatically change to H-1B and they would be expected to start (or continue) working for the H-1B employer to maintain valid status.     In certain situations, for example holders of L-1 or L-2 status, or if the worker is not ready to start employment, the fact that the status would change automatically to H-1B on October 1 is a significant problem.   For example, L-1 holders will have to stop working for their L-1 employer and start working for their H-1B employer.        Our office can help analyze this situation and provide solutions or suggestions – a phone consultation is a quick and effective way to do so.

As noted above in the employer’s section, if the H-1B cap petition was approved with “consular processing” (no I-94 card), then the H-1B worker will either need to enter the U.S. using H-1B visa or apply to change status from within the U.S.

Annual Visa Number Quotes Reset – Green Card Approvals to Continue

Another important aspect of the new government fiscal year starting on October 1st is the fact that the annual green card visa numbers will reset.    Many of our readers may be aware that on September 25, USCIS used up all of the available immigrant visa numbers for the fiscal year and, as a result, no green card applications could be approved.   As of October 1, we expect USCIS to continue to issue approvals of pending I-485 cases.

Additionally, the beginning of a new fiscal year allows the government to allocate a new set of visa numbers for the entire fiscal year but depending on the demand and the pending applications for each category, the government makes different decisions as to how to allocate these numbers and how to advance or retrogress the cutoff dates.    The Visa Bulletin for October 2015 (and the subsequent revision) suggested, at least initially, confirmed out expectations that the government is planning to be aggressive with allowing more people to file I-485s.    We are hoping that the Visa Bulletin cutoff dates will move forward aggressively, at least in the first few months of the fiscal year, as the annual visa quotas were reset on October 1.

Diversity Visa Lottery Opens

As the new fiscal year starts, the Department of State will open the DV-2017 Diversity Visa (a.k.a. “green card”) lottery on Thursday, October 1, 2015.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Thursday, October 1, 2015, and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 3,  2015.   Please see our article for more details.

Conclusion

The new government fiscal year has some possible (and sometimes important) implications to many H-1B employers and workers, in addition to a significant number of immigrant visa applicants.     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.

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DV-2017 Diversity Visa (Green Card) Lottery Opens October 1, 2015

The Department of State will open the DV-2017 Diversity Visa (a.k.a. “green card”) lottery on Thursday, October 1, 2015.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Thursday, October 1, 2015, and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 3,  2015.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EDT on November 3, 2015.

About the DV Lottery

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 and provides for a class of immigrants known as “diversity immigrants.” Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year.

Countries Ineligible

For DV-2017, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Eligibility Requirements

There are two main requirements.  First, the applicant must be a national of a country which is eligible (see above for ineligible countries).  Nationality is generally defined by birth, although there are certain exceptions,  most notably if the applicant’s spouse is a national of a different country.  Second, the applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

Details about Submitting Lottery Entries

Please refer to the official document issued by the Department of State on how to submit a lottery entry.

Results To Be Announced in May 2016

After submitting a complete entry, the applicant will see a confirmation screen containing their name and a unique confirmation number.  Starting May 3, 2016, the applicant will be able to check the status of their entry by returning to www.dvlottery.state.gov, clicking on Entrant Status Check, and entering the unique confirmation number and personal information.

Conclusion

We urge those who are considering applying for this year’s Diversity Visa lottery to read the instructions carefully and to submit their electronic entries early during the submission window.    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.

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Breaking: October 2015 Visa Bulletin Revised – EB-2 India/China and EB-3 Philippines Revised Backwards

Just a few minutes ago, and just a few days before the October 2015 Visa Bulletin were to become effective, the U.S. State Department has released a revision to the October 2015 Visa Bulletin.   EB-2 India and China applicants, many of whom were the primary beneficiaries of the October 2015 Visa Bulletin two-tier cutoff date system, would be disappointed by the backwards revision of the Filing cutoff dates.

Revised Visa Bulletin Filing Cutoff Date Revision

The October 2015 Visa Bulletin revised the Filing cutoff date for employment-based cases as follows:

  • EB-2 India – moving backwards by two (2) years from July 1, 2011 to July 1, 2009.
  • EB-2 China -moving backwards by seventeen (17) months from May 1, 2014 to January 1, 2013.
  • EB-3 Philippines – moving backwards by five (5) years from January 1, 2015 to January 1, 2010.

As a result of the revised October 2015 Visa Bulletin, only those applicants whose priority date is earlier than the noted cutoff date can file their I-485 applications.      The impact of this revision is that thousands of applicants who were on the verge of filing I-485 adjustment of status applications will now be unable to do so.

Future Cutoff Date Movements

At this time, we do not know how quickly would the Filing cutoff dates move forward.   We are hoping for aggressive forward movement over the next months but given this sudden revision in the Visa Bulletin, we will seek input from stakeholders and provide on our website and weekly Newsletter.

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 October 2015 Visa Bulletin and its revision.

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Birth Certificate Requirements for Immigration: Requirements and Solutions

Applicants for U.S. immigration benefits have faced (or will face) at some point in the process the need to provide a birth certificate. Both U.S. Citizenship and Immigration Service (“USCIS”) and the U.S. Department of State (“DOS”) require applicants to submit a birth certificate as part of the permanent residency (green card) process. The availability of a birth certificate and the contents in it vary greatly among countries and also over periods of time.   This article aims to document what are the USCIS/DOS requirements with respect to birth certificates and to suggest ways to meet these requirements.

Missing, Incomplete or Inadequate Birth Certificates Require Secondary Evidence

As a general rule, if the USCIS/DOS birth certificate requirements with respect to format and contents are not met, the applicant will be expected to provide secondary evidence of the birth.   Often such secondary evidence is in the form of a birth affidavit, as described below, or sometimes by school or hospital records.

What Should Be Included in a Proper Birth Certificate?

Generally, an acceptable birth certificate must be issued by the appropriate local government agency with jurisdiction over the place of birth, be in full-form (and not an excerpt or short-form), and contain the following information about the applicant and his or her parents:

  • Full name at birth;
  • Date of birth;
  • Place of birth;
  • Full name of both parents;
  • Date of issuance; and
  • Date of registration of the birth.

The document must be on proper letterhead and be in original or certified copy. Also, it is important to note that the birth must have been registered with the proper government agency within one year of the date of birth – otherwise, the birth certificate registration will be considered “late.”

When Are Birth Certificate Affidavits Required?

Most commonly, birth certificate affidavits are required in two situations: if the birth certificate is not available or if the birth certificate is available but is incomplete or was registered “late”.

Birth Certificate Not Available

If the local government agency responsible for birth certificates does not have a record of the birth, the applicant will need to obtain a certificate of non-availability (sample) from the agency which confirms that a birth certificate simply does not exist.   Then, in addition to this non-availability certificate, the applicant will need to provide two birth certificate affidavits to attest to the birth.

Birth Certificate if Registered Late or is Incomplete

If the birth certificate is available, but if the birth was registered “late” (within more than one year of the date of birth) or if the birth certificate is incomplete (does not include the required information described above), then the applicant will need to include the deficient birth certificate but also provide to USCIS/DOS two birth certificate affidavits.

Requirements for the Birth Certificate Affidavits

Authors

The birth certificate affidavits must be provided by people who have first-hand knowledge of the birth. This means that the authors of the affidavits must not only have been alive at the time of the birth but must also have been of an age which allows them to have a recollection of the birth.   For example, an affidavit by an older brother who is two years older than the subject will not be very credible. Most often the affidavit of birth is provided by parents, uncles, aunts or older siblings (who are notably older).

Contents

The birth certificate affidavits must include certain information:

  • The applicant’s full name, place of birth and full names of both parents;
  • Description of the relationship between the author and the applicant and describe how the author is aware of the applicant’s birth.

The affidavit can describe the reason requiring the affidavit to be provided – for example, that it is provided because the birth is registered late or because the birth certificate is not available. All names, especially the name of the applicant, must match other documents used in the application process – passport, petition approvals, visa stamps, etc. Spelling variations should be flagged and addressed to avoid delays due to name discrepancy.

Sample Affidavit of Birth

We are happy to provide with a sample affidavit of birth so that our clients and readers and obtain a better idea on how this affidavit should look like. Please note that individual cases may require slightly different formats and/or contents.

Conclusion

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 birth documents required for US immigration.

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October 2015 Government Shutdown and Immigration: (How) Will It Affect Me?

While we are hopeful that this is not the case, it appears that the chances of the U.S. federal government shutting down on October 1st (the beginning of the new fiscal year) are increasing.   We would like to provide some information as to how a possible government shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on October 1 if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened just a couple of years ago (in 2013), we can look back at what happened then to anticipate what kind of services and agencies would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”   The E-Verify system is likely to be shut down and unavailable during a period of government shutdown but employers should still continue to process Form I-9s even if E-Verify is not operational.

Department of State – Visa Applications at Consulates and at NVC Should Continue

If the 2013 Shutdown is a guide, the Department of State (DOS) is expected to continue processing visa applications at a normal (or close to it) page.   It may still be prudent to try to avoid applying during a period of shutdown and perhaps expedite applications, if possible.

Cases processed at the National Visa Center (NVC) should not be affected as well by the shutdown as they are mainly processed by contractors under existing funding agreement.

Generally, the State Department has been designated to be a “national security agency” which means that it would continue working throughout the shutdown.   However, in the cases where State Department operations are in other federal buildings which are affected by the closure,  such State Department operations may be disrupted because of lack of access to the facility.

Department of Labor – LCA, PERM and Audits

Unlike USCIS and the State Department, the Department of Labor (DOL) is likely to be significantly affected by the (possible) shutdown and its LCA/PERM operations (and websites) are likely to be suspended for the duration of the shutdown.

Based on what happened during the 2013 Shutdown, in case of a shutdown, no new LCAs can be filed and pending LCAs will not be subject to the seven business day review requirement and will not be reviewed and certified until DOL reopens.  This is a significant problem for employers and employees who need to have a new LCA filed and approved in connection with an expiring H-1B petition or in connection with an H-1B amendment.    Without a certified LCA,  an H-1B petition with USCIS cannot be filed.    This can create significant challenge to many employers and individuals whose H-1B petitions must be filed or amended and especially for those individuals whose status may be expiring.    In the past and in exceptional circumstances, USCIS has agreed to accept H-1B petitions without a certified LCA; however, USCIS has not yet confirmed (as of the time of this article) that they would do so this time around.

Similarly, in an event of a shutdown, it will not be possible to file new PERM cases and pending PERM cases will be put on hold.   This also can be a significant problem to many because the PERM process has very strict deadlines and a PERM case (and its entire recruitment) may have to be redone if a PERM application cannot be filed within the applicable filing window.   Additionally, filing a PERM by a certain date is critical for many H-1B workers who are seeking to be able to continue extending their H-1B petitions beyond their six-year H-1B limit.     A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.

On a related note, prevailing wage determination requests will also be shut down so no new requests can be filed and pending requests will be on hold.    A delay in the issuance of a prevailing wage determination may affect a number of PERM cases where there is a timing concern – such as six-year H-1B limit or expiring PERM recruitment.

Shutdown in DOL would mean that processing times and backlogs would be significant once the Government and DOL reopen.    If there is a shutdown, even after DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings.   Similarly, the cases already pending will have to be prioritized and reviewed.    This is likely to contribute to a delay in getting LCAs, prevailing wage requests and PERMs certified (especially since the PERM processing times are substantial already).

Conclusion

At this time, a week before October 1st, it is not clear whether there will be a shutdown.  Also, it is not clear what may be the full extent of the federal government shutdown.   But if a shutdown occurs, we anticipate some significant disruptions to government services affecting immigrants.  Perhaps the biggest disruption would be the delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.   We urge clients who have time-sensitive cases which may be affected by a possible government shutdown to plan accordingly.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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October 2015 Visa Bulletin – Two-Tier Cutoff Date System Established, Likely to Help Many File I-485s Earlier

The U.S. State Department has just released the October 2015 Visa Bulletin which is the first Visa Bulletin for the new FY2016 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant restructuring of the Visa Bulletin cutoff system and the introduction of “approval” and “filing” cutoff dates which are likely to allow many applicants from retrogressed countries to file I-485 applications.

September 25, 2015 Update:  Please note that the October 2015 Visa Bulletin was revised in material way.  Please see our article on the revisions.

Creation of Two-Tier Cutoff Date System To Allow Earlier NVC/I-485 Filings

With the October 2015 Visa Bulletin, the Department of State (DOS) is introducing a two-tier cutoff system which is intended to allow applicants from oversubscribed countries and categories to possibly advance their immigrant cases even when there may not be a visa number available to them.

The “Application Final Action Dates” tier (which is consistent with prior Visa Bulletins) is the cutoff date which would determine when a pending I-485 or NVC/Consular immigrant case can be approved.   The idea is for DOS to be able to track much more closely the use and availability of visa numbers so that the “Application Final Action Date” would reflect a more accurate date as to when a green card can be approved.

What is the major change is the introduction of “Dates for Filing Visa Applications” cutoff date.  This will be used by USCIS to indicate that there are more immigrant visas available for the fiscal year than there are known applicants for such visas.   When this is the case, the Visa Bulletin would indicate a cutoff date for Filing Visa Applications which is earlier (by few years in many cases) than the “Application Final Action Date” and this would allow those applicants whose priority date earlier than the applicable Filing Visa Applications date to prepare and file their I-485 application.     Even though an approval of the I-485 cannot happen until the Application Final Action Date becomes current, the ability to file I-485 is going to provide an opportunity for family members to obtain work authorization and travel permits, in addition to the ability of the primary I-485 applicant to port their green card case to a new employer under AC21 after 180 days.

Note that the language in the Visa Bulletin seems to suggest that the ability to file I-485s with a priority date earlier than the Filing Visa Applications cutoff date may not be available all of the time.

USCIS has determined that this chart may be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. (emphasis added)

This paragraph seems to suggest that not only the Filing Visa Applications cutoff dates are likely to move but also the ability to file I-485s with USCIS does not appear to be guaranteed every months.    We believe that DOS and USCIS and using this language to reserving the ability to stop I-485 filings during a specific time period.    We will monitor and seek clarifications on this point and report later as we have more information.

But back to the good news – those applicants with a priority date earlier than the Filing Visa Applications cutoff date are eligible to process their case and file I-485s as of the first of the month (October).

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

Below is a summary of the October 2015 Visa Bulletin with respect to the employment-based categories:

Employment Application Final Action Dates (determines when an I-485 or IV can be approved)

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India retrogresses by eight (8) months back to May 1, 2005.  EB-2 China moves forward by six (6) years (!) to January 1, 2012.
  • EB-3 ROW and Mexico remain unchanged at August 15, 2015 which is almost current.   EB-3 Philippines has advanced by two (2) years to January 1, 2007.   EB-3 China  also advances by almost seven (7) years (!) to October 15, 2011.  EB-3 India  goes back by about nine (9) months to March 8, 2004.
  • The “Other Worker” (EB-3) categories for ROW and Mexico remain unchanged at August 15, 2015 which is almost current.   Philippines has advanced by two (2) years to January 1, 2007.   EB-3 China  also advances by two (2) years to January 1, 2006.  Finally, India  goes back by about nine (9) months to March 8, 2004.
  • EB-5 China advances by two (2) weeks to October 8, 2013.

Dates for Filing Employment Visa Applications (determines when an I-485 can be filed)

  • EB-1 is current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India is set at July 1, 2011.   EB-2 China is set to May 1, 2014.
  • EB-3 ROW and Mexico are set at September 1, 2015 (which is almost current).   EB-3 Philippines is set at January 1, 2015.  EB-3 China is set at October 1, 2013.   EB-3 India  is set at July 1, 2005.
  • “Other Workers” (EB-3) ROW and Mexico are set at September 1, 2015 (which is almost current).   Philippines is set at January 1, 2015.  China is set at January 1, 2007.   India  is set at July 1, 2005.
  • EB-5 China is set at May 1, 2015.

September 25, 2015 Update:  Please note that the October 2015 Visa Bulletin was revised in material way.  Please see our article on the revisions.

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

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

Application Final Action Dates (determines when an I-485 or IV can be approved)

  • FB-1 ROW, China and India move forward by one (1) month to January 15, 2008, 2007.   FB-1 Mexico moves forward by one (1) week to November 22, 1994 and FB-1 Philippines moves forward by seven (7) months to June 1, 2001.
  • FB-2A moves forward again — this month the forward movement is by one and a half (1.5) months to April 15, 2014 for ROW, China, India and Philippines.  It moves forward by one (1) month to March 1, 2014 for Mexico.

Dates for Filing Visa Applications (determines when an I-485 can be filed)

  • FB-1 ROW, China and India are set at May 1, 2009.   FB-1 Mexico is set at July 1, 1995 and FB-1 Philippines is set at September 1, 2005.
  • FB-2A for all countries is set at March 1, 2015.

First Visa Bulletin For the Fiscal Year Brings Many Changes

The first Visa Bulletin for the new fiscal year always brings hope for good news and good forward movements in the cutoff dates.  This October Visa Bulletin goes beyond what we normally see at this time of the year.   The creation of the two-tier cutoff date system is something which we hope will allow many applicants from the retrogressed countries to move their case forward and obtain the benefits of a pending I-485 (where applicable) while at the same time provide a more stable “approval” date movement which, in turn, would create some predictability on how long one may have to wait for approval.

Live Chat and Webinar Sessions – Discussion and Analysis of the New Visa Bulletin Structure and How to Best Take Advantage of the New Two-Tier System

Our office is scheduling a series of events to discuss and analyze the restructuring of the Visa Bulletin cutoff date system and help our readers and clients understand how to best take advantage of the new category of cutoff dates.

  • Live Chat – Thursday, September 10, 2015, at 3 pm eastern time.    Join now or set a reminder.
  • Webinar – Monday, September 14, 2015, at 1 pm eastern time.   FREE registration but space is limited so please register now.

Additionally, we will be providing additional updates and alerts as there are more details about this change – if you haven’t already, please sign up for our newsletter.

Current “Date for Filing Applications”?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.    While many Indian applicants with pending I-485s may be disappointed that there is not much movement in the Application Final Action Dates, there will be many applicants across many categories who can now 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 October 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.

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Current PERM Processing Times (August 31, 2015)

Our office handles many 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 August 31, 2015.

Current PERM Processing Times

The processing times report by DOL for this month suggests slight decrease (improvement) in the regular and audit PERM processing times compared to the last couple of months.    Regular PERM cases should take around six to seven months now.

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

  • Regular processing: February 2015.  DOL is processing PERM applications with priority dates of February 2015.  This report suggests that the processing times have improved slightly.   Accordingly, regular PERM processing times should be around six to seven months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    The PERM processing times have remained steady at around seven mnths over the last few months and we hope this slight improvement is a sign that DOL will be able to decrease their regular PERM processing times over the next months.
  • Audited applications: June 2014.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of June 2014.  This processing times report indicates that DOL is working more aggressively on decreasing the (already long) PERM audit backlog.    Accordingly, audited PERM applications are processed approximately 15 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): June 2015.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in June 2015.  This metric remains unchanged (after an increase over the summer).  Currently, it may take 2 to 3 months to hear from the Certifying Officer after a PERM case is denied and a request for appeal is sent to the Certifying Officer.
  • “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 September 2015 PERM processing times report shows that the PERM processing times are mostly unchanged but with a hint (and a hope) of a trend suggesting decrease in the PERM regular review and audit processing times.     We are hopeful that DOL will be able to work on continuing this trend and bringing the PERM processing times down over  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.

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17-Month STEM OPT Rule Vacated by District Court; Effective Date February 12, 2016

In an opinion dated August 12, 2015, the U.S. District Court for the District of Columbia vacated the Department of Homeland Security’s 2008 rule which extended the post-graduation optional practical training (OPT) by 17 months for eligible STEM students on F-1 visas.   The rationale was that DHS did not follow the normal rulemaking process which includes public comment period.   The court, however, ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process.

Reasons for Striking Down the 2008 17-Month STEM OPT Extension Rule

The main reason behind vacating the 2008 rule, according to the court, is that DHS did not follow the normal rulemaking process which includes notice of the proposed rule and a comment period for the public to comment on the proposed regulation.   There are exceptions to the rulemaking process which allow agencies to implement rules without having to follow this process; however, the court took the position that none of the emergency rulemaking exceptions applies to the 17-month STEM OPT rule from 2008.    As a result, the court took the position that the rule was improperly implemented and should be vacated.

Vacatur Stayed Until February 12, 2016

Having vacated the rule, the court then agreed to put a temporary stay on the vacatur in order to avoid chaos (our words, not the court’s) which would inevitably ensue if all of the thousands of F-1 STEM OPT holders find themselves with invalid work permit.    To avoid a situation where thousands of recent F-1 STEM graduates will be left without work authorization (and possibly without status) and to avoid putting an undue burden on the employers who employ such workers, the court agreed to stay the vacatur until February 12, 2016, or six months from the date of the court order.

By leaving the rule in place until February 12, 2016, the court also intended to give DHS sufficient (but not too much) time to follow the normal public notice and comment rulemaking process.

The Rulemaking Process

At this time it may be helpful to remind our readers about the normal rulemaking process DHS will have to follow in order to reinstate the 17-month STEM OPT rule.

First, DHS will have to publish the proposed rule for the public to review for a specific period of time and during which period the public will have an opportunity to provide comments to DHS regarding the proposed rule.    After the comment period ends, DHS will review and consider comments made by the public and consider whether to change the proposed rules in any way.   Only once the final rule has been released and published by DHS would the rule become final and effective.

As a result of this rulemaking process, it may be months before the proposed rule would go into effect.   We do not know yet if DHS will submit the 17-month STEM OPT extension rule for public comment with any changes from their current form; it is likely that due to the limited time before February 12, 2016, DHS is not likely to amend the current rule substantially before they publish for public comment.

Are Current STEM OPT Holders Affected?

Certainly, they are affected in the sense that the government is about to engage in a process which may affect the STEM OPT program.    At this time, immediately after the court order, and at least until February 12, 2016, the STEM OPT work permits should remain valid and unaffected by this court order.

Similarly, we expect that USCIS will continue to process and approve 17-month F-1 STEM OPT extensions over the next six months as the rule continues to technically continue to be valid.

The main question is what happens over the next several months and whether DHS will be able to implement the new rule without any gap on and after February 12, 2016.   Ideally, DHS will be able to implement replacement rules (with same or similar substance) by February 12, 2016 and avoid any gaps in employment authorization or status to the thousands of F-1 STEM OPT workers.

However, it is not clear what would happen to the current F-1 STEM OPT workers if the rule is vacated on February 12, 2016 but the replacement rules are not effective at that time.    We will certainly monitor developments and clarifications on this topic (which are sure to be coming) over the next weeks and months and share with our clients and readers.

Is the H-4 EAD Rule in Jeopardy as a Result of This Court Order?

We do not believe that this court order vacating the 2008 17-month STEM  OPT rule suggests that the H-4 EAD rule challenge will be successful on the same reason.     The H-4 EAD rule, unlike the STEM OPT rule, did follow the normal rulemaking process.   The H-4 EAD challenge is still in its early procedural stages so we do not know what may happen in the future, but for now, the H-4 EAD rule remains unaffected by this court order vacating the STEM OPT rule due to rulemaking irregularities.

Conclusion

We understand that many F-1 STEM OPT holders may be alarmed by this court order.   At this time, we hope and believe that DHS will be able to follow the normal rulemaking process and “fix” the rule in time by February 12, 2016.     We expect that there will be a number of updates, clarifications and guidance on this topic over the next weeks and months and we will certainly monitor, share and analyze and such updated and developments.

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 F-1 STEM OPT or related matters.

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September 2015 Visa Bulletin – EB-2 India and China Major Retrogression; EB-3 Advances Nicely; Last Visa Bulletin for Fiscal Year

The U.S. State Department has just released the September 2015 Visa Bulletin which is the last 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 and EB-2 China and the notable forward movement for almost everyone in EB-3.

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

Below is a summary of the September 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 retrogresses by thirty-three (33) months back to January 1, 2006.  EB-2 China also moves back by almost eight (8) years to January 1, 2006.
  • EB-3 ROW and Mexico advance by one (1) month to August 15, 2015 which is pretty much current.   EB-3 Philippines has advanced by about six (6) months to December 22, 2004.   EB-3 China  also advances by six (6) months to December 22, 2004 (although after a substantial seven-year retrogression last month).  EB-3 India  advances again (significantly by its standards) by about six (6) months to December 22, 2004.
  • The “other worker” categories for ROW and Mexico advance by one (1) month to August 15, 2015 while Philippines advances by six (6) months to December 22, 2004.   Other workers China remains unchanged at January 1, 2004 while India  advances by six (6) months to December 22, 2004.
  • EB-5 China advances by three (3) weeks to September 22, 2013.

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

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

  • FB-1 ROW, China and India move forward by one and a half (1.5) months to December 15, 2007.   FB-1 Mexico remains unchanged at November 15, 1994 and FB-1 Philippines moves forward by seven (7) months to October 22, 2000.
  • FB-2A moves forward again — this month the forward movement is by two and a half (2.5) months to March 1, 2014 for ROW, China, India and Philippines.  It moves forward by three (3) months to February 1, 2014  for Mexico.

Last Visa Bulletin For the Fiscal Year Bring Wide Swings

Before we go into analyzing some of the wide swings in this month’s Visa Bulletin, we would like to caution that the last Visa Bulletin for the fiscal year in September generally brings wide swings – either in forward or backward movement for many categories.    The reason is that as the Department of State is approaching the end of the fiscal year, it is evaluating the remaining available visa numbers to be issued for the last month and adjusting the Visa Bulletin dates either to stop any new filings (retrogression, to reflect few, if any, remaining visa numbers) or encourage filings and approvals (forward movement, to reflect remaining visa numbers).

Normally, at the beginning of the new fiscal year, as the annual visa numbers reset, we see adjustments back to “normal” in the October and subsequent Visa Bulletin.

EB-2 India and EB-2 China Major Retrogression

Applicants in the EB-2 India and EB-2 China categories will be disappointed with the significant retrogression in these categories.  EB-2 India goes back by two and a half years while EB-2 China goes back by eight (!) years.      As noted, the reason behind this sharp retrogression is the significant demand and number of filings under these categories over the last few months as the dates were moving forward.   As a result, and in order to allocate the available green card visa numbers over the remainder of the fiscal year (September 30), the Department of State has decided to move back the dates significantly to essentially stop the rate of new EB-2 India and China filings (and more importantly, approvals).

It is our expectation that once the new fiscal year begins with the October 2015 Visa Bulletin the cutoff dates for EB-2 India and China will return to their July and August 2015 levels (approximately).

EB-3 Advances Nicely for (Almost) Everyone

In contrast to the EB-2 retrogression, the EB-3 categories advance nicely for almost everyone.    EB-3 ROW and Mexico are now at August 15, 2015, which is almost current and which essentially means that anyone whose PERM is certified is eligible to file for a concurrent I-140 and I-485 petition.    This is a great (and rare) opportunity for many folks in the EB-3 category.

Similarly, EB-3 India advances significantly again, giving hope to the many EB-3 India candidates whose priority dates used to move only by one week at a time.    We are hoping that USCIS will now be able to clear many of the long-pending I-485s (perhaps subject to medical and employment verification/AC21 RFEs).

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 September 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 September 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.

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Current PERM Processing Times (July 9, 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 July 9, 2015.

Current PERM Processing Times

The processing times report by DOL for this month suggests slight increase in the PERM processing times compared to the last couple of months.    Regular PERM cases should take around seven months.

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

  • Regular processing: December 2014.  DOL is processing PERM applications with priority dates of December 2014.  This report suggests that the processing times remain largely unchanged.   Accordingly, regular PERM processing times should be around seven months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    The PERM processing times have increased over the last few months – from around five to seven months — we hope that DOL will be able to change this trend and decrease their regular PERM processing times over the next months.
  • Audited applications: March 2014.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of March 2014.  This processing times report indicates that DOL is working more aggressively on decreasing the (already long) PERM audit backlog.    Accordingly, audited PERM applications are processed approximately 15 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):May  2015.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in May 2015.  There is an increase in this metric – only a few months ago it used to take 30-45 days to hear from the Certifying Officer.  Now, it may take 2 to 3 months to hear from the Certifying Officer after a PERM case is denied and a request for appeal is sent to the Certifying Officer.
  • “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 July 2015 PERM processing times report shows that the PERM processing times are largely unchanged but the PERM audit processing times are decreasing.     e are hopeful that DOL will be able to work on reversing this trend and start bringing the PERM processing times down over  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.

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