Labor Immigration Law

There has been a considerable amount of discussion, excitement and, unfortunately, some incorrect rumors over the past few weeks regarding possible changes to the way employment-based immigrant visas are allocated.   Our office has been receiving many requests to comment on and speculate on what may happen with the proposed legislation.   To avoid fueling rumors, we wanted to wait until Congress takes some concrete steps towards the passage of this legislation before we provide updates.

About H.R. 3012

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

H.R. 3012 Clears the House of Representatives; More Work Remains Ahead

On November 29, 2011, the House passed H.R. 3012 by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.  A brief reminder:  the fact that H.R. 3012 has been approved by the House does not make it a law.   To become a law, the Act must be passed, in identical form, by both the House and the Senate, and then signed into law by the President.

Many would expect that the Act to pass the Senate quickly.   Unfortunately, indications from here in Washington, DC suggest otherwise.  What is the hold-up?   The answer is politics.   After the House passed the Act on November 29th, Senator Charles Grassley of Iowa, host of the upcoming presidential election caucuses, promptly placed a hold on the bill, which is expected to have broad support from his Senate colleagues.

Conclusion

While it should be encouraging to see that H.R. 3012 cleared the House, the Act is still far from being a law.  With the presidential election politics, the Act may not be taken up by the Senate for some time.   Even then, we do not know if it will be passed by the full Senate in identical form.   As a result, much work remains to be done for the Act to become a law.    We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 China and India will advance significantly over the next few visa bulletins.  A possible slowdown (or retrogression) may come in the summer of 2012.   EB-3 China and, specifically, India, will move very slowly and this category is “ridiculously” oversubscribed — very long times to be expected.   Family-based dates will advance gradually.

General Visa Number Trends

Mr. Oppenheim reiterated the fact that in the employment-based context, each green card application case is “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for and applying under the EB-2 category, Mr. Oppenheim noted that the EB-3 visa numbers are expected to remain oversubscribed and to move slowly forward.

However, Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few months.

With respect to family-based cases, Mr. Oppenheim noted that the demand, especially in the FB2 category has exceeded his expectations after the sharp forward movement at the end of 2010.   This sharp forward movement has generated a significant demand for FB2 preference category visas and he has had to retrogress significantly in order to control demand.   He indicated that slow forward movement is expected.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

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

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

EB-2 China and EB-2 India.  These two categories are where the most action is going to be over the next few months.  Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few visa bulletins.  It is possible that the December 2011 Visa Bulletin would advance EB-2 India and China to at least March 1, 2008 or even further.   Similar forward movement may be expected in the January 2012 and February 2012 Visa Bulletins.     Mr. Oppenheim cautioned, however, that if there is high demand (number of filings) in the EB-2 category, he may hold or even retrogress towards the summer of 2012.   He noted that there is usually a 4-6 month gap between filing of an I-485 adjustment application and when a visa number is actually requested and allocated — this means that EB-2 India and China I-485 applications filed in the fall will be need visa numbers in spring/summer of 2012 and this is when retrogression may happen.

EB-3 Rest of World (ROW).  This category is expected to move gradually slightly forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.

EB-3 China.  This category is expected to move slowly forward – by 1-3 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category is, according to Mr. Oppenheim, “ridiculously oversubscribed” and forward movement, if any, will be very slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   Mr. Oppenheim suggested that since the summer of 2007, no new EB-3 India cases have been filed and there is a significant number of EB-3 India candidates waiting for the priority dates to move forward.

EB-3 India and China – 70 Years Wait for Green Card?

There have been a number of recent articles and comments on the possibility that Indian and Chinese applicants who are in the EB-3 category may be facing a 70-year wait to obtain a visa number.   Mr. Oppenheim’s reaction:  that this is “plausible”.

As a background, according to a recent report, since the majority of employment-based green card filings are from India and China, the current per-country limit (which restricts the number of green cards awarded to any country to 7% of the total) places a ceiling on how many EB-3 green cards can be approved every year.   For Indians, the limit of EB-3 green cards that can be issued every year is fewer than 3,000.    The estimate (generally confirmed by Mr. Oppenheim) of the pending EB-3 cases is somewhere around 210,000 (primary EB-3 candidates plus family members).   As a result, a simple calculation shows that it may take around 70 years for an EB-3 India candidate to obtain a green card.

Unfortunately, the estimates were generally confirmed by Mr. Oppenheim who, while not specifically endorsing the 70-year wait period, confirmed that EB-3 India will be very slow going forward due to very heavy demand.  EB-3 China is in a very similar situation, even though the demand numbers are proportionally lower.

Visa Bulletin Predictions – Family-Based

Mr. Oppenheim was also able to provide some predictions and expectations for movement of the family-based visa numbers over the next few months.  Unlike the employment-based visa numbers, Mr. Oppenheim indicated that the family-based visa numbers are likely to be fairly predictable.

FB 2A.  According to Mr. Oppenheim, this family-based category has shown a high demand as a result of the sudden forward movement at the end of 2010 and, as a result, had to be retrogressed.   Now that the demand is fairly predictable, a gradual forward movement of 3-6 weeks per month is to be expected.

FB 2B and FB3.  Forward movement in the 2B category is expected to be 1-2 weeks per month.

FB4.   Forward movement of about one month per month is to be expected.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to move forward significantly over the next few months, the long term prospects of EB-3 China and India are not good.

Our office is prepared to handle the anticipated significant forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

USCIS Director Alejandro Mayorkas just announced a number of initiatives intended to boost the ability of immigrant entrepreneurs to obtain immigrant benefits for themselves, as part of the Obama administration’s goal to boost hiring and jobs. Director Mayorkas has announced a number of initiatives and “clarifications” of existing temporary and permanent work visas which should make it easier for entrepreneurs to remain in the U.S.

The Problem Immigrant Entrepreneurs Face

A number of foreign national entrepreneurs face significant difficulties in obtaining permission to work and engage in the kind of entrepreneurship and job creation the economy needs.   Currently, the H-1B temporary work visa program is off-limits to many individual entrepreneurs, as a result of the January 8, 2010 Neufeld Memorandum which required each H-1B work visa petition to show that the petitioning employer has the right to control, including to hire and fire, the foreign national employee.   Most often entrepreneurs are the owners or have a controlling interest over a company, and the right to control in many cases cannot be shown.   Effectively, the Neufeld Memorandum prohibited H-1B self-sponsorship for foreign entrepreneurs.   For background, please see our prior articles relating to the Neufeld Memorandum.

Similarly, the permanent work visa program (or green card) limits the ability of foreign entrepreneurs to obtain benefits due to the lack of employer-employee relationship in many cases.    Other than the EB-5 category (see more below), in most cases, immigrant entrepreneurs must have a U.S. sponsor employer which can provide the employer-employee relationship, in a way discussed above.    Due to the fact that the EB-5 green card category requires an investment of $1 million, among other requirements, few foreign entrepreneurs qualify for it, at least at the initial stage of their endeavors.

Finally, the EB-5 category, as discussed above, has qualifying requirements and processing procedures which are not suitable for many small businesses.   The EB-5 category, in addition to having relatively high capital requirements, takes a long time.   Entrepreneurs who have the capital and decide to apply must go through several months of paperwork to find out whether their permanent residency visa is approved.   This uncertainty, and the possible inability to engage in employment in the U.S. during this time, make the EB-5 option difficult for many.

USCIS Clarifications:  H-1B Self-Sponsorship Possible With Specific Corporate Governance Structure

As a result of increased criticism and hoping to spur job creation and growth, USCIS has clarified the rules with respect to H-1B temporary work visas for the benefit of foreign entrepreneurs.   An H-1B petition would still have to show the employer-employee relationship between the sponsor entity and the entrepreneur; but in cases where the foreign entrepreneur is also an owner, USCIS has clarified that this can be done by structuring the company’s corporate governance in a way to allow a board (or similar entity) to exercise control over the entrepreneur (and employee).    For example, if there is a board of directors (or a committee of the board) which has the right to control (including to hire and fire) the entrepreneur-employee, then USCIS, under the new clarification, should deem that the right to control has been established.

USCIS has provided a “Frequently Asked Questions” document which seeks to provide additional information and answers to common questions.    It makes clear, however, that the Neufeld Memorandum remains unaffected.

USCIS Clarifications:  EB-2 NIW Self-Sponsorship Possible When Job Creation/Growth Can be Shown

Additionally, with respect to self-sponsored EB-2 National Interest Waiver (NIW) permanent visa category, the government has clarified that a foreign entrepreneur may qualify for a self-sponsored EB-2 NIW category if he/she can show that the business enterprise would benefit the national interest of the United States.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Prior to the current clarification, the EB-2 NIW category was used most often by professionals whose work can be shown to benefit the U.S. by providing a specific benefit or service.    Now, USCIS has clarified that job creation and economic growth, either direct or indirect, could be considered to be in the U.S. national interest and could allow foreign entrepreneurs to obtain permanent residency under the EB-2 NIW category.

USCIS has published a “Frequently Asked Questions” document on its website clarifying this new approach.  USCIS has indicated that they will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies.

Changes to Streamline the EB-5 Investor Green Card Program

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed a number of changes to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application.   USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.   Hopefully, this would provide the kind of fast processing and additional certainty about the process many foreign investor entrepreneurs need.

Premium Processing to Expand to Include EB-1 Multinational Executives and Managers

Additionally, USCIS has announced that it intends to reinstate the premium processing option for EB-1 I-140 petitions filed on behalf of multinational executives and managers.    A processing time of 15 calendar days under the premium processing option would address a frequent concern by foreign managers and executives that it may simply take too long for them to be able to join a business operation in the U.S.  The USCIS announcement is unclear on the effective date of this change, but we will monitor the availability of this option and provide an update.

Conclusion

We welcome USCIS Director Mayorkas’s announcements and welcome the “clarifications” and changes he has just announced.   At the same time, we realize that these “clarifications” must be properly communicated to the field officers and adjudicators so that when a properly prepared self-sponsorship H-1B or EB-2 NIW petition is filed, it is given the due benefit under the new guidance.   Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter.  In the meantime, please do not hesitate to consult us if we can be of any assistance.

The U.S. State Department just released the October 2010 Visa Bulletin which is the first Visa Bulletin for the new FY2011 fiscal year.   As always, the first Visa Bulletin for the fiscal year is anticipated to suggest possible trends of movement of the visa numbers over the next months, especially following the past Visa Bulletins’ forward movement.

Summary of the October 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the October 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by only two (2) weeks to May 22, 2006, while EB-2 India remains unchanged at May 8, 2006.
• EB-3 ROW moves forward by three (3) weeks to January 8, 2005, EB-3 China  moves forward by three (3) weeks to November 8, 2003, while EB-3 India  moves forward by two (2) weeks to January 15, 2002.  EB-3 Mexico is now available at April 22, 2001 and EB-3 Philippines moves forward by three (3) weeks to January 8, 2005.
• The “other worker” category remains unchanged at March 22, 2003 for ROW and China and moves forward by two weeks to January 15, 2002 for India.  Mexico is now available at April 22, 2001 and the Philippines remains unchanged at March 22, 2003.

Summary of the October 2010 Visa Bulletin – Family-Based (FB)

Below is a summary of the October 2010 Visa Bulletin with respect to family-based petitions:

• FB1 ROW, China and India move forward by six (6) weeks to February 15, 2006, while FB1 Mexico moves forward by two (2) weeks only to December 15, 1992.
• FB2A ROW, China, India and Philippines move forward by four (4) months to April 1, 2010, while FB2A Mexico moves forward by one year to January 1, 2010.
• FB2B ROW, China and India move forward four (4) months to April 1, 2005, while FB2B Mexico moves forward by only one (1) week to June 22, 1992.

Forward Movement Continues

The forward movement across many employment and family-based categories continues.  With respect to employment-based petitions, however, the forward movement is fairly small, often only by one or two weeks.  The forward movement in family-based petitions is notable in many cases – four months for many categories.   It is early to make predictions about the movement of the visa numbers over the next fiscal year solely on the basis of the first Visa Bulletin for FY2011.  A positive development, however, is the continued forward movement, albeit small for some categories.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

The September 2010 Visa Bulletin was just released by the State Department.  The last visa bulletin for the fiscal year 2010 brings some forward movement across all categories, with the exception of EB-3 India.

Summary of the September 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over two (2) months to May 8, 2006, EB-2 India also moves forward by two (2) months from March 1, 2006 to May 8, 2006.
• EB-3 ROW moves forward by six and a half (6.5) months to December 15, 2004, EB-3 China  moves forward by one (1) month to October 22, 2003, while EB-3 India  remains unchanged.  EB-3 Mexico remains unavailable.
• The “other worker” category moves forward by a few months, to March 22, 2003 for ROW and China remains unchanged at January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well.   This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached.  As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department is attempting to allocate all of the available visa numbers which, if not allocated, may remain unused during the fiscal year.

Forward Movement Is Temporary

We wish to reiterate that the substantial forward movement  over the past three visa bulletins does not indicate a trend; instead, the last three visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers.  We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

The August 2010 Visa Bulletin was just released by the State Department.  The eleventh visa bulletin for the fiscal year 2010 brings some substantial forward movement in the EB-2 India category which had not moved for the past few months.  Also, there is some gradual forward across all EB-3 employment-based categories.

Summary of the August 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over three (3) months to March 1, 2006, EB-2 India moves forward by five (5) months from October 1, 2005 to March 1, 2006.
• EB-3 ROW moves forward by nine and a half months (9.5) months to June 1, 2004, EB-3 China  moves forward by slightly over one (1) month to September 22, 2003, while EB-3 India moves forward by slightly over one (1) month to January 1, 2002.  EB-3 Mexico remains unavailable.
• The “other worker” category moves forward by a few months, to May 15, 2002 for ROW and China and to January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well.   This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached.  As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department has determined only 8,100 of the total available EB-2 preference numbers would be used in that quarter.   In this case, the unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits.

Forward Movement Is Temporary

Note that the substantial forward movement  does not indicate a trend; instead, the last two visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers.  We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

The July 2010 Visa Bulletin was released earlier this afternoon by the State Department.  The tenth visa bulletin for the fiscal year 2010 brings some substantial forward movement in the EB-2 India category which had not moved for the past few months.  Also, there is some gradual forward across all EB-3 employment-based categories.

Summary of the July 2010 Visa Bulletin

Below is a summary of the July 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China remains unchanged at November 22, 2005, and, most notably, EB-2 India moves forward by ten (10) months from February 1, 2005 to October 1, 2005.
• EB-3 ROW moves forward by almost two (2) months to August 15, 2003, EB-3 China also moves forward by almost two (2) months to August 15, 2003, while EB-3 India moves forward by one (1) month to November 22, 2001.  EB-3 Mexico remains unavailable.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is  unavailable.

Finally Movement in EB-2 India

Previously we wrote about the lack of movement in the EB-2 India category for the past four months.  Finally, there is a substantial forward movement in EB-2 India which should benefit at least some of our clients and readers.  Please do not hesitate us if you have any questions or if we can help you prepare and file your I-485 adjustment application.

The June  2010 Visa Bulletin was released earlier today by the State Department.  The ninth visa bulletin for the fiscal year 2010 brings gradual forward across most employment-based categories except EB-2 India (no change this month, for the third month in a row).

The State Department added another country to the list of oversubscribed countries – Dominican Republic.  This means that for all family and employment-based categories, there is now a category for the Dominican Republic, in addition to China (mainland-born), India, Mexico and the Philippines.

Summary of the June 2010 Visa Bulletin

Below is a summary of the June 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (2) months to November 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the third month in a row when EB-2 India has remained unchanged.
• EB-3 ROW moves forward by almost two (2) months to June 22, 2003, EB-3 China moves forward also by two (2) months to June 22,  2003, while EB-3 India moves forward by three (3) weeks to October 22, 2001.  EB-3 Mexico remains unavailable.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.

Why Does EB-2 India Not Move?

Our readers and clients have asked us what is the cause of the lack of movement in the EB-2 India category.  Over the past few years, with the severe retrogression of EB-3 India, many Indian nationals have been able to start and obtain an approval of a new I-140 under the EB-2 category.  Our office has handled a number of such EB-3 to EB-2 “upgrade” cases.  As a result, many of the EB-3 India applicants are now EB-2 India applicants, resulting in delay in the movement of EB-2 India priority dates.   We would be happy to analyze your EB-3 case and help you if you can “port” it to EB-2 – please contact us for a free initial consultation.

The May 2010 Visa Bulletin was just released by the State Department.  The eighth visa bulletin for the fiscal year 2010 brings gradual forward across most employment-based categories except EB-2 India (no change this month, for the second month in a row).   A notable movement can be seen in the EB-3 India category where the priority date moved forward by three weeks.

Here is a summary of the May 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (1) month to September 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the second month in a row when EB-2 India has remained unchanged.
• EB-3 ROW moves forward by almost three (3) months to April 22, 2003, EB-3 China moves forward also by almost (3) months to April 22,  2003, while EB-3 India moves forward by three (3) weeks to October 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.