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September 2014 Visa Bulletin – EB-2 India Again Moves Forward by Four Months; EB-3 Philippines and FB-2A Also Advance Significantly

The U.S. State Department has just released the September 2014 Visa Bulletin which is the twelfth and last Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued notable forward movement in EB-2 India and EB-3 Philippines and the lack of movement in any of the other EB categories.   Also, very notable is the significant (and long overdue) forward movement in the FB-2A category.

Summary of the September 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India advances by over three (3) months to May 1, 2009.  EB-2 remains unchanged at October 8, 2009.
  • EB-3 ROW and Mexico remain unchanged (again) at April 1, 2011.  EB-3 China remains unchanged at November 1, 2008 while EB-3 India  remains unchanged at November 8, 2003.   EB-3 Philippines advances by ten (10) months to April 1, 2011.
  • The “other worker” categories for ROW and Mexico remain unchanged at April 1, 2011.  EB-3 China remains unchanged at July 22, 2005 while EB-3 India  remains unchanged at November 8, 2003.  EB-3 Philippines advances by ten (10) months to April 1, 2011.

Summary of the September 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the September 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by one (1) week to May 1, 2007.   FB-1 Mexico moves forward by almost two (2) months to June 1, 1994 and FB-1 Philippines moves forward by two (2) months to August 1, 2004.
  • FB-2A finally moves forward (after a period of retrogression and no movement) – it moves forward significantly by eight (8) months to January 1, 2013 for ROW, China, India and Philippines.  It also moves forward by over one (1) year to April 22, 2012 for Mexico.

EB-2 India Another Significant Forward Movement

After the significant forward movement over the last couple of months in EB-2 India, this month’s Visa Bulletin brings another welcome (and somewhat expected) piece of news for EB-2 India applicants.     Even though this month’s movement is of about four months, to May 1, 2009, it still allows many EB-2 India applicants to file their I-485 applications.     Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office had expected some movement to occur towards the end of the fiscal year.     Our office has been increasingly busy with new I-485 filings (for those who are becoming current this or next month) or for handling I-485 requests for evidence (for those who had pending I-485 applications but had expired medicals).   The four-year forward movement in EB-2 India, followed by two four-month forward movements, is done by the U.S. Department of State to allow the government to process a number of pending I-485 applications in order to utilize all of the available visa numbers for the fiscal year (to end on September 30).    We see a number of approvals and expect more approvals on many I-485 cases (which have cleared their RFEs, for some, due to medical exam expiration).

Since many EB-2 India applicants have also ported their EB-3 priority date into EB-2, there will be a significant number of EB-2 India nationals who would have their newly-ported EB-2 priority date become current and who would be eligible to file I-485 adjustment of status applications (together with eligible family members).

In a note found in the Visa Bulletin, the Department of State warns that heavy demand (number of filings) in EB-2 India may cause this (and other) category to reach its annual limit sometime in September – when this happens, the government (USCIS and DOS) will stop approving immigrant visas and a correction in the Visa Bulletin midway through the month may be possible.    The September Visa Bulletin cautions that a retrogression in EB-2 India is likely as early as in the November Visa Bulletin.

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 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      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 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Visa Processing System Experiencing Problems – Global US Visa and Passport Processing Delays Possible

We are getting updates from the U.S. Department of State and from other sources that the global visa processing system used by the Department of State to process U.S. visa applications and passports is experiencing technical problems — as a result, U.S. Consulates around the world are unable, at least temporarily, to complete visa application processing.

Database Glitch Causing Increasing U.S. Visa Processing Backlogs

The database which seems to be causing problems is the State Department’s system of record and is used to approve, record and print visas and other documents to ensure that national security checks are conducted on applicants.

The problems have reportedly started on Saturday and the inability to properly process visas has already created a huge backlog of visa applications waiting to be processed.   We are hearing that there may be as many as 50,000 visa applications being on hold in one country only (and growing), as a result.

Are You Experiencing Delays?  Share Your Experience With Us

Are you experiencing delays with your U.S. visa or passport processing as a result of this?   Are you getting any information from the U.S. Consulate?   Please contact us and share your experience.  You can also tweet us at @cilawgroup.   We are trying to combine information from various parts of the world so that we can share with our contacts in Washington, DC and also to report to our readers.

Conclusion

At this time, it is unclear how long this outage would last.  Hopefully, it is something which can be fixed over the next day or two so that normal operations would continue.   However, we caution that residual delays in U.S. visa processing may still linger for days or weeks, especially considering the growing backlog of U.S. visa cases around the world for each hour the system remains down.   If you are planning to apply for a U.S. visa or a U.S. passport, please ensure you plan early in advance and take into consideration that there may be delays in the process.

We will be providing updates on this outage as we have more information.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.  If our office can be of any help, please feel free to contact us.

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August 2014 Visa Bulletin – EB-2 India Moves Forward by Four Months; EB-3 ROW and FB-2A Remain Unchanged

The U.S. State Department has just released the August 2014 Visa Bulletin which is the eleventh Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant (four month) forward movement in EB-2 India, the significant (two years) forward movement in EB-3 China and the lack of any movement in EB-3 ROW and FB-2A.

Summary of the August 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India advances by almost five (5) months to January 22, 2009.  EB-2 China moves forward by three  (3) months to October 8, 2009.
  • EB-3 ROW and Mexico remain unchanged at April 1, 2011.  EB-3 China advances by over two (2) years to November 1, 2008.   EB-3 Philippines advances by one and a half (1.5) years to June 1, 2010, while EB-3 India  moves forward by only one (1) week to November 8, 2003.
  • The “other worker” categories for ROW and Mexico remain unchanged at April 1, 2011.  EB-3 China advances by one and a half (1.5) years to July 22, 2005.   EB-3 Philippines advances by one and a half (1.5) years to June 1, 2010, while EB-3 India  moves forward by only one (1) week to November 8, 2003.

Summary of the August 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the August 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to April 22, 2007.   FB-1 Mexico moves forward by two (2) months to April 8, 1994 and FB-1 Philippines moves forward by one and a half (1.5) years to June 1, 2004.
  • FB-2A remains unchanged for all (after a significant retrogression two months ago) – it remains at May 1, 2012 for ROW, China, India and Philippines.  It remains at March 15, 2011 for Mexico.

EB-2 India Another Significant Forward Movement

After last month’s significant (four years) movement in EB-2 India, this month’s Visa Bulletin brings another welcome (and somewhat expected) piece of news for EB-2 India applicants.     Even though this month’s movement is of about four months, to January 22, 2009, it still allows many EB-2 India applicants to file their I-485 applications.     Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office had expected some movement to occur towards the end of the fiscal year.     Our office has been increasingly busy with new I-485 filings (for those who are becoming current this or next month) or for handling I-485 requests for evidence (for those who had pending I-485 applications but had expired medicals).   The four-year forward movement in EB-2 India last month, followed by this month’s Visa Bulletin’s four month forward movement, is done by the U.S. Department of State to allow the government to process a number of pending I-485 applications in order to utilize all of the available visa numbers for the fiscal year (to end on September 30).    We see a number of approvals and expect more approvals on many I-485 cases (which have cleared their RFEs, for some, due to medical exam expiration).

Since many EB-2 India applicants have also ported their EB-3 priority date into EB-2, there will be a significant number of EB-2 India nationals who would have their newly-ported EB-2 priority date become current and who would be eligible to file I-485 adjustment of status applications (together with eligible family members).

In a note found in the Visa Bulletin, the Department of State warns that heavy demand (number of filings) in EB-2 India is likely to cause significant retrogression over the next few months.  Our office continues to see significant number of new I-485 filings under this category so we caution that a retrogression in EB-2 India is possible over the next several months.

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 August 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      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 August 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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July 2014 Visa Bulletin – EB-2 India Moves Forward by Four Years; FB-2A Remains Unchanged

The U.S. State Department has just released the July 2014 Visa Bulletin which is the tenth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant (four years) forward movement in EB-2 India and the lack of any movement in FB-2A.

Summary of the July 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the July 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India advances significantly by almost four (4) years to September 1, 2008.  EB-2 China moves forward by five (5) weeks to July 1, 2009.
  • EB-3 ROW, China and Mexico remain unchanged.  EB-3 ROW and Mexico are at April 1, 2011 while EB-3 China remains unchanged at October 1, 2006.   EB-3 Philippines advances by one (1) year to January 1, 2009, while EB-3 India  moves forward by only two (2) weeks to November 1, 2003.
  • The “other worker” categories for ROW, China and Mexico also remain unchanged.  ROW and Mexico are at April 1, 2011 while China remains unchanged at January 1, 2003.    Philippines advances by one (1) year to January 1, 2009, while India  moves forward by only two (2) weeks to November 1, 2003.

Summary of the July 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the July 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by one (1) week to April 1, 2007.   FB-1 Mexico moves forward by six (6) weeks to February 1, 1994 and FB-1 Philippines moves forward by six (6) months to January 1, 2003.
  • FB-2A remains unchanged for all (after a significant retrogression last month) – it remains at May 1, 2012 for ROW, China, India and Philippines.  It remains at March 15, 2011 for Mexico.

EB-2 India Significant Forward Movement

Finally, this month’s Visa Bulletin brings some welcome (and somewhat expected) news for EB-2 India applicants.     Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office has expected some movement to occur towards the end of the fiscal year.     The four-year forward movement in EB-2 India is done to allow the government to process a number of pending I-485 applications in order to utilize all of the available visa numbers for the fiscal year (to end on September 30).    We expect approvals on many I-485 cases (which have cleared their RFEs, for some, due to medical exam expiration).

Since many EB-2 India applicants have also ported their EB-3 priority date into EB-2, there will be a significant number of EB-2 India nationals who would have their newly-ported EB-2 priority date become current and who would be eligible to file I-485 adjustment of status applications (together with eligible family members).

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 July 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      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 July 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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USCIS Revised Policy Regarding I-693 Medical Exam Validity – Restricts Validity to One Year

USCIS has announced a change in their policy regarding the validity period of a Form I-693, Report of Medical Examination and Vaccination Record, when filed in support of a Form I-485 Adjustment of Status Application.   Effective June 1, 2014, the I-693 medical report will be valid for one year from the date of submission to USCIS.   This is in addition to the requirement that the I-485 applicant must submit the I-693  medical exam within one year of the actual medical exam date.

Background and Reasons for the Change of Policy

Before 2002, USCIS considered a Form I-693 medical exam valid as long as it was filed within one year of the civil surgeon’s signature.   Since 2002, USCIS has kept this practice and has continuously extended the validity of the civil surgeon’s endorsement on the I-693 medical exam.   As a result, timely-filed Form I-693 medical exam documents were automatically considered extended and “current” by USCIS.

After consultations with the Centers for Disease Control (“CDC”), USCIS has decided to change the policy regarding the validity of I-693 medical exams and to effectively discontinue the automatic validity extension policy.   While we do not know the specific reasons for the policy change and any concerns raised by CDC, a possible reason may be the fact that under the prior automatic extension policy, there may have been applicants who have been waiting for I-485 adjudication for 3, 5, 7 or even more years and for those applicants the I-693 medical exam report on file simply does not provide an accurate picture of their health (and any health risks they may pose).

Policy Change Related to Increased Number of I-485 Requests for Evidence

This policy change is directly related to the increased number of recent requests for evidence (RFEs) on pending I-485 applications, especially for cases where the priority date is expected to be current over the next months.     As we reported in our recent article, our office sees an increased number of RFEs which specifically request renewed I-693 medical exam report to be submitted back to USCIS.     It seems that USCIS is using the need of a new I-693 medical exam report to also request additional items in their RFEs, such as employment verification documents.

Conclusion

It is helpful to see that USCIS has formulated a policy and a formal explanation to the medical exam validity period.    This policy change helps explain the wave of recent (and upcoming) RFEs.   We recommend that I-485 applicants who have had their I-485 pending for more than year to be prepared to respond to an RFE for medical exams, among other related items.    This includes updating their mailing address with USCIS and ensuring that their attorney of record information on the I-485 is current.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Visa Stamp in Canada Alert – TCN Processing Limited Over the Summer

The Department of State (DOS) has just confirmed that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts (U.S. Consulates) in Canada are extremely limited in their ability to accept TCN cases during the peak demand period of June, July, and August.

TCN refers to “third-country nationals” or non-Canadians who seek to apply for a U.S. visa stamp at a U.S. Consulate in Canada.   Normally, U.S. Consulates prefer for a national of a particular country to appear for a visa stamp at the U.S. Consulate in their own country or at the Consulate serving their country.   When a foreign national appears for a visa stamp at a U.S. Consulate in a third country, where such practice is accepted, the applicant is referred to as a “third-country national.”

According to the Department of State, U.S. Consulates in Canada encourage such TCN applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Canadian posts offer increased appointment availability for TCNs during non-peak processing times, such as October and November, and January through May.   Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.

While it is important to stress that visa interviews and appointments by third-country nationals already scheduled at a U.S. Consulate in Canada will be honored, our office would like to stress proper planning for any international travels for those foreign nationals who are in the U.S. but who would need to obtain a U.S. visa stamp before their return to the U.S.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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June 2014 Visa Bulletin – EB-3 ROW/China and FB-2A Major Retrogression; EB-2 India Remains Unchanged

The U.S. State Department has just released the June 2014 Visa Bulletin which is the ninth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant retrogression in EB-3 ROW and China, the significant retrogression in FB-2A and the lack of movement in EB-2 India.

Summary of the June 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the June 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged (again!) at November 15, 2004 but some forward movement is expected over the remaining few months of the fiscal year.  EB-2 China moves forward by five (5) weeks to May 22, 2009.
  • EB-3 ROW, China and Mexico retrogress significantly – EB-3 ROW and EB-3 Mexico move back by 18 months to April 1, 2011 while EB-3 China moves back by six (6) years (!) to October 1, 2006.    EB-3 Philippines moves forward by two (2) months to January 1, 2008, while EB-3 India  moves forward by only two (2) weeks to October 15, 2003.
  • The “other worker” categories for ROW, China and Mexico also retrogress significantly – EB-3 ROW and EB-3 Mexico move back by 18 months to April 1, 2011 while EB-3 China moves back by nine  (9) years (!) to October 1, 2003.    EB-3 Philippines moves forward by two (2) months to January 1, 2008, while EB-3 India  moves forward by only two (2) weeks to October 15, 2003.

Summary of the June 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the June 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by two (2) weeks to March 22, 2007.   FB-1 Mexico moves forward by one (1) month to December 15, 1993 and FB-1 Philippines moves forward by four (4) months to June 1, 2002.
  • FB-2A retrogresses significantly for all everyone – it moves back by fifteen (15) months to May 1, 2012 for ROW, China, India and Philippines.  It also moves back by thirteen (13) months to March 15, 2011 for Mexico.

EB-2 India Remains Unchanged  – But Some Forward Movement Expected Soon

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement has been the significant demand and pending cases at USCIS.  However, as we reported a week ago, Mr. Oppenheim’s Visa Office at the Department of State plans to move EB-2 India forward by the end of the fiscal year to around January 1, 2008.

EB-3 ROW/China Retrogress Significantly

Another unfortunate development in this month’s Visa Bulletin is the retrogression in EB-3 ROW, Mexico and China.    EB-3 ROW and Mexico retrogress by 18 months while EB-3 China moves back by six years.

Over the past few months we have been seeing in our practice and reporting in our updates of an increase rate of filings (I-485/NVC) in these categories and the upcoming retrogression is an indication that USCIS have enough cases to distribute the annual number of green cards.    This sharp and major slowdown in EB-3 ROW/China is in line with our expectations.    We urge all EB-3 ROW, Mexico or China applicants who have not filed their I-485 applications to do so immediately and by the end of the month (contact us if we can help).

Perhaps a tiny glimmer of light in this, otherwise gloomy Visa Bulletin, is the presence of (a small) forward movement in EB-3 India.

EB-3 China Sharp Retrogression vs. EB-2 China Forward Movement

Over the past several months our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who have considered or have actually refiled their cases under EB-3 in the expectation that EB-3 China would be a faster way to get a green card.

While we have been able to secure an I-485 filing for a number of EB-2 to EB-3 China “downgraders”, we have been urging many EB-2 China applicants to stay under EB-2 because of our expectation that, ultimately, an EB-2 China green card will be approved faster.   This month’s six-year retrogression in EB-3 China confirms our recommendations that an EB-2 China green card will take less time, on average, than EB-3 China filing.

FB-2A Retrogresses

Another notable (and unfortunate) development is the somewhat significant retrogression in the FB-2A categories.    The demand in this category has been high over the past months and, as a result, the dates have been moved back to “slow” down the rate of new filings in this category.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the June 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      This is even more important for those applicants who are current as of the May 2014 Visa Bulletin but will not be current any longer under the June 2014 Visa Bulletin.    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 June 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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USCIS Proposes Rules Allowing Employment Authorization to Certain H-4 Spouses

Over the past few weeks (and months, really), there has been some chatter about a possible change in the regulations to allow certain H-4 spouses to apply for and obtain work authorization.   In a press release today, the Department of Homeland Security (DHS) has announced that the proposed rules are to be published for review and comment very soon.     Under one of the proposed rules, H-4 spouses would be allowed to request employment authorization in cases where the H-1B worker spouse has already started their green card process.    Similarly, certain E-3, H-1B1 (Chile and Singapore) rules are being changed to allow such workers to continue to remain in the US.

Proposed Rule Would Allow Employment Authorization to Spouses of H-1B Workers Who Have Started Green Card Process

According to DHS, this proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

Under current rules, the H-1B work authorization given to a worker does not extend to H-4 status dependents. The change proposed by DHS would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (more articles on AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposed Rule Would Allow E-3, H-1B1 and CW-1 Workers More Flexibility to Remain in the U.S.

Another proposed rule change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.     It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3 (Australia),  H-1B1 (Chile or Singapore), or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

Important Note:   Proposed Rules Are Not Law (Yet)

We would like to caution our clients and readers that this is only the initial step in the process of the change in the rules.   These are only the proposed rules.  The proposed notices will be published soon (we will provide an update once they are) for the public review and comment period.   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 these rules become the law.

As a result of this rulemaking process, it may be months before these rules go into effect.  There may be an additional period to allow USCIS to adjust their systems/processes to accept the new employment authorization benefit which is proposed to certain H-4 spouses.

Conclusion

We welcome DHS’s announcement of the proposed rules and we believe that many H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).    However, we would like to caution that these are only the proposed (and not the final) rules.     Our office will monitor this process over the next weeks and provide updates, including links and analysis of the actual proposed rules, when they are published.

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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CBP Makes Nonimmigrant Arrival/Departure History Available Online

Customs and Border Protection (CBP) just announced that they have launched an extension of their electronic I-94 arrival/departure system where now nonimmigrants can obtain their arrival/departure history going back five years from the requested date.     As a result of the new enhancement to the electronic I-94 retrieval system, nonimmigrants (only) can access their entry and departure dates, together with the CBP port of entry for each travel in or out of the United States for the previous five years.

How to Access the Travel History?

Once they visit the I-94 website, travelers will have to enter their name, date of birth, passport number and country of citizenship.   The system will then display a list of all U.S. entry and exit dates for the previous five years, in a format similar to the example below.

Please note that the travel history is available only for nonimmigrants such as B-1/B-2, H-1B, H-4, L-1, P-1, etc.   The information is not available for lawful permanent residents (green card holders) or U.S. citizens.    Also,  note that this website provides information for travel history only — it does not reflect immigrant status history, such as extensions or changes of status.

At the same time, the I-94 website allows nonimmigrants to continue to retrieve the electronic version of their I-94 card as a record of most recent entry into the U.S. (see our previous articles on this topic and also about what kind of documents one must carry while in the U.S.)

How Does CBP Have This Information?

It may not be a surprise to many, but CBP collects a number of pieces of information for every traveler who is arriving or departing the United States, especially via air.    Airlines are required to report passenger information to CBP and traveler information is stored during immigration border processing.   Similarly, while there is no requirement for biometrics screening upon departure from the U.S. CBP is working with the airlines and other carriers to get a record of passengers and track departure records.

Missing Records?

If a traveler discovers that an exit/entry date is missing from the travel record, they can file a Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document with U.S. Citizenship and Immigration Service.

Conclusion

CBP’s decision to make available nonimmigrants’ five years of travel history is interesting and is likely to allow them to decrease their backlog of Freedom of Information Act (FOIA) requests where nonimmigrants have been seeking to obtain such records for one reason or another.    In fact, the I-94 system now even allows convenient cancellation of a pending with CBP FOIA request.    Our office will continue to monitor developments surrounding this new capability of the I-94 CBP system and will report on any developments, especially with respect to accuracy and privacy of the information.

We 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 this article.      Also, 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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Visa Bulletin Predictions and Comments by Charles Oppenheim – EB-2 India to Advance, Finally (April 2014)

On behalf of our clients and readers we are always trying to obtain any reliable information on the movements in the cutoff dates for the upcoming Visa Bulletins.    The best source of this information is the Mr. Charles Oppenheim who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and who is actually the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.    Mr.  Oppenheim had just recently shared some thoughts about the anticipated cutoff date movements in the next few Visa Bulletins and we are happy to share this information with our clients and readers.

Visa Bulletin Predictions – Employment-Based

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

EB-1.   This category is expected to remain current throughout the fiscal year.   Also, it is too early in the fiscal year to be able to determine how many unused EB-1 visa numbers there will be to “drop down” into the EB-2 category.

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

EB-2 India.  This is the major headline from Mr. Oppenheim’s comments –  EB-2 India is likely to move forward to January 1, 2008 during the August or (more likely) September Visa Bulletin.   This movement will aim to utilize all of the available visa numbers for the fiscal year that may be unused by other categories (possibly 5,000 or more, but fewer compared to prior years).

EB-3 Rest of World (ROW).  This category has seen increased demand over the past few months (due to the significant movements) and it is unlikely that there will be forward movement in the short term.  In fact, if demand continues at its current pace, there may be a retrogression as early as June 2014.   Retrogression is possible for the last quarter of fiscal year 2014 (Jul-Sep 2014) and this is a call for all EB-3 ROW applicants who are current to file their I-485s as soon as possible.

EB-3 China.    As a result of many EB-2 China applicants “downgrading” to EB-3 it is expected that EB-3 China will see some retrogression over the next month or two.

EB-5 China.  Mr. Oppenheim suggested that the demand for EB-5 is high and a cutoff date may be introduced in August or September.   Retrogression for EB-5 China is “inevitable” given the high number of EB-5 pending applications for Chinese nationals.

Visa Bulletin Predictions – Family-Based

Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.

FB-2A.   Demand is starting to increase; as a result, FB-2A Mexico will retrogress soon.  FB-2A ROW is also likely to retrogress, perhaps back to 2012 in the June or July 2014 Visa Bulletin.

FB-2B.  Due to low demand currently, additional forward movement is expected.

Note on Timing of NVC Fee Invoices

Mr. Oppenheim noted that the National Visa Center (NVC) is sending our requests for fee payments about 8 to 12 months in advance of the priority date becoming current (this is change to the previous practice of doing so 12-18 months in advance).    When applicants pay the fee earlier after receipt of the fee invoice, Mr. Oppenheim is able to “see” the demand earlier and adjust the demand in the category accordingly, eliminating the need of major forward movement, followed by a retrogression.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  We understand, as Mr. Oppenheim does, that his comments and predictions would give hope to some, while disappoint others.   Our EB-2 India clients would find Mr. Oppenheim’s predictions encouraging given the fact that there was no movement in EB-2 India for a long time.  A forward movement in this category would allow EB-2 India and China applicants to become eligible to file I-485 applications who would later be eligible to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

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

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