Labor Immigration Law

United States Labor Immigration Law News and Analysis

News Alert Articles

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

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

About the H-1B Program and the Annual Cap

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

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

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

The H-1B Quota and Expectations for This Year

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

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

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

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

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

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).  First-time H-1B employers should allow an additional 3-5 days.   Therefore it is critical to plan ahead to maximize your chances of success.

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

Proposed H-1B Cap Timeline

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

Action Items

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

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

Conclusion

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

If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

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

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

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

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

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

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

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

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

Surprising EB-2 India Significant Forward Movement

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

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

EB-3 Continues to Move Forward Significantly

Another very notable and important development in the February 2015 Visa Bulletin is the continued notable forward movement in the EB-3 categories.    Most of the EB-3 categories have advanced by seven months, with EB-3 China moving forward by six months, on top of the significant forward movement in the past few visa bulletins. This should be welcome news to many EB-3 applicants (except EB-3 India where the forward movement is only of one week) who may be eligible for I-485 filings or processing of their immigrant visas at the U.S. Consulates abroad.    We are happy to provide a free quote for preparing and filing your I-485 application to those EB-2 India and EB-3 applicants (and other) who are seeing an advancing and current (or soon to be current) priority date.

Short-term Expectations and Predictions for Cutoff Date Movements

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

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

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

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

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

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

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

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

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

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

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the February 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the February 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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January 2015 Visa Bulletin – EB-3 Continues to Advance Significantly; EB-2 India Unchanged

The U.S. State Department has just released the January 2015 Visa Bulletin which is the fourth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued forward movement in the EB-3 preference category.

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

Below is a summary of the January 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 remains unchanged at February 15, 2005 after the major retrogression from a couple of months ago.    EB-2 China moves forward by one (1) month to February 1, 2010.
  • EB-3 ROW, Mexico and Philippines advance by seven (7) months to June 1, 2013.   EB-3 China advances by nine (9) months to March 1, 2011 while EB-3 India  advances by only two (2) weeks to December 15, 2003.
  • The “other worker” categories for ROW, Mexico and Philippines advance by seven (7) months to June 1, 2013.   EB-3 China remains unchanged at July 22, 2005 while EB-3 India  advances by only two (2) weeks to December 15, 2003.

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

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

  • FB-1 ROW, China and India all move forward by two (2) weeks to July 8, 2007.   FB-1 Mexico moves forward by one (1) month to September 15, 1994 and FB-1 Philippines moves forward by one (1) week to December 22, 2004.
  • FB-2A moves forward again  – it moves forward by three (3) weeks to April 15, 2013 for ROW, China, India and Philippines.  It also moves forward by seven (7) weeks to February 22, 2013  for Mexico.

EB-2 India Retrogression Expected to Remain Through Summer of 2015

As expected, EB-2 India remains unchanged at the (severely retrogressed) February 15, 2005 date.    Unfortunately, no movement in EB-2 India is expected over the next several months with a possible forward movement towards the summer of 2015.

EB-3 Continues to Move Forward Significantly

The most important development in the January 2015 Visa Bulletin is the continued notable forward movement in the EB-3 categories.    Most of the EB-3 categories have advanced by seven months, with EB-3 China moving forward by nine months, on top of the significant forward movement in the past few visa bulletins. This should be welcome news to many EB-3 applicants (except EB-3 India where the forward movement is only of two weeks) who may be eligible for I-485 filings or processing of their immigrant visas at the U.S. Consulates abroad.    We are happy to provide a free quote for preparing and filing your I-485 application to those EB-3 applicants (and other) who are seeing an advancing and current (or soon to be current) priority date.

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 January 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 January 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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The Immigration Accountability Executive Action (IAEA): Summary of Action Plan

It has been a busy day for immigration attorneys and Washington, DC.    As President Obama is getting ready to announce his executive action proposal, called Immigration Accountability Executive Action (IAEA), there are some reliable preliminary updates we can share with our readers.

Summary of Proposed Executive Action Steps

Deferred Action for Parents of USC and LPR.   Deferred action (similar to DACA) – can obtain work permit (3 years) and relief from removal.   Must be in the US for five years or more.  Also, must apply, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement.   Estimated population of this benefit is around 4.4 million.   Should be running in 180 days.

DACA Expanded.   The Deferred Action for Childhood Arrivals (DACA) program is being expanded.   Individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today.  Going forward, DACA relief will also be granted for three years.   Should be effective in 90 days.

H-4 Spouses EAD.   The rules announced in May to give work permits (EAD) to certain H-4 spouses (of H-1B holders who have an I-140 immigrant petition) are expected to move forward.

I-485 Pre-Registration/Easier Job Portability Prior I-485 Filing.   Changes are expected to make it easier for workers who are stuck waiting for an immigrant visa number to change their jobs.     The proposal is to allow approved I-140 beneficiaries to obtain I-485-like benefits (such as work permit, job portability) and allow them to change employers.     Estimated population is around 400,000.   This will be done via regulation which is subject to the (often time-consuming) regulation-making process.   The AC21 “same or similar job” language is expanded/clarified.

Entrepreneurs Qualify for NIW.   While this has already been a “guidance”, the plan is to expand immigration options for foreign entrepreneurs, researchers, inventors, and founders who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S.

STEM/OPT Program Expanded.   OPT eligibility and terms to be expanded but stronger ties between OPT students and their universities will be required.

PERM Labor Market to be “Modernized.” DOL will be tasked with “modernizing” the PERM labor certification system and its labor market test to ensure American workers are protected by the immigrant visa process.   Details are key but we do not have them yet.

Provisional Waiver Expanded to Spouses of LPR.   Provisional waiver from within the US is being expanded to include spouses of LPR (in addition to US citizens).

Parolees Will Have Expanded Protections for Travel.   It is expected that the rules will remove the inadmissibility trigger when traveling and entering on advance parole; which will help many parolees (DACA, IAEA and employment-based parolees).

What DID NOT Make it Into the Proposal

It is worth mentioning briefly which of the common points did not make it into the proposal.   Parents of DACA holders are not included.   Also, the proposal does not change the way the family derivative members are counted under the immigrant visa numbers.   As a result, the current backlogged wait system will continue (subject to some relief from the points above).    There are no changes to the H-1B  program.

Live Chat and Webinar on Immigration Accountability Executive Action

Please join us for two upcoming events to discuss the details of the program.

Live Chat:   Immediate Analysis and Reaction to Executive Action Proposal Thursday, 9 pm EST.

Immediately after President Obama’s speech this evening we will host hosted a live chat dedicated solely on the speech, the proposals contained therein and our immediate analysis of the impact on various groups of immigrants.    Sorry we missed you – but you can read the chat transcript.

Webinar:   SPECIAL EDITION on President Obama’s Executive Action Plan – Details and Analysis Friday, 1 pm EST.

On Friday, November 21, 2014 at 1 pm EST, after we have had a chance to go through the proposal in more detail, we will hold held a webinar presentation where we will provide provided a more detailed analysis of the executive action proposal and how it affects various groups of immigrant populations.     We should also be able to provide some kind of an overview of challenges to the proposed action and anticipated steps forward and timeline.    You can see the recorded webinar.

Conclusion

We will be providing much more over the next few days — this is obviously a somewhat quick and brief overview of the proposed components of the plan.    Please stay tuned over the next days as we will be active in providing updates and analysis.

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 this or related immigration-related issues.

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Executive Action on Immigration: Announcement and Analysis Live Chat and Webinar Sessions

There are a few people who are interested in immigration who are not aware of the upcoming announcement by President Obama on his plan for executive action on immigration.    At this time,  we have been receiving rumors, bits and pieces, provided off the record, by various sources in the government here in Washington, DC and we will not be analyzing the proposals until the official announcement is made:  President Obama is expected to make his announcement this evening, November 20, 2014, at 8 pm eastern time and we will be staging a number of events immediately after to analyze the proposal.

Live Chat:   Immediate Analysis and Reaction to Executive Action Proposal Thursday, 9 pm EST.

Immediately after President Obama’s speech this evening we will host a live chat dedicated solely on the speech, the proposals contained therein and our immediate analysis of the impact on various groups of immigrants.    Please join us for this chat immediately after the announcement at 9 pm EST.

Webinar:   SPECIAL EDITION on President Obama’s Executive Action Plan – Details and Analysis Friday, 1 pm EST.

Tomorrow, Friday, November 21, 2014 at 1 pm EST, after we have had a chance to go through the proposal in more detail, we will hold a webinar presentation where we will provide a more detailed analysis of the executive action proposal and how it affects various groups of immigrant populations.     We should also be able to provide some kind of an overview of challenges to the proposed action and anticipated steps forward and timeline.    There are limited seats for this webinar and it will sell out – please register now.

And yes, these events are FREE to anyone to register but there is limited space available.   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 this or related immigration-related issues.

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December 2014 Visa Bulletin – EB-3 Continues to Advance Significantly; EB-2 India Unchanged

The U.S. State Department has just released the December 2014 Visa Bulletin which is the third Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued forward movement in the EB-3 preference category.

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

Below is a summary of the December 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 at February 15, 2005 after last month’s major retrogression.    EB-2 China moves forward by three (3) weeks to January 1, 2010.
  • EB-3 ROW, Mexico and Philippines advance by four (4) months to November 1, 2012.   EB-3 China advances by six (6) months to June 1, 2010 while EB-3 India  advances by only one (1) week to December 1, 2003.
  • The “other worker” categories for ROW, Mexico and Philippines advance by four (8) months to November 1, 2012.   EB-3 China remains unchanged at July 22, 2005 while EB-3 India  advances by only one (1) week to December 1, 2003.

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

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

  • FB-1 ROW, China and India all move forward by two (2) weeks to June 22, 2007.   FB-1 Mexico moves forward by five (5) weeks to August 15, 1994 and FB-1 Philippines moves forward by six (6) weeks to December 15, 2004.
  • FB-2A moves forward again (but not as much as the last few months) – it moves forward by three (3) weeks to March  22, 2013 for ROW, China, India and Philippines.  It also moves forward by three (3) months to January 1, 2013  for Mexico.

EB-2 India Retrogression Expected to Remain Through Summer of 2015

As expected, EB-2 India remains unchanged at the (severely retrogressed) February 15, 2005 date.    Unfortunately, no movement in EB-2 India is expected over the next several months with a possible forward movement towards the summer of 2015.

EB-3 Continues to Move Forward Significantly

Another notable development in the December 2014 Visa Bulletin is the continued notable forward movement in the EB-3 categories.    Most of the EB-3 categories have advanced by four months, on top of the significant forward movement in the October 2014 Visa Bulletin and in the November 2014 Visa Bulletin.  This should be welcome news to many EB-3 applicants (except EB-3 India where the forward movement is only of one week) who may be eligible for I-485 filings or processing of their immigrant visas at the U.S. Consulates abroad.    We are happy to provide a free quote for preparing and filing your I-485 application to those EB-3 applicants who are seeing an advancing and current (or soon to be current) priority date.

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 December 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 December 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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November 2014 Visa Bulletin – EB-2 India Major Retrogression to February 2005; EB-3 Advances Significantly

The U.S. State Department has just released the November 2014 Visa Bulletin which is the second 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 (February 2005) and the significant forward movement in EB-3 (except India).

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

Below is a summary of the November 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 retrogresses significantly by almost four (4) years to February 15, 2005.    EB-2 China moves forward by three (3) weeks to December 8, 2009.
  • EB-3 ROW, Mexico and Philippines advance by eight (8) months to June 1, 2012.   EB-3 China advances by eight (8) months to January 1, 2010 while EB-3 India  advances by only one (1) week to November 22, 2003.
  • The “other worker” categories for ROW, Mexico and Philippines advance by eight (8) months to June 1, 2012.   EB-3 China remains unchanged at July 22, 2005 while EB-3 India  advances by only one (1) week to November 22, 2003.

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

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

  • FB-1 ROW, China and India all move forward by two (2) weeks to June 8, 2007.   FB-1 Mexico moves forward by two (2) weeks to July 8, 1994 and FB-1 Philippines moves forward by two (2) months to November 1, 2004.
  • FB-2A moves forward again (but not as much as last month) – it moves forward by one (1) month to March  1, 2013 for ROW, China, India and Philippines.  It also moves forward by two (2) months to September 22, 2012 for Mexico.

Expected Major EB-2 India Retrogression

After the significant forward movement over the past few months in EB-2 India, and the recent signals about the upcoming EB-2 India retrogression, this months’ Visa Bulletin major retrogression for EB-2 India was expected.

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 last fiscal year (September 30th).     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).

There are still many EB-2 India applicants who are current as of October 2014 and who have not filed (or interfiled) their or their dependents’ I-485 applications.   We urge all of these applicants to consider filing I-485 over the next couple of weeks before the retrogression in EB-2 India from November 1.

EB-3 Moves Forward Significantly

Another notable development in the November 2014 Visa Bulletin is the notable forward movement in the EB-3 categories.    Most of the EB-3 categories have advanced by eight months, on top of the significant forward movement in the October 2014 Visa Bulletin. This should be welcome news to many EB-3 applicants (except EB-3 India) who may be eligible for I-485 filings or processing of their immigrant visas at the U.S. Consulates abroad.    We are happy to provide a free quote for preparing and filing your I-485 application.

Anticipated Visa Bulletin Employment Cutoff Date Movements

Below are the anticipated movement of the cutoff dates over the next several months.

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

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, depending on demand, a cutoff date towards the end of the fiscal year may be introduced.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  No forward movement.

EB-3 Rest of World (ROW).    After this month’s significant forward movement, it is possible to see certain additional forward movement to stimulate “demand” for the next several months.   Afterwards, the movement may stop or even retrogress.

EB-3 China.  Rapid forward movement expected.

EB-3 India.  Little, if any, forward movement expected.

EB-3 Philippines.  Expected to track the EB-3 ROW 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 November 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.      Similarly, EB-2 India applicants who would be affected by the retrogression and who haven not filed I-485 applications must do so before November 1, 2014.

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 November 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 Bulletin Predictions and Updates from Charles Oppenheim – Major Retrogression in EB-2 India; EB-3 ROW and China to Advance (October 1, 2014)

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.   Our access and proximity to Mr. Oppenheim allows us to provide immediate updates on expected Visa Bulletin movements and we are proud to be among the first to report.

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 sense of the movement of the priority dates and also on short- and long-term immigrant visa number trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 India will retrogress significantly in the November or December 2014 Visa Bulletin — going back to early 2005.   EB-3 India will move very slowly in the near term but EB-3 ROW and China  are expected to move forward significantly.

General Visa Number Trends

Mr. Oppenheim spent a few minutes to describe the visa number allocation process and reiterated the fact that in the employment-based context, especially, the demand for visa numbers is greater because of dependents being added — each green card application case is, therefore, “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).  For example, approximately 45% of the visa numbers are used by the primary beneficiaries with the balance of 55% taken up by derivative beneficiaries (spouses and children).   For example, Mr. Oppenheim indicated that in the not-so-distant past, each employment-based India case took 1.4 visa numbers on average while right now, each employment-based India case takes on average 2.5 visa numbers.

As a result, and in recognition of the additional fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed, particularly for Indian nationals.

He also indicated that there is a significant number of EB-3 to EB-2 India porting cases and the mechanics of the EB-3 to EB-2 porting does not allow advance notification to the Department of State’s Visa Office.   This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back to accommodate such porting case.   Additionally, Mr. Oppenheim shared that in addition to EB-3 to EB-2 porting cases for Indian nationals, who are the majority of such cases, he sees an increasing number of EB-3 to EB-2 porting cases from nationals of other countries under the “Rest of World” (ROW) category.

Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India will retrogress significantly (to early 2005) in either the upcoming November Visa Bulletin or in the following December Visa Bulletin.   EB-2 India is then expected to remain at early 2005 for a significant time – no forward movement is expected until June 2015 or so.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   He cited EB-5, and specifically EB-5 China, category where demand has been growing steadily and where, for the first time ever, all EB-5 visa numbers have been used.   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India forward movement.

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, and January 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-1.   This category is expected to remain current throughout the fiscal year.

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

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  This is the major headline from our meeting with Mr. Oppenheim –  EB-2 India is expected to retrogress significantly – by several years back to early 2005 as early as the next Visa Bulletin.     It is expected that EB-2 India will remain at that level (early 2005) until the summer of 2015.    The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 Rest of World (ROW).  This category is expected to move forward significantly over the next months to stimulate “demand” for the following several months.

EB-3 China.  Rapid forward movement is expected – perhaps advancing to late 2009 or early 2010 over the next few months.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and there is very little or no forward movement expected in the next months.   Forward movement of 1-2 weeks per month should be the normal.      The simple reason is that there are many EB-3 India cases which are waiting a visa number – there are 25,000-30,000 preadjudicated EB-3 India cases with a priority date before July 2007 waiting for a visa number.    With annual limit for this category of about 2,800, it would take a long time to clear this backlog and be able to advance the priority date beyond July 2007.

However, as a positive sign, as many EB-3 India applicants are porting into EB-2, there is some possibility that some EB-3 visa numbers may be “freed” simply because some EB-3 candidates will drop out of the EB-3 demand line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is at the highest level ever.    For the next fiscal year EB-5 is expected to be current for everyone except EB-5 China (which takes about 85% of all EB-5 immigrant visas).    It is possible to introduce an EB-5 cutoff date for China which may mean one or two year wait for a visa number (including issues relating to minor dependents aging out).

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on the ability  of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the retrogression of EB-2 India in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down or retrogress EB-2 India to be able to accommodate EB-2 India applicants with early  priority dates.

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 are going to cause significant disappointment in EB-2 and EB-2 India applicants, specifically.     Our EB-2 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.    Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

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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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.    At this time this is most important to EB-2 India green card applicants who were affected by the visa unavailability announcement earlier in September.    As of October 1, we expect USCIS to continue to issue approvals of pending I-485 cases for EB-2 India nationals with current priority dates (but note the anticipated major EB-2 India cutoff date retrogression later in the fall).

Green card applicants in the remaining green card categories – both family- and employment-based -should not see much difference because of October 1st.   Generally, 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.

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 EB-2 India 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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Current PERM Processing Times (September 8, 2014)

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 September 8, 2014.

Current PERM Processing Times

This month does not bring much change in the PERM processing times – regular PERM cases still take around four to five months.     The processing time of PERM applications in audit remains unchanged compared to our prior report from a month ago.

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

  • Regular processing: April 2014.  DOL is processing PERM applications with priority dates of April 2014.  There is no change in the expected duration of a PERM case compared to the August 2014 report.    Accordingly, regular PERM processing times should be around four to five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    We hope that this continues the trend of (slight) improvement in the processing time for PERM cases.
  • Audited applications: March 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of March 2013.  This is a delay of about a month compared to last month’s report.    Accordingly, audited PERM applications are processed approximately 18-19 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): September 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in September 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The September 2014 PERM processing times report shows that the PERM processing times show no change in the processing times compared to a month ago with some delays in the processing times for audited PERM applications.    Over the past several months, we have observed continuing decrease (improvement) in the regular PERM processing times and on behalf of our clients, we are hopeful that this improvement trend would continue.

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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