Labor Immigration Law

Effective April 13, 2012, the Department of State is changing the visa processing fees.   Some of the fees will increase, while some will decrease.  For example, the fees for most nonimmigrant visa applications and Border Crossing Cards will increase.  On the other hand, all immigrant visa processing fees will decrease (some by a substantial amount).

Nonimmigrant Visas — Fees Increase

The Department of State is required to recover, as must as possible, the cost of processing a visa application and a stamp through the collection of application fees.  According to the Department of State, for a number of reasons, the current fees no longer cover the actual cost of processing nonimmigrant visas. As a result, the nonimmigrant visa fee increase will support the addition and expansion of overseas facilities, as well as additional staffing required to meet increased visa demand.

Although most categories of nonimmigrant visa processing fees will increase, the fee for E visas (treaty-traders and treaty-investors) and K visas (for fiancé(e)s of U.S. citizens) will decrease.

Immigrant Visas – Fees Decrease

Because of a reallocation of costs associated with immigrant visas, all categories of immigrant visa processing fees will decrease as shown below.  Some of the fee decreases are fairly significant.

Conclusion

We welcome the Department of State’s efforts to make its services more affordable and for its fees to reflect the actual cost of services provided.   It should be noted that it has been thought that some of the weaker demand in certain immigration visa categories, during the past few years, has been thought to be due to the high fees.    By lowering the immigrant visa fees, the Department of State may be addressing concerns that some of its services are pricing some applicants out.

Created in 2002, the Student and Exchange Visitor Information System (SEVIS) is used to track and monitor foreign students (F-1 visa holders) and exchange visitors (J-1 visa holders), as well as their accompanying dependents (F-2 and J-2 visa holders).  While SEVIS has streamlined many formerly cumbersome data reporting requirements and improved information accuracy, there are occasions where the data contained in a SEVIS record is either incorrect or in need of an update because of a student or visitor’s changing circumstances.  A remedying correction or update is typically obtained through a SEVIS data fix.

When Is a Data Fix Needed?

Oftentimes, an error or change to a SEVIS record can be handled by the school’s Designated School Official (DSO).  Many entries in the SEVIS system have a link located next to the information in the SEVIS record that allows as DSO to independently correct the error or make the appropriate change.  When this particular function is not working, or if a change needs to be made for which there is not a link to make the correction, the DSO should contact the SEVIS help desk to request a data fix.

There are a variety of reasons a DSO may need to request a data fix, but the most frequent requests are in connection with a student’s employment eligibility.   Common data fix requests include the following:

• A student needs a new Form I-20 to present for I-9 verification to begin employment.
• A STEM (Science, Technology, Engineering & Mathematics) student needs to apply for an extension o f his or her Optional Practical Training (OPT).
• A student eligible for “cap-gap” relief – i.e., the gap period between the expiration of a student’s F-1 status (and related employment eligibility) and the commencement of the student’s H-1B status – needs to apply for an extension of his or her status and work eligibility.
• A student has properly changed to another nonimmigrant or immigrant status and SEVIS needs to be updated accordingly.

How to Request a SEVIS Data Fix?

A SEVIS data fix can be requested by either calling the SEVIS Help Desk at (800) 892-4829, or by emailing SEVIS at SEVIShelpdesk@eds.com.  Once the request is placed with the SEVIS help desk, the DSO will be issued a help desk ticket with a unique reference number.  The help desk will then commence working on the data fix.   SEVIS data fix processing times can vary depending on the nature of the information that must be changed or updated.

Can a Data Fix Requests be Expedited?

Placing a request with the Help Desk should be the DSO’s first step, regardless of the urgency of the matter, as the help desk ticket number is required to escalate any request.   If a data fix is urgently required, the DSO should first email the SEVIS help desk to request a data fix, followed by an email to toolbox.SEVIS@dhs.gov to request an expedited fix.  The help desk ticket number should be included in the email for tracking purposes.

If for any reason a student urgently needs a new Form I-20, and a data fix cannot be processed quickly enough, the student can use his or her most recent Form I-20 together with a letter from the DSO that explains that the student is in status, and that a more current Form I-20 will be provided upon the completion of the data fix.

The SEVIS system has been designed and subsequently upgraded to enable a DSO to resolve most errors or changes needed in a SEVIS entry.  For those instances when outside assistance is needed, a data fix request to the SEVIS Help Desk is an excellent resource to efficiently correct a SEVIS entry.

Conclusion

Our office often assists F-1/J-1 holders whose SEVIS records have incorrect information and are attempting to obtain a certain F-1/J-1 benefit and most often the issue can be resolved either by the DSO directly or by requesting a data fix.   Unfortunately, the procedure of correcting a SEVIS record is entirely controlled by the DSO and his or her schedule and responsiveness may affect the outcome of a particular situation.    Please do not hesitate to contact us if we can be of any assistance with a situation relating to a SEVIS record – we may be able to provide assistance in making sure an issue is resolved quickly.

Only a day after we published our own predictions for the outlook of EB-2 India and China cutoff dates over the next few months, Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State and also known as the person responsible for the Visa Bulletin cutoff dates movement, has provided his own thoughts on the movement of EB-2 India and China.

EB-2 India and China Expected to Retrogress to August 2007

During an AILA event today, March 16, Mr. Oppenheim indicated that he will likely retrogress India and China Employment-Based Second Preference (EB-2) cutoff dates to around August 2007, effective with either the May or June 2012 Visa Bulletin.   He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.

Mr. Oppenheim’s comments confirm our own predictions that a slowdown or retrogression in EB-2 India/China is imminent.   As a result of this, we urge all EB-2 India and China applicants who have a current priority date as of the March or April 2012 Visa Bulletin to immediately consider filing for an I-485 application.   It is likely that this window of filing opportunity for many EB-2 India and China applicants will close starting May 1st.

Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    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 current  Visa Bulletin or our thoughts about cutoff dates for the next few months.  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.

Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate that Mr. Oppenheim has shared his first-hand knowledge of the demand in the employment-based green card categories and has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s January 2012 Visa Bulletin Predictions

The main points are that due to lower than anticipated demand in EB filings, EB-2 India and China cutoff dates may move forward by another 6 months in the March 2012 Visa Bulletin, and then slow down (or even retrogress) over the summer.   The slow demand in EB-1 is expected to continue this year as well.

Observations of the Demand in Employment-based Visa Numbers

Unexpectedly Low EB-2 Usage and Rate of Filings.  The employment-based (EB) visa number usage has been very slow in FY2012; as a result, the Department of State (DOS) is moving the dates forward to see how many cases are out there waiting to be filed.  Mr. Oppenheim indicated that he is relying on USCIS and their estimates of the incoming EB I-485 cases (because 85 to 90% of all EB filings are I-485s filed with USCIS).  It seems that USCIS had anticipated a higher demand — the rate of I-485 adjustment of status (AOS) filings has been only 50% of their estimates.

EB-1 Demand Low.   Mr. Oppenheim assumes low usage of EB-1 numbers again this year.  A “fall-down” of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.     Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers –  possible reasons are the impact of Kazarian on USCIS filings and demand for EB-1 EA numbers.

EB Visa Bulletin Predictions for 2012

March 2012 Visa Bulletin.   According to Mr. Oppenheim, employment-based priority dates will advance again with the March 2012 Visa Bulletin, very likely by at least a few months.    An advance of six months is possible, although an advance of one year is not likely.    Mr. Oppenheim noted that given current AOS processing times of 4-6 months, filing AOS in March is the last time to get a case possibly approved before the end of the fiscal year on September 30, 2012.

Spring, Summer and rest of FY2012. After some movement in the March (and possibly the April 2012 Visa Bulletin), Mr. Oppenheim expects to hold the priority date over the summer, and then retrogress or advance, as needed and as determined by demand over the summer.  Mr. Oppenheim does not have enough data at this time to predict demand and priority date changes in the last quarter of FY2012.

Conclusion

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

Our office has been very active and aggressive in preparing and timely filing I-485 adjustment of status applications for clients who have become “current” over the past few months.   We will continue to be ready to handle the anticipated forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We are also happy to provide a free quote for preparing and filing your I-485 application.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

USCIS has issued an alert that a number of key online systems will be unavailable due to system maintenance from Friday, December 2nd at 7pm (EST) until Monday, December 5th at 9am (EST).   As a result, there will be no access or service to the following USCIS online systems and tools:

• Check My Case Status
• Sign-Up for Case Status
• Check Processing Times
• Change of Address Online
• Civil Surgeon Locator
• e-Request
• Office Locator

USCIS has not indicated if and how this outage would affect case updates scheduled to be sent out during this period.   We hope that outgoing case update email alerts would be unaffected; but it is possible that due to the system maintenance USCIS will not issue case alerts as well.

We urge our clients and readers who need to change address (AR-11) online, locate a local office or a civil surgeon or to otherwise interact with one of these tools to do so before the beginning of the outage.

Many of our readers are aware that as of November 22, 2011, USCIS has received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  All cap-subject new H-1B petitions received by USCIS on or after November 23rd will be rejected.   Throughout the entire H-1B cap season, our office was providing weekly updates to our readers and clients on the status of the H-1B cap and our predictions (based on analyzing the H-1B demand over time) that the H-1B cap would be reached by late November 2011 turned out to be pretty accurate.

Comparison of FY2011 and FY2012 H-1B Cap Seasons

This H-1B cap season lasted approximately two months shorter than last year’s.  Last year’s (fiscal year 2011, FY2011) H-1B cap season lasted until January 26, 2011, when the H-1B quota was reached.  This year, FY2012, the H-1B cap season was two months shorter.  This can be explained in a number of ways, most notably due to the gradual improvement in the U.S. economy and increase in the rate of hiring for the next 6-12 months.  As we saw the rate of H-1B filings over the past few weeks of this H-1B cap season to increase, we expect that as the economy continues to improves over the next couple of quarters, the H-1B demand should pick up and we expect that the new H-1B cap season, to open on April 2, 2012, to be busier than the last one.

Alternatives to H-1B Cap

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2012, when the new fiscal year’s H-1B quota would begin (as a reminder, April 2, 2012 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferree

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Unlikely

While we do not expect Congress to raise the H-1B cap for FY2013, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  While none of these proposals have gained momentum at this time, we will be providing updates as soon as there is a likelihood that there will be development on this front.

Wait and File on April 2, 2012 for the FY2013 Cap

For some of our clients, waiting until April 2, 2012 to file a new cap-subject H-1B petition may be the best option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, the FY2013 H-1B cap is expected to be the same as it was for the FY2012 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).  However, as the economy starts to improve and employers increase hiring, we do not expect that next year’s H-1B numbers will remain available for as much as 8-9 months, as they did this year.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 2, 2012, to ensure that their petition has the greatest chance to be included in the quota.  Please contact us to start preparing for your FY2013 H-1B cap filing.