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H-4 Spouse EAD – Four Major Outstanding Questions for USCIS

As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are still looking forward to clarifications and updates from USCIS on a number of important topics.      Here are four major issues which affect a number of H-4 EAD applicants and which issues are still outstanding as of today, about a month before the H-4 Spouse EAD applications can be filed.

When Would the Final Form I-765 (and Accompanying Instructions) be Released?

While USCIS has published the approved draft revision of Form I-765, they have not released the form for general circulation on the relevant Form I-765 website.    As our office is gearing up for a high number of H-4 Spouse EAD applications, we would like to see the revised form released for public use as soon as possible to avoid timely (and calm) H-4 Spouse EAD preparation process.     It is unclear at this time whether USCIS will accept the current version of Form I-765 for H-4 Spouse EAD filings on or after May 26th.

Would Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications be Approved At the Same Time?

A key question for those seeking to change status to H-4 and concurrently be able to obtain work permit is whether USCIS will be able to approve the H-4 change of status (COS) application together with the H-4 Spouse EAD application.     USCIS has indicated that they would accept concurrently filed H-4 COS and H-4 EAD applications; however, there is no much clarity on the mechanics of approval.

This situation poses a problem for applicants who are currently in status authorizing employment and are, in fact, employed.    Ideally, we hope that the H-4 COS and the H-4 EAD applications will be approved at the same time, which would ensure continued work authorization to the applicant and would eliminate disruption to the applicant’s continued employment (which can be costly to the applicant in terms of career reputation and income).

For example, an H-1B worker who is gainfully employed and seeks to transition to H-4 EAD would have to file the H-4 COS and H-4 EAD applications.    However, if the H-4 COS application is approved first while the H-4 EAD remains pending, the person will find themselves in H-4 status but without a work authorization document and they will need to stop working immediately after H-4 COS approval and refrain from working until the H-4 EAD is approved.     We are hoping that USCIS would provide guidance that H-4 COS and H-4 EAD applications which are filed concurrently will be approved at the same time; alternatively, some guidance which would ensure that H-4 EADs approved after the H-4 COS is approved would be backdated with an effective date of the H-4 change of status approval date.

Guidance on this point is critically needed because many H-4 EAD applicants may be exposed to either having to stop working or perhaps engage in a period of unauthorized employment.   We will provide updates as soon as we have any.

Would the H-4 Spouse EAD Be Allowed When the Primary H-1B Spouse Is Extending Beyond the Sixth-Year Maximum But When Part of the New H-1B Term Includes Periods of the Initial Six-Year Term?

This question applies to situations where the H-1B spouse is getting close to the sixth-year H-1B term and when the H-1B employer has filed for extension of (or extended) the H-1B term which extension includes part of the initial six-year H-1B term and H-1B time beyond the sixth-year limit based on PERM or I-140 pending for more than 365 days under AC21.    There is no question that this is permitted for H-1B extensions.

The question is whether the H-4 Spouse EAD rule will allow H-4 spouse to obtain the EAD when the H-1B spouse has a term which includes a combination of H-1B time under the initial six-year H-1B limit and additional time beyond the six-year H-1B limit under AC21.   USCIS has indicated that guidance on this point is forthcoming as part of a FAQ document.  Please stay tuned for updates.

Would International Travel When an H-4 EAD Application Remains Pending Be Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S.?

Since May 26th coincides generally with the beginning of the summer travel season, many H-4 Spouse EAD applicants have already made travel plans for the May-September period.    We know that the actual H-4 Spouse EAD application will have to include evidence of an applicant’s H-4 status in the U.S. which essentially requires the H-4 EAD applicant to be in the U.S. physically and be able to provide valid I-94 card as evidence.

The question is whether an H-4 Spouse EAD applicant can leave the U.S. after having filed the H-4 EAD application and whether such departure would affect the outcome of the H-4 EAD application and/or the validity of the H-4 EAD document, once approved.    We do not have guidance from USCIS on this point and they have indicated that they will be providing guidance.

We are hopeful that such guidance would match guidance issued in other similar EAD situations – L-2 EAD, E-2 EAD, OPT EAD – where travel during the time an EAD application remains pending does not normally affect the outcome or validity of the actual EAD application.

Conclusion

As we are getting closer to the May 26th H-4 Spouse EAD “opening day” we are hoping for smooth and clear H-4 EAD filing process, especially within the first days and weeks after May 26th.    The new rule still has a number of outstanding issues which require clarifications and we are hoping USICS will be able to provide updates over the next several days.

We will continue to provide information on this rule and answers to these questions as soon as we have anything to share.  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.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

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H-1B Amendment Required When Changing Jobsites – Regulatory Updates and New Compliance Guidelines

A recent Administrative Appeals Office (AAO) decision which highlighted the requirement for an H-1B amendment any time there is a change in the job site requiring a new Labor Condition Application (LCA) has created a lot of conversation in some H-1B circles and our office has been handling many inquiries, concerns and reactions to the requirements imposed by the AAO decision.        This article and the resources our office will be providing over the next weeks are aimed at clarifying the H-1B amendment requirements and providing guidance to H-1B employers (and their H-1B workers) for proper compliance.

The Recent AAO Decision – Matter of Simeio Solutions, LLC

In Matter of Simeio Solutions, LLC (PDF copy), in an April 9, 2015 decision, the AAO discussed the requirements for an H-1B amendment when there is a change in the terms of an H-1B petition  and, specifically, change in the work location noted in the underlying H-1B petition.

In this specific case, USCIS was not able to find the beneficiary at the location named on the initial LCA and on the H-1B petition (which was in the Los Angeles, CA area) and sought to revoke the H-1B petition.   In response, the petitioner indicated that the beneficiary would work at additional work sites, not named in the initial H-1B petition, and provided certified LCAs  for the new worksites – one of which was in Camarillo, CA and the other for Hoboken, NJ.   The petitioner had made the argument that the new LCA work locations are sufficient to show compliance with the H-1B regulations and that the H-1B petition should not be revoked. The California Service Center did not accept these arguments and revoked the H-1B petition.   The petitioner then appealed to the AAO.

In its decision, the AAO reviews the relevant H-1B/LCA regulations and concludes that a change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified would materially change to the terms of the approved H-1B petition and this requires an amendment.   The AAO relies on the following section of the regulations:

8 CFR 214.2(h)(2)(i)(E) states (emphasis added):

The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.

Also, petitioners are required to notify USCIS immediately if the terms and conditions of the H-1B petition “may affect eligibility”.   8 CFR 214.2(h)(11)(i)(A) (emphasis added) states:

The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary.

Taking these two sections of the relevant regulations, and analyzing the prevailing wage requirements for the various worksite locations, the AAO concluded that change in the worksite location may affect the eligibility under the H-1B program and, as a result, requires an amendment to be filed “immediately.”    An important note is that the AAO decision implicitly confirms that if there is a worksite location change to a new area covered by the same LCA (which is often the same Metropolitan Statistical Area, or MSA), then the requirement for an H-1B amendment would not apply.

It is important to note that the underlying case was governed by the California Service Center but this AAO decision would apply to the Vermont Service Center as well because the regulations giving rise to the decision apply to both H-1B processing service centers.

The H-1B Amendment Requirement Has Been Part of a Trend for Some Time Already

It is important to point out that this AAO decision is not a sudden change of direction.  Our office has been following closely H-1B adjudication and post-approval (site visits, consular returns, NOIR) trends coming out from both the Vermont and California Service Centers and advising clients to file H-1B amendments any time there is a change in the H-1B worksite requiring a new LCA for many months, even for well over a year.

For example, in October 2014 we wrote an extensive article (“Change in H-1B Work Location – To Amend or Not to Amend?“, October 2, 2014) about the trend in the H-1B amendment requirements coming from both Vermont and  California.    In this article we reported discussed the history of the H-1B program and the prior (and overruled by recent AAO action) guidance that an H-1B amendment is not required when the only change in the terms of the petition is a worksite location.    We wrote how this prior guidance was based on

[A]n October 23, 2003 Letter from Efren Hernandez III, Dir., Bus. and Trade Branch of USCIS, Mr. Hernandez specifically expresses guidance that H-1B amendment is not required where the H-1B worker is placed at a new location as long as there is an LCA for this new jobsite.    Over the past years, however, this guidance has been slowly and gradually superseded by a more strict interpretation of the H-1B  regulations.

In our 2014 analysis of the H-1B amendment requirement problem we also explained how in

a non-precedent AAO decision dated as of July 23, 2014, USCIS explicitly overruled the 2003 Hernandez letter and took the position that the Vermont Service Center properly revoked an H-1B petition where there was a jobsite change and LCA without an H-1B amendment filing.

The bottom line is that the Matter of Simeio Solutions, LLC decision is not a sudden change in policy or direction.   Our office had been reporting on this for a long time now and we hope that our clients and readers would find themselves with at least a bit of advance knowledge at this point and not be surprised by this new AAO decision as many appear to be.

Change in Worksite Location and H-1B Amendment – Compliance Steps for H-1B Employers

Needless to say, the recent AAO decision and the publicity it has received is causing a lot of discussion and anxiety, especially among H-1B employers who place their workers at third-party worksites.     As discussed above, our office was aware of the changing trends and we have already been providing this kind of guidance and advise for many months.    Here are some points for better compliance and less H-1B issues (such as H-1B site visits, visa stamp denials and revocations).

Anticipate and Evaluate Possible New Worksite Locations.    First, any time there is the possibility of a worksite location change during the term of an H-1B petition, the employer (and perhaps the worker) should have a process to anticipate the timing of such worksite location change, including analyzing the actual worksite change location.

H-1B Amendment Likely Not Required if New Worksite Within Same MSA or Within “Normal Commuting Distance”. The AAO decision states that “a change in the place employment of a beneficiary to a geographical area requiring a corresponding LCA be cerfified” required an H-1B amendment.  However, by implication, if there is a change in the worksite to a location within the same MSA or within a normal commuting distance, then the LCA remains valid and no H-1B amendment is required.   “Normal commuting distance” can vary depending on the area – but 20, 30 or 50 miles may be considered to be “normal commuting distance.”

File H-1B Amendment “Immediately”.    The regulations require that the H-1B employer “shall immediately notify” USCIS when there is a change in the terms of the petition – essentially, an H-1B amendment must be filed before (ideally) the new worksite location placement takes place.    Since a new LCA takes up to seven business days, the LCA and the H-1B amendment filing process should be anticipated and started at least 2-3 weeks before the new worksite location placement begins.      Even if this is not possible, the LCA/H-1B amendment should be done as soon as possible.

Late Compliance (H-1B amendment) is Better than No Compliance.   We would like to encourage H-1B employers who have not done the necessary H-1B compliance and who have relied on LCAs only for worksite changes to consider preparing and filing H-1B amendments as soon as possible.

What Kind of H-1B Cases Are in Jeopardy?   We do not know how much additional scrutiny USCIS would impose on existing petitions for worksite compliance, but mismatch between an actual worksite and H-1B petition is likely to cause H-1B visa stamp delays/denials and, ultimately, consular returns.   Similarly, H-1B site visits are likely to cause problems which would lead ultimately to a Notice of Intent to Revoke and a likely H-1B revocation.     Similarly, H-1B extensions may also face higher scrutiny to establish current compliance and status as part of the H-1B extension adjudication process.

H-1B Worksite Change/Amendments Discussion and Step-by-step Guidance – FREE Webinar

We feel that our position as having closely followed the H-1B worksite change/H-1B amendment situation over the last year or so and our advising many H-1B third-party worksite employers allows us to provide some useful guidance and compliance steps.     To accommodate the great recent demand of clarification and guidance on this issue and create a public forum for discussion, our attorneys will be conducting a free webinar focused solely on the H-1B Worksite Change/Amendments topic.

Please join us for a FREE webinar and Q&A session on the H-1B Worksite Change/Amendments topic on Monday, May 4, 2015 at 1 p.m. eastern U.S. time.    Registration is free but registration spots are limited and we expect a capacity webinar event.    Please register now to claim your spot.

Conclusion

We would like to iterate clearly that based on recent developments and trends we see,  we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

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 analyzing or filing H-1B petitions, including amendments.

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May 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 Philippines Major Retrogression; EB-5 China Cutoff Date

The U.S. State Department has just released the May 2015 Visa Bulletin which is the eighth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant 7.5-month forward movement in EB-2 India and the 14-month forward movement in EB-2 China.    EB-3 Philippines moves back by seven years and EB-5 China now has a cutoff date.

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

Below is a summary of the May 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 by seven and a half (7.5) months to April 15, 2008.  EB-2 China moves forward by fourteen (14) months to June 1, 2012.
  • EB-3 ROW and Mexico advance by three (3) months to January 1, 2015.   EB-3 Philippines retrogresses by over seven (7) years back to July 1, 2007.   EB-3 China moves forward by four (4) months to May 1, 2011 while EB-3 India  advances by only one (1) week to January 15, 2004.
  • The “other worker” categories for ROW and Mexico advance by three (3) months to January 1, 2015 while Philippines retrogresses by over seven (7) years back to July 1, 2007.   Other workers China moves forward by three (3) months to November 15, 2005 while India  advances by only one (1) week to January 15, 2004.
  • EB-5 China now has a cutoff date of May 1, 2013.

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

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

  • FB-1 ROW, China and India move forward by two (2) weeks to August 15, 2007.   FB-1 Mexico moves forward by one (1) week to November 8, 1994 while FB-1 Philippines remains unchanged at February 1, 2005.
  • FB-2A moves forward again, this month the forward movement is by one (1) month to September 1, 2013 for ROW, China, India and Philippines.  It also moves forward by one (1) months to August 8, 2013  for Mexico.

Another EB-2 India Significant Forward Movement

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of seven and a half months which is very similar to last month’s eight-month forward movement.  Overall, EB-2 India has advanced by well over two years over the last few months so this is certain a good sign.      EB-2 India applicants with a priority date earlier than April 15, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the next few months so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

EB-2 China Advances Significantly; EB-3 China Moderate Forward Movement

EB-2 China continues to advance this month.  In fact, this month’s forward movement of 14 months is one of the more significant movements in EB-2 China for some time.   EB-3 China also advances (after a significant retrogression last month) by four months.   We had noted in our earlier Visa Bulletin alerts that the demand in EB-3 China is expected to rise with the forward date movement and it now seems that the Department of State is trying to moderate the demand by retrogressing (last month) and then advancing gradually (this month) the cutoff dates.

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State has introduced a cutoff date for EB-5 China.     Further retrogression is also possible (not immediately expected) based on the number of demand from Chinese nationals in this category (which demand has been very strong recently).

EB-3 Philippines Major Retrogression

One significant development is the major retrogression in EB-3 and Other Workers Philippines.   The cutoff dates for these categories are set to move back by over seven years — from October 2014 back to July 2007.   This is a significant retrogression caused by high demand in this category.

It is important to note that EB-3/OW Philippines applicants who have a cutoff date which is current now and who would no longer be current as of May 1st to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3/OW Philippines candidates who have a priority date between October 1, 2014 and July 1, 2007 will be affected — please contact us for a consultation and analysis of your personal case situation.

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 May 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 May 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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Alert: FY2016 H-1B Cap Demand Among Highest Ever; Random Lottery Just Completed

Our office just learned that the U.S. Citizenship and Immigration Service (USCIS) has completed the intake and processing of all of the fiscal year (FY2016) H-1B cap petitions.    According to USCIS, there were nearly 233,000 H-1B cap petitions filed during the April 1st-7th filing period.   This marks a 35% percent increase in the number of H-1B cap filings this year compared to last year’s cap season and this year’s demand is historically high.

The Lottery Has Been Completed

USCIS also just announced that they have just completed the computer-generated random selection process, or lottery, to select these petitions which would be reviewed to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.      The process involved running the random selection for the advanced degree exemption (20,000) first with all remaining unselected advanced degree petitions then becoming part of the random selection process for the 65,000 limit.

This means that the chance of an H-1B petition to be selected under the random H-1B lottery is less than 50%; in some cases the chance of selection may be as low as 30%.

Premium Processing 15-day Clock to Begin April 27th

H-1B cap petitioners who requested premium processing should note that the 15-day premium processing clock would not start until April 27th.

Next Steps and Timelines

Premium Processing Email Receipts.  USCIS will first focus on processing the selected premium processing H-1B cap petitions.   We expect that over the next 2-3 weeks we will start seeing email receipt notifications for premium processing cases.

Regular Processing Receipt Notices.  Shortly afterwards, perhaps around late April, we should start seeing paper receipt notices indicating acceptance under the lottery for regular processing H-1B cap cases.

H-1B Lottery Rejection Notices.  The H-1B lottery rejection notices are likely to be processed last, and given the fact that there will be about 150,000 such rejection packages, we expect that rejection packages will be sent out in late May or even June.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers and concurrent H-1B petitions for a second employer are cap-exempt and can be filed at any time and outside of the H-1B cap filing season.

Conclusion

The FY2016 H-1B cap numbers are not very surprising to our office based on the demand we saw during the January-March H-1B cap preparation period.    The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue to monitor developments related to this year’s H-1B cap filing season.    In the meantime, 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.   We are also inviting those who are interested to sign up for our FREE webinar on H-1B Cap Alternatives.

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Reentry Permit Renewal and Surrendering of Current Document

Our office serves many first-time and returning reentry permit applicants and our clients and readers often want to know the options for extending (technically, obtaining a new) reentry permit if their circumstances  require continued stay outside of the United States.    We have addressed the renewal options and strategies in earlier articles; however, an additional follow-up concern we often hear is whether (and how) should the current reentry permit document  be surrendered when applying for a renewal reentry permit.

Does Reentry Permit Renewal Application Require Surrendering of the Current Reentry Permit Document?

The answer depends on when the renewal reentry permit application is being filed, when the biometrics are completed and, ultimately, when USCIS is about to review and, hopefully, approve the renewal reentry permit application.    Pursuant to the relevant regulations, a reentry permit application cannot be approved if the applicant already has been issued a reentry permit and the current reentry permit is valid (not expired and the document is not lost/destroyed).  In this situation, USCIS will expect the current and valid document to be surrendered before the renewal application can be approved — often, at the time of adjudication, USCIS would issue a request for evidence (RFE) and ask for the current valid reentry permit document to be surrendered before the new application can be approved.

At the same time, if the current reentry permit has already expired at the time a renewal reentry permit application is being adjudicated, USCIS will not normally require the current (and expired) reentry permit to be surrendered as part of a renewal reentry permit application.

Timing Strategies for Surrendering Existing Reentry Permit When Filing for Renewal

With these rules and normal practices in mind, the question is, What is the best strategy for surrendering a reentry permit when filing for a renewal?     Needless to say, each case is different and this article does not substitute the advice and assistance of an attorney.   With this in mind and based on our extensive daily experience with reentry permits, we have found that often it makes  most sense to file a renewal application (see our recommended timing strategies) without surrendering the current valid reentry permit as part of the initial application.

Not surrendering the existing valid reentry permit document with the renewal application allows the reentry permit holder to continue use the current reentry permit for any additional travels into the United States for the duration of the renewal process.   Afterwards, once the required reentry permit process biometrics are completed and when USCIS adjudicator takes on the case for review and approval, if the existing reentry permit continues to remain valid, USCIS will issue an RFE (sent to the attorney of record and applicant’s address) and ask for the existing reentry permit to be surrendered.

At that time, having this (relative) piece of mind that the reentry permit renewal process is going well, the reentry permit applicant can surrender the reentry permit and expect to receive the renewal within a short time.

Conclusion

The reentry permit renewal process has several very important considerations and strategies.    But based on the rationale described in this article and our experience handling hundreds of reentry permits every year,  it often makes most sense to wait and surrender the reentry permit only at the final stages of adjudication of the renewal application.   This approach has worked well for many clients in retaining the reentry permit benefits during the document’s validity term and obtaining a new document with the longest possible term.

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments or complete the case evaluation and quote form if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Alert: FY2016 H-1B Cap Reached on April 7th


The U.S. Citizenship and Immigration Service (USCIS) announced that, as of today, April 7th, they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2015 fiscal year (FY2016).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 7, 2015 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2016 cap-subject petitions received between April 1 and April 7, 2015.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees (unless there were duplicate filings by the same employer for the same beneficiary, in which case no fees will be returned).

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service are likely to be processed starting late April and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2016 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2016 H-1B cap season, including filing statistics, as they become available.   In the meantime, 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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L-1B Petition Denial Rates Skyrocket (Especially for Indian Nationals)

A recent report by the National Foundation for American Policy (NFAP) focused on the denial rates for the L-1B visas.  In its March 2015 report NFAP analyzes denial rates over a number of years and for a number of different beneficiaries, from a variety of countries.   The conclusion is that the denial rate for L-1B petitions is at an all-time high, with about 35% of all L-1B petitions being denied.   For Indian nationals, the L-1B denial rate is an astonishing 56%.

Notable Points of the L-1B Denial Analysis

The overall denial rate for the 2014 fiscal year (FY2014) is 35%, a five-fold increase from the 7% denial rate in FY2007.   The denial rate for L-1B petitions to transfer employees from Indian origin is 56%,  while it is 13% for all nationals of all other countries.   Canadians are at 4%, British nationals are at 16%.

L-1B extension petitions for workers who are already in the U.S. (and were granted L-1B once) have a higher denial rate (41%) than initial applications  (32%)   There is no clear explanation or reason behind this — presumably, once USCIS has granted an L-1B visa initially, an extension should be easier (in relative terms) to get approved.   Apparently, this is not the case.

Requests for Evidence (RFE)s have continued to be at a very high rate – 45% of all L-1B petitions face an RFE, often requiring a very lengthy and time-consuming response.   Some may think back to FY2004 when only 2% of the L-1B petitions faced an RFE.

Conclusion

The NAFP analysis, based on date obtained from USCIS under the Freedom of Information Act (FOIA), provides a fairly detailed overview of the challenges ahead of L-1B employers, especially those who wish to bring foreign employees from India.    Our office witnesses first-hand the extremely time-consuming RFEs for a number of L-1B petitions and we share the concerns of our L-1B employer clients who face severe uncertainty in bringing key personnel to the U.S. on L-1B.

The concerns are particularly acute over the last two to three years where the annual H-1B cap has been exhausted over the first five days and has limited the options for bringing qualified foreign employees to the United States.  With the H-1B cap gone in five days and extremely challenging L-1B  adjudication process, foreign employers find in increasingly difficult to be able to bring talent to the U.S.

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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Visa Bulletin Updates and Predictions from Mr. Oppenheim (March 2015)

Our office closely monitors not only each monthly Visa Bulletin but also any developments and updates from here in Washington, DC which may give us some idea on upcoming movements and surprises.   Our goal is to share any and all credible information with our clients and readers in order to allow proper planning and to set expectations as realistically as possible.

Mr. Charles Oppenheim, who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and the person who prepares and publishes the monthly visa bulletin, has provided some thoughts and his expectations for the upcoming few months’ Visa Bulletin movements.    These comments are as of March 13, 2015.

EB-2/EB-3 China

The significant retrogression in EB-3 China in the April 2015 Visa Bulletin has essentially put an end to the EB-3 China “downgrade” trends which saw many EB-2 China applicants downgrade their case to EB-3 in order to take advantage of the more favorable EB-3 China cutoff dates.    With the retrogression in EB-3 China we see a more “natural” positioning of the EB-2 and EB-3 China cutoff dates.

While our office has been helping a number of EB-2 China applicants downgrade to EB-3 in order to take advantage of the dates over the past few months, we have always cautioned that this kind of downgrade is not for everyone and that over long-term, EB-2 China would still be the better category for ultimately the fastest green card approval.

If demand in EB-2 China does not increase significantly as a result of the April 2014 forward movement, it is expected to see another notable forward movement in EB-2 China in the next month or two.

EB-5 China

Retrogression is likely to occur no later than June 2015.

EB-2 India

EB-2 India has advanced significantly over the last two months – 16 months in the March 2015 Visa Bulletin and eight months in the April 2015 Visa Bulletin.    On top of this, Mr. Oppenheim expects that India would advance at a steady pace for another couple of months before a possible slowdown towards the end of the fiscal year (which ends September 30, 2015).    We read this to mean that forward movements of about 4-6 months per Visa Bulletin are likely over the next one to two months.

EB-3 India

Unfortunately, Mr. Oppenheim cannot share much good news as he expects EB-3 India to move by one to (possibly) two weeks per month.   The reason is that there is a significant amount of preadjudicated EB-3 India I-485 applications (more than 9,100) with a priority date before January 1, 2005 (when the annual limit is 2,875 immigrant visas).   Therefore, we expect very slow forward movement in EB-3 India.

EB-3 ROW, Mexico and Philippines

After the notable forward movement in April, Mr. Oppenheim expects that there will be more significant forward movement in the May Visa Bulletin.   Great news for EB-3 applicants from these countries.

While it is not expected that EB-3 ROW would become current any time soon, it is likely for this category to get into 2015 – which means that this category will be close to current and, in effect, for many, by the time candidates obtain PERM and I-140 approvals, they may already be current and be able to file their I-485 adjustment applications.    We call on all EB-3 applicants to either start their PERM applications soon or, for those who  have applications underway, to be ready to take advantage of a possible current priority date over the next few months.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.   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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April 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 China Significant Retrogression

The U.S. State Department has just released the April 2015 Visa Bulletin which is the seventh Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant eight-month forward movement in EB-2 India and the seven-month forward movement in EB-2 China.    EB-3 also moves forward nicely with the notable exception of EB-3 China which goes back by 9 months.

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

Below is a summary of the April 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 by eight (8) months to September 1, 2007.  EB-2 China moves forward by seven (7) months to April 1, 2011.
  • EB-3 ROW, Mexico and Philippines advance by four (4) months to October 1, 2014.   EB-3 China retrogresses by about nine (9) months back to January 1, 2011 (from October 22, 2011) while EB-3 India  advances by only one (1) week to January 8, 2004.
  • The “other worker” categories for ROW, Mexico and Philippines advance by four  (4) months to October 1, 2014.   EB-3 China remains unchanged at August 15, 2005 while EB-3 India  advances by one (1) week to January 8, 2004.

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

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

  • FB-1 ROW, China and India all remain unchanged at August 1, 2007.   FB-1 Mexico moves forward by one (1) week to November 1, 1994 while FB-1 Philippines remains unchanged at February 1, 2005.
  • FB-2A moves forward again, but by not as much – it moves forward by five (5) weeks to August 1, 2013 for ROW, China, India and Philippines.  It also moves forward by six (6) weeks to July 8, 2013  for Mexico.

Another EB-2 India Significant Forward Movement But By Not as Much as Last Month

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of eight months; however, it is not as significant as the forward movement in last month (April) visa bulletin (of sixteen months).  Overall, however, EB-2 India has advanced by two years over the last two months so this is certain a good sign.       EB-2 India applicants with a priority date earlier than September 1, 2007 can now move forward (or expect news, hopefully approval) with their applications.

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the next few months so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

EB-2 China Advances while EB-3 China Retrogresses Significantly

While EB-2 China advances nicely by seven months in this Visa Bulletin, EB-3 China moves back by almost ten months to January 1, 2011.   This retrogression is caused by the high number of EB-3 China filings over the last weeks and months, caused by the rapid advancement in the EB-3 China date over the recent months.    We had noted in our earlier Visa Bulletin alerts that the demand in EB-3 China is expected to rise with the forward date movement and it now seems that the Department of State “sees” sufficient demand to stop the rate of filings by moving back the cutoff date.

It is important to note that EB-3 China applicants who have a cutoff date which is current now and who would no longer be current as of April 1 to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3 China candidates who have a priority date between October 22, 2011 and January 1, 2011 will be affected — please contact us for a consultation and analysis of your personal case situation.

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 April 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 April 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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H-4 Spouse EAD: What Kind of Employment is Permitted? Can I Run My Own Business?

As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are receiving many questions and concerns as to what kind of employment would be permitted by the H-4 Spouse EAD, once the actual work permit is approved.    The quick answer is, “Any employment should be permitted.”  Here are some details.

Background of the H-4 Spouse EAD Rule

The new H-4 Spouse EAD rule allows certain H-4 spouses to apply for and obtain a work permit which would allow them to work in the United States while they are waiting for their H-1B spouse’s permanent residency (green card) process to be approved.   Not all H-4 spouses are eligible:  only spouses of H-1B workers who have an approved I-140 petition OR have a pending PERM or I-140 petition for more than 365 days and have extended their H-1B past their six-year H-1B limit are eligible.   More on the rule, eligibility and other details.  The earliest an H-4 Spouse EAD application can be filed is May 26, 2015.

EAD Must be Approved and Valid for Employment to be Authorized

It is important to note that the EAD work permit must be approved and valid for the H-4 spouse to be authorized to work.   This means that a pending EAD application or expired EAD work permit do not authorize employment.   As a result, careful planning of the filing process, especially for renewals, is essential.

What Kind of Work is Permitted?

The EAD work permit, once approved, is unrestricted.  It allows employment in any sector, in any job, without regard to the H-4 spouse’s education, experience or skills.   There is no requirement that the position be “skilled” or “professional.”    There is no requirement that the H-4 spouse must have a minimum degree.   There is no requirement that the job must be permanent or full-time.    Part-time positions are permitted.    Taking contract-based, temporary or independent contractor employment opportunities is also allowed with the H-4 Spouse EAD work permit.

Self-Employment or Running Own Company on H-4 Spouse EAD Is Permitted

The H-4 Spouse EAD work permit would also permit self-employment which would include being engaged as an independent contractor (1099) or running own business as a sole proprietor.    Similarly, the H-4 Spouse EAD rule allows its holder to establish, own and operate a business such as a corporation or a limited liability company.

Minimum Salary Requirements

There are no specific minimum salary requirements for an H-4 Spouse EAD worker other than the federal and state minimum wage laws when the employment if structured as regular (W-2) employment.   Some people mistakenly believe that the H-1B prevailing wage must be paid for the employment of an H-4 spouse who has an EAD under the new rule — this is incorrect.   While the H-1B prevailing wage requirement still applies to the H-1B worker spouse, the H-4 Spouse does not have to be paid the prevailing wage as long as they are paid the applicable federal/state minimum wage.

Conclusion

The H-4 Spouse EAD work permit is very flexible and allows many different types of employment, including self-employment and owning and operating a business.   In fact, this has been one of the government’s motives in proposing this rule and allowing for unrestricted EAD — stimulating the U.S. economy by allowing qualifying H-4 spouses to work in the field of their qualification, including running companies who would hire other employees.   The H-4 Spouse EAD, however, must be valid at all times for employment to be authorized.   This makes it critical to plan very well for filings and extensions to avoid any gaps in employment authorization which, in turn, may cause employment without authorization and violation of the H-4 status.

We will continue to provide information on this rule as it becomes available.     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.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

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