Labor Immigration Law

The U.S. State Department has just released the May 2012 Visa Bulletin which is the eighth Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the significant retrogression in EB-2 India and China, the continued forward movement in FB-1, the possibility of a cutoff date for EB-2 ROW and the possibility that EB-2 India and China would become unavailable for the rest of the fiscal year.

Summary of the May 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the May 2012 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China both move back, or retrogress, by two years and nine and a half months to August 15, 2007.
• EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only three (3) weeks to May 1, 2006, EB-3 China  moves forward by one (1) month to April 1, 2006, while EB-3 India  moves forward by only one (1) week to September 8, 2002.
• The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by three (3) weeks for ROW, Mexico and Philippines to May 1, 2006.  It also moves forward by one (1) week for India to September 8, 2002.

Summary of the May 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the May 2012 Visa Bulletin with respect to family-based petitions:

• FB-1 moves forward (again, for eighth consecutive month).  FB-1 ROW, China and India all move forward by one (1) month to May 1, 2005.   FB-1 Mexico moves forward by one (1) week to May 15, 1993 and FB-1 Philippines moves forward by one (1) week to July 1, 1997.
• FB-2A moves forward by five  (5) weeks to November 15, 2009 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by six (6) weeks to October 15, 2009.
• FB-2B ROW, China and India move forward by five (5) weeks to February 22, 2004.  FB-2B Mexico remains unchanged at December 1, 1992 and FB-2B Philippines remains unchanged at December 8, 2001.

Retrogression in EB-2 India and China Caused by High Demand/Number of Filings; No Forward Movement Expected Until at Least October 2012; Slow Movement  for EB-3; Continued Forward Movement in FB-1

One of the major headlines this month, in the eighth Visa Bulletin for the Fiscal Year 2012 is the retrogression in the EB-2 India and China cutoff dates — all the way back to August 15, 2007.   Although this retrogression should not come as a surprise to our clients and readers who may have seen our repeated alerts over the past few weeks, the retrogression would certainly cause disappointment to many I-485 Indian or Chinese applicants.

Unfortunately, the number of filings and our predictions for the Visa Bulletins for the rest of the year (see below) suggest that there should not be any forward movement expected in EB-2 India and China for the rest of the fiscal year (until the October 2012 Visa Bulletin).   At the same time, EB-3 continues steady (but slow) forward movement, especially EB-3 India which has been advancing by only one week per month for months.  EB-3 India is expected to continue its (very) slow movement.

This Visa Bulletin also shows continued forward movement in the FB-1 category which has been moving steadily for the past several months.    We continue to see the FB-2A category move forward, although by not as much as we saw for the last few months and after the significant retrogression during the months before.

EB-2 India and China:  USCIS to Continue Accepting I-485 Applications for Adjustment of Status; Pending I-485 Will be Preadjudicated

Despite this retrogression in the EB-2 India and China categories,  USCIS will continue to accept for the rest of the month of April new I-485 applications for adjustment of status for Indian and Chinese nationals with priority dates prior to the date established in the April 2012 Visa Bulletin.

Those filed and pending I-485 cases with priority dates of August 15, 2007, or later, should not see any approvals over the next few months.   Instead, those cases will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded to Visa Control at the Department of State to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012.

Visa Bulletin Cutoff Date Predictions

The May 2012 Visa Bulletin also provides some predictions on the movement of the cutoff dates for the next few months (presumably for the rest of the fiscal year).

Employment-based Categories

• EB-1 – expected to remain current;
• EB-2 ROW – there is a potential that EB-2 ROW  may require a cutoff to be established due to decrease in the number of available visa numbers for the fiscal year;
• EB-2 India and China – no forward movement, possibility to become “Unavailable,” effectively stopping all approvals for EB-2 India and China immigrant cases;
• EB-3 ROW – three to five weeks at a time;
• EB-3 China – up to six weeks;
• EB-3 India – up to two weeks; and
• EB-3 Mexico and Philippines – up to five weeks.

Family-based Categories

• FB-1 – four to six weeks at a time;
• FB-2A – up to two and half months;
• FB-2B – three to six weeks;
• FB-3 – three to six weeks; and
• FB-4 – three to five weeks.

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 2012 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.

The H-1B season is well underway and there are some “unofficial” updates on the FY2013  cap-subject H-1Bs filed since April 2 for both the Vermont and California Service Centers.  As of April 4, 2012, USCIS has received approximately 17,000 H-1B petitions counting toward the 65,000 cap.   Similarly, as of April 4, there were approximately 5,000 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit).    This suggests a dramatic (more than double) demand in the rate of H-1B filings compared to last year.

Comparison to the Last H-1B Season (FY2012)

Our office keeps detailed statistics of the previous H-1B filing seasons, and we are able to make comparisons with prior H-1B years in an effort to estimate demand and when the H-1B caps may be reached.  While it is too early to provide an estimate of when the H-1B cap would be reached for this fiscal year, all indications are that the cap would remain open for 3-6 months.

Last year, during the FY2012 H-1B filing season, by April 8th, there were 5,900 regular cap H-1B petitions filed.   Last year’s April 8th count of Master’s H-1B cap filing was 4,500.   This year’s unofficial estimate of 17,000 and 5,000 filings for the regular and master’s caps, respectively, for the first few days of the H-1B filing season suggests that there is dramatic increase in the number of H-1Bs filed early in the H-1B season.   Based on this information, and assuming there is no dramatic increase in the rate of filings, we anticipate that this year’s H-1B season would extend for between 3-6 months.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  So early in the process for this year, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.  You may want to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2013 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

We have written extensively over the past few weeks about the upcoming retrogression in the EB-2 India and China categories.   So, it should not come as a surprise that the Department of State has confirmed what we have anticipated and expected for a couple of weeks — namely, that the Department of State has “internally” moved back the cutoff dates for EB-2 India and China to August 15, 2007.

Department of State Confirms EB-2 India and China “Internal” Retrogression Even Before the Official May 2012 Visa Bulletin is Released

Mr. Charlie Oppenheim, the Chief of Visa Control at the State Department, has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007, or later.  It should be noted that immigrant visa applicants processing in the month of April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established.

USCIS to Continue Accepting I-485 Applications for Adjustment of Status; Pending I-485 Will be Preadjudicated

Despite this “internal” retrogression, Mr. Oppenheim has confirmed that USCIS will continue to accept for the rest of the month of April new I-485 applications for adjustment of status for Indian and Chinese nationals with priority dates prior to the date established in the April 2012 Visa Bulletin.

Those filed and pending I-485 cases with priority dates of August 15, 2007, or later, should not see any approvals over the next few months.   Instead, those cases will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded to Visa Control at DOS to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012.

Conclusion

Many EB-2 India and China I-485 applicants will be disappointed by the fact that no new I-485 approvals will come for at least several months.   However, the fact that EB-2 India and China cutoff dates moved so significantly over the past several months has allowed many applicants to file their (and their families’) I-485 applications.   Among the immediate benefits of an I-485 filing are advance parole and work permit documents, in addition to ability to port a pending I-485 to a new employer under AC21.

As we enter the last 20-25 days of the current cutoff dates, we urge those EB-2 India and China applicants who are eligible to file their I-485s due to a current (as of the April 2012 Visa Bulletin) priority date to aim to do so as soon as possible and in any case before the end of the month.    Please contact us if we can be of any assistance in the process.

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.

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 2.     Pursuant to each yearly H-1B quota, new H-1B filings can be filed on April 1 (April 2nd this year because April 1st is a Sunday), at the earliest, for a starting date of employment on or after October 1.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2013) starting on October 1, 2012.

As discussed above, the H-1B cap “opens” on April 2, 2012 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2013 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011 and last year, FY2012, the H-1B cap was open between April 1, 2011 and November 2, 2011.

Conclusion

We do not know yet how quickly would this year’s H-1B cap be reached.   On one hand, the US economy and hiring is improving; on the other hand, it is not improving that fast.    While we see higher H-1B work visa demand this year, compared to last, we do not anticipate that the H-1B cap will  be reached in the first few weeks of this year’s filing season.

Throughout the H-1B season, we will be providing bi-weekly updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  We will also be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  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.

The Department of Homeland Security (DHS) has released its report on the numbers of unauthorized immigrants residing in the U.S. as of January 2011.     The report makes a notable change in the methodology and also takes into consideration the 2010 Census data.   The DHS report, perhaps unsurprisingly, indicates that an estimated 11.5 million unauthorized immigrants were living in the U.S. in January 2011 compared to a revised 2010 estimate of 11.6 million.   The (very slight) decrease in the number of unauthorized immigrants is attributed mainly to the economic recession and some renewed removal efforts by the current administration.

Long Term Trends

The unauthorized immigrant population increased from 2–4 million in 1980 to 8.5 million by 2000.  After 2000, the number of unauthorized immigrants continued to increase. Previous estimates suggest a peak in about 2007 of 11.8 million or 12.0 million (variation is based on data from different surveys).    The January 2011 report of 11.5 million suggests a slight decrease over the past few years.

Period of Entry

Of the 11.5 million unauthorized immigrants in 2011, 1.6 million (14 percent) entered the United States on January 1, 2005 or later.  Larger numbers came during 2000-2004 (3.3 million or 29 percent) and 1995–1999 (3.0 million or 26 percent). Fewer came between 1990–1994 (1.6 million or 14 percent) or in the 1980s (1.9 million or 17 percent).

Estimates by Region and Country of Birth

An estimated 8.9 million (77 percent) of the total 11.5 million unauthorized immigrants living in the United States in 2011 were from North America, including Canada, Mexico, the Caribbean, and Central America.  The next leading regions of origin were Asia (1.3 million) and South America (0.8 million).  Between 2000 and 2011, the greatest increase in the unauthorized population occurred among natives of North America (2.8 million).

Mexico continued to be the leading source country of unauthorized immigration to the United States.  There were 6.8 million unauthorized immigrants from Mexico in 2011, representing 59 percent of the unauthorized population.   The next leading source countries were El Salvador (660,000), Guatemala (520,000), Honduras (380,000), and China (280,000).

Estimates by State of Residence

California remained the leading state of residence of the unauthorized immigrant population in 2011, with 2.8 million.  The next leading state was Texas with 1.8 million unauthorized residents, followed by Florida (740,000), New York (630,000), and Illinois (550,000).

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.