Capitol Immigration Law Group PLLC Immigration Attorneys and Counselors 2017-06-19T13:45:45Z https://www.cilawgroup.com/feed/atom/ WordPress Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[USCIS Starts Mailing H-1B Cap Non-Selection Notices]]> https://www.cilawgroup.com/?p=13865 2017-06-19T13:45:45Z 2017-06-19T13:44:04Z Two months after completing the random H-1B cap lottery, USCIS has started mailing back the H-1B cap applications which were not selected under the random H-1B cap lottery.     While the H-1B cap receipts for selected cases were sent out by May 3rd,  many employers and applicants who had not heard by now had to assume that their [...]

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Two months after completing the random H-1B cap lottery, USCIS has started mailing back the H-1B cap applications which were not selected under the random H-1B cap lottery.     While the H-1B cap receipts for selected cases were sent out by May 3rd,  many employers and applicants who had not heard by now had to assume that their H-1B cap cases were not selected.

H-1B Cap Season Numbers

This year there were 199,000 applications filed for the 85,000 available H-1B cap visas, resulting in a simple calculation of about 35% average chance than an application will be selected for processing under the H-1B cap.    U.S. master’s degree holders have higher change, while the rest of the applicants have slightly lower chance due to the way U.S. master’s degree holders’ H-1B cap cases are given priority at the lottery.   This 35% chance is slightly higher than last year’s average chance of H-1B cap selection.

H-1B Cap Non-Selection Notices

The H-1B cap non-selection package contains a notice by USCIS explaining that the case was not picked by the random H-1B cap lottery and includes the full original documents package, including the filing fees submitted as part of it.    Due to the volume of the H-1B cap non-selection packages (about 115,000 are to be mailed out), we expect that USCIS may take several weeks to process and mail all H-1B cap rejection packages.

Rejection Date and F-1 Cap-Gap

F-1 OPT students whose H-1B cap application was not picked up by the random lottery and who were relying on the pending H-1B petition for continued OPT work authorization under the “cap-gap” rule should understand that the rejection notice means that they may need to stop working and may be subject to the 60-day F-1 grace period.    We urge such F-1 students to consult their Designated School Official (DSO), employer or our office for a more thorough review of their options.    We also have more details in our F-1 OPT “cap-gap” article.

H-1B Cap Alternatives and Webinar

Our office has been very active in the H-1B employer and employee communities and we have seen great interest towards H-1B cap alternative visa options.   To further discuss these alternatives and to do so in more detail, on July 14, 2017, we are going to hold a live webinar session to discuss and analyse the H-1B work visa alternatives and we invite you to join us.  The webinar is FREE but space is limited so please register now.

Register
H-1B Cap Rejections: Alternative Visa Options
July 14, 2017 at 1 pm ET

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   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 with any of the H-1B visa alternative options, please feel free to contact us.

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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[PERM Processing Times (May 31, 2017)]]> https://www.cilawgroup.com/?p=13853 2017-06-15T16:46:47Z 2017-06-15T16:44:28Z Our office handles many ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing. The Department of Labor (“DOL”) has provided an update on the current [...]

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Our office handles many ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of May 31, 2017.

Quick Summary of the Current PERM Processing Times

Current Report
May 31, 2017
Processing
Time
Previous Report
Dec 3, 2016
Change
PERM Regular March 2017 3 months June 2016 No change
71 days review
PERM Audit November 2016 7 months May 2016 No change
221 days review
CO Reconsideration May 2017 2 months November 2016 No change

Details and Analysis of the PERM Processing Times

The processing times report by DOL for this month suggests that regular and audited PERM processing times have remained stable. Regular PERM cases should take around two-and-half to three months now while PERM audits should take around 7 months (counted from the date the PERM was filed or the priority date).

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

  • Regular processing: March 2017. DOL is processing PERM applications with priority dates of March 2017 and it takes on average 71 days for review.
  • Audited applications: November 2016. DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of November 2016, with review time around 221 days from the date the PERM was filed.
  • Appealed applications (requests for reconsideration to the Certifying Officer): May 2017. DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in May 2017.  This metric shows that such requests take, on average, about the same amount of time they used to compared to previous report.  Currently, it may take about two to three months to hear from the Certifying Officer after a PERM case is denied and a request for appeal is sent to the Certifying Officer.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline. However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the “government error” queue or under the regular appeal queue. As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response. If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue. If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The June 2017 PERM processing times report shows that the PERM processing times remain unchanged after gradual improvement over the last months.  These processing times are among the lowest we have seen in recent months.   We are hopeful that DOL will be able to keep these favorable PERM processing times over the next months.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you. Also, we will continue monitoring the PERM processing times and analyze any updates. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[July 2017 Visa Bulletin – Major EB-3 China Retrogression, EB-3 India Advances Notably]]> https://www.cilawgroup.com/?p=13847 2017-06-10T01:21:38Z 2017-06-10T01:06:58Z The U.S. State Department has just released the July 2017 Visa Bulletin which is the tenth Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the significant 33-month retrogression in EB-3 China, the continued cutoff date for EB-1 India and EB-1 China and the notable forward movement in EB-3 India. [...]

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The U.S. State Department has just released the July 2017 Visa Bulletin which is the tenth Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the significant 33-month retrogression in EB-3 China, the continued cutoff date for EB-1 India and EB-1 China and the notable forward movement in EB-3 India.

Summary of the July 2017 Visa Bulletin – Employment-Based (EB)

EB Category Jul 2017 Jun 2017 Change
Employment Application Final Action Dates (determines when an I-485 or IV can be approved)
EB-1 ROW, MX, PH Current Current No change
EB-1 India Jan 1, 2012 Jan 1, 2012 No change
EB-1 China Jan 1, 2012 Jan 1, 2012 No change
EB-2 ROW, MX, PH Current Current No change
EB-2 India Jul 22, 2008 Jul 1, 2008 Forward by 3 weeks
EB-2 China Mar 22, 2013 Mar 1, 2013 Forward by 3 weeks
EB-3 ROW Jun 8, 2017 Apr 15, 2017 Forward by 7 weeks
EB-3 India Feb 15, 2006 May 15, 2005 Forward by 9 months
EB-3 China Jan 1, 2012 Oct 1, 2014 Backward by 33 months
EB-3 Mexico Jun 8, 2017 Apr 15, 2017 Forward by 7 weeks
EB-3 Philippines May 14, 2014 May 1, 2013 Forward by 1 year
Dates for Filing Employment Visa Applications (determines when an I-485 can be filed)
USCIS will determine and announce within a week – please check back.
EB-1 Current Current No change
EB-2 ROW, MX, PH Current Current No change
EB-2 India Feb 1, 2009 Feb 1, 2009 No change
EB-2 China Oct 1, 2013 Oct 1, 2013 No change
EB-3 ROW Current Current No change
EB-3 India Oct 1, 2006 Apr 22, 2006 Forward by five months
EB-3 China Sep 1, 2015 Sep 1, 2015 No change
EB-3 Mexico Current Current No change
EB-3 Philippines Jul 1, 2014 Jul 1, 2014 No change

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

Summary of the July 2017 Visa Bulletin – Family-Based (FB)

FB Category Jul 2017 Jun 2017 Change
Family Application Final Action Dates (determines when an I-485 or IV can be approved)
FB-1 ROW, China, India Dec 22, 2010 Dec 22, 2010 No change
FB-1 Mexico Jan 15, 1996 Sep 1, 1995 Forward by 4.5 months
FB-1 Philippines Sep 15, 2006 Apr 22, 2006 Forward by 5 months
FB-2A ROW, China, India, Philippines Sep 8, 2015 Aug 15, 2015 Forward by 3 weeks
FB-2A Mexico Aug 22, 2015 Jul 22, 2015 Forward by 1 month
Dates for Filing Family Visa Applications (determines when an I-485 can be filed)
USCIS will determine and announce within a week – please check back.
FB-1 ROW, China, India Jul 22, 2011 Jul 22, 2011 No change
FB-1 Mexico Apr 1, 1996 Apr 1, 1996 No change
FB-1 Philippines Sep 8, 2007 Sep 8, 2007 No change
FB-2A ROW, China, India, Philippines Apr 8, 2016 Apr 8, 2016 No change
FB-2A Mexico Apr 8, 2016 Apr 8, 2016 No change

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

EB-3 China Retrogression – No Longer Ahead of EB-2 China – End of The Downgrading Era

Notable this month is the significant (33 months, or over two and half years) retrogression in EB-3 China.   Mr. Charles Oppenheim had recently cautioned that the significant demand in EB-3 China (most of it due to downgrading from EB-2 to EB-3), there are sufficient number of applications under EB-3 China and, as a result, a retrogression was required.

This significant retrogression in EB-3 China means that, at least for some time, we expect that the window for downgrading from EB-2 to EB-3 China has closed.    In fact, with EB-2 China more advanced than EB-3 China, it is possible that we may see a reverse trend of upgrading from EB-3 to EB-2 China.   The irony for some may be that some recent downgrades from EB-2 to EB-3 now may benefit from an upgrade from EB-3 to EB-2.

In a note, the State Department alerts that the EB-3 China is expected to get back to an October 1, 2014 cutoff date as of October 1, 2017.   Our office is happy to consult applicants who are in this situation and are considering what may be the best and most advantageous options for filing EB China applications.   Please contact us if we can help.

EB-1 India/China Cutoff Date

We had anticipated the introduction of a cutoff date for the EB-1 India and EB-1 China in last month’s Visa Bulletin.    This cutoff date remains unchanged and it is expected that this cutoff date will remain in place until October 1, 2017.  EB-1 India and EB-1 China applicants who have not filed I-485 may now need to wait until October 1.

Upcoming Introduction of EB-2 ROW/Mexico/Philippines Cutoff Date

We also would like to caution that in the previous Visa Bulletin, the Department of State warned that they are also likely to introduce a cutoff date for the EB-2 ROW, Mexico and Philippines categories (which have almost always been current) over the following few months.   It is possible that a cutoff date will be introduced for EB-2 ROW/Mexico/Philippines within the next one or two Visa Bulletins.

If and when such cutoff date is introduced, applicants who are affected will not be able to complete their green card process either at the US Consulate or by filing or getting an approval of I-485 adjustment of status application until their priority date becomes current again.   It is expected that these categories will be current again after October 1, 2017.   Applicants who may be affected by this cutoff date introduction should consider monitoring closely the upcoming Visa Bulletins for the  next few months and be ready to move forward with a prompt I-485 filing or wait until October 1 when it is anticipated that the dates will be current again.

Current Date?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.  There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

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

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the July 2017 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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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[Simeio RFEs: How to Handle “Simeio” RFE Due to Late H-1B Amendment Filing?]]> https://www.cilawgroup.com/?p=13841 2017-06-08T13:44:51Z 2017-06-08T13:44:51Z In our office, and in the broader H-1B community, we are seeing instances and reports of H-1B petition RFEs aimed at ensuring compliance with the Simeio-line of guidance issued by USCIS in 2015. Specifically, we are seeing RFEs on H-1B petitions (amendments, mostly, but also for extensions) where USCIS is questioning the timeliness or the [...]

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In our office, and in the broader H-1B community, we are seeing instances and reports of H-1B petition RFEs aimed at ensuring compliance with the Simeio-line of guidance issued by USCIS in 2015. Specifically, we are seeing RFEs on H-1B petitions (amendments, mostly, but also for extensions) where USCIS is questioning the timeliness or the lack of the H-1B amendment filings. Our office has handled a number of such RFEs and we share our experience and thoughts on how to best handle them.

Simeio Background

The April 9, 2015 AAO decision In Matter of Simeio Solutions, LLC (PDF copy) put many H-1B employers who place H-1B workers at third-party worksites in a position to scramble and assess their current level of compliance with the H-1B regulations.  Afterwards, in a July 21, 2015 Policy Memorandum, USCIS provided an amended and final set of instructions as to how USCIS would treat H-1B petitions where the employee changes worksite locations (see our full analysis of the final guidance).

When is H-1B Amendment Required?   An H-1B employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.   In other words, doing an LCA only for the changed worksite location is not sufficient – an H-1B amendment filing prior to beginning work at the new worksite location is required.

When is an H-1B Amendment NOT Required?   According to the USCIS guidance, a new H-1B amendment is not required for if the new worksite location is within the same Metropolitan Statistical Area (MSA), if the placement is short-term (a few days only) or for non-worksite locations (see our earlier analysis for more details).

USCIS RFEs Focus on Late or Missing Amendment Filings After Worksite Location Change

Our office has been seeing and handling an increasing number of H-1B petition RFEs focused on checking if the employer is in compliance with the Simeio requirements.     Usually, the underlying facts are similar:  an H-1B employee starts working at a new worksite location (outside of the MSA) and the H-1B employer does not file the required H-1B amendment prior to the employee’s first day of work at the new worksite.  In some cases the amendment is filed late by a few weeks, in some cases the amendment is filed a few months late.    We have also seen cases where the Simeio RFE is issued for H-1B extensions.

The USCIS RFE often reads like this:

If the change in the place of employment (not covered by an existing, approved H-1B petition) occurs on or after August 19, 2015, then the petitioner must file an amended or new petition before the employee begins working at the new location.

In this case, although the beneficiary appears to have moved to work for another end client at another location different than the previously approved location stated in the previously approved petition and its corresponding LCA after [LCA date], there is no evidence that you have filed an amended petition prior to the employee begins working at the new location.

Therefore, it appears that you have not complied with the USCIS’ previously approval as well as United States Department of Labor (“USDOL”) requirements governing labor condition applications by filing labor condition applications and amended I-12 9 petitions for the period of employment and locations at which beneficiary had/ has worked.

It is requested that you provide an explanation and submit evidence to establish that you have complied with the terms and conditions of the labor condition applications and the USCIS and USDOL’s requirements.

Strategy for Responding to Simeio H-1B RFEs

Obviously, each case requires separate analysis and response, but there are generally three ways to respond to these RFEs:

New Worksite is Within the Same MSA or Placement Took Place Before April 9, 2015.   The easiest cases may be those where the new worksite location is within the same metropolitan statistical area OR if the new change took place prior to the Simeio decision on April 9, 2015.

USCIS Alleges Wrong Facts or Dates. Slightly more challenging are the cases where USCIS is incorrect in their assertion that the placement at the new workplace began prior to the filing of the H-1B petition.  In this case, the response may have to focus on explaining and documenting that the placement at the new worksite did not begin prior to the H-1B amendment filing.    Evidence can include timesheets, letters from end client, travel or relocation records, and similar.

New Worksite Placement After April 9, 2015 and H-1B Petition Filed After Employee Started Work.  This situation presents the greatest challenge because, factually, USCIS may be on solid ground in challenging the late amendment filing based on Simeio.    When we have been able to resolve this kind of RFEs successfully, our main focus has been to request discretionary approval and demonstrate, to the extent possible, the employer’s efforts (even if incomplete) to comply with Simeio.   At the same time,  as the case circumstances permit,  it is worth requesting a discretionary approval on a nunc-pro-tunc basis which essentially asks the government to “forgive” prior non-compliance and grant status.     Finally, it is worth asking specifically that even if USCIS determines that the petition was filed late (non-compliance with Simeio) then the H-1B petition component should be still approved even if the status (I-94, where requested) component of the petition should be denied.     This way the beneficiary may be able to “correct” the issue by departing and reentering the U.S. using the new H-1B petition approval and with a valid H-1B visa stamp.

If our office can assist with an RFE, please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Increased Scrutiny Requires Careful Planning and Timely Amendment Filings

Our office has been drawing a lot of attention to the Simeio guidance from the time it was announced in early 2015 and we feel that our efforts have helped many employers and individuals avoid this kind of scrutiny.    Not only is USCIS starting to enforce the Simeio guidance more strictly, but U.S. consular officers have also been instructed to watch for and enforce Simeio compliance during the H-1B visa stamping process.

As a result, we continue to stress the importance of adequately planning for changes in worksite locations well in advance and filing the H-1B amendments before the H-1B worker starts working at the new worksite location.

Conclusion

We will continue to closely monitor how USCIS and consular sections will adjust their adjudications.   We ask our clients and readers to share their H-1B USCIS RFE and H-1B stamping experience if it involved change in worksite location.    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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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[USCIS Clarifies H-1B Master’s Cap Degree Must be Obtained While University is Accredited]]> https://www.cilawgroup.com/?p=13830 2017-06-01T16:31:01Z 2017-06-01T16:21:07Z The U.S. Citizenship and Immigration Service (USCIS) has issued a memorandum adopting the AAO decision in Matter of A-T-, Inc. and establishing policy guidance which will apply to and bind all USCIS adjudicators.    USCIS clarifies that in order to be able to qualify for an H-1B cap exemption based on a U.S. master’s or [...]

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The U.S. Citizenship and Immigration Service (USCIS) has issued a memorandum adopting the AAO decision in Matter of A-T-, Inc. and establishing policy guidance which will apply to and bind all USCIS adjudicators.    USCIS clarifies that in order to be able to qualify for an H-1B cap exemption based on a U.S. master’s or higher degree, the institution which has awarded such degree must have qualified as a “United States institution of higher education”, or to be accredited, at the time the beneficiary’s degree was earned and not at the time of adjudication of the H-1B master’s cap petition.

U.S. Master’s Degree Must be Obtained While University is Accredited

The USCIS memo and the AAO decision provide much needed clarification as to how to determine if a master’s degree can be used to qualify for the H-1B master’s quota.   This is especially important for degrees gained at institutions of higher education which may have undergone changes with respect to their accreditation status.   The underlying AAO case itself illustrates this situation.  The beneficiary in the Matter of A-T-, Inc. obtained a master’s degree while the university was not accredited but subsequent to graduation the university was accredited and the beneficiary sought to apply under the H-1B master’s cap.

The AAO panel rejected this argument and specifically held that in order to be able to file under the H-1B master’s cap, the master’s or higher degree must have been conferred by an institution which was accredited at the time the degree was conferred.

The good news is that this clarification means that applicants who have obtained a master’s degree or higher by a university which was accredited but has then lost its accreditation would still be able to file under the H-1B master’s cap by demonstrating that the university was accredited at the time the degree was granted.   This is especially important and helpful to a number of master’s degree holders after the Accrediting Council for Independent Colleges and Schools (ACICS) lost its recognition and, as a result, many institutions lost their accreditation.

On the other hand, graduating students who are enrolled in a university which was solely accredited by ACICS (and where there is no alternative accreditation or pre-accreditation) may find themselves with a degree obtained while the institution was not accredited and, as a result, may not be able to file a possible future H-1B work visa under the master’s cap.

Conclusion

While this memorandum and clarification comes a little bit too late for this year’s H-1B cap filing season, we nonetheless welcome the guidance and clarification provided by USCIS.    At a minimum, this would allow H-1B employers and their employees who are considering an H-1B cap petition for April 2018 to plan accordingly and prepare the paperwork in the best possible way.

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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Aleksandra Michailov, Esq. https://www.cilawgroup.com/professionals/aleksandra-michailov/ <![CDATA[Check-in with DOS’s Charlie Oppenheim: Visa Bulletin Predictions as of May 19, 2017]]> https://www.cilawgroup.com/?p=13824 2017-06-01T01:44:06Z 2017-05-25T15:28:48Z Employment-Based Preference Categories. Increased demand across the employment based preferences, including EB-4 and EB-5, has significantly decreased the “otherwise unused numbers” which have traditionally trickled up to EB-1 and potentially down to EB-2.  For example, in FY 2016, Special Immigrant Juvenile cases used more than 50% of the entire EB-4 annual limit, thus preventing many [...]

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Employment-Based Preference Categories. Increased demand across the employment based preferences, including EB-4 and EB-5, has significantly decreased the “otherwise unused numbers” which have traditionally trickled up to EB-1 and potentially down to EB-2.  For example, in FY 2016, Special Immigrant Juvenile cases used more than 50% of the entire EB-4 annual limit, thus preventing many of those 5,200 numbers to potentially become available for use by EB-1 applicants. This, together with high EB-1 Worldwide demand, has contributed to a situation where EB-1 India and EB-1 China now have a final action cut-off date, and in which EB-2 China and EB-2 India number usage is restricted to their annual limits. This is creating significant pressure on these categories that is not likely to abate in the foreseeable future.

In 2014, EB-2 India used approximately 23,500 numbers due to the slightly higher employment annual limit and the infusion of otherwise unused numbers from other categories. By contrast, EB-2 India number use will be subject to its annual limit of 2,803 numbers in FY 2017. As demand across employment based preference categories continues to grow, and absent reform, members can expect to see continued pressure on China and India in the EB-1 and EB-2 categories.

EB-1 China and EB-1 India. As predicted, a final action date of January 1, 2012 is being imposed for EB-1 China and EB-1 India which have already used almost half of the entire EB-1 Worldwide limit for this fiscal year. This date is expected to hold through the remainder of this fiscal year. It is hoped that the final action date for EB-1 China and EB-1 India will return to current on October 1, as it did last year, but Charlie will continue to monitor demand in these categories over the summer months. EB-1 Worldwide is expected to remain current through this fiscal year and into the next.

EB-2 Worldwide. For several months, Charlie has observed high EB-2 number usage, and is now certain that a final action cut-off date will be imposed for EB-2 Worldwide by August, and possibly in July. Charlie hopes that the date imposed will not be too drastic, and will determine that date based upon the remaining numbers and the monthly demand trend. In the worst case scenario, the date will remain the same through the end of the fiscal year but depending on demand, it is possible that the date could advance slightly in September. Charlie is confident that this period of retrogression will be brief, and that the category will again become current on October 1.

EB-2 India. Demand for EB-2 India continues to be strong, in large part due to EB-3 upgrades. As noted above, the supply of visas in this category is limited to the per country limit. Although EB-2 India will advance slightly in June, Charlie no longer believes this category will recover to last year’s final action date. Charlie hopes to hold the existing final action date through the remainder of the fiscal year but will be watching this category closely.

EB-2 China and EB-3 China. EB-2 China will advance less than one month to March 1, 2013 in June, and EB-3 China’s final action date of October 1, 2014 continues to hold steady in June. Charlie expects EB-2 China to continue to advance slowly and notes that it is on track to hit the per country limit. In addition, EB-3 downgrade volume has started to materialize in large numbers. Charlie hopes to hold the EB-3 China final action date as long as possible, but retrogression of this category cannot be ruled out. Since Charlie lacks visibility into downgrade demand until a visa number is requested, members should continue to watch this category closely.

EB-3 Worldwide. EB-3 Worldwide will advance by one month to April 15, 2017 in June, making this category effectively current. Charlie expects this category to continue to advance.

EB-3 India. In June, EB-3 India will leap forward from March 25, 2005 to May 15, 2005. Since EB-3 Worldwide and Mexico demand is low, those otherwise unused numbers will continue to advance the final action date for EB-3 India in July and August. Charlie has already predicted that the July final action date for EB-3 India will advance to October 15, 2005, as he announced during a May 18, 2017 meeting with AILA in Washington, D.C.

EB-5 China. EB-5 China will advance by one week to June 8, 2014 in June. Charlie expects slow forward movement in this category.

FB-4. As noted last month, FB-4 Worldwide is the family-based preference category that members should watch closely. Although the final action date will remain the same in June, Charlie hopes to advance this category this fiscal year.

FB-4 Worldwide continues to advance, as the majority of beneficiaries are not responding to the NVC “Agent of Choice” letters. Only 40% of 120,000 FB-4 Worldwide beneficiaries who had been sent “Agent of Choice” letters no later than April 2016 have responded to those letters, and of those, only 15% provided sufficient information for an interview to be scheduled. Had they responded in a timely manner, all of those applicants could have been scheduled for interview no later than April 2017. Charlie reminds members that timely response to the Agent of Choice letters is helpful to ensuring that case advances to completion as quickly as possible.

Special Immigrants. EB-4 India will be subject to a final action date in July. That date will track the final action date for El Salvador, Guatemala, Honduras and Mexico. At last week’s FBA conference in Denver, Charlie announced that the July EB-4 date for those five countries will be August 15, 2015.

The Visa Bulletin notes that the SQ category for certain Afghanis will remain current, following approval of an additional 2,500 visas. The SQ category for Iraqis remains current, however, the application filing deadline was September 30, 2014. The SI category is unavailable.

The post Check-in with DOS’s Charlie Oppenheim: Visa Bulletin Predictions as of May 19, 2017 appeared first on Capitol Immigration Law Group PLLC.

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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[USCIS Issues a Multitude of RFEs on Pending I-485 Applications – Mid-2017 Edition]]> https://www.cilawgroup.com/?p=13244 2017-05-21T01:46:57Z 2017-05-18T16:52:54Z Many of our clients and readers are already aware of the move by U.S. Citizenship and Immigration Service (“USCIS”) to issue what are hundreds, or perhaps even thousands, of very similar, if not identical, requests for evidence (“RFE”) on pending employment-based Form I-485, Application to Adjust Status, cases.    Our office has been receiving such [...]

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Many of our clients and readers are already aware of the move by U.S. Citizenship and Immigration Service (“USCIS”) to issue what are hundreds, or perhaps even thousands, of very similar, if not identical, requests for evidence (“RFE”) on pending employment-based Form I-485, Application to Adjust Status, cases.    Our office has been receiving such RFEs and we have been hearing from readers and clients who have also been affected by this large-scale RFE event.    We have seen similar RFE flood waves in the past and many EB-2 and EB-3 India applicants may have seen two or even three such RFEs.    Like previous RFE waves in the past, USCIS is generally seeking updated medicals, in addition to employment verification documents from the sponsoring employer.

Similar or Identical I-485 RFEs

In terms of substance, the RFEs appear to be almost identical and seek information and clarification on a few points – (1) evidence of continuous employment authorization in the U.S. from the date the I-485 application was filed to the date of the RFE; (2) a current (and original) employment verification letter or I-485 Supplement J form from the original sponsoring employer or, in cases of AC21 porting to a new employer, from the new employer; and (3) request for updated I-693 medical exam form.   In few cases, especially when the I-485 has been pending for more than five years, we have also seen USCIS request updated Form G-325, Biographic Information.

Who Is Getting (Or Should Expect) I-485 RFE?

While there are many I-485 RFEs which are issued for other reasons, the trend we are noticing is that USCIS is issuing I-485 RFEs on pending I-485 applications filed by Indian nationals under the EB-2 and EB-3 preference categories.   The reason is that as many EB-2 and EB-3 India cutoff dates are advancing, USCIS is preparing I-485 applications with approaching priority dates for final review and approval when the priority date becomes current over the following months.

Expiring I-693 Medicals Triggers I-485 RFE

The medical exam portions of the RFEs are triggered by two separate factors.

First, on June 1, 2014, USCIS amended its policy with respect to the continuing validity of the I-693, Medical Exam.   As a result of this change in policy, I-693 medical exams are valid for only one year and USCIS cannot approve a pending I-485 adjustment of status application without a valid I-693 medical exam.    As the cutoff dates for many employment-based categories advance, especially EB-2 India, USCIS adjudicators have to request an updated set of medical exam (from each I-485 applicant) in order to continue to keep the I-485 case preadjudicated and ready for approval once a visa number becomes available.

Second, on August 1, 2016, USCIS also amended its policy with respect to gonorrhea testing and now all applicants who are 15 years or older must include this testing.   Because this requirement was not well alerted, many medical exams completed in mid- or late-2016 did not include this testing.

Many of our EB-2 and EB-3 India readers and clients have already experienced two, even three, such I-485 RFE “waves” and are generally not surprised or alarmed by the fact this kind of I-485 is issued.    But we urge caution in approaching the I-485 RFE response, especially when preparing any remaining RFE items – most often employment authorization and employment verification.

Maintaining Employment Authorization

In addition to asking for updated medicals, the RFE sometimes requests proof of employment authorization starting from the date the I-485 was filed until the present.   For many people this evidence would include copies of Employment Authorization Documents (EAD) or H-1B (or other employment-authorized status) approval notices/Form I-94 cards.   In many instances, I-485 applicants continue to maintain their H-1B status even after they file I-485 (and obtain EAD) or even after they switch an employer pursuant to AC21.    In other cases, I-485 applicants simply drop their H-1B and continue employment pursuant to a valid and uninterrupted EAD.

With this RFE, USCIS is trying to determine whether I-485 applicants may have been employed without authorization during the time the I-485 has been pending.   The significance is that in those cases where the I-485 applicant is deemed to have been employed without authorization (or without status) for more than 180 days since the last entry into the U.S., the government may deny the I-485 application under section 245(c).    Please see our article on this bar to adjustment and the section 245(k) defense.

As a result, special attention should be paid to ensuring that complete employment authorization history is provided.  If there are any gaps, we urge extreme caution.

I-485 Supplement J, Confirmation of Bona Fide Job Offer or Employment Verification Letter

Starting January 2017, USCIS has created a new and separate form which aims to streamline the process of verifying intended permanent employment for I-485 cases.   I-485 Supplement J is the form now required by USCIS to confirm an offer of permanent employment and is now requested during an initial I-485 filing OR during I-485 RFE.

Previously, USCIS used to require an original employment verification letter (“EVL”) from the original (if no job change) or a new (if jobs changed pursuant to AC21) employer.   Presently, USCIS expects to see the I-485 Supplement J form completed and signed by both the applicant and the sponsoring (current or future) employers.     The form should be currently-dated, describe the title and duties of the position, the salary, the minimum educational or training requirements, and the date the employment began (or will begin).

Attorney Assistance with Preparing RFE Response

Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFE.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.

We are also happy and available to assist with a more comprehensive RFE response representation.   Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Conclusion

For many applicants, however, who may expect to see their priority become current over the next two to three months, responding to this kind of an RFE becomes very time-sensitive in order to have a complete case ready for approval once the priority date becomes current.

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

The post USCIS Issues a Multitude of RFEs on Pending I-485 Applications – Mid-2017 Edition appeared first on Capitol Immigration Law Group PLLC.

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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[June 2017 Visa Bulletin – EB-1 China and EB-1 India Cutoff Date Introduced]]> https://www.cilawgroup.com/?p=13234 2017-05-21T01:46:57Z 2017-05-09T20:08:00Z The U.S. State Department has just released the June 2017 Visa Bulletin which is the ninth Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is introduction of a cutoff date for EB-1 India and EB-1 China.   Because this cutoff date may remain in effect for the next several months, [...]

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The U.S. State Department has just released the June 2017 Visa Bulletin which is the ninth Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is introduction of a cutoff date for EB-1 India and EB-1 China.   Because this cutoff date may remain in effect for the next several months, we call on all EB-1 India and EB-1 China applicants who are eligible but have not filed I-485s to do so before the end of May 2017.

Summary of the June 2017 Visa Bulletin – Employment-Based (EB)

EB Category Jun 2017 May 2017 Change
Employment Application Final Action Dates (determines when an I-485 or IV can be approved)
EB-1 ROW, MX, PH Current Current No change
EB-1 India Jan 1, 2012 Current Cutoff date introduced
EB-1 China Jan 1, 2012 Current Cutoff date introduced
EB-2 ROW, MX, PH Current Current No change
EB-2 India Jul 1, 2008 Jun 22, 2008 Forward by 1 week
EB-2 China Mar 1, 2013 Feb 8, 2013 Forward by 3 weeks
EB-3 ROW Apr 15, 2017 Mar 15, 2017 Forward by 1 month
EB-3 India May 15, 2005 Mar 25, 2005 Forward by 7 weeks
EB-3 China Oct 1, 2014 Oct 1, 2014 No change
EB-3 Mexico Apr 15, 2016 Mar 15, 2016 Forward by 1 month
EB-3 Philippines May 1, 2013 Jan 1, 2013 Forward by 4 months
Dates for Filing Employment Visa Applications (determines when an I-485 can be filed)
USCIS will determine and announce within a week – please check back.
EB-1 Current Current No change
EB-2 ROW, MX, PH Current Current No change
EB-2 India Feb 1, 2009 Feb 1, 2009 No change
EB-2 China Oct 1, 2013 Oct 1, 2013 No change
EB-3 ROW Current Current No change
EB-3 India Apr 22, 2006 Apr 22, 2006 No change
EB-3 China Sep 1, 2015 Sep 1, 2015 No change
EB-3 Mexico Current Current No change
EB-3 Philippines Jul 1, 2014 Jul 1, 2014 No change

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

Summary of the June 2017 Visa Bulletin – Family-Based (FB)

FB Category Jun 2017 May 2017 Change
Family Application Final Action Dates (determines when an I-485 or IV can be approved)
FB-1 ROW, China, India Dec 22, 2010 Dec 8, 2010 Forward by 2 weeks
FB-1 Mexico Sep 1, 1995 Jun 15, 1995 Forward by 2.5 months
FB-1 Philippines Apr 22, 2006 Feb 1, 2006 Forward by 2.5 months
FB-2A ROW, China, India, Philippines Aug 15, 2015 Jul 15, 2015 Forward by 1 month
FB-2A Mexico Jul 22, 2015 Jun 22, 2015 Forward by 1 month
Dates for Filing Family Visa Applications (determines when an I-485 can be filed)
USCIS will determine and announce within a week – please check back.
FB-1 ROW, China, India Jul 22, 2011 Jul 22, 2011 No change
FB-1 Mexico Apr 1, 1996 Apr 1, 1996 No change
FB-1 Philippines Sep 8, 2007 Sep 8, 2007 No change
FB-2A ROW, China, India, Philippines Apr 8, 2016 Apr 8, 2016 No change
FB-2A Mexico Apr 8, 2016 Apr 8, 2016 No change

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

EB-3 China Ahead of EB-2/EB-1 China – End of Downgrading on the Horizon

Clients and readers who are interested in EB China will note that EB-3 China continues to have a more favorable cutoff date than EB-2 China (and not EB-1 China as well) by a number of months (EB-3 China is at October 1, 2014 while EB-2 China is March 1, 2013 and EB-1 China is at January 1, 2012).

However, the Department of State is reporting that large demand in EB-3 China has caused the numbers for this category to increase significantly and it is expected that there will be a retrogression in EB-3 China in the July or August 2017 Visa Bulletin.

While there may be many individuals who can still benefit from the EB-3 China downgrade, the fact that there is significant demand and the anticipated EB-3 China retrogression means that the EB-3 China downgrade option may not be so attractive any longer.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

Introduction of EB-1 India/China Cutoff Date

As we warned last month in our May 2017 Visa Bulletin alert,  the Department of State is introducing a cutoff date for the EB-1 India and EB-1 China – of January 1, 2012.     It is expected that this cutoff date will remain in place until October 1, 2017 so we are alerting all EB-1 India and EB-1 China applicants who have not filed I-485 (but are eligible to do so) to consider doing so during the month of May 2017 and before the June 2017 Visa Bulletin becomes effective on June 1, 2017.

 

Upcoming Introduction of EB-2 ROW/Mexico/Philippines Cutoff Date

The Department of State is warning that they are also likely to introduce a cutoff date for the EB-2 ROW, Mexico and Philippines categories (which have almost always been current) over the following few months.   It is likely that a cutoff date will be introduced for EB-2 ROW/Mexico/Philippines before July 2017.

Once such cutoff date is introduced, applicants who are affected will not be able to complete their green card process either at the US Consulate or by filing or getting an approval of I-485 adjustment of status application until their priority date becomes current again.   It is expected that these categories will be current again after October 1, 2017.   Applicants who may be affected by this cutoff date introduction should consider monitoring closely the upcoming Visa Bulletins for the  next few months and be ready to move forward with a prompt I-485 filing or wait until October 1 when it is anticipated that the dates will be current again.

Current Date?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.  There are many applicants across many of the employment and family categories who can now 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 June 2017 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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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[USCIS Starts Issuing Redesigned Green Cards and EADs]]> https://www.cilawgroup.com/?p=13230 2017-05-21T01:46:57Z 2017-05-08T21:28:52Z Starting May 1, 2017, U.S. Citizenship and Immigration Services (“USCIS”) will start producing and issuing redesigned Permanent Resident Cards (also known as Green Cards) and the Employment Authorization Document (EADs). The redesign comes under USCIS’s “Next Generation Secure Identification Document Project”  which is essentially an effort to increase the security of certain identification documents.   [...]

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Starting May 1, 2017, U.S. Citizenship and Immigration Services (“USCIS”) will start producing and issuing redesigned Permanent Resident Cards (also known as Green Cards) and the Employment Authorization Document (EADs).

The redesign comes under USCIS’s “Next Generation Secure Identification Document Project”  which is essentially an effort to increase the security of certain identification documents.    These redesigns will use enhanced graphics and fraud-resistant security features to create cards that, according to USCIS, are “highly secure and more tamper-resistant than the cards currently in use.”

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
    – Green Cards will have an image of the Statue of Liberty and a green palette;
    – EAD cards will have an image of a bald eagle and a red palette;
    – Have embedded holographic images; and
    – No longer display the individual’s signature.
  • Green Cards will also no longer have an optical stripe on the back.

Employers:  How To Tell If a Card Is Valid

Employers should be aware of the changes to these designs and understand that, at least for a period of time, there will be a variety of green card and EAD designs in circulation, all of which are valid and acceptable form of identity and employment authorization, depending on the terms and validity of the document.

Additionally, some Green Cards and EADs issued after May 1, 2017, may still display the existing design format, as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Both the new and existing versions of the Green Card and EAD are acceptable for Form I-9, Employment Eligibility Verification and E-Verify. Some older Green Cards do not have an expiration date. These older Green Cards without an expiration date also remain valid.

Conclusion

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 with understanding the green card and EAD compliance rules, including employment authorization and I-9 compliance, please feel free to contact us.

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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[USCIS Completes Data Entry and Receipting of H-1B Cap Petitions for FY2018]]> https://www.cilawgroup.com/?p=13220 2017-05-21T01:46:57Z 2017-05-03T21:11:20Z Many of our readers are aware that as of April 7, 2017, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota. As USCIS has been issuing receipt notices for the H-1B cap cases which are being selected for processing, we wanted to provide an update as to how [...]

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Many of our readers are aware that as of April 7, 2017, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota. As USCIS has been issuing receipt notices for the H-1B cap cases which are being selected for processing, we wanted to provide an update as to how long will H-1B petitioners and applicants wait to hear whether their H-1B petition has been selected for processing under the H-1B cap.

H-1B Completes H-1B Petition Data Entry on May 3, 2017

USCIS has just announced that they have completed the data entry and receipting of all selected H-1B cap petitions. This means that the last set of receipt notices are about to be sent out. Here’s USCIS’s announcement:

USCIS announced on May 3, 2017, that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Based on this announcement, we expect that it may take another week or so to expect to receive H-1B cap receipt notices for selected cases. Afterwards, USCIS will turn its attention to sending out the H-1B non-selection notices and document packages back.

Receipt of Rejection Packages Can Take Weeks

Please note that given the number of rejections USCIS will have to send out (~115,000), we expect that it may take at least several weeks before all H-1B lottery rejection packages are sent back and before knowing with certainty that a case did not make it under the H-1B cap lottery.

Was My Case Selected for Processing Under the H-1B Lottery This Year?

  • We should know if your case was selected under the H-1B cap lottery by mid-May.
  • If we do not have news by mid-May, it is likely that your case was not selected under the H-1B cap lottery; however, the actual rejection notice may take several weeks.

H-1B Cap Alternatives

We understand that there are many of our readers and clients who may not  have heard any news about their H-1B cap case so far and that the chances for selection are getting dimmer.    Our office has compiled a selection and overview of the most common H-1B cap alternative visa options.

Conclusion

Our office will continue to monitor developments relating to the H-1B cap 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 with any of the H-1B visa alternative options, please feel free to contact us.

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