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February 2017 Visa Bulletin – No Movement in EB-2 India; Gradual Forward Movement Elsewhere

By Dimo R. Michailov, Esq.|January 10th, 2017|

The U.S. State Department has just released the February 2017 Visa Bulletin which is the fifth Visa Bulletin for the new FY2017 fiscal year. The headline in the upcoming month’s Visa Bulletin is the slow forward movement across many categories, including the lack of any movement in EB-2 India.  EB-3 China continues to have a more favorable cutoff date than EB-2 China which creates favorable conditions for EB-2 to EB-3 China downgrades.

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PERM Processing Times (December 3, 2016)

By Dimo R. Michailov, Esq.|December 8th, 2016|

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 December 3, 2016. (more…)

President-elect Trump and Immigration: Initial Thoughts

By Dimo R. Michailov, Esq.|November 11th, 2016|

During the election campaign, President-elect Trump put immigration at the center of his agenda and platform and made a commitment to the voters to take immediate steps relating to immigration upon taking office on January 20, 2017.   There are certain immigration-related steps that can be done immediately upon taking office, by executive action, and there are certain steps which require congressional approval. Our office seeks to provide our initial thoughts on what immigration-related changes we may expect during the Trump presidency. (more…)

New (and Higher) USCIS Filing Fees Effective December 23, 2016

By Dimo R. Michailov, Esq.|October 24th, 2016|

The Department of Homeland Security has just released the final rule announcing the increase of most of the Citizenship and Immigration (USCIS) application filing fees. The weighted average of the increase is 21 percent and USCIS is adding one new fee.  The filing fee increase will become effective for all USCIS filings starting mailed, postmarked or otherwise filed on or after December 23, 2016.   (more…)

November 2016 Visa Bulletin – EB-2 India and China Advance Notably

By Dimo R. Michailov, Esq.|October 12th, 2016|

The U.S. State Department has just released the November 2016 Visa Bulletin which is the second Visa Bulletin for the new FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the fact that EB-2 India and China advance notably while the forward movement in most of the other categories is fairly minor.  Additionally, EB-3 China continues to have a more favorable cutoff date than EB-2 China which creates favorable conditions for EB-2 to EB-3 China downgrades.

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Happy New (Fiscal) Year – The New Government Fiscal Year and Immigration

By Dimo R. Michailov, Esq.|October 6th, 2016|

While few, if any, of our clients and readers spent too much time planning and celebrating, October 1st is an important date as it marks the beginning of the new government fiscal year.     This has new fiscal year turnover has immigration implications for many — for example, H-1B cap petitions are becoming effective and the quotas for green card visa numbers are being reset for the new fiscal year.

Approved H-1B Cap Petitions (and Change of Status) Becoming Effective

October 1st is the earliest starting date for an H-1B petition filed in April under the annual cap.     As a result, almost all H-1B cap petitions have a starting date of October 1.

Notes for H-1B Employers.   Employers who have sponsored H-1B cap cases and have received approvals with change of status can now employ their workers on H-1B status.      In fact, such H-1B employers must provide employment to H-1B beneficiaries whose status was changed to H-1B on October 1st — not offering employment and pay may cause issues due to possible benching without pay claims.

If the H-1B cap petition was approved on the basis of “consular processing” (no I-94 card issued as part of the approval), then H-1B employers will need to have their workers either (a) obtain H-1B visa stamp at a US Consulate abroad and travel to the U.S. on H-1B status or, if the worker is in the US, (b) file for a change of status to H-1B  from within the U.S. and wait for an approval before H-1B employment can legally start.

Notes for H-1B Workers.   Workers who have received H-1B cap approval with change of status (I-94 card attached to the bottom of H-1B approval notice) should understand that on October 1 their status in the U.S. would automatically change to H-1B and they would be expected to start (or continue) working for the H-1B employer to maintain valid status.     In certain situations, for example holders of L-1 or L-2 status, or if the worker is not ready to start employment, the fact that the status would change automatically to H-1B on October 1 is a significant problem.   For example, L-1 holders will have to stop working for their L-1 employer and start working for their H-1B employer.        Our office can help analyze this situation and provide solutions or suggestions – a phone consultation is a quick and effective way to do so.

As noted above in the employer’s section, if the H-1B cap petition was approved with “consular processing” (no I-94 card), then the H-1B worker will either need to enter the U.S. using H-1B visa or apply to change status from within the U.S.

H-1B Cap Pending?  Cap-Gap Work Authorization Ends on September 30.   Another important consideration is that the automatic cap-gap OPT extension ends on September 30 even if the H-1B cap petition remains pending beyond October 1.    As a result, such F-1 OPT cap-gap applicants for H-1B cap may remain in the US while the H-1B cap petition remains pending but they may not be able to work.   More details in our article on this topic.

Annual Visa Quotas Reset – Green Card Approvals to Continue

Another important aspect of the new government fiscal year starting on October 1st is the fact that the annual green card visa numbers reset.    Many of our readers may be aware that normally, in September, USCIS uses up all of the available immigrant visa numbers for the fiscal year and, as a result, no green card applications could be approved until the next fiscal year begins and the quotas are reset.   As of October 1, the new quotas reset and we expect USCIS to continue to issue approvals of pending I-485 cases with a current priority date.

Additionally, the beginning of a new fiscal year allows the government to allocate a new set of visa numbers for the entire fiscal year but depending on the demand and the pending applications for each category, the government makes different decisions as to how to allocate these numbers and how to advance or retrogress the cutoff dates.    The Visa Bulletin for October 2016 suggested, at least initially, confirmed out expectations that the government is planning to be aggressive with allowing more people to file I-485s.    We are hoping that the Visa Bulletin cutoff dates will move forward aggressively, at least in the first few months of the fiscal year, as the annual visa quotas were reset on October 1.

Diversity Visa Lottery Opens

As the new fiscal year starts, the Department of State will open the DV-2018 Diversity Visa (a.k.a. “green card”) lottery on Tuesday, October 4, 2016.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2016, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 7,  2016..   Please see our article for more details.

Conclusion

The new government fiscal year has some possible (and sometimes important) implications to many H-1B employers and workers, in addition to a significant number of immigrant visa applicants.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

DV-2018 Diversity Visa (Green Card) Lottery Opens October 4, 2016

By Dimo R. Michailov, Esq.|October 3rd, 2016|

The Department of State will open the DV-2018 Diversity Visa (a.k.a. “green card”) lottery on Tuesday, October 4, 2016.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2016, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 7,  2016.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EDT on November 7, 2016. (more…)

H-1B Cap Lottery Lawsuit Allowed to Proceed

By Dimo R. Michailov, Esq.|September 29th, 2016|

Many of our readers are aware of the way first-time H-1B work visas are allocated – via a random lottery conducted as part of each year’s H-1B cap filing season in early April.    The way the lottery is conducted has been kept secret and a recent lawsuit seeks to uncover details of the lottery’s mechanics while also seeking to change the way H-1B work visas are allocated. (more…)

October 2016 Visa Bulletin – USCIS to Accept Filing Dates Category for I-485 Filings

By Dimo R. Michailov, Esq.|September 22nd, 2016|

U.S. Citizenship and Immigration Service (“USCIS”) has just announced that for the month of October 2016 they will honor and accept I-485 Adjustment of Status applications based on the Filing Dates (and not only on the Final Action dates) category from the October 2016 Visa Bulletin.    See USCIS’s announcement.

What this means is that for I-485 filing purposes, USCIS will accept applications with slightly earlier cutoff date than noted on the Final Action dates.     Also, this announcement is important because this is the first time in over twelve Visa Bulletin editions when USCIS has agreed to accept the Filing Dates category for I-485 filing purposes.

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Can TNs Work for Multiple Concurrent Employers?

By Dimo R. Michailov, Esq.|September 15th, 2016|

Under the North American Free Trade Agreement (NAFTA), certain Canadian and Mexican professionals are allowed to enter the U.S. under the TN nonimmigrant classification to engage in certain TN-eligible occupations. A common question we get in our office is whether TN workers can work for multiple concurrent employers in the United States and, if so, what is the best way to do so.    This is certainly permitted and is a viable option for many TN workers for as long as the proper admission and procedural requirements are met. (more…)