The U.S. State Department has just released the April 2017 Visa Bulletin which is the seventh Visa Bulletin for the FY2017 fiscal year. The headline in the upcoming month’s Visa Bulletin is the significant forward movement in EB-3 China which continues to create a great opportunity for EB-2 to EB-3 China downgrades and I-485 filings. EB-2 and EB-3 India advance very slowly.
Very Short and Busy H-1B Cap Filing Season Expected: April 3rd to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B
As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached? So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a very busy and very short H-1B filing season. According to our sources (which include clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas. This means that there is almost a guarantee that there will be a random lottery to allocate the available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap) among all filings received in the first five business days of April. (more…)
USCIS has announced that effective April 3, 2017, they are temporarily suspending premium processing for all H-1B petitions for a period of up to six months. This surprising announcement comes in light of the anticipated heavy demand and number of H-1B “cap” filings and also to allow the government an opportunity to catch up on long-delayed H-1B processing times. (more…)
As part of a set of rule changes, collectively called “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (see our full analysis) and effective as of January 17, 2017, USCIS has made some significant and welcome changes to the way it treats work authorization document (EAD) renewals and allows for automatic work authorization based on a pending EAD renewal application in certain cases. (more…)
As part of a set of rule changes, collectively called “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (see our full analysis) and effective as of January 17, 2017, USCIS introduced a very favorable and notable change to the way H-1B (and certain other work visa holders) are treated following termination of employment: a grace period of up to 60 days. (more…)
The U.S. State Department has just released the March 2017 Visa Bulletin which is the sixth Visa Bulletin for the FY2017 fiscal year. The headline in the upcoming month’s Visa Bulletin is the significant (six months) forward movement in EB-3 China which continues to create a significant opportunity for EB-2 to EB-3 China downgrades and I-485 filings. EB-2 India advances slightly as well.
There has been a tremendous amount of discussion and comment on President Trump’s executive order banning certain travelers from the seven countries; however, one provision of the executive order which has a significant impact on many visa holders from all countries is the suspension of the interview waiver program (commonly called “dropbox”) which allows visa stamp renewals to be processed as U.S. consulates abroad without having to appear for a personal interview. However, based on the exceptions in the executive order and in the Immigration and Nationality Act, at this time, a notable number of visa stamp applications are still eligible for interview waiver.
What is the Visa Interview Waiver Program (or “Dropbox”)
The Visa Interview Waiver program allows stamp applicants seeking a U.S. visa stamp in their passports (and who are deemed to meet certain criteria) to submit a visa stamp application without having to appear for a personal interview with a U.S. consular officer. The program is commonly called “dropbox” and has allowed U.S. consulates to prioritize and process certain visa stamp applications much faster which has resulted in much more efficient visa stamp processing across many other visa categories.
It should be noted that the Visa Interview Waiver program is different than the Visa Waiver program. The Visa Waiver program allows nationals of certain countries to travel to the U.S. without having to obtain a visa stamp in their passport. The Visa Interview Waiver program allows applicants who need a visa to obtain one without having to attend the interview with a consular officer.
President Trump’s Executive Order Suspends the Interview Visa Interview Waiver Program
Section 8 of the executive order (Protecting the Nation from Foreign Terrorist Entry into the United States) reads in relevant part that,
(a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
The same section also calls for the increase of personnel who would be available to process visa applications (and interviews) in order to avoid increase in the visa interview wait times.
A Substantial Portion of Visa Stamp Applications Are Still Eligible for Visa Interview Waiver (or “Dropbox”)
Despite the broad call for immediate suspension of the Visa Interview Waiver program, the executive order allows for exceptions to this suspension, when permitted by law. We have been monitoring closely the actual implementation of this provision across U.S. consulates around the world and our experience – based on reports from clients and based on our contacts with the government – has been that notable portions of the Visa Interview Waiver program are still operational.
First, it is important to note that the executive order specifically states that there are specific statutory exceptions. On February 1, 2017, the Department of State’s Visa Office confirmed that the majority of Visa Interview Waiver program cases are still eligible to process under the program without an interview. Specifically, cases covered by Immigration and Nationality Act (INA) section 222(h)(1)(A) and 222(h)(1)(B) are still eligible.
222(h)(1)(A): Includes foreign nationals who are: “(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of section 101(a)(15) [diplomatic visas]; (ii) within the NATO visa category; (iii) within that class of nonimmigrants enumerated in section 101(a)(15)(C)(iii) (referred to as the `C-3 visa’ category) [transit visas]; or (iv) granted a diplomatic or official visa on a diplomatic or official passport or on the equivalent thereof.”
222(h)(1)(B): Includes foreign nationals who are applying for a visa: “(i) not more than 12 months after the date on which such alien’s prior visa expired; (ii) for the visa classification for which such prior visa was issued; (iii) from the consular post located in the country of such alien’s usual residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and (iv) the consular officer has no indication that such alien has not complied with the immigration laws and regulations of the United States.”
What this means that, in addition to the enumerated visa categories in section 222(h)(1)(A) (mostly diplomatic-type visas), the “dropbox” Visa Interview Waiver program continues to apply and be in force and effect for visa renewals where the existing visa has expired within the last 12 months or less and where the applicant is applying in their country of usual residence.
Our office has been in contact with various agencies and applicants over the past several days and our experience confirms that as of the date of this article, the Visa Interview Waiver program is still operations and available to many applicants, especially those renewing their visa stamps. However, we caution anyone who is planning to travel abroad and appear for a visa stamp at a U.S. Consulate to carefully consider the most recent reports from the specific consulate and be prepared for sudden changes to the process.
Visa Stamp Processing Times Likely to Increase
We expect that as a result of the suspension of the Visa Interview Waiver program, at least as it pertains to some candidates, the wait times for an interview and for visa stamp processing will increase. The executive order calls for hiring additional staff in order to handle such increase in volume in interviews; however, we urge visa stamp applicants, even those who are still eligible for the Visa Interview Waiver program, to plan carefully ahead of time and be prepared for longer processing visa stamp times.
There has been a substantial amount of confusion over the last few days over all of the provisions of the executive order. The situation remains fluid and we caution our clients and readers to carefully consider and possible risks of traveling abroad and/or going for stamping. However, our recent reports and intelligence suggests that as of the date of this article, at least major portions of the Visa Interview Waiver program remain valid and in effect.
Our office will continue to monitor developments related to immigration executive orders or congressional legislation efforts and we will be providing updates as soon as they are 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.
On April 3, 2017 the U.S. Citizenship and Immigration Services (USCIS) will start accepting applications for one of the most popular U.S. work visas, H-1B, for fiscal year (FY) 2018. Our intelligence and past experience suggest that this year’s H-1B cap season will be very short — five business days. Our office is already preparing a number of H-1B applications for our clients and we urge employers to prepare for a very short H-1B season by identifying and initiating H-1B sponsorship cases now.
Every day, our office receives numerous inquiries and questions about the anticipated movements in the Visa Bulletin cutoff dates. So when we have reliable information, we are happy to share with our readers and clients. Mr. Charles Oppenheim, who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State, has provided some information about anticipated movement in the cutoff dates. For those who are not familiar who Mr. Oppenheim is – he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards. He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.
General Visa Number Trends
Mr. Oppenheim noted that in recognition of the fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed, particularly for Indian nationals.
He also indicated that there is a significant number of EB-3 to EB-2 India porting cases and the mechanics of the EB-3 to EB-2 porting do not allow advance notification to the Department of State’s Visa Office. This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back (or to retrogress) to accommodate such porting case.
Similarly, there has been high demand in EB-1 India and China, which means there is strong likelihood for a cutoff date to be imposed over the next few months.
Visa Bulletin Predictions – Employment-Based
Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months. Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.
EB-1 Rest of World (ROW). This category seems strong demand and it is expected that a cutoff date will be imposed for EB-1 India and EB-1 China at some time within the following several months When this happens, the dates are expected as far back to 2010. Such cutoff date and retrogression is likely to be short-lived and the EB-1 India/China categories are expected to become current again once the new fiscal year rolls over on October 1, 2017.
EB-2 India. Due to significant numbers of EB-3 to EB-2 “porters”, EB-2 India will likely not advance for the next month or two. If the demand for EB-2 ROW remains strong (as it is now), then it is possible that EB-2 India may not advance much and recover the dates from last year’s retrogression. Not much, if any, movement is expected in this category until at least July or August.
EB-2 China. Demand is not as strong as expected and further forward movement is expected.
EB-3 ROW. This category is expected to move forward gradually over the next months to continue to stimulate “demand”.
EB-3 China. This category is expected to advance gradually, in an effort to monitor any EB-2 to EB-3 “downgrades” who aim to take advantage of the more favorable priority date under EB-3 China.
EB-3 India. Gradual (but very slow) forward movement is expected.
Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months. We urge EB-1 India/China applicants to be aware of the possibility of a cutoff date being introduced for a month or two late in the summer. With respect to EB-2 India and China, the high demand likely means that there may not be much notable movement until the new fiscal year begins on October 1, 2017 and the annual visa number allocations are reset.
Many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2. We are happy to help analyze and assist in such EB-3 to EB-2 India porting cases.
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.
USCIS has just released the final text of the “International Entrepreneur Rule” which would allow international entrepreneurs parole to be able to remain and work in the U.S. while developing and growing their startup companies. The rule aims to stimulate foreign entrepreneurs to attract capital and create U.S. jobs by allowing up to five years of staying and working in the U.S. This kind of rule is long overdue and has been anticipated and in the works for many years. The new rule will become effective on July 17, 2017. (more…)