Capitol Immigration Law Group PLLC Immigration Attorneys and Counselors 2017-08-09T14:47:01Z https://www.cilawgroup.com/feed/atom/ WordPress Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[September 2017 Visa Bulletin – Cutoff Date for EB-2 ROW Remains; Last Visa Bulletin for The Fiscal Year]]> https://www.cilawgroup.com/?p=13909 2017-08-09T14:47:01Z 2017-08-09T14:47:01Z The U.S. State Department has just released the September 2017 Visa Bulletin which is the last Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the continued cutoff date for the EB-2 ROW, Mexico and Philippines categories, together with the notable forward movement in EB-3 India.  Also, this is [...]

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The U.S. State Department has just released the September 2017 Visa Bulletin which is the last Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the continued cutoff date for the EB-2 ROW, Mexico and Philippines categories, together with the notable forward movement in EB-3 India.  Also, this is the last Visa Bulletin for the fiscal year.

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

EB Category Sep 2017 Aug 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 Jan 1, 2016 Apr 1, 2015 Forward by 8 months
EB-2 India Aug 22, 2008 Jul 22, 2008 Forward by 1 month
EB-2 China May 15, 2013 Apr 22, 2013 Forward by 3 weeks
EB-3 ROW Current Current No change
EB-3 India Oct 15, 2006 Jul 15, 2006 Forward by 3 months
EB-3 China Jan 1, 2012 Jan 1, 2012 No change
EB-3 Mexico Current Current No change
EB-3 Philippines Nov 1, 2015 Jun 1, 2015 Forward by 5 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 Jan 1, 2007 Jan 1, 2007 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 September 2017 Visa Bulletin – Family-Based (FB)

FB Category Sep 2017 Aug 2017 Change
Family Application Final Action Dates (determines when an I-485 or IV can be approved)
FB-1 ROW, China, India May 1, 2010 Dec 22, 2010 Backward by 6 months
FB-1 Mexico Feb 1, 1996 Feb 1, 1996 No change
FB-1 Philippines Jan 1, 2007 Oct 15, 2006 Forward by 2.5 months
FB-2A ROW, China, India, Philippines Oct 1, 2015 Sep 22, 2015 Forward by 2 weeks
FB-2A Mexico Sep 22, 2015 Sep 1, 2015 Forward by 3 weeks
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-2 ROW/Mexico/Philippines Cutoff Date Continues 

As we anticipated and alerted over the last few months, the Department of State had introduced a cutoff date for the EB-2 ROW, Mexico and Philippines categories (which have almost always been current) for the months of August and September 2017.

The introduction of this cutoff date means that EB-2 ROW, Mexico or Philippines applicants 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.

Possibility of Running Out of Visa Numbers During September

Because September is the last month of the fiscal year, the Department of State is aiming to use all of the available visa numbers available for the fiscal year.  Because any unused visa numbers are not recaptured during subsequent years, the Department of State is often a little bit more aggressive in issuing visa numbers in September so that there are no unused visas at the end.

What this means, however, is that it is possible that the Department of State may run out of visa numbers for certain categories at some point in September and green card applications for applicants who may otherwise be current and ready for approval may not be approved until after October 1st.

October 2017 Visa Bulletin Expected to “Reset” Cutoff Dates

We expect that the October 2017 Visa Bulletin (to be released in early September) to “reset” the cutoff dates for many categories which were either retrogressed or had a cutoff date introduced over the last two months.   As the new fiscal year begins on October 1, the government has the entire new fiscal year’s supply of immigrant visas and we expect that the cutoff dates will advance notably for many categories over the coming few months.

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 September 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.

The post September 2017 Visa Bulletin – Cutoff Date for EB-2 ROW Remains; Last Visa Bulletin for The Fiscal Year 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[Premium Processing for H-1B Cases Starting to Come Back, Gradually]]> https://www.cilawgroup.com/?p=13904 2017-07-27T16:49:19Z 2017-07-27T16:49:19Z USCIS appears to be in the process of reinstating premium processing service for H-1B petitions.  On July 24, 2017, USCIS announced that they are reinstating premium processing for H-1B petitions filed by cap-exempt employers. Background of the H-1B Premium Processing Service Suspension Effective April 3, 2017, USCIS suspended the premium processing service for all H-1B [...]

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USCIS appears to be in the process of reinstating premium processing service for H-1B petitions.  On July 24, 2017, USCIS announced that they are reinstating premium processing for H-1B petitions filed by cap-exempt employers.

Background of the H-1B Premium Processing Service Suspension

Effective April 3, 2017, USCIS suspended the premium processing service for all H-1B petitions and for a period of “up to six months.”     This suspension was very broad:  petitioners were not able to file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker, for any H-1B petition – including amendments, extensions, “transfers”, or “cap.”   Unlike prior similar suspensions of premium processing, this time premium processing was suspended for all types of H-1B petitions.

This suspension has caused significant disruption to many H-1B employers and employees, many of whom have had to postpone important plans or actions due to the extremely long H-1B regular processing times.

The rationale behind this temporary suspension of the premium processing option for all H-1B petitions seems to have been the anticipated heavy demand and high number of H-1B “cap” filings starting April 3, 2017 together with the fact that regular H-1B case processing times have been steadily going up with some H-1B petitions taking more than ten months to review and process.

Premium Processing Reinstated for Cap-Exempt Employers

As of July 24, 2017, premium processing is reinstated for H-1B petitions filed by cap-exempt employers such as: (a) an institution of higher education; (b) a nonprofit related to or affiliated with an institution of higher education; or (c) a nonprofit research or governmental research organization.  Similarly, premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity (even if the actual employer is not such an employer).

When Would Premium Processing be Reinstated for Other Types of H-1B Petitions?

While we do not have a specific commitment by USCIS for reinstatement of premium processing for other types of H-1B petitions, we are noticing that they are aiming to reinstate the premium service gradually, to certain sets of H-1B petitions.    As a result,  we are anticipating that USCIS will be gradually reinstating premium processing service for more types of H-1B petitions and so far we believe USCIS is on track to reinstate premium processing for all, or most, H-1B petitions before October 1.

Conclusion

The extraordinary suspension of premium processing for a number of months has caused significant hardship on many employers and employees and we welcome the reinstatement of at least some premium processing service.

We urge H-1B employers who have filed or are planning to file H-1B petitions, including extensions or change of status applications, to plan carefully and consider the timings of such applications and the anticipated reinstatement of premium processing service over the following weeks.

Please do not hesitate to contact us if we can be of any help in preparing for this unanticipated H-1B premium processing disruption of service.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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Dimo R. Michailov, Esq. https://www.cilawgroup.com/professionals/dimo-r-michailov/ <![CDATA[How to Skip the Per-Country Immigrant Visa Line – Cross-Chargeability Options]]> https://www.cilawgroup.com/?p=2085 2017-07-20T17:50:00Z 2017-07-20T15:30:02Z Many of our readers follow closely our reports of the monthly Visa Bulletin which provides cutoff dates for those immigrant visa (green card) applicants who are current and have immigrant visa numbers available (i.e. their actual permanent resident “green” card is assigned an available number and can be issued).   The past several Visa Bulletins [...]

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Many of our readers follow closely our reports of the monthly Visa Bulletin which provides cutoff dates for those immigrant visa (green card) applicants who are current and have immigrant visa numbers available (i.e. their actual permanent resident “green” card is assigned an available number and can be issued).   The past several Visa Bulletins have been disappointing for most, especially for EB India applicants with the lack of movement and the prospect of a very long wait time before their priority date becomes current.

With such little movement, if any, it is difficult to imagine an alternative to the long wait, in particular for those from India, but also for applicants from Mexico, China or Philippines.   For some, however, the rule of cross-chargeability could provide relief by moving them from an over-subscribed and long-delayed country of chargeability to another with a substantially shorter wait time.

The Cross-Chargeability, As Defined by the Immigration and Nationality Act (INA)

The rule is set by the Section 202(b)(2) of INA.   Specifically, the rule states that:

[I]f an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.

The cross-chargeability rule applies to both I-485 adjustment of status and to consular processing immigrant visa cases.   However, it is important to note that while the rule has been generally accepted and works for most of the cases, the way the law is drafted does not require but merely allows the government to apply cross-chargeability.  Note the language, “may, if necessary, to prevent the separation of husband and wife.”   It is our experience that a properly documented, flagged and submitted I-485 cross-chargeability application would be accepted and approved under this section of INA.

Skipping the Line – How Does Cross-Chargeability Work?

Cross-chargeability allows a family of applicants to move their country of immigrant visa chargeability from one category to another if a member of the family was born elsewhere.  Most often this applies to a spouse (not the main applicant) who was born in a different country, their place of birth was a different country at the time of birth, or they were born on the high seas (rare).

It is important to note that parents cannot take advantage of cross-chargeability and use the country of birth of a child.   Also, for one spouse to take advantage of cross-chargeability on the basis of their spouse’s country of birth, the government requires that both spouses seek to obtain US permanent residency together.

Examples of Cross-Chargeability (and Line-Skipping)

Here are a few examples of how the rules apply to real-world situations :

  • A married foreign worker born in India has a pending Employment-Based Third Category (“EB-3”) case with an October 2010 priority date, and it could be a few years before the current EB-3 India  cutoff time moves past October 2010 to make this worker’s priority date current.  However, because the worker’s spouse was actually born in Canada, in this example, cross-chargeability would allow the EB-3 October 2006 priority date to be processed under the all-other-nationalities (Rest of the World, or ROW) EB-3 category which, as of recently,  has been very close to current.  As a result, a long delay in waiting for the EB-3 India category to reach the October 2006 priority date is bypassed and the family can obtain their green cards within weeks or months (depending on how the application is filed).
  • Another married foreign worker born in China has an EB-2 immigrant visa waiting with a July 2016 priority date.  As an example, the August 2016 Visa Bulletin cutoff date for EB-2 China is April 22, 2013 and only cases with earlier priority date are being issued permanent resident status.  However, the worker’s spouse was born in Hong Kong before 1997 when it became part of China again.  Since Hong Kong was not part of China at the time of birth, cross-chargeability allows the worker and spouse to be processed under the all-other-nationalities (ROW) EB-2 category.  As this category is current, there would be no wait time for a current priority date.

How Can We Help?

Do you have a family member whose country of birth differs from the country of birth of the main applicant/worker? We would be happy to consult with you and analyze your options for filing or other alternatives, if they apply to your situation.   The possibility of significant improvement in the waiting/processing of one’s green card application makes cross-chargeability a desirable option, if it is applicable.   We offer a number of consultation options to help you evaluate your situation.

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 this article.  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 post How to Skip the Per-Country Immigrant Visa Line – Cross-Chargeability Options 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 Delays Effective Date of International Entrepreneur Rule Seeking Time to Kill the Rule]]> https://www.cilawgroup.com/?p=13893 2017-07-13T13:55:37Z 2017-07-13T13:55:37Z In a Federal Register announcement dated July 11, 2017, U.S. Citizenship and Immigration Service (USCIS) has delayed the effective date of the International Entrepreneur rule from July 17, 2017 to March 14, 2018.      Additionally, the notice indicates that this delay will allow USCIS to publish rulemaking seeking to rescind the International Entrepreneur rule altogether, [...]

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In a Federal Register announcement dated July 11, 2017, U.S. Citizenship and Immigration Service (USCIS) has delayed the effective date of the International Entrepreneur rule from July 17, 2017 to March 14, 2018.      Additionally, the notice indicates that this delay will allow USCIS to publish rulemaking seeking to rescind the International Entrepreneur rule altogether, pursuant to the guidance from President Trump’s executive order from January 25, 2017.

About the International Entrepreneur Rule

The “International Entrepreneur Rule” would have allowed international entrepreneurs a parole in order to be able to remain and work in the U.S. while developing and growing their startup companies.    The rule, when introduced by the Obama administration, aimed 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 had been long overdue and had been anticipated and in the works for many years.   Before being delayed (and ultimately, likely, rescinded), the rule was set to become effective on July 17, 2017.     Read our earlier announcement and analysis of the proposed rule.

What Does USCIS’s Effective Date Delay Mean?

The delay of the effective date means that the rule will not become effective, as anticipated, on July 17, 2017 but instead the effective date is moved to March 14, 2018.     However, at the same time, the federal register notice clearly indicates that USCIS is seeking this delay in order to go through the required rulemaking process in an effort to rescind the International Entrepreneur rule altogether so, barring unforeseen events during the rule rescission process, it is likely that this rule will not become effective at all.

What are Other Startup Visa Alternatives?

While this International Entrepreneur rule was not perfect, it another option to international entrepreneurs to come to the US and start and grow a company.    The United States, unlike many other leading economic powers, does not have a “startup visa” and our office has been working with many entrepreneurs and startups on finding creative ways to use existing visa types and apply them to entrepreneur and startup situations.   The International Entrepreneur rule would have given one more option, even though the rule was not perfect.

With the rescission of the International Entrepreneur rule,  founders would have to rely on being creative in terms of immigration and making existing visa options work for their situation.

Conclusion

The delay (and the ultimate anticipated rescission) of the International Entrepreneur rule is disappointing to many in the startup/immigration community because it sends a signal that the United States is not willing to embrace startup founders and job creators, especially when there is no specific “startup” visa.

We are hoping that the administration will work with Congress on creating a specific startup visa which would address the needs of international startup founders and job creators.   In the meantime, our office will continue to provide U.S. immigration answers and solutions to international entrepreneurs based on the existing visa types.

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.

The post USCIS Delays Effective Date of International Entrepreneur Rule Seeking Time to Kill the Rule 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[August 2017 Visa Bulletin – EB-2 ROW Cutoff Date Introduced]]> https://www.cilawgroup.com/?p=13891 2017-07-12T01:17:47Z 2017-07-12T01:17:47Z The U.S. State Department has just released the August 2017 Visa Bulletin which is the eleventh Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the introduction of a cutoff date for the EB-2 ROW, Mexico and Philippines categories, together with the notable forward movement in EB-3 India. [...]

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The U.S. State Department has just released the August 2017 Visa Bulletin which is the eleventh Visa Bulletin for the FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the introduction of a cutoff date for the EB-2 ROW, Mexico and Philippines categories, together with the notable forward movement in EB-3 India.  EB-2 India and EB-3 China do not move this month.

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

EB Category Aug 2017 Jul 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 Apr 1, 2015 Current Cutoff date introduced
EB-2 India Jul 22, 2008 Jul 22, 2008 No change
EB-2 China Apr 22, 2013 Mar 22, 2013 Forward by 1 month
EB-3 ROW Current Jun 8, 2017 Forward to “Current”
EB-3 India Jul 15, 2006 Feb 15, 2006 Forward by 5 months
EB-3 China Jan 1, 2012 Jan 1, 2012 No change
EB-3 Mexico Current Jun 8, 2017 Forward to “Current”
EB-3 Philippines Jun 1, 2015 May 14, 2014 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 Jan 1, 2007 Oct 1, 2006 Forward by 3 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 August 2017 Visa Bulletin – Family-Based (FB)

FB Category Aug 2017 Jul 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 Feb 1, 1996 Jan 15, 1996 Forward by 2 weeks
FB-1 Philippines Oct 15, 2006 Sep 15, 2006 Forward by 1 month
FB-2A ROW, China, India, Philippines Sep 22, 2015 Sep 8, 2015 Forward by 2 weeks
FB-2A Mexico Sep 1, 2015 Aug 22, 2015 Forward by 1 week
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.

 

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

As we anticipated and alerted over the last two months, the Department of State has introduced a cutoff date for the EB-2 ROW, Mexico and Philippines categories (which have almost always been current) for the month of August and likely September 2017.

The introduction of this cutoff date means that EB-2 ROW, Mexico or Philippines applicants 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.   EB-2 ROW applicants who have not filed their I-485 and are eligible to do so should consider filing such I-485 applications before the end of July 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 August 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.

The post August 2017 Visa Bulletin – EB-2 ROW Cutoff Date Introduced 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[What is I-485 Supplement J and How to Properly Prepare and Use it?]]> https://www.cilawgroup.com/?p=13873 2017-06-22T16:36:58Z 2017-06-22T15:16:53Z Earlier this year USCIS introduced a new Form I-485 Supplement J which is being used in connection with filings of new I-485 applications to adjust status or for porting of existing and pending I-485 applications to a new employer or a new job.   The purpose of I-485 Supplement J is to provide a confirmation [...]

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Earlier this year USCIS introduced a new Form I-485 Supplement J which is being used in connection with filings of new I-485 applications to adjust status or for porting of existing and pending I-485 applications to a new employer or a new job.   The purpose of I-485 Supplement J is to provide a confirmation of the bona fide job offer (during initial I-485 filing) or to inform USCIS in I-485 porting cases under AC21 (for pending I-485 cases).

What is the Purpose of Form I-485 Supplement J?

Prior to the introduction of this form, USCIS used to accept an employment verification letter by the intending employer as a confirmation of the bona fide job offer.   The employment verification letters generally followed a standard format – a letter by the employer confirming the offered position’s title, duties, responsibilities, salary offered and sometimes other related job offer details.    While the contents of these employment verification letters was generally similar, USCIS had suggested that sometimes the letters do not provide standard required information allowing USCIS to determine the bona fide of a job offer or to determine whether an AC21 porting to a new employer or a job meets the relevant porting requirements.

As a result, USCIS introduced Form I-485 Supplement J and this form has been a requirement for:  (a) all new I-485 filings where it is used to confirm that the job offered in the underlying I-140 immigrant petition (pending or approved) is still valid and offered to the beneficiary or (2) all requests for AC21 portability of pending I-485 applications where the beneficiary aims to “transfer” their pending I-485 to a new employer or job which is “same or similar”  (see our article on the AC21 portability rules and options).

Requesting a new Supplement J has also became a standard request for evidence (RFE) item for pending I-485s even in cases where the actual trigger for the RFE may be expiring medicals or other issues (see our recent article on multitude of I-485 RFEs).

When is I-485 Supplement J Required?

As noted above, Form I-485 Supplement J is required (or requested, if not provided) in the following circumstances:

  1. New I-485 Applications.   I-485 Supplement J is required for all new I-485 adjustment of status applications based on an approved or pending I-140 immigrant petition.   Notable exceptions are:  Supplement J is not required when filing I-140 concurrently with the I-485 adjustment of status application(s).   Also,  Supplement J is not required for I-485 filings based on EB-2 I-140 national interest waiver (NIW) or EB-1 extraordinary ability (because these two categories allow for self-sponsorship).
  2. I-485 Porting to a New Employer or Job Under AC21.   I-485 Supplement J is also used (and required) in cases where a pending I-485 adjustment of status application is being ported to a new employer or job under the portability provisions of AC21 which essentially requires the new position be “same or similar.”     While USCIS does not require a proactive AC21 portability filing in this kind of portability situations, they have expressed preference to be notified proactively.   In such situations, the Supplement J form will be used to effect such notification.
  3. I-485 RFE or NOID.  In cases where I-485 Supplement J was not provided initially or in cases where the AC21 porting notification was not submitted to USCIS at the time of job change, USCIS will likely issue an RFE or notice of intent to deny (NOID) with a request for an updated Supplement J (possibly together with other requested items) before the I-485 can be approved.

Supplement J – Who Completes It and How to Complete It?

Form I-485 Supplement J is completed by both the employer and the employee.    The actual form is divided in two sections, one pertaining to the employer and one pertaining to the employee and the job offer.  The form requires signatures by both the employee and the sponsoring employer (and attorney, if one is used to prepare it).

One of the key aspects in which the Supplement J differs from an employment verification letter used previously is the way USCIS asks the new position to be described. Supplement J now asks for details of the offered position including the SOC code.  The SOC code is not always clear or easy to determine simply by looking at a job description so in AC21 portability situations a careful analysis may be required to (1) identify the SOC code for a specific job and (2) analyze whether the proposed SOC code differs than the initial sponsored green card position and, if so, what are the ways to justify that the new position is “same or similar” and qualifies for AC21 porting.

Conclusion

We applaud USCIS’s efforts to streamline the processing of I-485 applications and standardize the collection of relevant information without making substantive changes to the process.

However, during the months since the introduction of Supplement J our observation has been that the form remains somewhat confusing to I-485 applicants and their employers, especially in the context of AC21 portability.    We have found that new employers are surprised by the need to submit a new “government” form when they thought that they had hired an employee who does not need any sponsorship (presumably by having a valid I-485 EAD).     Also, some of the information on the Supplement J (such as employer income and SOC code) has been difficult for some employers to provide, for a number of reasons.

Our office is happy and available to assist with I-485 Supplement J situations.  Please do not hesitate to contact us or consider our consultation options.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

The post What is I-485 Supplement J and How to Properly Prepare and Use it? 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 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.

The post July 2017 Visa Bulletin – Major EB-3 China Retrogression, EB-3 India Advances Notably 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[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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