Visa Lawyer Blog

Articles Posted in Employment Based Petitions

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As many of you know the H-1B visa lottery for fiscal year 2018 is fast approaching. As usual, the competition will be fierce, as hundreds of thousands of highly skilled professionals prepare to file their H-1B visa petitions beginning April 1st through the April 7th deadline. While filing by April 1st (the first day that applications are accepted) certainly gives applicants greater peace of mind, filing before the April 7th deadline does not necessarily increase an individual’s chances of being selected in the lottery. Throughout the years, our office has seen the selection of many petitions that were filed on or close to the April 7th deadline.  With that being said, we expect the competition this year to be even more intense, that is why we want to give you our top tips about what you should be doing NOW to prepare for H-1B season and increase your chances for success.

First some statistics on fiscal year 2017:

  • For fiscal year 2017, USCIS received over 236,000 H-1B petitions, which included petitions counting toward the general cap and advanced degree exemption; approximately 3,000 more petitions when compared to H-1B petitions received for fiscal year 2016. This trend is likely to continue, giving you all the more reason to prepare for the H-1B season early on.
  • For fiscal year 2017, the H-1B cap was reached within the first 5 business days of the H-1B filing period (April 1 to April 7). We expect this trend to continue as in previous years. During fiscal year 2017, USCIS received more than 20,000 petitions for the advanced degree exemption. This number will undoubtedly increase for fiscal year 2018.
  • For fiscal year 2017, USCIS conducted the randomized computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas counting toward the advanced degree exemption first. Then, unselected advanced degree petitions were given a second chance of being selected by being placed in the lottery toward the general 65,000 cap.  Individuals holding an advanced degree from the United States thus have two shots at being selected for the lottery.

Chances of selection

The chances of being selected in the lottery for fiscal year 2017 ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree or equivalent. Compare this to the chances of being selected in the lottery during fiscal year 2016 which ran at 60% for U.S. advanced degree holders, and 30% for bachelor’s degree holders or the equivalent. We expect the percentage of selection to continue to increase for U.S. advanced degree holders and foreign workers holding bachelor’s degree or equivalent, by roughly 5% according to recent statistics. This of course will depend on the demand for the H-1B visa for fiscal year 2018.

Office Stats

For fiscal year 2017, 35%  of H-1B cap-subject petitions that were filed by our office were selected in the H-1B randomized lottery that took place early April 2016. 13% of those petitions were filed with premium processing, while 22% were filed with regular processing. In total our office filed 55 H-1B Petitions: 15 advanced degree petitions and 40 bachelor’s cap or equivalent petitions. Of these, 46 were filed with regular processing and 15 with premium processing. The majority of these petitions were filed with the California Service Center. Of selected petitions for fiscal year 2017, the top specialty occupations included: Applications Developer, Market Research Analyst, and Software Engineer.

H-1B Overview

As in previous years H-1B petitions for fiscal year 2018 will begin to be accepted by USCIS on April 1, 2017 up until April 7, 2017. Foreign workers in specialty occupations and their employers will compete for one of the coveted 65,000 H-1B visas available each fiscal year. The H-1B visa program is limited to a 65,000 congressionally mandated visa cap. Foreign workers holding a U.S. Master’s degree or higher are exempt from the 65,000 cap, however only the first 20,000 advanced degree petitions received by USCIS will qualify for the cap exemption. In addition, certain foreign workers such as foreign workers who have been offered employment under U.S. Chile or U.S. Singapore free trade agreements, and foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the cap, according to the Consolidated Natural Resource Act of 2008 (CNRA). Advanced degree petitions received after the 20,000 spots have been allocated will count toward the regular cap along with foreign workers holding bachelor’s degrees (or equivalent including work experience in lieu of formal education). USCIS will receive more than the 65,000 petitions for the H-1B visa program during the first five business days that the application period is open, from April 1st to April 7th. When the cap has been reached, USCIS will make an announcement, in recent years this announcement has been made on April 7th and begin the selection process to fill the 65,000 cap through a randomized lottery system. Petitions that are not selected will be rejected along with their filing fees. Duplicate H-1B petitioners during the same fiscal year, are not allowed, and may be subject to sanctions. Employers may not file an H-1B petition on behalf of an employee more than 6 months before the employee’s intended start date. Once an H-1B visa worker has been selected and approved, the foreign worker may begin employment on October 1st of that fiscal  year. The H-1B visa is issued for a three-year period that can be extended for an additional three years.

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On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”  In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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UPDATE: Today, December 29, 2016, USCIS announced that previous editions of affected forms will continue to be accepted by USCIS until February 21, 2017, except for the N-400 Application for Naturalization. N-400 Application for Naturalization must be filed with the 12/23/16 edition date. No prior editions of form N-400 will be accepted by USCIS. Please remember that the new fee schedule will continue to be enforced. New form editions will contain an edition date of 12/23/16. Updated forms can be found at uscis.gov/forms. The complete fee schedule can be found at uscis.gov/forms/our-fees.

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On December 12, 2016, the Department of State published the Annual Numerical Limits for both family and employment-based visa preference categories for Fiscal Year 2017.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems on the Visa Bulletin and become current based on the immigrant’s priority date. The Visa Bulletin estimates immigrant visa availability for prospective immigrants. Applicants who fall under family preference or employment categories must wait in line until an immigrant visa becomes available to them, for applicants to proceed with their immigrant visa application. Once the immigrant’s priority date becomes current per the Visa Bulletin, the applicant can proceed with their immigrant visa application. A priority date is generally the date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS. The Visa Bulletin exists due to numerical immigrant visa limitations for family-sponsored and employment-based preference categories established by the Immigration and Nationality Act (INA). Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence.

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On November 20, 2016, the Chief of the Visa Control and Reporting Division of the Department of State, Charles Oppenheim, provided his outlook on recent trends and future projections for employment-based immigrant preference categories of the Visa Bulletin.

December Visa Bulletin Predictions

  • A final action date has been imposed on the EB-4 preference category for the country of Mexico in the month of December
  • The non-minister EB-4 special immigrant category and the I5 and R5 classifications of the immigrant investor pilot program will expire on December 9, 2016.
  • EB-1 China and EB-1 India are expected to be subject to a final action date in the near future
  • A final action cut-off date will be imposed for EB-2 Worldwide, EB-2 Mexico, and EB-2 Philippines by the month of July.

January and February Projections

Regarding movement of EB-4 El Salvador/Guatemala/Honduras during the next 12 months

Oppenheim has stated that the State Department does not have any knowledge of the volume of cases adjudicated by USCIS for this preference category. Due to this lack of information, the State Department does not know at what rate USCIS will pre-adjudicate these cases once the final action date is in place. The reason the December cut-off date for Mexico was imposed was because there was a large number of EB-4 Mexico petitions processed with 2015 and 2016 priority dates. A retrogression of the EB-4 final action date for these countries is not expected to occur during this fiscal year, despite high demand. There is currently a very high level of demand in this category that is expected to continue. Typically, when a final action cut-off date is imposed, demand increases, because applicants rush to apply quickly before a retrogression is imminent.

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The Department of Homeland Security is expected to publish a final rule tomorrow November 18, 2016 benefitting EB-1, EB-2, and EB-3 employment-based immigrant workers and highly-skilled nonimmigrant foreign workers. The final rule is effective January 17, 2017. The final rule will streamline the process for employment based sponsorship of nonimmigrant workers for lawsuit permanent resident status (LPRs), increasing job portability, and promoting stability, flexibility, and transparency in the way DHS applies its policies and regulatory practices to these programs. These changes were proposed in order to better equip U.S. employers to employ and retain highly skilled foreign workers who are the beneficiaries of employment-based immigrant visa petitions known as Form I-140 petitions. The new rule will allow foreign workers to have more flexibility, and affords workers the opportunity to further their careers by accepting promotions, giving them the freedom of being able to change positions with current employers, change employers, or pursue other employment.

The final rule conforms with longstanding policies and practices in accordance with the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The final rule seeks to further enforce the principles embodied in these pieces of legislation by providing nonimmigrant workers who have been sponsored for permanent residency based on the filing of an I-140 petition, greater flexibility and job portability, while expanding the competitiveness of American employers, boosting the U.S. economy, and protecting American workers. The final rule also clarifies and improves DHS policies and practices outlined in policy memoranda and precedent decisions of the Administrative Appeals Office. The final rule seeks to clarify regulatory policies in order to provide greater transparency to stakeholders. The final rule also clarifies interpretative questions related to ACWIA and AC21.

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In this post we bring you your daily dose of immigration updates. For more information on the immigration services we provide please visit our website. For a free first legal consultation please contact our office. It is our pleasure to accompany you on your immigration journey.

USCIS extends TPS Designation for Nepal for 18 months

The Secretary of Homeland Security recently announced that Temporary Protected Status (TPS) for eligible nationals of Nepal will be extended for an additional 18 months, beginning December 25, 2016 through June 24, 2018. Eligible TPS applicants must either be foreign nationals of Nepal or habitually resided in Nepal. DHS will be extending current TPS Nepal Employment Authorization Cards (EADs) with a December 24, 2016 expiration date for an additional 6 months, valid through June 24, 2017.

For more information regarding TPS for Nepal please click here. For information about the TPS program please click here. Employers interested in verifying or reverifying the employment eligibility of employees who are TPS beneficiaries, may click here for more information.

EADs Extended 6 Months for Guinea, Liberia and Sierra Leone TPS Beneficiaries

Current Beneficiaries of the Temporary Protected Status (TPS) program for the designations of Guinea, Liberia, and Sierra Leone have had their TPS status extended for a period of 6 months, to expire on May 21, 2017. The Department of Homeland Security authorized this temporary extension to allow beneficiaries to make an orderly transition out of the United States, before termination of their TPS status on May 21, 2017. Current beneficiaries of the TPS program from these designations will automatically retain their TPS status until this date, and the validity of their current Employment Authorization Cards (EADs) will be extended through May 20, 2017.

Click here for more information about the 6-month extension of orderly transition before termination of TPS designations for Guinea, Liberia, and Sierra Leone. For general information about the TPS program please click here.

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Today, October 24, 2016 the Department of Homeland Security published the final rule increasing fees for certain immigration and naturalization petitions processed by U.S. Citizenship and Immigration Services (USCIS). Overall the Department of Homeland Security increased filing fees for certain petitions by an average of 21 percent. The new fees will be enforced by USCIS beginning December 23, 2016. The fee schedule has been adjusted following the agency’s decision to conduct a comprehensive review of filing fees for fiscal year 2016/2017. USCIS determined that an adjustment in the filing fees would be necessary in order for USCIS to recover costs for services expended and maintain adequate service. The proposed fee schedule was first published on May 4, 2016. The final rule clarifies that all persons applying for immigration benefits may be required to appear for biometrics services or an interview, and thus must pay the biometrics services fee accordingly.

EB-5 Investor Visa Program

The EB-5 Immigrant Investor Visa Program will be most heavily impacted by the new fee schedule. The new filing fee for Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program, will increase by a rate of 186% requiring Regional Centers seeking designation under the program, to pay a filing fee of $17,795 instead of the current rate of $6,230. Regional Centers will be required to pay a $3,035 annual fee to certify their continued eligibility for the designation.

The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, will increase to $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence remains unchanged.

Naturalization

USCIS has established a three-tiered fee schedule for naturalization applicants filing Form N-400 Application for Naturalization. First, the fee schedule includes a standard filing fee for most applicants, from a rate of $595 to $640. Second, DHS has established a reduced fee of $320 for naturalization applicants whose household income is greater than 150% but less than 200% of the Federal Poverty Guidelines. Third, there will be no filing fee for naturalization applicants who are members of the military, applicants with approved fee waivers, and others who may qualify for a fee waiver according to sections 328 or 329 of the Immigration and nationality Act (INA).

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On September 21, 2016 the United States Citizenship and Immigration Services (USCIS) posted the adjustment of status filing dates for October 2016.

If you are waiting to apply for permanent residence based on an approved family-sponsored petition (I-130) or based on an approved employment-based petition (I-140), USCIS has advised that you refer to the ‘Dates for Filing Applications’ chart on the October Visa Bulletin to determine when to file your application for permanent residence according to your priority date (the date when your relative or employer properly filed your immigrant visa petition with USCIS) and your preference category. Generally, applicants who have filed the immigrant petition and have been approved, must wait in line until an immigrant visa becomes available, before seeking adjustment of status to permanent resident. This is because availability of immigrant visas for certain classes of immigrants are limited. These preference categories appear in the Visa Bulletin, as well as the number of visas available for each preference category.

Note: For employment-based petitions if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.

What is the Visa Bulletin and the Dual Chart System?

Every month, the Department of State releases a monthly Visa Bulletin which provides estimates on immigrant visa availability according to family-sponsored and employment-based preference categories. As you may recall, in September of last year, USCIS introduced a new chart called the ‘Dates for Filing Applications’ chart in addition to the ‘Application Final Action Date’ chart. Together this dual chart system governs when applicants may file their applications for permanent residence according to visa availability, the applicant’s preference category, and the date of filing (priority date).

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