UPDATE:  USCIS has announced that applicants must use the Application Final Action Dates chart in the June 2016 Visa Bulletin for both employment- and family-based filings.

The State Department has released the June 2016 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

The big story is the massive retrogression of the “Application Final Action Dates” in the employment-based preference categories for nationals of India and China.  The EB-2 priority date for India will roll back over four years to October 1, 2004, although the EB-3 priority date will advance three weeks to September 22, 2004. The State Department expects both EB-2 and EB-3 for Indian nationals to advance slowly for the last three months of the fiscal year.

Meanwhile, the long-expected impact of the increased EB-3 demand for nationals of China due to EB-2 to EB-3 downgrades will finally arrive in June. Both the EB-2 and EB-3 categories for Chinese nationals will roll back to January 1, 2010, a retrogression of more than two-and-a-half years and three-and-a-half years, respectively. The State Department does not expect these categories to advance before the end of the fiscal year.

The “Application Final Action Dates” for all other countries will remain stuck at February 15, 2016, with the exception of EB-3 for the Philippines, which will advance nearly three months to November 1, 2008. There will be no advance in the “Dates for Filing” for employment-based cases (aside from the EB-3 “Other Worker” category for Chinese nationals), although this affects only nationals of India, China, and the Philippines since all categories are current for all other countries.

The family-based categories are not immune to retrogression. As predicted last month, the “Application Final Action Dates” in the fourth preference (F4) category for brothers and sisters of U.S. citizens will move back to January 1, 2003, for Chinese nationals and to January 1, 2001, for Indian nationals. The State Department does not expect any further advancement in these categories for the rest of the fiscal year.

The rest of the “Application Final Action Dates” will hold or advance slightly as the as we approach the end of the fiscal year. The “Dates for Filing” in the family-based categories mostly will remain stagnant in June, but the second preference category for spouses and children of permanent residents (F2A) will advance four months to October 15, 2015, for all countries, and there will be some movement in the second preference category for unmarried sons and daughters of permanent residents (F2B) for nationals of Mexico and the Philippines.

As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart in the visa bulletin. If so, USCIS will post the current “Dates for Filing Applications” charts on its website. At the time of this post, USCIS has not made any determination with regard to the June 2016 Visa Bulletin.
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You can view the visa bulletin in its entirety below. Please contact us with any questions.

USCIS has announced that as of May 2, 2016, it has completed all data entry for H-1B cap petitions selected in the “lottery” for consideration in the FY2017 cap. We expect that all receipt notices for selected petitions will be received within the next seven to 10 days. USCIS also will now return all petitions that were not selected, a process that will take several weeks.

​Although no new H-1B hires may be made, employers may be able to take advantage of other visa categories, as follows:

• B-1 - The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer.  Generally, a person in B-1 status may not engage in productive employment in the United States.  Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts.  The “B-1 in lieu of H-1” might be used where the foreign national would qualify for H-1B status, but their employer is not based in the U.S. and they are coming to the U.S. for a short period of time.  This type of B-1 status does permit productive work in the U.S., but the person must be employed by and continue to be paid by the overseas employer.
• E-3 - The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled.  The substantive requirements of the E-3 are very similar to H-1B category.  There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.
• TN - The North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries.  For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status.  To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are also specifically set forth in the NAFTA regulations.  In addition, NAFTA limits TN status to individuals working in one of a specifically enumerated list of occupations.
• E-1 / E-2 - The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country.  These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country.  In addition, the offered position must be executive or supervisory, or involve “essential skills.”
• F-1 - The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the e-Verify employment verification program, in which case an additional 29 months of post-graduation OPT is available.
• L-1 - The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S.  The U.S. and foreign entities must have a corporate relationship sufficient to support L-1 status, the employee to be transferred must have worked for the related employer overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”
• O-1 - The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances.

As always, please contact us with any questions.

The May 2016 Visa Bulletin is now in effect, listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed.

In May, we see the pace of priority date advancement continue to slow as the Department tries to avoid regressing the dates over the balance of the year. The “Application Final Action Dates” will move forward slightly in most of the family-based preference categories, although the F4 category for siblings of U.S. citizens will not advance at all except for nationals of the Philippines. The State Department expects the F4 category priority dates for Indian nationals to retrogress, possible as early as June, and the F-4 priority date for Chinese nationals might also retrogress later in the summer. In addition, the “Dates for Filing” in the family-based categories again will remain stagnant in May, the fourth consecutive month with no movement.

In the employment-based preference categories, the pace of advancement is similarly slow in the “Application Final Action Dates.” EB-1 and EB-2 for most countries will remain current, but unlike past months there is little advancement elsewhere, as only EB-2 for Indian nationals and EB-3 for nationals of India and the Philippines advance at all. In addition, the EB-3 cutoff remains ahead of the EB-2 cutoff for nationals of China, but the Department has indicated that the expected increase in EB-3 demand by Chinese nationals likely will finally impact these dates in June.

Finally, there is again no advance at all in the “Dates for Filing” for employment-based cases, which continues to affect only nationals of India, China, and the Philippines since all categories are current for all other countries. As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart in the visa bulletin. If so, USCIS will post the current “Dates for Filing Applications” charts on its website. USCIS has determined that the “Final Action Dates” must be used for both family and employment-based filings in May.

You can view the visa bulletin in its entirety below. Please contact us with any questions.