Updating our post from last week (see below), it appears that Congress will soon pass a Continuing Resolution (CR) to temporarily extend budget funding and avoid a shutdown of the Federal government on October 1. The CR, if passed, will fund the Federal government through December 11, 2015, at which time Congress will need to pass new funding legislation or the government will shut down at that time. Passage of the CR will at least temporarily alleviate the pressure we and our clients faced with regard to filing and processing critical immigration applications, including Labor Condition Applications (LCAs) for H-1B workers. Of course, this is only a temporary reprieve, and we will continue monitor this situation as the new December 11 deadline approaches. Meanwhile, if you have any questions, please contact us. Reports out of Washington, D.C. suggest that there is an increasing possibility that the Federal government will shutdown on October 1, 2015, due to a budget stalemate, as happened in 2013.
We will provide additional guidance as the situation develops, but of immediate concern is the filing of Labor Condition Applications (LCAs) with the Department of Labor (DOL). During a Federal government shutdown, the Office of Foreign Labor Certification (OFLC) within DOL will not accept or process any applications or related materials. This will include LCAs, which are a prerequisite for H-1B petitions. Any applications or requests submitted prior to the shutdown and that are still pending as of midnight on October 1, will not be processed and will be held in abeyance until the department resumes operations. No new applications will be accepted after October 1 until the shutdown ends. The DOL typically takes seven full days to process LCA filings, so it is critical that employers file the required LCA no later than Wednesday, September 23, 2015, to have the best chance of getting the certification back before October 1. If you have any questions, or if you identify any candidates for H-1B visa processing who will need an LCA filed as soon as possible, please contact us. USCIS and the U.S. State Department (DOS) have announced a major change to the monthly Visa Bulletin that will allow some individuals subject to lengthy quota backlogs to file adjustment of status (AOS) or immigrant visa (IV) applications much sooner than under the previous procedures. Effective with the October 2015 Visa Bulletin, the bulletin will now contain two different charts for each visa preference category that essentially create two different priority date cutoffs. The first chart will be the priority dates eligible for “Application Final Action,” i.e. when an AOS application may be approved or an IV issued. The second chart will be the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed. Each month, USCIS and DOS will monitor immigrant visa usage and adjust both the “Application Final Action Dates” and the “Dates for Filing Applications” accordingly. An application filed pursuant to the “Dates for Filing Applications” chart in a given month will remain pending until the associated priority date becomes current according to the “Application Final Action Dates” chart, at which time the agency responsible will make a final determination on the application. It is important to note that the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications unless the visa bulletin specifically indicates that USCIS will allow AOS filings consistent with those dates. USCIS will determine whether there are enough immigrant visas available in each category to allow the filing of additional AOS applications. If so, the visa bulletin will state that “USCIS has determined that this chart may be used … this month for filing applications for adjustment of status with USCIS.” USCIS will also post the current “Dates for Filing Applications” charts on its website within two days of the release of the monthly visa bulletin. USCIS has stated that they will allow AOS filings pursuant to the “Dates for Filing Applications” chart listed in the October 2015 Visa Bulletin. Although this will not accelerate when permanent status can be granted, this is an important and welcome change for the many thousands of people who have approved immigrant visa petitions (Form I-130 or I-140), but are subject to the often severely oversubscribed quotas. This is especially true for nonimmigrant workers, many of whom will benefit from greater employment flexibility and the availability of ancillary benefits, such as employment authorization and simplified travel authorization for themselves and their dependent family members. Turning to the new October 2015 Visa Bulletin, one can quickly see the improvement, especially in the employment-based categories. As of October 1, some of the “Application Final Action Dates” will advance quite a bit, including EB-2 China (six years), EB-3 China (six years, 10 months), and EB-3 Philippines (over seven years). This is mainly due to the full annual allotment of immigrant visas becoming available with the start of the new fiscal year. Amazingly, the “Application Final Action Dates” for nationals of India will regress by several months to May 1, 2005 (EB-2) and March 8, 2004 (EB-3). However, the new procedures provide the intended and much needed relief as the “Dates for Filing Applications” in those categories are well ahead of the Final Action Dates, specifically July 1, 2011, and July 1, 2005, respectively. In the family-based preference categories, the “Application Final Action Dates” again advanced at least a few weeks, consistent with past visa bulletins. However, the “Dates for Filing Applications” range from 11 months to more than four years ahead of the Final Action Date cutoff. For example, the Final Action Date in the family-based first preference (F-1) category for nationals of the Philippines is June 1, 2001, but the Date for Filing is September 1, 2005. You can view the visa bulletin in its entirety below. Please contact us with any questions. The Department of State has released the September 2015 Visa Bulletin, a monthly report detailing the current cutoff dates for the filing or approval of green card applications in the various U.S. permanent visa categories. A person who is otherwise eligible to apply for or be granted a green card in the U.S., must have a current priority date as specified in the Visa Bulletin. Somewhat unexpectedly, the biggest movement is the severe retrogression of the EB-2 priority dates for nationals of India and China. As of September 1, 2015, the priority date in both categories will regress several years to January 1, 2006. State Department officials had previously estimated that the EB-2 priority dates established for August 2015 would hold until October, but that will not be the case. We expect those dates to advance again when the new fiscal year begins in October, but there has been no official projection yet. Aside from the EB-2 India/China regression, the September 2015 Visa Bulletin continues the slow forward advancement in nearly all other categories. As of September 1, 2015, all of the family-based preference categories advance at least a few weeks with the exception the family-based first (F-1) preference for nationals of Mexico. On the employment side, the priority dates in the employment-based third (EB-3) preference for all countries except India, China, and the Philippines remain nearly current at August 15, 2015. EB-3 for India, China, and the Philippines advances over six months to December 22, 2004. You can view the visa bulletin in its entirety below. Please contact us with any questions. We previously informed our readers and clients of the changing obligations on H-1B employers who relocate their H-1B workers to new worksites. This week, USCIS revised and reissued its policy guidance on how employers must handle H-1B worksite changes, and also extended until January 15, 2016, the “safe harbor” period for notifying of changes that have already occurred.
As background, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) decided that the change of an H-1B worker’s worksite that requires the employer to obtain a new Labor Condition Application (LCA) is a “material change” in the terms of employment that requires the employer to amend the worker’s existing H-1B petition. Following this decision, USCIS issued an interim policy memo that required amended petitions for workers who had changed work locations before May 21, 2015, to be filed no later than August 19, 2015. On July 21, 2015, USCIS issued a revised and final policy memo detailing employer responsibilities related to H-1B worksite changes. The memo requires an H-1B employer to take certain actions depending on when the H-1B worksite changed or will change:
We strongly suggest that employers carefully review the current work locations for their H-1B workers for any discrepancies between the work location(s) listed on the LCA/H-1B petition and the actual work location. In addition, because amended petitions must be filed before the worker starts at the new location, it is critical that employers identify potential work location changes as far as possible in advance of the change. Due to LCA processing times, it takes a minimum of seven business days to prepare and file an H-1B petition, and this time must be taken into account when determining the worker’s start date at the new location As always, please contact us with any questions. USCIS has announced that, as of July 13, 2015, it will resume "premium processing" of H-1B extension petitions.
We previously alerted our readers that USCIS had suspended the "premium processing" service for H-1B extensions on May 26, 2015, so that the agency could efficiently implement the H-4 Work Authorization (EAD) rule. The premium processing suspension was initially scheduled to last through July 27, 2015. However, USCIS received fewer H-4 Work Authorization applications than expected and has determined that it can effectively handle the current H-4 EAD and premium processing workload. With this announcement, premium processing requests for H-1B petitions requesting an extension of stay for the H-1B worker may be filed concurrently with any petition filed on or after July 13, 2015. Additionally, employers who filed H-1B extension petitions during the suspension period may "upgrade" those petitions to premium processing as of July 13, 2015. As always, please contact us with any questions. The Department of State has released the August 2015 Visa Bulletin, a monthly report detailing the current cutoff dates for the filing or approval of green card applications in the various U.S. permanent visa categories. A person who is otherwise eligible to apply for or be granted a green card in the U.S., must have a current priority date as specified in the Visa Bulletin. As in July, the August 2015 Visa Bulletin shows slow forward movement in nearly all categories, although there was major retrogression of priority dates in one category. As of August 1, 2015, all of the family-based preference categories advance at least a few weeks with the exception of most categories for nationals of the Mexico and the Philippines. The priority dates in the employment-based third (EB-3) preference for all countries except India, China, and the Philippines advance to a nearly current July 15, 2015. EB-3 India advances four months to June 1, 2004. Nationals of the Philippines get some good news this month as the EB-3 category changes completely unavailable to available for those with priority dates earlier than June 1, 2004. EB-2 and EB-3 continues to be a juggling act for nationals of China as the EB-3 priority date significantly retrogresses to June 1, 2004, primarily due to heavy demand caused by EB-2 to EB-3 conversions. The employment-based second (EB-2) preference advances to December 15, 2013. The priority date in the EB-2 category for Indian nationals again holds steady at October 1, 2008. As we explained in our last review of the visa bulletin, worldwide demand in the EB-2 category has exploded in recent months leaving fewer unused visas “falling down” to EB-2 India, and there might not be any further advancement of EB-2 India for the rest of the fiscal year. You can view the visa bulletin in its entirety below. Please contact us with any questions. As the calendar turns to July, we take a look at the July 2015 Visa Bulletin, a monthly report detailing the current cutoff dates for the filing or approval of green card applications in the various U.S. permanent visa categories. A person who is otherwise eligible to apply for or be granted a green card in the U.S., must have a current priority date as specified in the Visa Bulletin. The July 2015 Visa Bulletin shows at least some forward movement in nearly all categories, although the pace of advancement seems to be slowing as the end of the fiscal year approaches. As of July 1, 2015, all of the family-based preference categories advance between three and six weeks with the exception of the family-based first (FB-1) preference category for nationals of the Mexico and the Philippines, which will not advance at all from November 15, 1994, and March 1, 2000, respectively. The priority dates in the employment-based third (EB-3) preference for all countries except India, China, and the Philippines advance another six weeks to April 1, 2015, and remain nearly current. EB-3 India advances only two weeks to February 1, 2004. There is more bad news for nationals of the Philippines as the EB-3 category becomes completely unavailable. The flip-flop between EB-2 and EB-3 continues for nationals of China as the EB-3 priority date does not advance, but the employment-based second (EB-2) preference advances another four months to October 1, 2013. The priority date in the EB-2 category for Indian nationals remains at October 1, 2008. According to Charles Oppenheim, Chief of Visa Control and Reporting at the U.S. State Department, in a regular meeting with the American Immigration Lawyers Association, worldwide demand in the EB-2 category has exploded in recent months leaving fewer unused visas “falling down” to EB-2 India. Unless the EB-2 worldwide demand subsides, Mr. Oppenheim does not expect any further advancement of EB-2 India for the rest of the fiscal year. You can view the visa bulletin in its entirety below. Please contact us with any questions. UPDATE -- The State Department has announced that as of June 26, all visa issuing posts are back online and are able to issue visas normally. The department expect to have the existing backlog of pending visa cases cleared before the July 4 Independence Day holiday. Following up on our earlier post regarding the ongoing “visa freeze” caused by technical problems with the Department of State’s Consular Consolidated Database (CCD), we attended a meeting today with State Department officials who provided updated information.
As background, a hardware failure has prevented consular posts from receiving biometrics and other security clearances required for visa issuance since June 9, and posts worldwide are currently unable to issue visas for travel to the U.S. In today’s meeting, State Department officials stated that they hope to have the system at least partially operational at some point next week (June 22 – June 26). Officials also confirmed that once the system is operating again, posts will prioritize applications as they work through the backlog. Priority will be given to emergency humanitarian cases, H-2A applications based on current agricultural needs, and F-1 students and J-1 exchange visitors who have impending program start dates. Department officials reiterated that those with a pending application whose passport is being held by the post may withdraw their application and request the return of their passport if they have a need to travel elsewhere than the U.S. However, individuals must be aware of the ramifications of this as it pertains to future visa applications, especially applications for an ESTA clearance to travel under the Visa Waiver Program. After returning the passport to an applicant making such a request, the post will issue a “refusal” (denial) of the visa application. This “denial” must then be disclosed on future visa applications and on any request for an ESTA clearance under the Visa Waiver Program. With regard to ESTA processing, officials stated that this disclosure of the “refusal” would result in the ESTA application being sent for review, but if the review determined that the sole basis for refusal was due to the visa outage, the ESTA clearance would be issued. The Department of State will update the public on the outage through its website, travel.state.gov, and through the websites for the individual posts. Of course, we will also keep our readers informed through continued email alerts and blog posts. As always, please contact us with any questions. The U.S. State Department has announced that it is experiencing technical problems with the primary computer system used to print and issue U.S. visas and other critical documents.
The problems related to the Consular Consolidated Database (CCD) has resulted in delays in printing visas, emergency U.S. passports, Consular Reports of Birth Abroad, and other documents. The issues are widespread and are not limited to any particular country or visa type. With regard to visa processing, a hardware failure has prevented consular posts from receiving biometrics and other security clearances required for visa issuance since June 9. Any person who submits a visa application or attends a visa interview on or after June 9 should expect a delay while posts are unable to print visas. The Department experienced similar but unrelated issues with the CCD last summer that affected visa issuance for several weeks, and visa applicants should expect the same now while the Department works to resolve the problem and clear out the backlog of visas to be processed. As always, please contact us with any questions. USCIS has imposed a new obligation on H-1B employers who relocate their H-1B workers to new worksites, and has imposed a filing deadline to update H-1B petitions for relocations that have already occurred.
In a recent decision, the USCIS Administrative Appeals Office (AAO) held that the change of an H-1B worker’s worksite that requires the employer to obtain a new Labor Condition Application (LCA) is a “material change” in the terms of employment that requires the employer to amend the worker’s existing H-1B petition. While this is a departure from long-standing, albeit unofficial, agency policy that a change in work location was not a “material change” requiring an amendment, USCIS had been hinting in recent years that this policy was in the crosshairs. Despite the existence of that generally accepted guidance, we began routinely advising clients to file amendments in this situation long before this recent AAO decision. Critically, USCIS has announced that it will apply this new obligation retroactively. This means that employers who have already assigned H-1B workers to new worksites will have to file a petition to amend the workers’ H-1B status to reflect the change in work location, even if the change occurred several months ago. According to recently published USCIS guidance, employers must file amended petitions for workers who changed work locations prior to May 21, 2015, no later than August 19, 2015. Failure to file the required amendment will subject the employer to penalties for non-compliance with the H-1B regulations and, critically, will result in the worker being in out of lawful H-1B status and subject to adverse action, such as denial of a subsequent request for change of status or extension of stay or, in the worst case, removal from the United States. We strongly suggest that employers carefully review the current work locations for their H-1B workers and immediately seek to resolve any discrepancies between the work location listed on the LCA and the actual work location. As always, please contact us with any questions. |
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