USCIS has announced that as of May 3, 2017, it has completed all data entry for H-1B cap petitions selected in the “lottery” for consideration in the FY2018 cap. USCIS will now begin returning all petitions that were not selected, a process that will probably take several weeks.

If you are a cap subject employer or worker whose petition was not selected, you might 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 defined in the NAFTA agreement. In addition, individuals must intend to work in one of the occupations listed in the NAFTA agreement.
• 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 24 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 qualifying corporate relationship (parent/subsidiary, affiliate, etc.), the employee to be transferred must have worked for the related entity 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 State Department has released the May 2017 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.

There again will be small but consistent advances in the “Application Final Action Dates” as most of the family-based categories will advance between one week and two months. The State Department continues to expect higher demand in all of the family-based categories over the coming months, and this appears to be already affecting the fourth preference (F4) as the priority date will advance only for nationals of India, Mexico, and the Philippines.

In the “Application Final Action Dates” for the employment-based categories, the EB-1 category remains current for all countries, but the State Department expects to establish a cut-off date in the this category for nationals of India and China very soon, possibly in June.

There will be some advancement in the other categories of between one day (EB-3 India) and three months (EB-3 Philippines), although EB-2 India will remain at June 22, 2008. The priority date in EB-3 for China will advance to October 1, 2014, continuing the phenomenon of EB-3 being ahead of EB-2. The State Department still expects this to result in EB-2 to EB-3 downgrades by many Chinese nationals, which will eventually bring the priority dates in those categories into alignment.

The EB-3 “worldwide” priority date will advance to March 15, 2017, and the State Department expects this category to continue advancing about one month at a time.

On the bright side, the “Dates for Filing” for both family- and employment-based categories will advance several months, which is a welcome change. In the family-based categories, all dates will advance with the exception of F-1 worldwide and F3 Mexico, with F-1 Philippines seeing the largest jump at 16 months.

In the employment-based categories, the dates for filing remain current in the EB-1 category for all countries and in all categories except for nationals of China, India, and the Philippines. For nationals of those countries, there will be some significant advances highlighted by a 16 month jump in EB-3 China. However, EB-2 India will retrogress by 10 weeks to February 1, 2009.

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 or the “Application Final Action Dates” chart in the visa bulletin. USCIS has not yet determined which chart may be used for adjustment of status filings in May 2017. The agency will post that information on its website.
​
Finally, the May visa bulletin implements the guidance provided in the April visa bulletin regarding the scheduled expiration of the non-minister special immigrant program, which is set to expire on April 27, 2017. Unless Congress acts to extend this category, it will become “unavailable” for final action as of that date and no visas may be issued and no adjustment of status applications may be approved after April 27. Visas issued before April 27 will be valid only until that date, and all individuals seeking admission into the United States with those visas must do so before midnight on April 27, 2017. The May 2017 visa bulletin accordingly lists this category as “unavailable.” If Congress acts to extend this program, the Final Action Date would immediately become “current” for all countries except El Salvador, Guatemala, Honduras, and Mexico, which would have a cutoff date of July 15, 2015.

In the past, we were reasonably confident that Congress would ultimately extend this program as part of larger budget legislation either before or shortly after the expiration, but considering the current administration’s desire to limit immigration (both legal and illegal), we are not as confident, especially if there is a protracted “budget fight” between the administration and Congress.  There is currently very little news concerning an extension.

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

UPDATE: ​On April 17, 2017, USCIS announced that they received 199,000 H-1B petitions for the fiscal year 2018 H-1B cap.

USCIS also announced that on April 11, 2017, they completed the "random selection process" or lottery to determine which petitions would be considered for further processing under both the 20,000 master's degree slots and the 65,000 "regular" slots.

USCIS will return all submitted petitions that were not selected for further processing.

As described in our original post below, USCIS will continue to accept H-1B petitions that are exempt from the H-1B cap.

USCIS has announced that as of April 7, 2017, they have received enough petitions under both the “regular” cap and the “master’s degree” cap to reach the annual H-1B visa limit for fiscal year 2018. USCIS will now run two computer-generated lotteries: the first to determine which petitions are considered for the 20,000 master’s degree slots, and the second to determine which petitions are considered for the 65,000 “regular” slots. All petitions not selected in the master’s degree lottery will also be eligible for the “regular” lottery. The lottery dates have not been announced.

USCIS will reject petitions subject to the cap for H-1B workers seeking an employment start date between October 1, 2017, and September 30, 2018, that are received after April 7, 2017. No new cap subject H-1B petitions may be filed until April 1, 2018, for employment beginning no earlier than October 1, 2018. USCIS will continue to accept petitions for H-1B workers assigned to Department of Defense projects and petitions for Chilean and Singaporean H-1B1 workers.

It is important to note that the cap applies only to “new” H-1B petitions, i.e. petitions filed on behalf of workers who have never held H-1B status or who have spent one year or more outside the U.S. since last holding H-1B status. Exempt from the cap are extension petitions for workers currently in H-1B status, petitions for current H-1B holders seeking concurrent employment, petitions requesting a change of H-1B employer, and petitions amending a worker’s current H-1B status due to a material change in the terms and conditions of the employment.

In addition, some “new” petitions are exempt from the cap by virtue of the type of petitioner or the type of work being done. These are petitions filed on behalf of a worker who is or will be employed at an institution of higher education or a related or affiliated nonprofit entity, and petitions filed on behalf of a worker who is or will be employed at a nonprofit research organization or a governmental research organization. Petitions for J-1 international medical graduates who have received waivers under the Conrad 30 program are also exempt from the cap.

We will continue to monitor the situation and provide updates as additional details emerge.  Meanwhile, please contact us with any questions.

The State Department has released the April 2017 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.

There again will be small but consistent advances in the “Application Final Action Dates” in the family-based categories. Each of the family-based categories will advance between one week and four months. The State Department expects higher demand in all of the family-based categories over the coming months, which will likely result in a freeze of the priority date in one or more of these categories.

In the “Application Final Action Dates” for the employment-based categories, the EB-1 category remains current for all countries, but as was the case last year, the State Department expect to establish a cut-off dated in the EB-1 category for nationals of India and China due to higher demand and a lack of “otherwise unused” visas in the other categories. A cut-off date will likely be imposed for both countries during the summer.

There again will be some advancement in the other categories, highlighted by EB-3 for the Philippines, which will advance six months to September 15, 2012. The priority date in EB-3 for China will advance five months to August 15, 2014, continuing the phenomenon of the EB-3 being ahead of EB-2. The State Department expects this to result in EB-2 to EB-3 downgrades by many Chinese nationals, which will eventually bring the priority dates in those categories into alignment, perhaps as soon as May.

The EB-3 “worldwide” priority date will also advance two months to February 15, 2017, and the State Department expects this category to continue advancing about one month at a time.

The “Dates for Filing” for all family- and employment-based categories and all countries will not advance at all, as has been the case for the past several months.

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 or the “Application Final Action Dates” chart in the visa bulletin. The agency will post that information on its website.

Finally, the April visa provides guidance regarding the scheduled expiration of the non-minister special immigrant program, which is set to expire on April 27, 2017.  Unless Congress acts to extend this category, it will become “unavailable” for final action as of that date, and no visas may be issued and no adjustment of status applications may be approved after April 27. Visas issued before April 27 will be valid only until that date, and all individuals seeking admission into the United States with those visas must do so before midnight on April 27, 2017.

In the past, we were reasonably confident that Congress would ultimately extend this program as part of larger budget legislation either before or shortly after the expiration, but considering the current administration’s desire to limit immigration (both legal and illegal), we are not as confident, especially if there is a protracted “budget fight” between the administration and Congress.
​
You can view the visa bulletin in its entirety below. Please contact us with any questions.

USCIS has announced that starting April 3, 2017, it will suspend the “premium processing” service for all H-1B petitions.  The suspension could last as long as six months.

The announcement states that this action is necessary so that USCIS can reduce overall processing times for H-1B petitions, which have grown steadily over the past two years and now regularly exceed six months even for routine extensions.

During the premium processing suspension, USCIS will focus on processing long-pending petitions and will prioritize extension petitions for individuals who are nearing the end of the automatic 240-day extension of work authorization following the expiration of their previous petition.

April 3 is also the first day that employers may begin filing fiscal year 2018 H-1B visa petitions for individuals to begin H-1B employment on October 1, 2017. The opening of the H-1B cap is likely a main reason for the premium processing suspension, as USCIS probably expects to receive nearly 250,000 submissions based on last year’s filing volume. Resources that would otherwise have gone toward “premium processing” can now be shifted toward intake and adjudication of H-1B cap filings.

At this time, the “premium processing” suspension affects only H-1B petitions. The “premium processing” service will remain available for all other eligible nonimmigrant visa classifications.
During the suspension period, petitioners may still request an expedite of an H-1B petition. ​USCIS may expedite a​ petition or application if it meets one or more of the following criteria:​

• Severe financial loss to company or ​person​;​
• Emergency situation;​
• Humanitarian reasons;​
• Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
• Department of Defense or ​​national​ ​interest ​​situation;​
• USCIS error; or​
• Compelling interest of USCIS.​

As always, please contact us with any questions.

The State Department has released the  March 2017 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.

There again will be small but consistent advances in the “Application Final Action Dates” in the family-based categories. Each of the family-based categories will advance between one week and four months, with the exception of the Philippines third-preference for married sons and daughters of U.S. citizens (F3), which will not advance.

In the “Application Final Action Dates” for the employment-based categories, the EB-1 category remains current for all countries. There again will be minimal movement in the other categories with the exception of EB-3 India, which will remain at March 22, 2005.

The “Dates for Filing” for all family- and employment-based categories and all countries will not advance at all, as has been the case for the past several months.

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 or the “Application Final Action Dates” chart in the visa bulletin. USCIS has not yet determined which chart may be used for adjustment of status filings in March 2017. The agency will post that information on its website.

Looking ahead, the State Department expects continued movement in the family-based categories. They also expect most of the employment-based categories to continue advancing, although the movement in EB-3 for India will be limited. The State Department also expects to impose a cutoff date for the EB-1 category for nationals of India and China by August 2017.

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

Last night, a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled unanimously that the federal government may not enforce key sections of the “travel ban” Executive Order issued on January 27.

The Ninth Circuit decision leaves in place a restraining order issued by a federal district judge in Washington last Friday, halting enforcement of the most onerous parts of the order nationwide and at all U.S. ports of entry. Specifically, the federal government may not enforce the following sections:

1. Section 3(c) – Barring entry of nationals from Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran for at least 90 days
2. Section 5(a) – Suspending all refugee admissions for at least 120 days
3. Section 5(b) – Prioritizing refugee admission for religious minorities upon the resumption of refugee admissions
4. Section 5(c) – Suspending indefinitely refugee admissions from Syria
5. Section 5(e) – Creating a process for “case-by-case” admission of refugees during the suspension periods, with preference given to religious minorities

​As a result of the injunction, travel to the United States for nationals of the seven affected countries has returned to the norm that existed before the order was issued. The U.S. State Department has rescinded the provisional revocation of any temporary and permanent visas issued to affected individuals, and those visas may now be used for travel to the U.S. U.S. consulates also will continue to schedule visa appointments for all applicants, and airlines will not be prevented form boarding travelers with valid immigration documents.

It is important to note that the restraining order prevents enforcement of only the section of the executive order listed above. Other sections remain in force, including the suspension of the Visa Interview Waiver Program, although there are reports of some consulates allowing interview waiver appointments.

It is not clear at this time whether the White House will appeal the Ninth Circuit decision to the U.S. Supreme Court or whether the Court would hear the case. The White House could decide to rescind the original order and issue a new order tailored to avoid the legal challenges that led to the restraining order.

If you have any questions about this, please contact us.

On January 27, the White House issued an Executive Order immediately halting visa issuance and forbidding entry into the U.S. of all nationals of seven predominantly Muslim countries: Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran. The order also effectively ends the refugee admission program for Syrians and temporarily halts refugee admissions from other countries, while also reducing the number of refugee admissions to 50,000 in 2017.
 
Signed late Friday afternoon, the order has caused chaos at airports around the world as immigration inspectors have scrambled to implement the order while travelers with valid visas and green cards attempted to board flights or arrived in the U.S. Although the chaos of the first 72 hours is subsiding, many aspects of how the ban is being applied remain in flux.
 
Here is what we know about the travel ban and how it is being implemented:

• The order directs that nationals of the seven countries be banned from receiving visas or entering the U.S. for at least 90 days while the Secretary of Homeland Security reviews and reports on the security screening procedures for visa applicants from the affected countries. This ban affects travelers with both temporary and permanent visas, although DHS and the Department of State may grant waivers on a case-by-case basis.
• Initially, border officials applied the ban to Lawful Permanent Residents (green card holders) although they could be permitted to enter on a “case-by-case” basis. The Secretary of Homeland Security has since determined that Permanent Residents would be granted a blanket waiver “in the national interest,” but they will be subjected to increased scrutiny.
• Border inspectors initially were applying the ban to dual nationals (e.g., those born in Iran, but holding U.K. citizenship). DHS has stated that dual nationals will be treated according to the passport they present. In other words, an Iranian-born U.K. citizen presenting a U.K. passport should be processed as a U.K. citizen and the ban should not apply.
• U.S. citizens enrolled in the Global Entry express travel program who are also nationals of one of the seven affected countries will most likely have their Global Entry registration revoked automatically.
• The order also suspends “other immigration benefits” for people from the affected countries. USCIS has issued guidance to its offices that immigration benefits applications filed by nationals of the affected countries may be processed, but that no final decision may be made while the order is in effect. This means that no benefits applications by affected individuals will be adjudicated at least during the initial 90-day period. DHS has confirmed that N-400 applications for naturalization are not affected.

​Since Friday several Federal courts issued injunctions prohibiting CBP from detaining or deporting people who had been prevented from entering the U.S., and many additional lawsuits challenging the order are being prepared. However, there have been reports of CBP officials illegally ignoring the existing injunctions. Even in places where the injunction is being followed, this protection only applies to travelers who have made it to the U.S.

The order is being applied to prevent people with otherwise valid visas from boarding flights, and the Department of State has instructed consular posts worldwide not to schedule visa appointments for people from the affected countries. We also have heard numerous reports from colleagues around the country that some CBP offices and ports of entry are not following the official guidance, including detaining citizens of countries other than the named seven.
 
Our advice is that visa holders who were born in these countries who are currently in the U.S. should not leave the U.S. for any reason unless doing so would result in them overstaying their lawful period of admission. The frenzied process by which the White House seems to be implementing these policies makes it impossible to predict when or whether such visa holders will be permitted to return.
 
The order also suspends refugee admissions from Syria indefinitely and from all other countries for at least 120 days while the oft-discussed “extreme vetting” measures are developed and implemented.
 
Although the order states that the travel ban and refugee suspension is only temporary, it may be unlikely that the countries affected could or would ever comply with the conditions the order sets for having the ban lifted. It is likely that the legality of the order – and the fate of those affected – will ultimately be decided by the Supreme Court.

If you have any questions about this, please contact us.

On January 25, the Trump Administration issued two executive orders on immigration, both of which signal the administration’s plan to implement the restrictive immigration policies espoused during the presidential campaign. The orders, effectively immediately, provide for the following:

• Immediate authorization to construct a wall along the southern U.S. border.
• Immediate increase in the use of detention of undocumented foreign nationals in removal proceedings.
• Development of policies designed to end the “abuse” of parole and asylum.
• Immediate authorization to hire 5,000 additional Border Patrol agents and 10,000 Immigration and Customs Enforcement agents.
• Directs the Department of Homeland Security (DHS) to enter into agreements authorizing state and local law enforcement offices to enforce immigration violations.
• Authorizes withholding of certain Federal funds from cities and counties that do not share immigration information with DHS, otherwise knowns as “sanctuary jurisdictions.”
• Immediate authorization for DHS and the Department of State to implement “visa sanctions” against countries that deny or delay the return of their nationals who are ordered removed from the U.S.
• Excludes non-citizens and non-Lawful Permanent Residents from Privacy Act protections, permitting personal information provided on immigration documents to be used in enforcement actions.

In addition to the above, there are various other provisions requiring various data gathering and reporting.

The administration is expected to issue additional immigration-related executive orders, perhaps as early as today. According to reports, the most significant of these orders is likely to temporarily restrict visa issuance to and entry into the U.S. of nationals from “countries of concern” while the immigration agencies review and strengthen their procedures for “vetting” applicants.  The initial list of “countries of concern” will likely include all or some of Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran. Foreign nationals from these countries who intend to apply for a visa or enter the U.S. should do so as soon as possible to avoid ramifications of the order.

In addition, the coming orders are expected to effectively end the refugee admission program for Syrians and temporarily halt refugee admissions from other countries, while also reducing the number of refugee admissions to 50,000 in 2017.

The order also is expected to end the Visa Interview Waiver Program that currently provides streamlined visa issuance, and provide for a review of visa reciprocity agreements to ensure that the fees and validity periods for visas issued to U.S. citizens by other countries are similar to what the U.S. provides for nationals of those countries.

It is important to note that many of these policies are simply a return to those that were in place before President Obama took office in 2009, such as the agreements with local law enforcement (known as the “Secure Communities” initiative), while others are merely a shift in priorities under existing law. For example, the law requiring construction of the “border wall” was passed several years ago, although a lack of Congressional funding, changing immigration enforcement priorities, and various legal and engineering challenges have stalled actual construction.
 
In addition, many of the provisions, while onerous, cannot be implemented without new or additional Congressional funding, and it remains to be seen whether Congress will agree to provide those funds.
 
If you have any questions about these executive actions or any other immigration issues, please contact us.

The State Department has released the  February 2017 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.

Once again, there will be small but consistent advances in the “Application Final Action Dates” in the family-based categories. Each of the family-based categories will advance at least a few weeks, with the exception of the Mexican third-preference for married sons and daughters of U.S. citizens (F3) and the Philippines second-preference for unmarried sons and daughters of Permanent Residents (F2B), which do not advance.

In the employment-based categories, the EB-1 category remains current for all countries. There will be minimal movement in the other categories with the exception of EB-2 India, which will remain at April 15, 2008, and EB-3 China for “other workers” (i.e. those sponsored for positions requiring less than two years of experience), which will remain at December 1, 2005.

The “Dates for Filing” for all family- and employment-based categories and all countries will remain the same as the January 2017 visa bulletin.

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 or the “Application Final Action Dates” chart in the visa bulletin. USCIS has not yet determined which chart may be used for adjustment of status filings in November 2016. The agency will post that information on its website.

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