Minutes ago, USCIS announced that starting May 26, 2015, it will suspend the "premium processing" service for all H-1B petitions requesting an extension of stay for the H-1B worker.
The announcement states that this action is necessary so that USCIS can efficiently implement the H-4 Work Authorization rule, also scheduled to take effect on May 26. Since the 90-day processing time for the H-4 work authorization does not begin until USCIS adjudicates the underlying H-1B and H-4 extension, USCIS clearly expects a significant number of concurrently filed H-1B/H-4 extensions requesting premium processing in an effort to expedite issuance of the H-4 Employment Authorization Card (EAD). According to the announcement, this action only affects extension requests filed on or after May 26, 2015. USCIS will continue to premium process extension petitions file before May 26. The announcement also makes clear that premium processing is still available for all other H-1B petitions, including those requesting a change to H-1B status or consular notification. As always, please contact us with any questions. The Department of State has released the June 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 June 2015 Visa Bulletin shows continued forward movement in nearly all categories, but last month’s warning for nationals of the Philippines came to pass as the family-based first (FB-1) preference and the employment-based third (EB-3) preference each retrogressed significantly as described below. As of June 1, 2015, the priority date in the employment-based second (EB-2) preference category for Chinese nationals will advance one year to June 1, 2013, while the priority date in the EB-2 category for Indian nationals will advance nearly six months to October 1, 2008. The priority dates in the employment-based third (EB-3) preference for all countries except India, China, and the Philippines will advance six weeks to February 15, 2015, and remain nearly current. EB-3 India again advanced only one week to January 22, 2004. The good news continues for nationals of China as the EB-3 priority date advanced again to September 1, 2011. The bad news continues in June for nationals of the Philippines. The EB-3 priority date for the Philippines will move backward again over two years to January 1, 2005, and the notes to the bulletin indicate that there could be further regression in the coming months. In addition, the FB-1 priority date for nationals of the Philippines will retrogress nearly five years to March 1, 2000. As has been the case for several months, most family-based preference categories will advance at least a few weeks, although, somewhat unexpectedly, the priority date in the family-based fourth (FB-4) preference for Mexican nationals will move backward slightly to March 1, 1997. You can view the visa bulletin in its entirety below. Please contact us with any questions. The Department of State has released the May 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 May 2015 Visa Bulletin shows continued forward movement in all but two categories, and a warning for nationals of the Philippines. As of May 1, 2015, the priority date in the employment-based second (EB-2) preference category for Chinese nationals will advance 14 months to June 1, 2012, while the priority date in the EB-2 category for Indian nationals will advance over seven months to April 15, 2008. The priority dates in the employment-based third (EB-3) preference for all countries except India, China, and the Philippines advanced three months to January 1, 2015, and are nearly current. EB-3 India again advanced only one week to January 15, 2004. There is a reversal of April’s bad news for nationals of China as the EB-3 priority date advanced again to May 1, 2011. The bad news in May is for nationals of the Philippines and for Chinese investors. The EB-3 priority date for the Philippines moved backward over seven years to July 1, 2007, due to heavy demand following previous rapid advancements. This retrogression was anticipated, but came sooner than expected. Meanwhile, as expected, the priority dates in the EB-5 immigrant investor category retrogressed to May 1, 2013. As has been the case for several months, most family-based preference categories will advance at least a few weeks. Looking ahead, in a discussion with the American Immigration Lawyers Association (AILA), the State Department’s Chief of the Visa Control and Reporting Division, Charles Oppenheim, indicated that EB-3 Philippines could advance slowly after the May retrogression, but the family-based first preference (FB-1) category for the Philippines will likely retrogress in June or July. Mr. Oppenheim also indicated that the advancement in the EB-2 category for Indian nationals would slow down during the summer months and could possibly stop in August or September. You can view the visa bulletin in its entirety below. Please contact us with any questions. UPDATE: On April 13, 2015, USCIS announced that they received over 233,000 H-1B petitions for the fiscal year 2016 H-1B cap. They also announced that on April 13, 2015, 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 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, 2015, 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 2016. 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, 2015, and September 30, 2016, that are received after April 7, 2015. No new cap subject H-1B petitions may be filed until April 1, 2016, for employment beginning no earlier than October 1, 2016. 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 Department of State has released the April 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 April 2015 Visa Bulletin shows continued forward movement, especially for nationals of India and China. As of April 1, 2015, the priority date in the employment-based second (EB-2) preference category for Chinese nationals will advance seven months to April 1, 2011, while the priority date in the EB-2 category for Indian nationals will advance eight months to September 1, 2007. Similarly, the priority dates in the employment-based third (EB-3) preference advanced four months to October 1, 2014, except for EB-3 India, which advanced one week to January 8, 2004. There is a bit of bad news for nationals of China as the EB-3 priority date moved backward to January 1, 2011, due to continued heavy demand. Finally, most family-based preference categories will advance at least a few weeks. You can view the visa bulletin in its entirety below. Please contact us with any questions. This is a guest post by our friend Jacqueline Bart of BartLAW Canadian Immigration Barristers and Solicitors, a Toronto law firm specializing exclusively in Canadian immigration law. Sign up for their immigration newsletter here. Citizenship and Immigration Canada (“CIC”) has unveiled a new employer compliance form under the International Mobility Program. Based on the new regulations, employers are now required to file employment confirmation information prior to filing a foreign worker work permit application.
As of February 21, 2015, applying for a work permit requires a two-step application process:
This new employer work permit compliance filing process will require employers to provide employment information directly to CIC when hiring foreign nationals under the International Mobility Program. The information provided by employers will form the basis of future compliance assessments when employers are inspected. Specifically, employers will be required to provide the following information:
The $230 fee and employment information must be submitted by the employer before a foreign national makes an application for a work permit. If employers do not meet the above requirements when hiring foreign nationals under employer-specific LMIA-exemptions, officers will refuse the work permit application by the foreign national. Aside from the government revenue generation of this new program, it is designed to ensure that the government receives information directly from the employer regarding the employment position. This will enable the government to verify compliance with the International Mobility Program regulatory requirements. The Regulatory Impact Analysis Statement from the government indicates that the information will be utilized for government employer compliance processes. The government seeks to bolster their enforcement authority in employer compliance inspections. These regulations will enhance CIC’s legislative authority to inspect employers. The government will conduct on-site inspections without a warrant. At employer on-site inspections, CIC will require employers to provide documents that demonstrate compliance with the job offer, including payroll and taxation documentation, time sheets, foreign worker activities and responsibilities, location of employment and other types of government and non-government documentation. CIC may also interview foreign workers or Canadian employees to determine employer compliance. The regulatory penalties for employer non-compliance with immigration filings can include jail terms and fines for the officers and directors of the employer. Undeterred by the temporary injunction that delayed the start of the expanded DACA program (which the Justice Department has appealed), the Obama Administration has announced the launch of another key element of its effort to modernize existing immigration laws.
Yesterday, USCIS announced the long-awaited regulatory change that will make certain H-4 spouses eligible for employment authorization (EAD). This extension of EAD eligibility does not apply to all H-4 spouses, nor does it apply to children. For an H-4 spouse to be eligible for this category of employment authorization, the H-1B spouse must:
Although USCIS will not begin accepting H-4 EAD applications until May 26, 2015, we encourage potentially qualified individuals to contact us to determine whether they meet the eligibility criteria. On April 1, 2015, employers may begin filing fiscal year 2016 H-1B visa petitions for individuals to begin H-1B employment on October 1, 2015. Congress places a cap of roughly 65,000 on the number of new H-1B’s available each year. There is also a separate cap of 20,000 initial H-1B’s available for individuals who have a master’s degree or higher from a U.S. college or university.
Generally, any petition for an individual who is currently in H-1B status or has held H-1B status within the past six years is not subject to the cap, although there are some rare exceptions. In addition, certain types of employers are exempt from the H-1B cap, such as non-profit research organizations and non-profit entities that are affiliated with a U.S. college or university. In each of the past few years, USCIS received enough petitions to exceed these caps within the first week. Considering the improved economy and the fact that last year’s cap was reached on April 7 creating a significant pent up demand, we expect that the cap will again be reached during the initial filing period. Therefore, employers must identify any individuals for whom they might want to obtain H-1B status and file those petitions as early as possible for the best chance at getting one of the available visas. This is particularly critical for any recent graduates who are currently working pursuant to Optional Practical Training (OPT), and for employees who might be nearing the maximum limit on their current status, such as R-1 religious workers or L-1 intracompany transferees. If you are an employer or potential employee and you have questions about the H-1B cap or the H-1B visa category, please contact us. UPDATE: This morning, a Federal district court in Texas issued a temporary injunction preventing USCIS from implementing the expanded DACA program and the upcoming DAPA program. The Obama administration will appeal that decision and we expect the injunction to be lifted, but meanwhile USCIS will not accept applications under the expanded DACA program this week as originally planned. We will monitor these ongoing developments and post more information as it becomes available.
Please note that today's district court decision does not affect renewal applications for the initial DACA program launched in 2012, or any of the other potential executive actions the President announced on November 20, 2014. Our original post concerning eligibility for the expanded DACA program is below. _________________________________________________________________________________________________________________ As Congress continues to delay movement on comprehensive immigration reform (CIR), President Obama continues to expand the use of executive action to create administrative programs to fix various areas of the U.S. immigration system. USCIS is set to expand one such program, known as Deferred Action for Childhood Arrivals (DACA). Originally launched in 2012, DACA provided temporary, discretionary relief from deportation for people who were brought to the U.S. illegally as children. This week, USCIS will begin accepting applications for an expanded DACA program intended to provide relief for those who were not eligible under the initial program. To be eligible for DACA protection, a person must demonstrate that they:
Deferred action does not provide any derivative benefits for relatives of those granted deferred action. Any applicant must independently meet the eligibility criteria. Deferred action is available even if a person is currently in immigration court proceedings or is subject to a final order of removal from the U.S. People granted deferred action may obtain employment authorization (EAD) cards. It is important to note that deferred action is discretionary relief and may be renewed or terminated by at any time. Receiving deferred action does not grant a person any legal status in the U.S., nor does it waive or eliminate the consequences of any previous or future immigration violations. It simply means that the government will not make any effort to deport the person from the U.S. during the deferral period. If you or someone you know might be eligible for protection under DACA, please contact us. The Department of State has released the March 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 March 2015 Visa Bulletin offers good news on all fronts, especially for nationals of India and China. As of March 1, 2015, the priority date in the employment-based second (EB-2) preference category for Chinese nationals will advance six months to September 1, 2010, while the priority date in the EB-2 category for Indian nationals will advance 16 months to January 1, 2007. Otherwise, the priority dates continue their steady advancement as the employment-based third (EB-3) preference and all family-based preference categories will advance at least a few weeks. You can view the visa bulletin in its entirety below. Please contact us with any questions. |
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