Visa Bulletin August 2017

The August 2017 Visa Bulletin is now in effect and with this month's visa bulletin we see retrogression in the EB-2 category for all countries, and continued backlogs in the EB-1 category for both India and China.  The Visa Bulletin is a publication from the U.S. Department of State, released monthly, that informs beneficiaries of employment-based and family-based immigrant petitions when they are eligible to undertake consular processing for immigrant visas or apply for adjustment of status in the United States for securing their lawful permanent resident ("green card") status.  In many categories and for several populous countries, there can be backlogs and years of waiting for a green card to become available.  Typically, the EB-1 category (available for Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers) is current all year round - meaning if a foreign national meets that criteria, he or she may file their green card application concurrently with the EB-1 petition.  Similarly, the EB-2 category for persons with advanced degrees or filing under the National Interest Waiver category is current for foreign national from most countries (China and India are notable exceptions) all year round.

With the July Visa Bulletin, the EB-1 category became backlogged for persons from India and China and that trend now extends to the EB-2 category for all other countries effective August 1, 2017.  Since the U.S. government runs on a fiscal year that begins October 1, most observers expect these categories will again become current this fall.  This trend, however, shows us that these categories are highly sought-after throughout the year and applicants would be wise to file as early in the fiscal year as possible, as waiting until the summer months brings with it a risk for backlogs and unavailability of green cards until the next fiscal year.

If you have questions concerning immigrant visa availability and the potential effects on your case, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

DOS releases June 2017 Visa Bulletin - EB-1 retrogression for China & India

As of June 1, 2017, foreign nationals from India and China filing in the EB-1 category may be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. The EB-1 category is an employment-based category for priority workers that includes: 

• Aliens of Extraordinary Ability;
• Outstanding Professors and Researchers; and,
• Multinational Managers and Executives. 

According to the U.S. Department of State's ("DOS") June 2017 Visa Bulletin, the Final Action Chart shows the priority date for Indian and Chinese nationals has retrogressed to January 1, 2012. However, the Dates of Filing Chart lists those two countries (as well as all others in the EB-1 category) as "current." As of May 10, 2017, USCIS has not indicated which chart it will use for determining eligibility for filing adjustment of status applications. Based on past practice, USCIS will likely use the Final Action Chart. This means that as of June 1, 2017, Indian and Chinese nationals with priority dates earlier than January 1, 2012 will be eligible to submit their green card applications, and those with later priority dates will have to wait until immigrant visas become available in the coming months.  It may not be until October (when the U.S. government's new fiscal year begins) that the EB-1 category becomes current again for India and China.

Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, had previously stated EB-1 and EB-2 Worldwide demand at USCIS had increased dramatically, and had predicted a final action cut-off date would be imposed for EB-1 China and India no later than July. The EB-1 category remained current for nationals of all countries except India and China. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.   

DHS publishes new regulations affecting high-skilled non-immigrants, EB-1, EB-2, and EB-3 immigrant workers, and their employers

On November 18, 2016, the Department of Homeland Security (“DHS”) published its final rule affecting high-skilled nonimmigrant workers, EB-1, EB-2, and EB-3 immigrant workers and their employers. This new rule becomes effective January 17, 2017 and contains a number of important changes, as well as codifies a great deal of existing agency policy, including the following provisions:

Immigrant Petitions

• The new rule expands the list of events that can lead to a loss of a priority date. An individual may be stripped of a priority date if the underlying employment based immigrant visa petitions is revoked for fraud, or a willful misrepresentation of a material fact, if DOL revokes an underlying labor certification, if a USCIS or DOS officer invalidates a Labor Certification, or if USCIS determines that the original petition was approved based on a material error.
• Codifies that an approved I-140 remains valid where USCIS determines that a new job offer is in the same or similar occupation as listed in the original approved I-140.
• Explicitly confirms the long-standing policy that an approved petition remains valid indefinitely unless approval is revoked by USCIS or the DOS.
• Provides a new basis for a narrow group of individuals in valid H-1B, L-1, H-1B1, O-1 and E-3 status to obtain employment authorization independent of their current status. A nonimmigrant in one of the aforementioned statuses who is the beneficiary of an approved I-140, is subject to an immigrant visa retrogression, and who can demonstrate “compelling circumstances” may now apply for employment authorization. USCIS has provided examples of compelling circumstances such as serious illness or disability of the nonimmigrant or a dependent family member “that entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.” If an individual can establish compelling circumstances, USCIS may in the exercise of discretion issue an Employment Authorization Document or Card (EAD) valid in one year increments. Once the principal worker is granted an EAD under the new rule, his or her spouse and children may also apply. Unfortunately, USCIS makes clear that use of employment authorization granted by the new rule will generally result in a loss of nonimmigrant status and result in, at a minimum, a temporary ineligibility for adjustment of status.
• For renewals for these “compelling circumstance” EADs, the principal worker will need to demonstrate he or she is still subject to an immigrant visa retrogression and compelling circumstances continue to exist. Alternatively, renewals are authorized if the worker’s priority date is one year or less from the Final Action date on the Visa Bulletin in effect at the time the extension application is filed. The principal worker’s spouse and children may apply for a renewal at the same time as the principal worker, but their applications hinge on the principal’s being approved.

Revocation of Approval of Immigrant Petitions

• Modifies the existing revocation rules in light of INA §204(j). The amended revocation rule provides that an employer’s written withdrawal an approved employment based preference petition 180 or more after the petition’s approval or 180 or more days after an associated application for adjustment of status has been filed remains approved for purposes of I.N.A. §204(j).  Prior to this amendment, a written withdrawal would lead to an automatic revocation of the petition.
• Also modifies the existing rule regarding situations where the petitioning employer ceases business.  An approved petition will remain valid if the petitioning employer ceases business 180 or more days after the petition’s approval or 180 or more days after the filing of an associated application for adjustment of status for purposes of 204(j).  Again, prior to this amendment, a petitioning employer’s termination of business was an event that triggered automatic petition revocation.

Non-immigrant Classes

• The new rule allows individuals coming to the U.S. in E-1, E-2, E-3, L-1 and TN nonimmigrant classifications to be admitted up to 10 days prior to the beginning of their authorized employment to permit them sufficient time to arrive, get settled, and begin employment (similar to what is permitted already for H-1B visa holders). These same individuals should also see their admission period include 10 days at the end of their period of authorized employment to permit them time to depart the U.S. or extend, change or otherwise maintain lawful status.
• Establishes by regulation a grace period of up to 60 consecutive days during each authorized validity period for a number of visa categories, including for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN non-immigrants, in order to permit these high-skilled workers the ability to pursue new employment and an extension of their nonimmigrant status without having to depart the U.S. or needing to file a change of status request to B-2 or dependent non-immigrant status.
• Codifies and expands portability rules previously established under AC21 and subsequent agency guidance, including:
  • An H-1B nonimmigrant may begin concurrent or new employment upon the filing of a non-frivolous H-1B petition on his/her behalf, or at the start date of a requested petition –whichever is later.
  • Successive H-1B portability petitions are allowed – for example, if the H-1B worker was working at Company A, ports to Company B, and while Company B’s petition is still pending, the H-1B worker ports to Company C.
  • Requests to amend or extend any successive H-1B portability petition cannot be approved if a request to amend or for an extension of any preceding H-1B portability petition in the succession is denied, unless the worker’s previously approved H-1B status remains valid.
  • Denial of a successive portability H-1B petition does not preclude an H-1B worker from continuing or resuming working in accordance with a previously approved H-1B petition so long as that prior petition remains valid and the beneficiary has otherwise maintained H-1B status or been in a period of authorized stay and has not work without authorization.
• Explicitly recognizes that some states permit non-licensed individuals to perform work that otherwise requires licensure if they do so under the supervision of a licensed senior or supervisory personnel. The new rule notes that USCIS will consider the nature of the duties, in addition evidence of the identity, physical location and credentials of the person who will be supervising the H-1B worker and the facts must demonstrate that alien will fully perform the duties of the occupation.
• Confirms that DHS may approve, for up to 1 year, an H-1B petition on behalf of a worker who will be employed in a job that requires licensure by a state or local authority if the only things precluding the H-1B worker from obtaining the license are a lack of a social security number or proof of employment authorization, or similar technical requirement. Extensions for these individuals may not be approved unless the petitioner can demonstrate at the time of applying for the extension that the H-1B worker is now licensed in that position, or working in a different position or location that either requires a different license (which the H-1B worker has) or no licensure requirement is applicable in the new location.
• Provides for more consistent adjudication for non-profit employers affiliated with institutions of higher learning and government research organizations filing cap-exempt H-1B petitions, including the potential for non-profit employers and government research organizations to pursue cap-exempt H-1Bs even if they have never previously petitioned for an H-1B employee.
• Prior regs and interim policy memoranda had required cap-exempt non-profits to demonstrate the non-profit was connected to or associated with an institution of higher education through shared oversight or control by the same board or federation, was operated by an institution of higher education, or was attached to an institution of higher education as a member, branch, cooperative, or subsidiary, or proof the organization had been granted a cap-exempt H-1B in the past.  The new rule provides an additional option: proof that the non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher ed for purposes of research or education, and that a fundamental activity of the non-profit is to directly contribute to research or education mission of the institution of higher education.
• The new rule also expands cap-exempt status for government research organizations by clarifying that federal, state or local entities whose primary mission is the performance of basic and/or applied research may qualify as cap-exempt. The previous version of the regulations stated a government research organization was a “United States Government entity” so the expansion to state and local government entities engaged in research is notable.
• In addition, an H-1B petitioner who is not a qualifying institution or organization may claim an exemption from the cap for H-1B employees if the majority of his/her duties will be performed at a qualifying institution, organization or entity, and those duties directly and predominantly further the essential purpose, mission or objectives of the organization (higher education or non-profit or government research).
• Clarifies two existing policies of USCIS concerning employees working for cap-exempt and then cap-subjected employers: 1) that an H-1B nonimmigrant working for a cap-exempt organization must be counted against the cap when changing employers to a cap-subject employer if he/she has not previously been counted against the cap within the past 6 years, and 2) concurrent employment with a cap-exempt and cap-subject employer is permitted, but the H-1B nonimmigrant must continue to maintain the cap-exempt employment. Failure to do so may result in USCIS revoking the concurrent, cap-subject petition unless the beneficiary has been counted against the cap within the past 6 years or obtains a new cap-subject H-1B approval.
• Codifies that time spent physically outside the U.S. exceeding 24 hours by an alien during the validity of an H-1B petition approved on the alien’s behalf does not count towards the 6 year maximum. The burden is on the H-1B petitioner to provide evidence in the form of passport stamps, I-94 records, and airline tickets, along with a chart, indicating 24 hour periods spent outside the U.S. when seeking to recapture time and extend the alien’s H-1B status.
• Allows for extension of H-1B status beyond the 6 year maximum under 214(g)(4) when a petitioner can show more than 365 days have passed since it filed a labor cert with DOL under 203(b) or an immigrant visa petition with USCIS under 203(b).  Petitioners may file an H-1B petition seeking a lengthy adjudication delay exemption within 6 months of the requested start date, which may be before 365 days have elapsed since the filing of the Labor Cert or I-140.

Adjustment of Status to that of Person Admitted for Permanent Residence

• EADs may not be issued to an application for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) until the AOS application has been pending for 180 days, with limited exceptions. If USCIS fails to adjudicate the applicants EAD upon expiration of the 180 day waiting period or within 90 days of filing the EAD application (whichever is later), the applicant shall be eligible for an EAD.
• USCIS may require any applicants for adjustment of status based on an approved employment-based immigrant petition to affirmatively demonstrate to USCIS, on Form I-485 Supplement J that the employment offer by the petitioning employer is still valid or the applicant has a new offer of employment from the same petitioner, a new employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered in the original petition. The qualifying visa petition (the I-140) needs to have already been approved (and not revoked) or still pending when the beneficiary notifies USCIS of a new job offer 180 days or more after he or she filed an I-485 application, and the I-140 is subsequently approved. 

Control of Employment of Aliens

• If an individual’s employment authorization is due to expire, the new regulations require employers to re-verify on Form I-9 (no later than date of expiration of current employment authorization) to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment.
• For persons presenting EADs for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD (discussed below) and not the expiration date indicated on the face of the EAD.
• EADs that are issued to individuals who are not employment authorized incident to status (and including those filing based on Temporary Protected Status) will have their EADs automatically extended for up to 180 days from the date of their EAD expiration upon timely filing for an extension.
• NOTE: the regulation that provides for automatic extension of EADs also removes the existing regulation requiring USCIS to adjudicate EAD applications within 90 days of receipt. It remains to be seen how this change will affect applicants for initial EADs.

DHS publishes new rule affecting H-1B1 and E-3 Nonimmigrants and EB-1 Immigrants

On January 15, 2016, the U.S. Department of Homeland Security (“DHS”) published a new rule that clarified and enhanced opportunities for highly skilled workers from Chile and Singapore who are employed in the U.S. pursuant to the H-1B1 program and for similar workers from Australia in the E-3 category.  Congress created the E-3 and H-1B1 categories after the effective date of many of the existing regulations concerning nonimmigrant work authorization.  As a result, E-3 and H-1B1 nonimmigrants were excluded from some benefits that similarly situated nonimmigrants enjoyed, and for many years there was ambiguity concerning other aspects of their employment authorization in the U.S.  Under this new rule, which goes into effect on February 16, 2016, DHS expressly provides:

• H-1B1 and principal E-3 beneficiaries will be permitted to continue their employment with their current employers for 240 days upon timely filing an extension of stay request. Previously, H-1B1 and E-3 were not among the list of enumerated nonimmigrant categories that permitted the automatic 240 extension upon timely filing; 
• H-1B1 and principal E-3 beneficiaries will be included in the classes of foreign nationals who are authorized for employment in the U.S. incident to status with a specific employer.  This clarifies that H-1B1 and principal E-3 workers are not among the classes of nonimmigrants that must separately apply for employment authorization to begin work with their petitioning employer; and,
• H-1B1 and principal E-3 beneficiaries will be permitted to file for extensions of stay and change of status requests while in the U.S.   Although it has been the case that the Form I-129 instructions permitted H-1B1 and principal E-3 workers to use the form and file for extensions and change of status requests for many years, the existing regulations were not drafted in a way to specifically permit these filings.  

In addition to the changes to the H-1B1 and E-3 categories, DHS’s new rule has also revised the EB-1 regulations for outstanding professors and researchers.  DHS acknowledged the list of evidence that applicants in the EB-1 category may submit to prove their outstanding qualifications was dated and needed to be amended to expressly permit applicants to submit “comparable evidence” to establish their eligibility.  The regulations specifically cite evidence of “important patents or prestigious peer-reviewed funding grants” as two types of comparable evidence applicants may now submit to demonstrate they are recognized internationally as outstanding in their academic areas.

To review a full copy of the new regulations, visit the Federal Register online at https://federalregister.gov/a/2016-00478.  Please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com with any questions you may have about the changes coming next month to the H-1B1, E-3, and EB-1 categories.