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Where’s my visa?

Continued immigrant visa quota backlogs predicted for FY 2019

 

 

 

 

 

 

 

 

Longer waiting times for many immigrant visa categories are predicted in fiscal year 2019, according to US State Department Visa Control and Reporting Division Chief Charles Oppenheim, who provided predictions of immigrant visa quota waiting times for fiscal year 2019, which starts on October 1, 2018. Here are highlights from the announcement:

EB1. This is the immigrant visa category for individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. From its creation in 1990 till last summer, this category never experienced waiting periods (with the recent exception of some individuals born in India and mainland China). However, in August and September 2018, the State Department reported a waiting time for all countries of birth. It now predicts the continuation of a waiting period, and not to expect much forward movement before December 2018 or the first quarter of 2019.

EB2. This is the immigrant visa category for professionals with an advanced degree and individuals with exceptional ability. Since its creation in 1990, this category had not experienced waiting periods, with the recent exception of some individuals born in India or mainland China. However, in September 2017, a waiting period was reported for all places of birth. Now, the State Department expects this visa to again become immediately available starting in October 2018 (with the exception of people born in India or mainland China, who will continue to experience lengthy wait times).

EB3. This is the immigrant visa category for professionals and skilled workers. It typically has a wait period of only a few months, except for individuals born in India or mainland China, who have experienced lengthier wait times. While the State Department predicts a wait period for all countries of birth for September 2018, it expects visas in this category to become immediately available again in October 2018 (with the exception of people born in India, mainland China and the Philippines, who will continue to experience lengthy wait times.

EB5. This is the immigrant visa category for immigrant investors. It will remain available to all individuals, regardless of country of birth, but with wait times for people from China and Vietnam. For the latter, visas will be more readily available after October 2018 until March or April 2019, when the wait time will be the same as that of Chinese investors.

The State Department reports immigrant visa waiting times in its monthly Visa Bulletin, which can be found here. The current month and links to past months are available.

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Where’s my visa?

New national interest waiver ruling

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Increased immigration opportunities for individuals of exceptional ability

There are increased opportunities for individuals of exceptional ability to immigrate to the United States based on new national interest waiver rule after the US Department of Homeland Security issued on December 27, 2016, designated the Matter of Dhanasar decision as precedent.

Summary

The new rule means that USCIS may grant a national interest waiver if the petitioner demonstrates:

(1) that the foreign national’s proposed endeavor has both (a) substantial merit and (b) national importance;

(2) that he or she is well positioned to advance the proposed endeavor; and

(3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

The employment-based second preference immigrant visa category (EB2) includes individuals of exceptional ability who can self-petition to immigrate.  That means they sign their own immigrant petition and do not need a sponsoring employer. Further, the normal requirement of an employer obtaining an alien employment certification from the US Department of Labor can be waived on a showing that the waiver is in the national interest.

Analysis

The new rule states that “substantial merit” may be in a range of areas, citing business, entrepreneurialism, science, technology, culture, health, or education, research, pure science, and the furtherance of human knowledge as examples.  Showing the potential to create significant economic impact may be favorable, but is not required.

“National importance” focuses on potential prospective impact, rather than geographic terms.  National or global implications are relevant, but even a ventures that focus on one geographic are of the US may qualify.

The requirement that the immigrant be well positioned to advance the proposed endeavor focuses on the immigrant.  Relevant factors include education, skills, knowledge, and record of success in related or similar efforts, plan for future activities, and the interest of others (e.g., potential customers, users, investors).

The benefit to the US is an analysis of both:

  • Impracticality of securing a job offer or alien employment certification; and
  • Benefit of the immigrant’s contributions to the US warrants foregoing the alien employment certification.

Matter of Dhanasar

The immigrant in Matter of Dhanasar held a PhD in Engineering, as well as Master’s degrees in Mechanical Engineering and Applied Physics. His research focused on hypersonic propulsion systems and computational fluid dynamics.  He developed a validated computational model of high-speed air-breathing propulsion engine and a novel numerical method of calculating hypersonic air flow.  He intended to work in air and space propulsion systems R&D at university, as well as supporting teaching activities in STEM disciplines.

The US Citizenship and Immigration Services denied the immigrant petition, but that decision was reversed on appeal to the Administrative Appeals Office.  The AAO found there was both substantial merit and national importance to the immigrant’s work due to potential use in military and civilian applications, advances to scientific knowledge, and American national security and competitiveness applications.  The high level of accomplishment to date by the immigrant was found to show benefit to the US even assuming that other qualified US workers are available.

Matter of New York State Department of Transportation

The new ruling vacates the AAO’s decision in Matter of New York State Department of Transportation, which had been in effect since 1998.  That case severely limited self-sponsored EB2 due to a restrictive interpretation of the national interest waiver requirements, which was often misinterpreted by the USCIS to require the very labor market test that was intended to be waived.

Impact

The new ruling makes the self-petition EB2 national interest waiver much more widely available.  As a result, we anticipate a significant increase in filings, including in some cases where the self-petition EB1 extraordinary ability immigrant visa category might be in consideration.  On the other hand, the EB2 category remains oversubscribed with long waiting periods for immigrants born in mainland China and India.  These individuals will continue to shun EB2 in favor of the more stringent requirements of EB1.

The complete text of Matter of Dhanasar can be found here.

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New national interest waiver ruling

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

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Important new regulations for immigrant workers

US Visa Bulletin Update—EB-1 backlogs predicted

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Effective August 1, 2016, the employment-based, first-preference immigrant visa (EB-1) is no longer expected to be immediately available for individuals born in India and China. Availability is predicted by the State Department to retrogress to January 1, 2010, and to not become current again until the new fiscal year begins on October 1, 2016. EB-1 will remain current and immediately available to individuals born in all other countries.

EB-1 includes:

  • EB-1A – Individuals of extraordinary ability
  • EB-1B – Outstanding professors and researchers
  • EB-1C – Multinational executives and managers

EB-1 was created as part of the Immigration Act of 1990. This important visa category has, since its creation, generally been immediately available and without any quota backlog. Employment-based immigration in other visa categories has long been slower for immigrants born in India and China due to the large number of applications filed each year.

Although the backlog is not expected to hit until the last two months of the current fiscal year, it is reasonable to assume that, with the anticipated continued growth of immigration to the US from India and China, it will only worsen in fiscal year 2017. While it is difficult to predict how quickly the wait list will grow, to avoid what may become very lengthy processing delays, your best strategy for securing an early priority date is to file your EB-1 immigrant visa petition as soon as possible.

The EB-2 (for professionals with advanced degrees) and EB-3 (for professionals and skilled workers) visa categories already retrogressed in June for individuals born in China and no forward movement is likely for the rest of the fiscal year, but then resume movement forward in October 2016 – no specific date identified, but I estimate it will be current for at least the first six months of fiscal year 2017 (i.e., until April 2017).

EB-2 worldwide is expected to have a cut-off date in the September Visa Bulletin, but the State Department has not yet predicted a specific date.

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US Visa Bulletin Update—EB-1 backlogs predicted

New policy guidance for immigrants changing employers

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On March 18, 2016, the United States Citizenship and Immigration Services agency (USCIS) issued new policy guidance regarding how certain employment-based immigrants can change employers during the immigration process without jeopardizing the ability to obtain permanent residence.

In general, employer-sponsored immigration under the employment-based first (EB1), second (EB2) and third (EB3) preference immigrant visa categories requires the sponsoring employer and the immigrant to intend to work together in the job identified on the immigrant visa petition. A change of employer prior to approval of permanent resident status (popularly referred to as a green card) does not automatically terminate the residence application, but does call into question whether the required intent remains. The result is that immigrants are generally reluctant to change jobs prior to completing residence, even when other American employers are trying to recruit them.

In 2000, the US Congress recognized that slow processing by the USCIS (formerly the Immigration and Naturalization Service, or INS) harmed the ability of American employers to compete in the global market for key job skills, as immigrants chose other countries or were forced to leave the US because temporary visas expired before the USCIS completed its work. The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) created greater job flexibility for immigrants to change jobs if the USCIS failed to complete processing of the application to adjust status to resident within 180 days, and if the new job is in the same or similar occupation as the old job. The USCIS was delegated responsibility to issue regulations to implement this law.

Although the USCIS never went through the process mandated by law to issue implementing regulations, the agency issued three prior AC21 policy memoranda and a FAQ. The March 18, 2016, memorandum entitled “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Section 24(j) Job Portability” (PM-602-0122.1) is the latest.

This memorandum revises the USCIS Adjudicators Field Manual (AFM) to instruct officers to focus on the Department of Labor (DOL) occupational classification assigned to the jobs or other material information. The factors to be considered are: the duties, job requirements (skills, experience, education, training, license/certification) and wages. Location and employer industry sector are not identified, although both can certainly impact wages and are logically relevant in that regard.

The DOL occupational classifications can be found at O*NET OnLine. The DOL’s Online Wage Library can help show how the same or similar occupational classification might result in a change of wage for different locations and over time.

Some EB2 and EB3 visa categories require a DOL alien employment certification (PERM). In these cases, the DOL occupational classification is determined by the DOL on the prevailing wage determination and on the PERM application. The memorandum places the burden of proof on the immigrant to establish the DOL occupational classification for the new job.

In contrast, there is no DOL determination for the EB1 visa category for outstanding professors and researchers (EB1B), or for the multinational managers and executives (EB1C) visa categories, which could make for less predictability or greater flexibility in the outcome. The memorandum places the burden of proof on the immigrant to establish the DOL occupational classification for these jobs.

Aliens of extraordinary ability (EB1A) and aliens immigrant based on the national interest waiver (EB2NIW) self-sponsor, and are not impacted by a change of employer and the new memorandum.

In cases where the jobs have different occupational classifications, but fall within the same broad occupation, the memorandum states the officer may treat such evidence favorably. It also states that such positions will generally be considered to qualify as similar if they largely share the same duties, experience and education requirements.

The memorandum provides further guidance for career progression. While movement from junior to senior levels within the same occupation are likely to qualify, movement form a non-managerial to a managerial role will require a showing that the immigrant remains primarily responsible for the same or similar functions. The memorandum gives a favorable result in an example of a software developer being promoted to computer and information systems manager, while rejecting the promotion of a cook to food service manager, citing the different focus of the jobs as the defining characteristic.

Read the full policy memorandum at the USCIS website.

Dentons lawyers regularly guide employers and immigrant employees in developing and implementing strategies to preserve immigration benefits during such changes as work site relocation, career advancement, reductions in force and changes of employer, including AC21 issues.

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New policy guidance for immigrants changing employers