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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?

Trade deals and immigration

How will future trade deals impact UK immigration policy?

With Brexit negotiations between the UK and the European Union progressing, the UK is keen to start trade talks with the EU as soon as possible. While a trade deal with the EU is a priority, other countries, including India and Australia, have expressed that, in the fullness of time, they also would like to negotiate their own trade deals with the UK.

The UK’s Brexit Secretary, David Davis, has stated that he is looking for a “Canada Plus Plus Plus” trade deal with the EU, a reference to the recent deal between the EU and Canada. Labor mobility is a key element of that deal, making it easier for certain skilled professionals from Canada to work temporarily in the EU, and vice versa.

We can also learn from other trade deals:

  • The Trans-Pacific Partnership (TPP) trade deal currently being negotiated between 11 Pacific Rim countries (notably not including the US, which withdrew from the pact) is also looking to include an element of labor mobility. For example, it is proposed as part of this deal that it will be easier for Australian employers to recruit people from Canada, Chile, Japan, Malaysia, Mexico and Vietnam by exempting them from the usual requirement of advertising the role to Australians as part of the immigration process. In return, Australians will get reciprocal access to the labor markets of these six countries.
  • Likewise, one of the outcomes of the Australia-United States Free Trade Agreement (AUFTA), which came into effect in 2005, was the US E-3 visa, which is available only to Australians. The E-3 visa is similar to the H1-B visa, however more generous in that it has a separate quota of 10,500, is renewable indefinitely and has the additional benefit of the spouse of the main visa holder being able to work. In contrast, the H1-B visa has a quota of 65,000 (for applicants of all other nationalities), is capped at six years and the spouse of the main visa holder is not able to work. Singapore and Chile enjoy similar preferential immigration routes to the US as a result of their free trade deals.

One of the key arguments for voting to leave the EU was that the UK would be able to negotiate its own trade deals. So what are our likely trading partners saying?

  • Australia has spoken of the need for “greater access” to the UK for Australian business people.
  • India has already stated that the UK will need to relax immigration rules and make it easier for professionals and presumably students from India to come to the UK.
  • The EU is another matter entirely with many competing priorities and parties. The degree of labour mobility post Brexit will depend on whether we see a “soft Brexit” or a “hard Brexit”, which is still very much to be decided.

What is certain is that any trade deal the UK negotiates after Brexit will be about more than goods and services. Labor mobility will be a key element and it is therefore inevitable that any future trade deals the UK agrees will have an impact on immigration policy.

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Trade deals and immigration

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

india-china

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