"I-140 EAD Rule" Submitted to OMB For Final Review

This week the Department of Homeland Security (DHS) submitted The Proposed Rule for Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Nonimmigrant Workers, (frequently referred to as the "I-140-EAD Rule") to the Office of Management and Budget (OMB) for final review prior to publication.

The Proposed Rule was published at the end of 2015 and the public comment period lasted for the first 2 months of 2016. Since that time DHS been reviewing the public comments that were submitted in response to the proposed rule.  The OMB review process is expected to take 30-60 days and, upon completion, a final rule will be published and would be expected to take effect after 60 days from publication. At present DHS has not indicated whether any significant changes have been made to the rule in response to public comments to the Proposed Rule.

D&S will continue to monitor developments and provide updates as they become available.

DEPARTMENT OF HOMELAND SECURITY PUBLISHES FINAL RULE WITH REVISED FILING FEE SCHEDULE

Today, Monday October 24, 2016, the Department of Homeland Security (DHS) published a Final Rule in the Federal Register with the new fee schedule for immigration and naturalization benefit requests processed by the United States Citizenship and Immigration Service (USCIS). DHS increased fees by a weighted average of 21 percent.  The Rule will become effective 60 days from today on Friday, December 23, 2016.  D&S has made a Fee Schedule Comparison Chart for the most common types of business immigration filings.

Department of State November 2016 Visa Bulletin Summary

The Department of State released the November 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference categories, Application Filing dates remained unchanged.

For EB-3 India, there was modest forward movement of one week to March 8, 2005. EB-2 India there was forward movement of almost 10 months to November 1, 2007.  EB-2 China, progressed 5 months to July 15, 2012 and EB-3 China progressed 3 months to April 15, 2013.  

Final Action dates for EB-3 Worldwide and EB-3 Mexico progressed 1 month to July 1, 2016 and EB-3 Philippines progressed 4 months to April 1, 2011.

EB-5 China Final Action dates progressed 2 weeks to March 8, 2014

As of today, October 13, 2016, USCIS has not advised whether, in November 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Reminders to Students and Employers as H-1B Cap Effective Date Approaches on October 1

As October 1st is fast-approaching, individuals with H-1B petitions that were selected in this year’s H-1B cap and employers of H-1B visa holders should remain aware of some important facts:

CAP-GAP EXTENSIONS END ON SEPTEMBER 30th - For those whose H-1B is still pending and who are relying on the automatic cap-gap for F-1 students, keep in mind that that your cap-gap employment authorization ends on September 30th, even if the H-1B remains pending after this date. Therefore, employees whose H-1B visas are not approved by October 1st will have to stop working and be removed from payroll. Because of this, we recommend considering upgrading to premium processing as soon as possible in order to avoid this consequence or, at the very least, minimize the amount of time you or your employee will be unable to work.

VALID H-1B VISA STAMP REQUIRED FOR REENTRY TO U.S. - While an H-1B employee is not required to have a valid H-1B visa in his or her passport for purposes of employment, they must have a valid H-1B visa stamp for entry or reentry to the U.S. Therefore, following approval of the H-1B petition, an H-1B employee should be mindful of the fact that they will be required to apply for an H-1B visa stamp prior to returning to the U.S. the next time they travel internationally, absent certain limited exceptions, including trips of under 30 days to Canada, Mexico, or adjacent islands (note individuals should vet any such travel with immigration counsel prior to making travel plans to ensure an exception applies in their case).  

I-9 REVERIFICATION MAY BE REQUIRED - Employers should also keep in mind that for current employees with an approved H-1B “Change of Status” petition, whose current status will expire on October 1, including all F-1 students working pursuant to cap-gap employment authorization, the individual’s employment authorization will need to re-verified on Form I-9.

ALWAYS ADVISE IMMIGRATION ATTORNEY OF ANY CHANGES TO H-1B EMPLOYMENT - Finally, employers and employees should be aware that certain changes to the terms of an H-1B visa holder’s employment could impact their continued eligibility for H-1B status and/or could necessitate the filing of an H-1B amendment.  Employers are therefore encouraged to speak to immigration counsel prior to making any changes to the terms of an H-1B visa holder’s employment to ensure compliance with these requirements.

Department of State October 2016 Visa Bulletin Summary

The Department of State recently released the October 2016 Visa Bulletin, which marks the beginning of the new immigration fiscal year.  D&S provides a Monthly Summary of the family and employment-based priority dates.  Application Filing Dates for EB-2 and EB-3 Worldwide are now current.  Additionally, Application Filing Dates for China retrogressed in both the EB-2 and EB-3 categories with EB-2 China retrogressing 3 months to March 1, 2013 and EB-3 China retrogressing 1 year to May 1, 2014.  There was modest retrogression of just over 8 weeks for EB-2 India, which is now at April 22, 2009.  EB-3 India remains unchanged at July 1, 2005.  EB-5 China has retrogressed almost 1 year to June 15, 2014.

With respect to Final Action Dates, EB-2 Worldwide, Mexico, and Philippines have again become current. There was also forward movement for EB-2 India which progressed almost 2 years to January 15, 2007. EB-3 India retrogressed 2 weeks to February 15, 2005.  There was significant movement in both Chinese employment-based categories with EB-2 China progressing over 2 years to February 15, 2012, and EB-3 China progressing over 3 years years to January 22, 2013. Additionally, EB-1 China has again become current.

Final Action dates for EB-3 Worldwide progressed 2 weeks to June 1, 2016, EB-3 Mexico progressed 1 month to June 1, 2016, and EB-3 Philippines progressed 5 months to December 10, 2010.

EB-5 China Final Action Date progressed 1 week to February 22, 2014.

As of today, September 12, 2016, USCIS has not advised whether, in October 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Department of State September 2016 Visa Bulletin Summary

The Department of State released the September 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the second and third employment-based preference categories, Application Filing dates remained unchanged.

There was forward movement of just over 3 months for EB-2 and EB-3 India.  EB-2 and EB-3 China, remain unchanged with priority dates for both categories remaining at January 1, 2010.  Additionally, EB-1 China remains at January 1, 2010 after retrogressing last month.

EB-2 Worldwide remains backlogged to February 1, 2014, but is expected to become current again next month with the start of the new fiscal year.

Final Action dates for EB-3 Worldwide remain unchanged, EB-3 Mexico progressed 6 weeks to May 1, 2016, and EB-3 Philippines progressed 14 months to July 1, 2010.

EB-5 China Final Action dates continue to remains static at February 15, 2014.

Today, August 10, 2016, USCIS advised that in September 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates. 

D&S Reminds STEM OPT Students that Window to File 7-Month Extension Closes on Monday, August 8, 2016

This past March, the Department of Homeland Security (DHS) released a new STEM OPT Rule providing for, among other things, an extended 24-month STEM OPT period, which is 7 months longer than the 17-month period available under the old rule.  

D&S reminds eligible students with existing 17-month STEM OPT Employment Authorization Documents (EADs) that the transitional period, during which such students can request an additional 7 months for STEM OPT, closes this coming Monday, August 8, 2016.

The transitional measure, which is available from May 10, 2016, through August 8, 2016, provides certain students with existing STEM OPT EADs a limited window in which to apply for an additional 7 months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional 7-month extension, the student must satisfy the following requirements. 

1. Students must have at least 150 calendar days remaining on their current STEM OPT EAD at the time they file their new I-765 Application for Employment Authorization requesting the additional 7 months of STEM OPT
2. Students must meet the general requirements for 24-month STEM OPT including submission of a Form I-983 Training Plan for STEM OPT Students to their DSO prior to receiving a new certified I-20 to become eligible for the 24-month STEM OPT extension
3. Students must properly file their Form I-765 with applicable fees and supporting documents on or before August 8, 2016 and within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into SEVIS

If the extension is approved, the United States Citizenship and Immigration Service (USCIS) will issue a new EAD with a validity period that starts the day following the expiration of the prior 17-month STEM OPT EAD.

Department of StatE August 2016 Visa Bulletin Summary

The Department of State released the August 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the second and third employment-based preference categories, Application Filing dates remained unchanged except for EB-3 Philippines which progressed 3 years to January 1, 2013 .

There was modest forward movement of 2 weeks for EB-2 and EB-3 India.  EB-2 and EB-3 China, remain unchanged with priority dates for both categories remaining at January 1, 2010.  Additionally, EB-1 China retrogressed to January 1, 2010.

EB-2 Worldwide will no longer be current and will retrogress to February 1, 2014.

Final Action dates for EB-3 Worldwide and EB-3 Mexico remain unchanged and EB-3 Philippines progressed 3 months to May 15, 2009.

Notably, EB-5 China Final Action dates continue to remains static at February 15, 2014.

As of today, July 12, 2016, USCIS has not advised whether in August 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

Department of State Provides Immigrant Visa Availability Predictions for Remainder of Fiscal Year

This week, in his monthly "check-in" with stakeholders, Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State ("DOS"), provided some insights on immigrant visa availability for August and September 2016, the last two months of the immigration fiscal year.  D&S has provided a summary of the relevant employment-based predictions below:

EB-2 and EB-3 China. In June, the final action date for both EB-2 and EB-3 China retrogressed to January 1, 2010. DOS does not anticipate that there will be no forward movement in either of these categories for the remainder of this fiscal year.

EB-2 Worldwide and India. DOS predicts a cut-off date for EB-2 Worldwide by September due to sustained high demand. DOS also predicts that EB-2 India’s final action date will be one week ahead of EB-3 India through the rest of the fiscal year. Based on current usage, there should be sufficient available unused EB-3 numbers worldwide to enable moderate forward movement in EB-3 India in the month of September.

Cutoff Date for EB-1 China and India Expected by End of Fiscal Year. Due to high demand in recent months, DOS predicts a cut-off date will be imposed for EB-1 China and EB-1 India this fiscal year in either August or September. Both categories are expected to become current again in October, so the retrogression will be brief. A cut-off date will not be imposed for EB-1 Worldwide this fiscal year.

D&S will continue to monitor this developing situation and provide updates as they become available.

Department of State July 2016 Visa Bulletin Summary

The Department of State released the July 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the second and third employment-based preference categories, Application Filing dates remained unchanged.

There was modest forward movement of 1 month for both EB-2 and EB-3 India.  EB-2 and EB-3 China, which both both experienced significant retrogression last month, remain unchanged with priority dates for both categories remaining at January 1, 2010.

Final Action dates for EB-3 Worldwide and EB-3 Mexico each progressed 2 weeks and EB-3 Philippines progressed 3.5 months.

Notably, EB-5 China Final Action dates remained unchanged at February 15, 2014.

Today USCIS posted an announcement on its website informing family-based and employment-based adjustment of status applicants that they must use the "Application Final Action Dates" chart in the DOS Visa Bulletin for July 2016. 

Department of State June 2016 Visa Bulletin Summary

The Department of State released the June 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the second and third employment-based preference categories, Application Filing dates remained unchanged with the exception of EB-3 Other Workers which saw forward movement of almost 14 months from April 8, 2008 to August 1, 2009.

There was significant retrogression in several employment-based categories including EB-2 India, which retrogressed over 4 years from November 22, 2008 to October 1, 2004.  EB-2 and EB-3 China also both experienced significant retrogression with EB-2 China retrogressing over 2 years from September 1, 2012 to January 1, 2010 and EB-3 China retrogressing over 3 years from August 15, 2013 to January 1, 2010, making EB-2 and EB-3 China priority dates the same for the coming month.

EB-3 India was the only employment-based category that moved forward with a modest advancement of 3 weeks from September 1, 2004 to September 22, 2004. Final Action dates for EB-3 Worldwide and EB-3 Mexico also remained unchanged and EB-3 Philippines progressed approximately 3 months.

The EB-5 China Final Action date advanced by just one week from February 8, 2014 to February 15, 2014.  

As of today, May 10, 2016, USCIS has not advised whether in June 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

D&S will provide further updates as they become available.

DHS PROPOSED RULE FOR USCIS FEE SCHEDULE INCREASE

Today the Department of Homeland Security (DHS) published a New Rule in the Federal Register following its review of United States Citizenship and Immigration Service's (USCIS) filing fee schedule.  The weighted average increase for USCIS fees is 21%. 

Fee comparisons for the most common types of filings are summarized in the attached D&S USCIS Fee Comparison Chart.

Of note, DHS's proposed rule establishes a three-level fee for the Form N-400, Application for Naturalization and clarifies that individuals filing a benefit request may be required to pay the biometrics services fee and appear for biometrics services or an interview.

The Rule's 60 day comment period starts today, May 4, 2016.

D&S will continue to monitor and provide updates as they become available.

Department of State May 2016 Visa Bulletin Summary

The Department of State released the May 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the second and third employment-based preference categories, Application Filing dates remained unchanged and there was modest forward movement in the Final Action dates EB-2 and EB-3 India of three weeks. There was no movement in EB-2 and EB-3 China Final Action dates.  Final Action dates for EB-3 Worldwide and EB-3 Mexico also remained unchanged and EB-3 Philippines progressed just over 3 months. The EB-5 China Final Action date advanced by just one week from February 1, 2014 to February 8, 2014.  Finally, the visa bulletin establishes a new cut-off date for the employment-based, fourth preference and certain religious workers preference categories for applicants from El Salvador, Guatemala, and Honduras.

As of today, April 13, 2016, USCIS has not advised whether in May 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

D&S will provide further updates as they become available. 

USCIS Reaches H-1B Cap for Fiscal Year 2017

USCIS announced today that the H-1B cap for Fiscal Year (FY) 2017 has been reached. As expected, USCIS received more than the limit of 65,000 H-1B petitions and also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree cap. 

Because the cap has been met, USCIS will use a computer-generated process, known as the H-1B Lottery, to randomly select the petitions that will make up the 65,000 visas for the regular cap and the 20,000 visas for the U.S. advanced degree cap.

As in past years, USCIS will first run the lottery to select the petition under the U.S. advanced degree cap. All advanced degree petitions that are not selected under this cap will become part of the lottery for the 65,000 regular cap. Once the lottery process is completed, USCIS will then reject and return all unselected cap-subject petitions along with the accompanying filing fees.

Due to the high number of petitions, USCIS has indicated they they are currently unable confirm the date the Service will begin the random selection process.

As a reminder, USCIS will continue to accept and process petitions that are otherwise exempt from the cap, including H-1B Extensions, Amendments, and "Change of Employer" filings.

UPDATE: On April 12, 2016 USCIS announced that the agency had received over 236,000 cap-subject H-1B petitions, including petitions filed for both the 65,000 general-category cap and the 20,000 advanced cap. USCIS also indicated that the computer-generated lottery selection process was completed on April 9th.  USCIS still expects to begin Premium Processing adjudication no later than May 16, 2016.

D&S will continue to monitor this and will provide updates as they become available. 

Department of State April 2016 Visa Bulletin Summary

The Department of State released the April 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference category, Application Filing dates remained unchanged and there was modest forward movement in the Final Action dates for most preference categories. EB-2 & EB-3 India both advanced 3 weeks with EB-2 India moving from October 15, 2008 to November 8, 2008 and EB-3 India progressing from July 15, 2004 to August 8, 2004.  EB-2 China Final Action dates progressed 1 month from August 1, 2012 to September 1, 2012 and EB-3 China Final Action dates progressed 2.5 months from June 1, 2013 to August 15, 2013.  Moreover, Final Action dates for EB-3 Worldwide and EB-3 Mexico both progressed 1.5 months from January 1, 2016 to February 15, 2016. The EB-5 China Final Action date advanced by just 1 week from January 22, 2014 to February 1, 2014.  As of today, March 10, 2016, USCIS has not advised whether in April 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.