Thursday, May 12, 2016

June 2016 Visa Bulletin Fluctuations: Why Retrogression?

I. Background

Every month, the Department of State (DOS) receives information from the National Visa Center (NVC) about the total of visa applicants in the queue. From there, they predict the number of visas that would be available next month. Every year, the US makes available a total of approximately 226,000 family-based visas, 140,000 employment-based visas, and 55,000 Diversity Lottery visas, which is the topic of another blog. These total amounts are divided into preference categories and then divided into several specified countries and the rest of the world to determine how many visas are available for each country of chargeability. That number is then divided into the number of months to determine the number of visas for each preference category from each country that will be accepted each month.

Please note, the country of chargeability is the applicant's country of birth, not his/her country of citizenship. So, for example, someone who was born in China, regardless of his/her citizenship, would count against the quota provided for China. Moreover, fluctuations in the priority dates happen often for applications chargeable to countries such as China and India due to the higher volume of immigrants from those countries. This also explains the requirement for the separate visa quotas provided for these countries in the Visa Bulletin.

II. Retrogression

With the release of the June 2016 visa bulletin on May 6, 2016, retrogression has been a big concern with those waiting for their priority dates to be current or those who have filed their Adjustments of Statuses last month believing that their priority date was current. In this blog, we will be explaining the retrogression as illustrated by the June and May 2016 Visa Bulletins, using the examples of India and China.

If we look at the June 2016 bulletin and compare it with last month's bulletin, we see retrogression at several preference categories for visas chargeable to China and India. As such, we will be using China and India and the F4 category to demonstrate retrogression.

Please see the charts below for illustration:

A. Application Final Action Dates for Family-Sponsored Preference Cases

JUNE 2016

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F4	8-Aug-03	1-Jan-03	1-Jan-01	15-Apr-97	1-Dec-92
CHINA-mainland born: 1-Jan-03 INDIA: 1-Jan-01 MEXICO: 15-Apr-97 PHILIPPINES: 1-Dec-92

MAY 2016

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F4	22-Jul-03	22-Jul-03	22-Jul-03	8-Apr-97	1-Oct-92
CHINA-mainland born: 22-Jul-03 INDIA: 22-Jul-03 MEXICO: 8-Apr-97 PHILIPPINES: 1-Oct-92

If we compare the charts above for Family-Sponsored Fourth Preference Visas, we see that the cut-off dates for both China and India had moved from July 22, 2003 to January 1, 2003. This means that, in May, the DOS was providing visa numbers to applications with priority dates earlier than July 22, 2003. However, in June 2016, the DOS will no longer be accepting applications with priority dates of January 1, 2003 to July 22, 2003. In other words, the cut-off date has moved back 6 months.

III. Why Retrogression?

The DOS has explained that the way they determine the number of visas that they allot to each preference category every month is similar to a family determining the monthly household budget. They consider the number of visa numbers that were given out in the past, how many were used, and from there, determine what the number of future visas they will need to give out. The determination of future visas is usually an estimate.

We will continue with the F4 preference category example above as illustration. As we know from the Visa Bulletin, the DOS allows 65,000 visas from the F4 preference category for the 2016 fiscal year, this averages to around 5,500 visas per month.

In May 2016, the DOS published that they will begin accepting all applications with a priority date earlier than July 22, 2003. However, we suspect they realized later in April that there were much more applications than they had expected. In this case, they had to retrogress to January 1, 2003 to allow them time to process the applications that were already submitted..Retrogression would lessen the number of visa applications that they accept and would have to process for the month of June. .

The concept of retrogression is complex even for trained professionals. The cut-off dates listed in the Visa Bulletin each month are unpredictable and in constant fluctuation. Rest assured that Zhang-Louie, Immigration Legal Counsel is tracking these fluctuations closely every month. We would be able to prepare your Adjustment of Status applications and file them as soon as your priority date becomes current. Contact us at 978-482-7728 for any questions.

Thursday, May 5, 2016

USCIS Proposes Increased Fees for Certain Petitions and to Maintain Reduced Fees for Others

The Department of Homeland Security released the Proposed Rule of the USCIS Fee Schedule yesterday. According to the Proposal, the increase in fees are intended to cover shortages in the Immigration Examination Fee Account (IEFA). The fees are used to meet certain national security, customer service, and adjudicative processing goals. The Proposal details how they have used the fees in the past, such as, for example, the Electronic Immigration System (ELIS) and improving processing times,

I intend to bullet point several interesting changes here but I, unfortunately, will not be able to cover the entire 38-page report. For the entire publication, click here . Please note that USCIS is taking comments now through July 5, 2016. You may email comments directly to USCIS at uscisfrcomment@dhs.gov.

Some of the places where USCIS is proposing fee changes are:

A standard filing fee increase for Form N-400, Application for Naturalization, from $595 to $640.
H-1B and L-1 visa petitions filed by petitioners who employ 50 or more employees in the US with more than 50% of those employees in H-1B or L-1 status are subject to fees of $4,000 and $4,500, respectively. Please note that although this is mentioned in the report, USCIS has been collecting these fees for all petitions received after December 18, 2015.
A new fee of $3,035 to recover the full cost of processing the EB-5 Annual Certification of Regional Centers.

As a side note, I twitted a couple of days ago that the Regional Center Program is set to expire in September 2016. Since they are proposing to implement a new fee for the Regional Center Annual Certification, perhaps they intend to re-authorize the program. Follow me @ZLImmigration as I closely track this development. But I digress...

Despite the fee increases, USCIS maintains that the following reduced or no cost options are still available for qualified foreign nationals:

No naturalization fee for applicants who meet the requirements of sections 328 or 329 of the Immigration and Nationality Act (INA) with respect to military service.
Reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the federal poverty guidelines.
Adjudication, naturalization, and similar services may be offered without charge to asylum applicants.
Certain foreign nationals are exempted from visa fees, for example, those seeking T nonimmigrant status or U nonimmigrant status.
Those who meet the HHS Poverty Guidelines provided in Form I-912P and files and obtains approval for Form I-912.

Of course, the downside is that the costs of offering and operating these immigration benefits must be recovered from somewhere else. Do you think the social benefits are worth the costs?

Monday, April 25, 2016

L-1A Inter-company Transfers: What is Managerial Capacity or Executive Capacity?

The L-1A petition allows U.S. employers to apply for non-immigrant temporary employment visas for those employees that have been serving in a managerial capacity or an executive capacity for at least one consecutive year within the last three years in a foreign branch, parent, subsidiary, or affiliated company. These visas last only one year. However, the employer may extend it in two-year increments for up to seven years. Moreover, if the employer desires to hire the beneficiary as a permanent employee in the U.S., the employer may sponsor the employee for permanent residence through an EB-1 application. EB-1 is an extensive process and will be covered in a separate posting.

In order for the USCIS to approve your petition for L-1A, you must prove (1) that the beneficiary was a manager/executive or held specialized knowledge for at least 1 year within the last 3 years prior to the application for the foreign company, (2) that the beneficiary will be assuming a managerial/executive role for the U.S. employer, and (3) that the U.S. employer is a branch, parent, subsidiary, or affiliated with the foreign company by showing at least 50% control that is vested in the parent (whether the parent is the foreign company or the U.S. employer).

“Managerial capacity” has been defined by the Immigration and Nationality Act (INA) as an assignment within an organization in which the beneficiary primarily (1) m anages the organization, or a department, subdivision, function, or component or the organization; (2) s upervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; (3) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. INA § 101(a)(44)(A).

“Executive capacity” has been defined by the INA as an assignment with an organization in which the employee primarily (1) d irects the management of the organization or a major component or function of the organization; (2) e stablishes the goals and policies of the organization, component, or function; (3) e xercises wide latitude in discretionary decision-making; and (4) r eceives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization. INA § 101(a)(44)(B).

At first glance, these definitions may be intimidating. What you believe is the definition of managerial or executive capacity may be different from USCIS's definition of managerial or executive capacity. Zhang-Louie, Immigration Legal Counsel can help you align your definition with the INA's definitions and ensure that your L-1A petition is not denied for the lack of managerial or executive capacity as defined under the Immigration and Nationality Act. Contact us at 978-482-7728 to find out how we can help.

Tuesday, March 22, 2016

H-2B Cap for FY2016; Exemption for Returning Workers

On March 21, 2016, The USCIS announced that the H-2B Cap for the first half of FY2016 has been reached. The final receipt date was March 15, 2016 for those with a job start date before April 1, 2016. Every year, the USCIS allows 66,000 employees to enter the U.S. to work on a temporary basis through issuing H-2B visas. The first half of the fiscal year, they allow a limit of 33,000 applicants.

The Requirements of H-2B
In order to provide proof of the above-mentioned factors, the H-2B petitioner must have received a valid temporary labor certification from the U.S. Department of Labor.

In order for the beneficiary to be granted a H-2B visa, t he petitioner must establish (1) there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, (2) e mploying H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers, and (3) i ts need for the prospective worker’s services or labor is temporary.

If the petition is approved, the term of this visa is no longer than one year. However, the term may be extended for up to three years. A t this time though, we do not know the exact date when the USCIS will re-open the cap and start accepting applications for the second half of FY 2016. If past practice is any indication, this usually happens in June of every year.

Returning Workers Exempt From Cap
For this fiscal year ONLY, which lasts from October 1, 2015 until September 30, 2016, returning workers are exempt from the 66,000 H-2B cap.

A returning worker is defined as a H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means (1) the petitioning employer, is submitting a petition for a H-2B worker with a requested start date in FY 2016 and (2) the H-2B worker was previous issued an H-2B visa during the above mentioned fiscal years. However, in order to petition for the H-2B cap-exempt as a returning worker, there are also specific filing requirements you must follow closely.

If you are an employer with a prospective temporary employee who needs an H-2B visa to enter the U.S., contact Zhang-Louie, Immigration Legal Counsel at 978-482-7728 now to get your process underway for the next time when USCIS reopens its H-2B acceptance period in June. Even if your prospective employee is a "returning worker" filing cap-exempt, Zhang-Louie, Immigration Legal Counsel can help ensure that the process is done correctly and successfully. Zhang-Louie, Immigration Legal Counsel dedicates its entire practice to business immigration and will give your petition the full attention it deserves.

Monday, March 14, 2016

Optional Practical Training (OPT): F-1 Students Beware!

Optional Practical Training, commonly known as OPT to international students studying in the U.S,, is an opportunity the U.S. has provided to foreign students here on F-1 status to gain practical experience while in the country. We all hope that the student will receive a job offer before the end of his OPT term. Call it an internship or a co-op opportunity for international students, if you will. This opportunity extends the student's F-1 status for at least a year after the program on which his F-1 status is based has ended. Students studying in the specialty fields of Science, Technology, Engineering, and Mathematics may obtain OPT for 17 months.

Most colleges and universities with international programs provide OPT advice for students in F-1 status. This advice can come in many forms. Some are in the form of flyers, some are in the form of workshops for the students. In these workshops, they explain the entire OPT process to you and what the school does and does not do for you. For example, the school will have to issue an OPT Recommendation, however, they will not fill out your I-765 for you.

Be sure to check with your school's international students' office for the dates of these workshops. Be sure to attend them as they can be invaluable to you obtaining your OPT after your program ends.

However valuable these workshops are, they do not provide you with legal advice on what happens if your OPT does not result in a job offer. To word it more ominously, what would happen if your OPT ends before you were able to get a job offer in hand? Most school programs end in July or August, you may start your OPT at that time. Congrats, you have bought yourself another year in the U.S.! But what happens next July or August when you discover that your employer cannot afford to keep you? By then, it's too late for an H-1B petition. See Gearing up for H-1B for more details on the importance of meeting that H-1B deadline.

In today's economy, you just don't know. Do not wait until a few months before your OPT expiration date to start searching for another job. Have the conversation with your OPT employer right off the bat, see what their projections are. More importantly, talk to a immigration attorney who can give you the advice you need on USCIS deadlines. Zhang-Louie, Immigration Legal Counsel can help you set deadlines in sync with that of the USCIS's deadlines and ensure that you do not miss these important dates. Contact us at 978-482-7728 to see how we can help you.

Friday, March 4, 2016

Gearing Up For H-1B

For business immigration attorneys, this time of the year is more than just tax season, this is also H-1B season. The deadline for H-1B petitions is April 1 and attorneys are striving to complete the applications and send them in for employers before the cap is filled.

The cap for H-1B visas still maintains at 65,000 even though the popularity of this visa is ever increasing. If your beneficiary has obtained a U.S. master's degree or higher, the attorney may relax her efforts, but only a little bit! Those with U.S. equivalents of master's degrees or higher are exempt from the 65,000 gap and the USCIS will consider the first 20,000 petitions received for beneficiaries with these advanced degrees.

Historically, the 65,000 cap is usually filled within the first week after USCIS begins accepting applications! That's why having an attorney with a set plan of action and a set schedule of when certain tasks need to be completed by the petitioner is extremely important.

For example, of particular importance is the certification of the Labor Conditions Application (LCA) from the Department of Labor. In order to obtain this certification, the employer must submit a Prevailing Wage Determination (PWD) with the application. A PWD can be done by first referring to the the O*NET Database and obtaining an occupation code for a job title that is the most similar to the beneficiary's job title. Second, the employer or the attorney for the employer must utilize the occupation code to find the prevailing wage through the Foreign Labor Certification Data Center .

Moreover, the LCA may not be filed more than 6 months before the application for the H-1B. Simultaneously, employers must balance that with the requirement that there be enough time to undergo a proper hiring process to show that the employer have undergone an extensive process and was unable to find an U.S. resident suitable for the position.

All this must be done correctly to avoid penalties should your employer be selected at random for an audit! Zhang-Louie, Immigration Legal Counsel can help you ensure that the entire process is done correctly and successfully. Contact us at 978-482-7728 for more information on how we can help you.

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