Visa Lawyer Blog

Articles Posted in DOS

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On September 21, 2016 the United States Citizenship and Immigration Services (USCIS) posted the adjustment of status filing dates for October 2016.

If you are waiting to apply for permanent residence based on an approved family-sponsored petition (I-130) or based on an approved employment-based petition (I-140), USCIS has advised that you refer to the ‘Dates for Filing Applications’ chart on the October Visa Bulletin to determine when to file your application for permanent residence according to your priority date (the date when your relative or employer properly filed your immigrant visa petition with USCIS) and your preference category. Generally, applicants who have filed the immigrant petition and have been approved, must wait in line until an immigrant visa becomes available, before seeking adjustment of status to permanent resident. This is because availability of immigrant visas for certain classes of immigrants are limited. These preference categories appear in the Visa Bulletin, as well as the number of visas available for each preference category.

Note: For employment-based petitions if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.

What is the Visa Bulletin and the Dual Chart System?

Every month, the Department of State releases a monthly Visa Bulletin which provides estimates on immigrant visa availability according to family-sponsored and employment-based preference categories. As you may recall, in September of last year, USCIS introduced a new chart called the ‘Dates for Filing Applications’ chart in addition to the ‘Application Final Action Date’ chart. Together this dual chart system governs when applicants may file their applications for permanent residence according to visa availability, the applicant’s preference category, and the date of filing (priority date).

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In this post we bring you exciting news about the 2018 Diversity Immigrant Visa Program also known as the “green card lottery” for eligible foreign nationals. Participants in the Diversity Immigration Visa Program will have a chance to win one of 50,000 available visas to immigrate to the United States. Winning entries will be selected at random via a computer-generated drawing. Only foreign nationals of countries with historically low rates of immigration to the United States may apply for the program; please see the list of eligible countries below. The entry period for the 2018 Diversity Immigrant Visa Program (DV-2018) will open between Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2016, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 7, 2016. Entries must be submitted electronically on the Department of State website for the DV-2018 fiscal year. 

Only one entry may be submitted for each person during this registration period. Individuals who have submitted more than one entry per fiscal year will be disqualified. Once the registration period has ended the Department of State will use their computer software technology to detect multiple entries in the system. Applicants who have submitted multiple entries will be disqualified. There is no cost to register for the program and submit an entry for the diversity visa program. However, if accepted applicants will incur any visa expenses if residing abroad, and the filing fee for the green card application (currently $1,070). Once you have registered and submitted your entry for 2018-DV Program, you must check the status of your entry by visiting the Department of State website. The U.S. government will NOT notify you directly if you have been selected for the 2018-DV Immigrant Visa Program. It is your responsibility to check whether you have been selected.

What is the Diversity Immigrant Visa Program?

The Diversity Immigrant Visa Program is administered by the United States Department of State each fiscal year, and is a program that was made possible by Congress with the passage of section 203(c) of the Immigration and Nationality Act. Section 203(c) of the INA designates visas for a special class of immigrants referred to as “diversity immigrants.” These immigrants will have the unique opportunity to immigrate to the United States on the basis of this special program. For fiscal year 2018, 50,000 visas will be allocated toward the diversity immigrant visa program. If you are residing abroad at the time you are selected for the diversity immigrant visa program, you will be able to immigrate to the United States through consular processing. This process requires you to submit a DS-260 Immigrant Visa Electronic Application and schedule an interview appointment at a U.S. consulate near you. There you will be able to obtain issuance of your immigrant visa. If you are residing in the United States legally (on a temporary nonimmigrant visa type) at the time of your selection, you may submit your adjustment of status application to USCIS within the United States.

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In this segment, we would like to keep our readers informed on Visa Bulletin projections for the month of October. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Family-Based Categories:

An increase in returned unused visa numbers for the month of July and weak demand for the F-2A and F-4 categories will keep movements in family-based categories steady for the month of October.

F-4 Worldwide has advanced only slightly. All family Worldwide categories have experienced minor advances except F-2B Mexico.

The Department of State plants to comply with the Administration’s Visa Modernization Proposal, an initiative which aims to advance the dates of family-based categories as aggressively as possible during the first three quarters of the fiscal year, with the purpose of maximizing the usage of available numbers, and reducing available numbers for use in the final quarter. This initiative will likely cause similar retrogressions as in the F-4 China and India preference categories.

Employment Categories:

EB-4 and SR (Religious Worker) Preference Categories: For Special Immigrant Juvenile Status (SIJS) applicants subject to priority date backlogs, it is recommended that applicants and/or their counsel request USCIS to forward their file to the National Benefits Center (NBC), at the conclusion of their I-485 interview. This will allow the applicant’s case to remain in a “pending demand” file, to give the Department of State a sense of the demand for this category, and streamline the approval process of these applications once the priority date has become current. While USCIS adjudicators cannot request a visa number for the applicant if the priority date is not current, the National Benefits Center (NBC) has the ability to request a visa number for the applicant upon receipt of the file.

EB-4 India and Mexico; Final Action Dates El Salvador/Guatemala/Honduras: New visa number for FY 2017 are expected to bring the EB-4 India and Mexico categories current in the month of October. The final action date for EB-4 El Salvador, Guatemala, and Honduras will fall somewhere around the summer of 2015 or beyond. There is high applicant demand for El Salvador which may advance the final action date for Guatemala and Honduras.

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The U.S. Department of State (DOS) recently released the June Visa Bulletin. The Chief of Visa Control and Reporting Division, Charles Oppenheim has provided new insights and developments pertaining to the June 2016 Visa Bulletin. Cutoff dates listed below form part of the final action (FA) chart of the Visa Bulletin. Currently, USCIS has advised adjustment of status family-sponsored and employment-based applicants to refer to cutoff dates that appear on the final action chart for the month of June, and not the date of filing chart.

Employment-Based, First Preference (EB-1)

Demand for the EB-1 category remains at a very high level. DOS has said that should demand continue to remain at the same rate, some form of “corrective action” would be necessary before the close of the fiscal year to regulate worldwide visa numbers. This may require the establishment of a cutoff date or other form of regulation.

India Employment-Based, Second Preference (EB-2)

Demand for the EB-2 category is also very high. Due to increasing demand, there will no longer be unused numbers available in excess of the normal EB-2 per-country limit. EB-2 Worldwide and EB-2 India demand is expected to increase. The high level of demand for visa numbers in the EB-2 India Category and lack of excess numbers from EB-2 worldwide has caused the EB-2 India final action date to retrogress to October 1, 2004 for the month of June.The DOS expects that the EB-2 India cutoff date will advance slowly for the rest of the fiscal year, at a pace similar to the EB-3 advancement.

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As previously reported, the Department of Homeland Security published a new final rule that will allow certain F-1 students with degrees in science, technology, engineering, or mathematics, also known as (STEM) fields, to apply for a 24-month extension of their optical practical training (OPT) program. This new 24-month OPT extension will replace the 17-month STEM OPT extension that had been previously in place since 2008. Eligible students can begin to apply for the new 24-month extension starting May 10, 2016. If you mistakenly apply for a 24-month extension before May 10, 2016 you will receive a 17-month extension.

Applicants should note that the cap gap extension has not changed. Individuals who have filed an H-1B change of status application that is currently pending with USCIS, must keep in mind that their status will only be extended until September 30. It is recommended that selected H-1B participants upgrade their petition to premium processing, so that foreign workers in F-1 status do not experience significant gaps in employment. USCIS will adjudicate STEM OPT applications under the 2008 rules until May 9, 2016. STEM OPT extension applications filed and approved before May 10, 2016 will receive a 17-month extension. If you have a pending application requesting a 17-month STEM OPT extension on May 10, 2016 you will receive a request for evidence asking for additional documentation to satisfy the new rule for the new 24-month extension. We have learned that the SEVIS system will be updated so that I-20’s will reflect 24-month extensions.

Students currently on 17-month STEM OPT

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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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For this blog we are answering 5 questions we have recently received through our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust and interest in our law office.

Change of Status B-2 to F-1

Q: I need advice regarding my change of status. I am currently in the United States on a B-2 tourist visa. I have filed a change of status application to change my status to F-1 student. My B-2 duration of stay will expire today and my change of status application to F-1 student is still pending with USCIS. I informed my school that I will be postponing my classes and was notified that I need to file a new I-20 and provide some missing information. I have time to make adjustments to my application but I would like to know the steps to correct any missing information. I also wanted to know if I need to leave the United States immediately since my F-1 application is still pending. Please assist.

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The new replacement rule affecting the Optional Practical Training (OPT) program for F-1 students with degrees in science, technology, engineering, or mathematics (STEM), has been posted and is now available for inspection in the federal register. The new replacement rule will replace the previous 2008 rule and become effective beginning May 10, 2016.

The new rule authorizes F-1 STEM students pursuing a 12-month Optional Practical Training program in the United States to extend their ‘OPT’ status for a 24-month period. The 24-month extension replaces the 17-month STEM OPT extension previously available to STEM students. The 17-month STEM OPT extension will continue to be effective until May 9, 2016. The new 24-month extension applies only to F-1 STEM OPT students attending accredited United States institutions, whose employers participate in the U.S. Citizenship and Immigration Services E-verify program. Only students in a valid period of post-completion OPT may file for a STEM OPT extension. The 24-month extension, coupled with the 12-month period given with initial post-completion OPT, will give STEM students a period of 36 total months of practical training in their field. Amendments that come with the new rule include additional oversight and improvement of the program requiring formal mentoring and training plans by employers, a new STEM definition and Classification of Instructional Program Categories, provisions on previously obtained STEM degrees, Accreditation and Employer Visits, and OPT compliance. In addition, new provisions have been introduced relating to wage and protections for STEM OPT students and safeguards for American workers as described below.

The ‘Cap Gap’ provision previously available to F-1 STEM OPT students in 2008 remains in place. This provision allows students with a timely filed H-1B petition requesting a change of status, the benefit of automatically extending their F-1 status and employment authorization until October 1 of the H-1B visa fiscal year for which the student has applied. The Cap-Gap was created with intention of avoiding any disruption students might experience in their careers and personal life as a result of temporary gaps in their status.

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Beginning February 19, 2016 certain nonimmigrant Caribbean residents seeking admission to the United States as H-2A agricultural workers, will be required to obtain a valid passport and valid H-2B visa in order to be admitted. Spouses and children traveling with an H-2A agricultural worker will also be required to present a valid passport and H-2A visa. The H-2A nonimmigrant visa exception for Caribbean residents was first introduced during World War II in an effort to address labor shortages in the American workforce. The change, comes as part of the revised 2016 Omnibus Appropriations Bill, which eliminates the nonimmigrant visa exception for these individuals, along with other provisions that impact the H-2B nonagricultural visa program. The new rule will apply to nationals of the United Kingdom, France, the Netherlands and nationals of Barbados, Grenada, Jamaica, Trinidad and Tobago, who either maintain a residence in a territory governed by England, France, or the Netherlands located in the adjacent islands of the Caribbean, or maintain a residence in Barbados, Grenada, Jamaica, or Trinidad and Tobago. The change was validated in yesterday’s Federal Register by the Department of State and Homeland Security respectively. Removal of this visa exemption will allow the Department of State to properly screen individuals prior to their arrival in the United States, and further protect agricultural workers from employment violations and work related abuse. To learn more about the H-2A visa program click here.

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What is the H-1B Visa? The H-1B visa is a work visa that is awarded on a lottery basis. The H-1B visa program allows American companies and/or qualifying organizations to employ foreign workers to fill specialty occupations temporarily. The foreign worker must posses a combination of education, specialized training, and/or experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher. The H-1B program was first enacted by Congress with the intention of helping American employers seek out distinguished foreign workers, possessing the skills and abilities necessary to perform the duties of the specialty occupation. The H-1B program has remained popular because it has allowed American employers to remain competitive and provides highly skilled foreign workers a path to permanent residence.

The provisions of the H-1B visa program allow qualified foreign workers to attain temporary employment having met specific requirements. H-1B visa recipients typically work in the STEM fields as scientists, engineers, computer programmers, software developers, business analysts, etc. although fashion models are also classified under the H-1B category.

USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2017 beginning April 1, 2016. April 7, 2016 is the absolute deadline to file an H-1B cap-subject petition. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

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