Visa Lawyer Blog

Articles Posted in EB-2

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On June 13, 2017, the American Immigration Lawyers Association (AILA) spoke with Charles Oppenheim, the Chief of the Visa Control and Reporting Division for the U.S. Department of State, to discuss current trends trends and future projections for various employment and family preference categories.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems and priority dates on the Visa Bulletin. Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence. Applicants who fall under family preference or employment categories must wait in line until a visa becomes available to them in order to proceed with their immigrant visa applications. Once the immigrant’s priority date becomes current, per the Visa Bulletin, the applicant can proceed with their immigrant visa application.

Current Trends & Future Projections:

Employment-based preference categories:

EB-1 China and India:  

The final action date imposed on EB-1 China and EB-1 India (January 1, 2012) during the month of June of 2017, will remain and is expected to remain through the end of this fiscal year.

Per Charles Oppenheim, “Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.”

EB-2 Worldwide:

Good news! EB-2 Worldwide remains current due to a slight decrease in demand in the second half of May and a steady level of demand in the month of June.

Projection: Oppenheim expects a final action cutoff date to be imposed on this category in August which is expected to be significant, however this category is expected to become current again on October 1, 2017.

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On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”  In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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On December 12, 2016, the Department of State published the Annual Numerical Limits for both family and employment-based visa preference categories for Fiscal Year 2017.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems on the Visa Bulletin and become current based on the immigrant’s priority date. The Visa Bulletin estimates immigrant visa availability for prospective immigrants. Applicants who fall under family preference or employment categories must wait in line until an immigrant visa becomes available to them, for applicants to proceed with their immigrant visa application. Once the immigrant’s priority date becomes current per the Visa Bulletin, the applicant can proceed with their immigrant visa application. A priority date is generally the date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS. The Visa Bulletin exists due to numerical immigrant visa limitations for family-sponsored and employment-based preference categories established by the Immigration and Nationality Act (INA). Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence.

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On November 20, 2016, the Chief of the Visa Control and Reporting Division of the Department of State, Charles Oppenheim, provided his outlook on recent trends and future projections for employment-based immigrant preference categories of the Visa Bulletin.

December Visa Bulletin Predictions

  • A final action date has been imposed on the EB-4 preference category for the country of Mexico in the month of December
  • The non-minister EB-4 special immigrant category and the I5 and R5 classifications of the immigrant investor pilot program will expire on December 9, 2016.
  • EB-1 China and EB-1 India are expected to be subject to a final action date in the near future
  • A final action cut-off date will be imposed for EB-2 Worldwide, EB-2 Mexico, and EB-2 Philippines by the month of July.

January and February Projections

Regarding movement of EB-4 El Salvador/Guatemala/Honduras during the next 12 months

Oppenheim has stated that the State Department does not have any knowledge of the volume of cases adjudicated by USCIS for this preference category. Due to this lack of information, the State Department does not know at what rate USCIS will pre-adjudicate these cases once the final action date is in place. The reason the December cut-off date for Mexico was imposed was because there was a large number of EB-4 Mexico petitions processed with 2015 and 2016 priority dates. A retrogression of the EB-4 final action date for these countries is not expected to occur during this fiscal year, despite high demand. There is currently a very high level of demand in this category that is expected to continue. Typically, when a final action cut-off date is imposed, demand increases, because applicants rush to apply quickly before a retrogression is imminent.

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The Department of Homeland Security is expected to publish a final rule tomorrow November 18, 2016 benefitting EB-1, EB-2, and EB-3 employment-based immigrant workers and highly-skilled nonimmigrant foreign workers. The final rule is effective January 17, 2017. The final rule will streamline the process for employment based sponsorship of nonimmigrant workers for lawsuit permanent resident status (LPRs), increasing job portability, and promoting stability, flexibility, and transparency in the way DHS applies its policies and regulatory practices to these programs. These changes were proposed in order to better equip U.S. employers to employ and retain highly skilled foreign workers who are the beneficiaries of employment-based immigrant visa petitions known as Form I-140 petitions. The new rule will allow foreign workers to have more flexibility, and affords workers the opportunity to further their careers by accepting promotions, giving them the freedom of being able to change positions with current employers, change employers, or pursue other employment.

The final rule conforms with longstanding policies and practices in accordance with the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The final rule seeks to further enforce the principles embodied in these pieces of legislation by providing nonimmigrant workers who have been sponsored for permanent residency based on the filing of an I-140 petition, greater flexibility and job portability, while expanding the competitiveness of American employers, boosting the U.S. economy, and protecting American workers. The final rule also clarifies and improves DHS policies and practices outlined in policy memoranda and precedent decisions of the Administrative Appeals Office. The final rule seeks to clarify regulatory policies in order to provide greater transparency to stakeholders. The final rule also clarifies interpretative questions related to ACWIA and AC21.

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In this post, we discuss the latest immigration news beginning with the recent Congressional Approval of the Continuing Resolution Act that will allow funding to continue for the EB-5, Conrad 30, and special non-ministerial religious worker programs for fiscal year 2017. With the passage of this Continuing Resolution, these programs will remain afloat at least for the time being. On September 28, 2016 Congress averted a government shutdown by continuing funding for key programs with the passage of the Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act of 2017. This Act will extend the EB-5 Regional Center Program and EB-4 non-minister special immigrant visa program for religious workers until December 9, 2016. In terms of adjustment of status filing dates for employment-based preference categories, USCIS has announced that for the month of October, foreign nationals seeking to apply for employment-based adjustment of status (EB-1 to EB-4 preference categories) may do so by using the Dates for Filing Applications Chart of the October Visa Bulletin for 2016. EB-5 adjustment of status applicants must use the Final Action Dates chart of the October Visa Bulletin.

What does this mean?

The signing of the Continuing Resolution Act means that this year we will not be facing a government shutdown as in previous years. This is very good news given that the upcoming elections (both for the U.S. president and Congressmen and women) may have been a factor in Congress not being able to meet the deadline to continue government funding for these key programs. EB-5, Conrad, and non-ministerial religious worker programs will continue without interruptions since these programs are part of the CR.

What will happen after December 9, 2016?

On December 9th the government will be facing another deadline that will require Congress to continue funding these very important programs. If Congress does not meet the funding deadline for these programs through the passage of another Continuing Resolution or Omnibus package, the government could face another shutdown. This would take place after the elections, but before the new Congress is in session. If an Omnibus is passed, the possibility of reforms and/or changes to the EB-5, Conrad, or non-ministerial religious worker programs is worth noting. Recent controversies may lead to reforms in the EB-5 program although it is unlikely that major reforms and/or changes to the EB-5 program will pan out before the December 9th deadline.

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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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One of the biggest critiques of the U.S. immigration system is that there are very few options available to foreign nationals that create a direct path to permanent residency. Indeed, this is a very cruel reality for our clients. A reality that we struggle to overcome on a day to day basis. More often than not we speak to clients who simply cannot immigrate to the United States because of our antiquated immigration laws.

The immigration system boils down to two harsh realities. Generally, you may apply for permanent residence only if: 1) you have a qualifying family relationship to a legal permanent resident (LPR) or U.S. Citizen (family sponsorship) 2) you have secured employment with a U.S. company willing to sponsor your permanent residence (employment sponsorship) or 3) you belong to a special category of green card applicants and may immigrate on the basis of that category (VAWA recipients, asylees, diversity visa lottery winners etc.)

In order for you to understand the green card options available to you under the current immigration laws of the United States, we outline 9 of the most common ways to obtain permanent residence below:

Green card based on a qualifying Family-sponsorship

You are generally eligible to apply for permanent residence if you have a qualifying family relationship with a U.S. Citizen or Legal Permanent Resident:

  1. If you are the immediate relative of a U.S. Citizen your relative can file Form I-130 Petition for Alien Relative on your behalf, which will allow you to file the I-485 application for Permanent Residence. Immediate relatives of U.S. Citizens include spouses, unmarried children under the age of 21 of a U.S. Citizen, and parents of U.S. Citizens 21 years of age or older.

Immediate relatives of U.S. Citizens DO NOT have to wait in line for a visa number to become available to them in order to immigrate to the United States.

  1. If you are the family member of a U.S. Citizen and you fall under a qualifying “preference category,” your U.S. Citizen relative may file the I-130 Petition on your behalf. Family members of U.S. Citizens that fall into a “preference category” include: unmarried sons or daughters over the age of 21, married children of any age, and brothers and sisters of U.S. Citizen petitioners 21 years of age or older.

Immigrant visa numbers for these individuals are limited and are therefore subject to a waiting period. You must wait for your priority date to become current on the Visa Bulletin, based on your preference category and country of charge ability, before you are eligible to either apply for adjustment of status in the United states, or apply for an immigrant visa at a U.S. Consular post abroad (if you reside overseas).

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If you are a foreign entrepreneur, you have probably discovered that the United States immigration system is very limited in that there are very few visa options available to entrepreneurs that do not tie down the entrepreneur to a foreign employer, as is the case for the L and H visas. To make matters worse, if your ultimate goal is to obtain a green card to live and work in the United States permanently, you must work for an American employer willing to sponsor your adjustment of status. Although there are few exceptions, the main avenue through which entrepreneurs can gain permanent residence is either through family-sponsorship or employment-based sponsorship.

To obtain permanent residence through an employer you must either a) be a professional employed by a U.S. employer willing to sponsor your green card b) demonstrate extraordinary ability in your industry (science, arts, education, business, or athletics, c) work in a management or executive position abroad requiring international transfer to the United States or d) qualify as an EB-5 investor. In either of these cases, the U.S. employer must submit the I-140 Immigrant Petition for Alien Worker for you, before you can apply for permanent residence. If your ultimate goal is not to obtain a green card, then you have more options available to you.

We decided to write about this topic because we have found that many entrepreneurs that visit our office are not well-informed on other visa types that put them on a more direct path to permanent residence. Often times the topic of conversation leads to the E-2 Treaty trader visa, by far the most discussed visa type among entrepreneurs. Few entrepreneurs however have heard about the L-1 visa classification, that may in some ways be more beneficial to foreign entrepreneurs wishing to live and work in the United States permanently. Below we discuss both visa types and the advantages and disadvantages of both visas.

The E-2 visa, the most talked about visa:

Without a doubt, the most popular visa option entrepreneurs ask about is the E-2 visa. Many entrepreneurs however do not know that the E-2 visa is not available to everyone, and it is not a path to permanent residence. The E-2 visa is a non-immigrant treaty investor visa that is only available to foreign nationals from specific treaty countries. The E-2 visa allows foreign nationals to carry out investment and trade activities, after making a substantial investment in a U.S. business that the foreign national will control and direct. E-2 visa investors can either purchase an existing U.S. business or start a new business.

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