Visa Lawyer Blog

Articles Posted in Employment based visa

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House Passes CR Bill to Fund EB-5 through November 21st 

Great news! On September 19, 2019, the House of Representatives passed H.R. 4378, a continuing resolution bill that will fund the EB-5 Immigrant Investor Program through November 21, 2019.

H.R. 4378 has now passed on to the Senate where it will be considered and voted on. The bill is expected to clear the Senate and be signed into law by the President prior to September 30, 2019, the fiscal year deadline.

If the Senate is unable to pass the bill by that date, a government shutdown will likely occur until Congress is able to pass the continuing resolution bill to keep the government open and federal programs afloat.

Performance Data Form I-829 and Form I-526

Just days before the House passed H.R. 4378, USCIS published its third quarterly report for FY 2019 providing insight on performance data for petitions filed by entrepreneurs to remove conditions (Form I-829) and performance data for Immigrant Petitions filed by Alien Entrepreneurs (Form I-526).

What does the Quarterly Report reveal?

  • First off, USCIS is approving dramatically fewer I-526 than ever before:
    • Completion rates for I-526 have fallen 63%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, USCIS processed fewer I-526 than ever before in its history – only 579 completions for the whole quarter, as compared with 3,000-4,400 completions per quarter last year.
    • In FY2019 Q3, a record number of I-526 decisions were denials — 42%. The average I-526 denial rate is 20% in FY2019 YTD, as compared with 9% in FY2018 YTD.
  • Secondly, USCIS is processing dramatically fewer forms in total than ever before:
    • Completion rates across EB-5 forms (I-526, I-829, I-924) have collectively fallen 59%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, IPO processed more I-829 than in the previous quarter, but still a low volume – lower than average 2017/2018 performance for I-829.
  • Overall this data reflects reduced performance combined with backlogs causing extremely long processing times (The Current Processing Times report indicates that an I-924 is only considered “outside normal” processing after 90 months)

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Fresh off the press! In this blog post we will discuss a new proposed rule that is set to be published in the Federal Register on September 4, 2019. We have reviewed an advance copy of this proposed rule and will tell you everything you need to know about the new rule.

At a Glance

The proposed rule will require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition they submit to USCIS for the H-1B cap selection process beginning with the H-1B fiscal year 2021 cap season.

Overview

As you may recall, on January 31, 2019, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions (including those eligible for the advanced degree exemption) to first electronically register with USCIS during the designated registration period (“H-1B registration final rule”).

USCIS stated that the new H-1B registration system would be implemented beginning with H-1B fiscal year 2021 to ensure the registration system and process work correctly.

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Recently our firm successfully filed an H-3 visa for a Front Office Manager position with a prestigious hotel chain. Here are a few things we learned along the way to help you file a successful H-3 visa for a trainee.

Establish frequent communication with the petitioner

            In the case at issue the employer/petitioner was a major hotel chain with a great reputation, making it easier to establish the hotel as a distinguished organization with the capacity to hold such training. Our point of contact was the Director of Human Resources.

Create a detailed training plan

            Creating a tailored training plan for the employer/petitioner was by far the most difficult part of filing this case because the hotel had its own rules and regulations for approving training sessions. At first, we submitted a very detailed training plan for approval to the Hotel Managers. We went through additional drafts and revisions to have the final training plan approved. Here were the steps we took to get to the final plan:

Step 1: Communicate with the petitioner:

At the outset we established what the employer/petitioner needed to include in the training plan. In this case, we had to create a training plan from scratch, because the employer/petitioner was not satisfied with the initial draft. We started by clarifying the scope of what was being offered to the beneficiary. Our office went through several rounds of drafts before coming to an agreement of what should be included in the training plan.

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USCIS has announced that it will be closing all of its International Immigration Offices by March 10, 2020.

As of June 30, 2019, USCIS has already permanently closed its field office in Ciudad Juarez, Mexico, and on July 5th, the office in Manila, Philippines permanently closed.

By the end of January 2020, the majority of international USCIS field offices are expected to be closed, including offices in Mexico City, London, Athens, and Guatemala City.

The first offices to close will be those in Monterrey, Mexico, Seoul, South Korea, and Manila, Philippines, with a projected closing date of September 2019.

The following is a complete list of USCIS International Immigration Offices expected to close:

Latin America, Canada and the Caribbean (LACC) District

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We are happy to report that on July 10, 2019 the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), a bill that if enacted, would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants.

What is H.R. 1044?

H.R. 1044 is a piece of legislation that was first introduced before the House of Representatives on February 7, 2019 by Representative Zoe Lofgren.

Employment-Based Sponsorship

The bill seeks to drastically change the way that our employment-based green card system works by eliminating the “per country cap” that limits the number of green cards that may be issued to applicants per fiscal year depending on their country of origin also known as country of chargeability.

Currently, employment-based workers fall into one of five “preference categories” including EB-1 Priority Workers, EB-2 Professionals Holding Advanced Degrees/Persons of Exceptional Ability, EB-3 Skilled Workers, Professionals, EB-4 Special Immigrants, and EB-5 Investors. Each of these categories is subject to Congressional numerical limitations, as well as per-country limitations.

H.R. 1044 proposes to remove the per-country limitations to enable applicants to obtain employment visas based on merit, and not based on country of origin. The bill would also eliminate the 7% cap for employment-based visas and remove an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

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The H-1B season for Fiscal Year 2020 has officially come to a close.

The United States Citizenship and Immigration Services (USCIS) has begun the process of returning all H-1B cap-subject petitions that were not selected in the H-1B lottery for fiscal year 2020.

As you may recall, the H-1B lottery for FY 2020 took place on April 10, 2019. Petitioners who were selected in the lottery were mailed receipt notices of selection from USCIS during the month of April. If you or your petitioner did not receive such a notice, then your petition was not selected in the lottery and will be returned.

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Photo: JM Parrone

In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. 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

Below are the highlights of those trends and projections for July 2019:

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for July 2019.

Employment-Based Categories:

EB-1 Worldwide: Demand for this category remains steady. For the month of July EB-1 remains at April 22, 2018 and is not expected to become current in the foreseeable future. The Final Action Date will likely not change in July.

  • EB-1 India: No forward movement is expected in this category before October 2019. It is expected that this category will return to a Final Action Date of February 22, 2017 in October of this year.
  • EB-1 China: Has advanced to May 8, 2017 in the July visa bulletin.

EB-2 Worldwide: Current in July and will remain current through September 2019.

  • EB-2 India: Is expected to advance slowly during the month of July by a few days or one week at a time. Some forward movement may occur during the summer is there is lower EB-2 Worldwide demand.
  • EB-2 China: Has advanced to November 1, 2016 in the July visa bulletin. The category will continue to advance due to low demand.

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It is that time of the week again! In this post, we bring you the latest immigration news from USCIS.

Texas Service Center Will Begin Processing Certain Cap-Exempt H-1B Petitions

On May 20, 2019, USCIS announced that the Texas Service Center will begin processing certain cap-exempt H-1B petitions filed on Form I-129 Petition for Nonimmigrant Worker.

What types of petitions may be processed by the TSC?

Cap-exempt petitions requesting:

  • A change in previously approved employment;
  • A change of employer;
  • Concurrent employment;
  • Amendments;
  • A continuation of previously approved employment without change with the same employer;
  • A change of status to H-1B; or Notification to a U.S. Consulate or inspection facility (port of entry or pre-flight inspection).

Applicants must continue to refer to the direct filing address chart to determine where the I-129 Form should be filed. The workload for cap-exempt petitions will be distributed between the Texas Service Center, California Service Center, Vermont Service Center, and Nebraska Service Center to increase efficiency and prevent processing delays.

If your case is transferred, you will receive a transfer notice in the mail.

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Exciting news for Filipino nurses. The EB-3 employment-based category will become current in July 2019 through the summer.

This means that if you have an approved PERM application that was filed by your employer, your employer may file Form I-140 Immigrant Petition for Alien Worker on your behalf. Please note that registered nurses and physical therapists are not required to go through the PERM process and may proceed straight to the I-140.

Since there will be no waiting period in July 2019 through the summer, EB-3 Filipino nurses will be able to apply for the I-140 straight away, and for their adjustment of status. Applicants who are outside of the United States, may apply for their immigrant visa at a U.S. Consulate/Embassy in their country of residence.

Important Steps

If your employer has not filed a PERM application for you, they should do so as soon as possible. The PERM requirement does not apply to registered nurses or physical therapists.

After the PERM application is approved, your employer must file Form I-140 Petition for Alien Worker on your behalf. Registered nurses and physical therapists do not need to file a PERM application, and their employers may proceed with the immigrant visa petition (I-140).

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USCIS announced today May 17, 2019, that the agency has completed data entry for all H-1B petitions selected for fiscal year 2020, including petitions filed under the U.S. advanced degree exemption.

USCIS will now begin the long process of returning all H-1B cap-subject petitions that were not selected in the random computer-generated lottery that took place on April 10, 2019. USCIS will provide an announcement once it has completed the return of unselected H-1B petitions.

Petitioners who have not had the H-1B filing fees cashed, can expect to receive the return of their H-1B petition.

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