A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, May 2, 2016

H-1B Cap Cases: Data Entry Complete; Transfer from VSC to CSC


USCIS made the following announcement today regarding the FY 2017 H-1B Program:

USCIS announced on May 2, 2016, that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition. If you are filing a Form I-907, Request for Premium Processing, to upgrade your Form I-129 H-1B petition to premium processing, send the completed Form I-907 with the appropriate fee to the center processing your petition.

Saturday, April 23, 2016

From 17-Month to 24-Month STEM OPT - Transition Begins May 10th


The new 24-month STEM OPT is almost here.  Starting May 10th, 2016, foreign students may start applying for the newer and longer STEM OPT.  The new STEM OPT extension is a 24-month period of practical training that directly relates to an F-1 student’s program of study in an approved STEM field.  It replaces the 17-month STEM OPT extension previously available to students in the United States.  


What If I Am on the Current 17-Month STEM OPT
The 17-month STEM OPT regulations will remain effective until May 9, 2016.  Any EAD applications filed on or before May 9, 2016 will be adjudicated according to the old regulations. If you are currently working based on a 17-month STEM OPT EAD, you may continue to work under the terms and conditions of the 17-month STEM OPT program until the end of the term or until it is terminated or cancelled.  You may also choose to convert your EAD to the 24-month OPT program if you are eligible.  (See below).  

Transition from 17-Month to 24-Month STEM OPT
During the transitional period through and beyond May 10, 2016, foreign students may or may not be eligible to apply for the new 24-month STEM OPT, depending on various factors.  For those who are eligible, there are some strict timelines and requirements that they must follow in order to take advantage of the new rule. 

Foreign Students Who May Apply for 24-Month STEM OPT
There are two (2) categories of students during the transitional period who may benefit from the new 24-month STEM OPT.  (1) Students with 17-month STEM OPT applications pending on May 10, 2016 before USCIS. (2) Students with existing 17-month STEM OPT EADs on May 10, 2016.

Foreign Students Who Are Not Eligible for 24-Month STEM OPT
If your 17-month STEM OPT extension has expired or will expire before May 10, 2016, then you will not be able to benefit from the longer STEM OPT.  Similarly, if you have less than 150 days remaining on your 17-month STEM OPT validity period on the date when you become eligible to properly file your STEM OPT extension, you are also not covered under the transitional plan. These two groups of ineligible students may become eligible for the 24-month STEM OPT based on another STEM degree.  

Students Who Will Enter the 60-Day Grace Period before May 10, 2016
If your current regular 12-month OPT will expire before May 10, 2016, you should not wait until May 10, 2016 to file your STEM OPT.  Under the regulations, a student must still be in a valid OPT employment period in order to be eligible for STEM OPT. Hence, you must apply for OPT extension prior to entering the 60-day grace period, even if it means that you may only apply for the 17-month STEM OPT now.

Students with Pending 17-Month STEM OPT Applications on May 10, 2016
If you have a pending 17-month STEM OPT I-765 application before the USCIS, you will receive a formal RFE (request for evidence) from USCIS.  The RFE will request additional documents that will establish that you are eligible for a 24-month OPT extension under the new rule.  These documents include a new Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension, a  Form I-983 Mentoring and Training Plan, and other documentation to establish that you meet the requirements for a 24-month STEM OPT extension.  You must respond to the RFE in a timely manner.


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Students with Approved 17-Month STEM OPT before May 10, 2016
As discussed above, students who have already been approved for a 17-month STEM OPT have two options.  First, they may choose to stay on their current 17-month STEM OPT period until the end without applying for an extension.   Second, they may affirmatively request for a 7-month extension with USCIS, provided that they meet all the other requirements.  These requirements include:

(1) Properly filing a Form I-765 with USCIS between May 10, 2016 and August 8, 2016, (2) Filing must be within 60 days of the date the DSO enters the recommendation for the 24-month OPT extension into the student’s SEVIS record, (3)  Submitting a new Form I-20 endorsed on or after May 10, 2016, indicating that the DSO recommends the student for a 24-month OPT extension, (4) Submitting a completed and signed Form I-983 Mentoring and Training Plan, (4) Having at least 150 days of employment period remaining on the date the I-765 is properly filed, and (5) Submitting the required filing fees plus any other supporting documentation to establish eligibility for a STEM OPT extension under the standards of the new final rule.   (Note: Students applying for the 7-month extension do not have to be in a valid period of standard 12-month post-completion OPT at the time of filing.)

Should I File for STEM OPT Extension Now or After May 10, 2016
Certain F-1 students with their current OPT expiring after May 10, 2016 have to choose between filing now under the existing 17-month STEM OPT program or filing on or after May 10, 2016 under the new rule.  If they file after May 10, 2016, they will be able to apply for the 24-month STEM OPT directly without worrying about conversion later on.  Filing now, on the other hand, will allow them to "avoid the crowd" as most students will likely file after May 10, 2016.  

Some Final Pointers
  • Remember, you may only file for the 7-month OPT extension between May 10, 2016 and August 8, 2016.  You must also have 150 days of OPT remaining at the time of filing.
  • If your current OPT expires before October 6, 2016, then you are not eligible for extension.
  • Similarly, if your current OPT expires after October 6, 2016  but before January 5, 2017, you should make sure you file your extension request before the remaining 150 days runs out.
  • Under the new rule, students may only file for STEM OPT extension 90 days before their current OPT expiration. 
  • ICE will not be able to update the SEVIS system for the new STEM OPT until May 13, 2016. Therefore, students should take that into consideration when preparing for their filing.  Some students may have to file their STEM OPT application without the requisite I-20 endorsement in order to meet the 150-day requirement.  
  • Timing is critical: Because of various time restrictions and documentary requirements (E.g, I-983 training plan).  It is very important that foreign students should plan things ahead and touch basis with their DSOs and employers as early as possible.  Don't hesitate to seek professional assistance from immigration attorneys if necessary.  



Tuesday, April 19, 2016

Visa Bulletin Predictions by DOS’s Charlie Oppenheim - May 2016 Onward


On April 13, 2016, the State Department's Charlie Oppenheim provided his monthly predictions and analysis through AILA following the publication of the May 2016 Visa Bulletin.  The following are the highlights:
EB-2 and EB-3 China Demand for EB-3 China visa numbers "has exploded" due to downgrades from EB-2.  Demand for EB-3 China numbers exceeded 400 in March alone. EB-2 China also spiked to 850 in March.  Charlie expects similar demand in April for both categories. As a result, retrogression of EB-2 and EB-3 China in June will be likely to control visa usage.  
EB-1 Demand and Impact to Other Categories: "EB-1 demand from USCIS increased almost 100 percent from February (2,500+) to March (5,000+) which reflects more than 95 percent of the EB-1 Worldwide demand. This spike leaves fewer numbers to potentially spill down to other categories, which will impact EB-2 final action dates. Members should expect that the EB categories that typically rely on unused EB-1 numbers, such as EB-2 India, will be impacted. It remains to be seen whether a cut-off date will need to be established for any EB-1 countries this fiscal year."

India Employment-Based Final Action Dates:  "EB-3 demand, after the initial allocation of numbers, has been increasing by 100 month over month from January to February and February to March."
"A number of factors make it difficult for Charlie to accurately predict movement in these categories. Increased EB-1 usage negatively impacts the supply of available visas for EB-2 India, and upgrades are currently driving EB-2 India demand. As a result of these two factors, there may be fewer numbers available to EB-2 India than previously expected."

Family-Based Visa Applications:   The cut-off dates for family-based categories are less "volatile" because most of the visa numbers are allocated in overseas countries.  DOS controls and keeps track of all overseas visa usage and hence is able to set the cut-off dates more accurately.   In contrast, employment-based cases are filed mostly within the U.S. through adjustment of status.  Charlie has limited visibility regarding USCIS usage of visa numbers.  Charlie warns that India's FB-4 final action date (siblings of U.S. citizens) will likely retrogress as early June due to an increase in demand. Similarly, China's FB-4 may also retrogress of put on hold in late summer. 
EB-4 Cut-offs:  EB-4 is for special immigrants such as certain religious workers.  In May, a final action date of January 1, 2010 will be instituted for EB-4 for El Salvador, Guatemala and Honduras.   The reason is attributed to the spike in demand for visa numbers by Special Immigrant Juvenile (SIJS) applicants in the past two months.   Charlie also warns that it is "extremely likely that EB-4 India and Mexico will also oversubscribed at some point during the summer months" (and hence cut-off dates will be imposed). 
EB-5 China:  Charlie explains that he has good visibility into this visa category.  Demand in this category is still increasing, but processing of the visa petitions have also kept up in pace. Hence, the final action date will also advance accordingly.
EB-2 and EB-3 Philippines:  EB-2 Philippines will be current "for the foreseeable future." Regarding EB-3 Philippines, the final action date will likely advance a few months at a time. Charlie does not expect that it will  return to the Worldwide final action date this fiscal year.
"Currently, the Texas Service Center has more than 1,600 EB-3 Philippines cases in the pending demand file and the Nebraska Service Center has more than 1,200. Demand at the U.S. Consulate in Manila is about half of that at USCIS. Charlie hopes that the EB-3 Philippines final action date will advance as far as mid-2010 by the end of this fiscal year."
(Source: AILA Doc. No. 14071401)

Thursday, April 14, 2016

May 2016 Visa Bulletin: Family Categories Advance


In the May 2016 Visa Bulletin, there are moderate advancements in most family visa categories. Family 2B Action Date advances two and a half months for China, India and Other Countries. Philippines Family 2B advances by one month.  Family 1st advances two months for China, India, Mexico and Other Countries.  Philippines Family 1st advances for three months. However, there are no changes in the Filing Date Table.  The National Visa Center (NVC) is still trying to work through the current backlog of cases.

For employment categories:
Final Action Table: EB-2 India advances slightly to 11/22/2008. EB-3 India moves forward by three weeks to 09/01/2004. EB-3 Philippines moves forward by three (3) months to 08/08/2008. EB-5 China advances slightly to 02/01/2014.

Filing Date Table:  There is very little movement in the EB-2 and EB-3 categories. There are no changes in the EB-2 India categories.  EB-2 China edges forward by two weeks to 06/01/2013.  Other Workers jumps forward by eight months to 04/01/2008.  


AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
11/22/2008
11/22/2008
11/22/2008
02/08/1995
10/01/2004
FD
10/01/2009
10/01/2009
10/01/2009
04/01/1995
09/01/2005
F2A
AD
11/01/2014
11/01/2014
11/01/2014
08/15/2014
11/01/2014
FD
06/15/2015
06/15/2015
06/15/2015
06/15/2015
06/15/2015
F2B
AD
09/01/2009
09/01/2009
09/01/2009
09/08/1995
05/01/2005
FD
12/15/2010
12/15/2010
12/15/2010
04/01/1996
05/01/2005
F3
AD
12/01/2004
12/01/2004
12/01/2004
10/08/1994
01/22/1994
FD
08/01/2005
08/01/2005
08/01/2005
05/01/1995
08/01/1995
F4
AD
07/22/2003
07/22/2003
07/22/2003
04/08/1997
10/01/1992
FD
05/01/2004
05/01/2004
05/01/2004
06/01/1998
01/01/1993

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
AD
C
C
C
C
C
FD
C
C
C
C
C
EB2
AD
C
09/01/2012
11/22/2008
C
C
FD
C
06/01/2013
07/01/2009
C
C
EB3
AD
02/15/2016
08/15/2013
09/01/2004
02/15/2016
08/08/2008
FD
C
05/01/2015
07/01/2005
C
01/01/2010
Other Workers
AD
02/15/2016
04/22/2007
09/01/2004
02/15/2016
08/08/2008
FD
C
04/01/2008
07/01/2005
C
01/01/2010
EB4
AD
C
C
C
C
C
FD
C
C
C
C
C
EB5
AD
C
02/08/2014
C
C
C
FD
C
05/01/2015
C
C
C

Note:  In May, a final action date of January 1, 2010 will be imposed for EB-4 and certain religious workers from El Salvador, Guatemala and Honduras. 

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding               prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)