A free service provided by Paul Szeto LLC, a full service immigration law firm. Paul Szeto - a former INS attorney and an experienced immigration practitioner - can be reached at 732-632-9888, http://www.szetolaw.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, August 29, 2014

China EB-5 Visa Quota Used up for 2014

The EB-5 immigrant visa numbers have been used up for China for fiscal year 2014 as of August 23, according to Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division, U.S. Department of State. 

This action is necessary because all available visa numbers for China in the EB-5 category have been allocated to existing cases. 

The EB-5 visa provides a method of obtaining a green card for foreign nationals who invest money in the United States. To obtain the visa, individuals must invest $1,000,000 (or at least $500,000 in a "Targeted Employment Area" - high unemployment or rural area), creating or preserving at least 10 jobs for U.S. workers excluding the investor and their immediate family.

However, this development does not affect applicants whose cases that have already been processed and scheduled for interviews. These cases have already been reviewed and allocated visa numbers, including cases that have been scheduled for interviews. Therefore, Chinese EB-5 applicants who have been scheduled for an interview at an overseas American Consulate based on the original establishment of the August and September cut-off dates would not be impacted by the exhaustion of visa numbers as they already have been allotted visa numbers.  

The State Department states that no additional numbers are available for cases originally scheduled for interview in an earlier month who are just now returning, or for those first requesting an interview.  However if there are Chinese applicants who fail to appear or failed to overcome a refusal during August or September, then additional visa numbers will be available.

USCIS offices may continue to accept and process China Employment Fifth preference cases and submit them in the normal manner. However, instead of being acted upon immediately, those cases will be held in the Visa Office's "Pending Demand" file until October 1, 2014. At that time, all eligible cases will be automatically authorized from the "Pending Demand" file under the FY-2015 annual numerical limitation. Each USCIS requesting office will receive an e-mail notification of such authorizations, which will be effective immediately.

Applicants who are impacted by the unavailability of visa numbers or otherwise do not qualify for EB-5 investment visas may consider applying for L-1 visa if they own or currently working for a foreign enterprise. 

The L-1 visa is a temporary, non-immigrant visa which allows qualified overseas companies to relocate foreign qualified employees to its U.S. parent, branch, affiliate, or subsidiary of that company. There are several different types of L1 visas. L-1A visa is specifically designed for intra-company executive or manager transferees. The L-1B visa is designed for intra-company transfers of employees with specialized knowledge. 

It is also important to note that additional visa numbers will be available starting October 1, 2014.  However, demand will likely continue to be strong for this visa category.

Visa Fees and Affidavit of Support Fee Increases

The Department of State amends its Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees.  The amendment was published in the Federal Register on August 28, 2014 as an interim rule, which will become effective on September 6, 2014.  The fees will be charged starting 15 days after the date of publication.  The major changes are as follows:

  • Family based immigrant visa fee: $230 to $325 
  • Employment based immigrant visa fee: $405 to $345
  • Affidavit of Support review (I-864):  $88 to $120
  • E Visa Application: $270 to $205
  • K Visa: $240 to $265
  • I-360 and other Special Immigrant Visa Petition: $220 to $205
  • Renunciation of U.S. citizenship: $450 to $2350
For most immigrant families, the most important changes are the family based immigration visa fee increase from $230 to $325 (per applicant).  The Affidavit of Support (I-864) review fee has also been increased from $88 to $120.  

Wednesday, August 20, 2014

Labor application: Newspaper requirements not applicable to additional recruiting steps

The requirements for newspaper advertising do not apply to the additional recruiting steps for professional occupations under the labor application regulation, according to a recent decision of the labor certification appeal board.  Matter of Symantec Corporation, 2011-PER-01856 (July 30, 2014).


A foreign labor certification is usually required before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  The regulation requires that an employer must advertise the job openings in Sunday newspaper of general circulation for two times. In addition, employer must also fulfill three (3) additional recruiting steps for professional positions.  For example, an employer can post the job opening on an online job search website as an additional step.

In the case at issue, the employer, Symantec, filed a labor application on behalf of a Financial Programmer Analyst.  As one of the additional recruiting steps, they posted the job opening on a job search website. The labor application submitted does not contain any travel requirements.  However, in the job search website posting, it states that the employee may be required to work on projects "at various unanticipated sites throughout the United States."  The Labor Department Certifying Officer (CO) denied the labor application on the basis that the travel requirement posted is an additional requirement not included in the labor application under the regulation.

The employer on motion and appeal explained that the online job posting is for multiple openings, some of which require travel to other places, but the position being offered does not have any travel requirements. Further, the employer argued that the regulation cited by the CO only applied to newspaper advertisements but not in the other additional recruiting steps.  A panel of three appeal board judges agreed with the employer and reversed the denial.  However, the CO petitioned for a rehearing of the case by the whole Board of Alien Labor Certification Appeals (BALCA).

BALCA decided, en banc, that the employer is correct in that the regulation cited by the CO for denying the labor application does not apply to the additional recruiting steps.  The plain language of the regulation states that the additional steps only have to advertise the job opening; it does not impose other requirements. Here the employer did advertise the job opening as required, and the labor application should not be denied based on unwritten requirements in the regulation.  Symantec marks a clear change in direction in the interpretation of the regulation by the BALCA from cases such as East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc).  It also provides some much-needed guidance regarding the recruiting process of PERM labor application. 

Thursday, August 7, 2014

"Youhuitong" Program and EB-5 Investment

The modernization of the Chinese economy has created unprecedented number of wealthy individuals. Many are them are interested in immigrating to other countries especially the United States for educational, business, and other opportunities.

For a foreign investor to participate in the U.S. EB-5 immigrant visa program, he or she must invest either US$500,000 or $1,000,000 in a U.S. enterprise and create 10 full-time job opportunities.  However, the Chinese government has a $50,000 annual limitation on currency transfers on its citizens.  Traditionally, to invest in the U.S. EB-5 program, a Chinese investor would ask 10 or 20 friends to each receive and convert the Chinese equivalent of US$50,000 or $1,000,000, and then transfer the funds to a bank outside of China. The funds would then be grouped together again outside of China before they are invested in either an EB-5 Regional Center or direct investment program.

However, this process of funneling funds outside of China has proven to be quite complicated and inconvenient; also, it is not always easy to find "friends" to act as conduit to transfer money for foreign investments.  As a response to this situation, some Chinese national banks started some pilot “youhuitong” programs which would allow unlimited transfers of funds to overseas in a single transaction. The bank usually charges a certain percentage of the total remittance as processing fee.  The bank also profits from the fluctuations of the foreign current exchange rates.  Because of the convenience of this type of youhuitong programs, they have quickly become very popular among EB-5 investors.

On July 10, 2014 the official state broadcasting TV channel in China, the China Central Television network (CCTV),  recently issued a report on these "youhuitong" money transfer programs, accusing some banks of acting inappropriately in providing services to help wealthy Chinese citizens to convert large sums of currency and transfer them abroad to invest in the U.S. EB-5 investor immigration program. Although the report has been withdrawn since then, the banks have temporarily suspended the youhuitong unlimited-transfer programs.

Some U.S. and overseas commentators and media speculate that the CCTV report was politically motivated.  Because of the demand for the EB-5 investment visas has been on the rise in recent years, it is possible that this type of "youhuitong" programs will re-surface again later on to facilitate investors to transfer funds to overseas countries for investment purposes.


Thursday, July 31, 2014

More nurses will qualify for H-1B under new USCIS Policy

Under new guidance released by USCIS on the H-1B specialty occupation program, it is now easier for foreign nurses to be qualified for the H-1B visa. The key issue is whether the position offered to the foreign nurse qualifies as an H-1B "specialty occupation".

The H-1B Specialty Occupation
The H-1B visa program allows a U.S. employer to hire foreign workers in a specialty occupation for a temporary period of time.  To qualify as a specialty occupation, the petitioner must establish that the position offered normally requires a bachelor's degree as a minimum requirement for entry into the profession, or the position is so complex or unique that it can be performed only by an individual with a degree.  Traditionally, most registered nurse (RN) positions do not qualify as a specialty occupation because, in the United States a bachelor's degree is not required to work as a nurse.  In the U.S., one may become an RN through three education paths: a bachelor’s of science degree in nursing (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program.

Changes in USCIS Position
Because some nursing jobs do not require a bachelor's degree, USCIS has taken the position that nursing jobs do not qualify as specialty occupations. Consequently, H-1B petitions filed on behalf of "regular" RN jobs are usually not approved. The former INS Executive Associate Commissioner Johnny N. Williams issued a policy memorandum on November 27, 2002, confirming this position of the agency.  However, on July 11, 2014, the USCIS issued an updated policy memorandum on this particular issue, stating that the agency will adopt new standards in adjudicating H-1B petitions filed for nursing positions.

Specifically, the agency will consider evidence regarding (1) The nature of the petitioner’s business; (2) Industry practices; (3) Detailed description of the duties to be performed within the petitioner’s business
operations; (4)  Advanced certification requirements; (5)  ANCC Magnet Recognized status; (6)  Clinical experience requirements; (7) Training in the specialty requirements; and (8) Wage rate relative to others within the occupation.  The adjudicators will make a decision based on a totality of circumstances of the case.

The change stems from the agency's observation that the nursing profession has undergone many changes over the years.  The profession has become more complex and specialized, and many nursing jobs require a bachelor's degree to quality nowadays. There are also master's degree nursing programs offered by colleges. A bachelor's degree is also required for some nurse managers positions. For a medical organization to achieve "magnet" status designation, the educational background of its nursing workforce is also a critical factor.  There are also specialty nursing jobs which require at least a bachelor's or higher qualification. For example, certain advanced practice registered nurse (APRN) positions require a bachelor’s or higher degree in a specific specialty. Other occupations cited by USCIS that may satisfy the requirements for a specialty occupation include: Certified Nurse-Midwife (CNM); Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).

Conclusion: The Policy has Changed but not the Law
The new policy will allow more foreign nurses to quality for the H-1B visa going forward.  However, it is important to note that the new policy memo represents only changes in the agency's interpretation of the legal standard. But the law and the regulation regarding the H-1B visa program remains the same.  Nevertheless, this is still good news for foreigners who aspire to work in the U.S. as nurses.

U.S. State Department Passport/Visa System - Update on recent technical problems

The State Department website provides the following update on its recent system technical problems -

The CCD is still performing below its normal operational capacity. However, to give you an idea of the progress we have made, from the start of the operational issues on July 20 through July 28, we issued more than 220,000 nonimmigrant visas globally. Based on our average production figures, we would have anticipated issuing closer to 425,000 nonimmigrant visas in that time period, indicating we have been able to print nonimmigrant visas for about half of all approved travelers. It will take some weeks before we are back to normal turnaround times on issued visas. We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases with very few delays. Please see our FAQs for further information.

Friday, July 18, 2014

New Policy on Late CSPA Filings

On June 6, 2014, USCIS issued a new interim policy memo on the treatment of late filings under the Child Status Protection Act (CSPA). The policy memo explained what constitutes "extraordinary circumstances," for the purposes of excusing late filings under CSPA. Applicants whose cases were previously denied due to failure to file within the one-year filing window may also file motions to reopen their cases.

The Child Status Protection Act (CSPA) is a special law that allows over-aged immigrants to be treated as minor children for certain immigration benefits, even though their actual ages are over 21.  However, to take advantage of the CSPA, one must must "seek to acquire"  permanent residence status within one year from the date her priority date becomes current.

According to the new policy memo, an aged-out applicant must file an application for adjustment of status (Form I-485), an application for action on approved  petition (Form I-824), or an application for immigrant visa (Form DS-230) within one year.  Merely contacting a lawyer does not meet the "seek to acquire" requirement.

A recent Board of Immigration Appeal (BIA) decision held that USCIS has discretionary power to excuse late CSPA filings due to extraordinary circumstances.  Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).  The new policy memo explains that adjudicators, when deciding whether late filings should be excused, must decide whether extraordinary circumstances exist on a case-by-case basis and consider the totality of circumstances.

According to the policy memo, an adjudicator should excuse late filing if (1) The circumstances were not created by the individual's own action or inaction; (2) The circumstances were directly related to the failure to act within the one-year period, and (3) The delay was reasonable under the circumstances.

Specifically, valid reasons justifying late filings under CSPA include, but are not limited to: serious illness or mental or physical disability during the one-year period; legal disability (such as mental impairment); ineffective assistance of counsel;  timely filing rejected by the USCIS which was followed by a corrected filing within a reasonable time; and death or serious illness or incapacity of legal representative or immediate family member.  Other less compelling reasons such as financial difficulty, minor medical conditions, and circumstances within the alien’s control are not considered extraordinary.

Finally, the policy memo also allows applicants to file motions to reopen cases that were denied after the June 8, 2012 BIA decision solely based on late filings of applications.  Such motions should include evidence establishing extraordinary circumstances based on the new policy memo.

Monday, July 14, 2014

Visa Bulletin Predictions by Charlie Oppenheim - July 2014

State Department's Charlie Oppenheim made the following predictions to AILA regarding the Visa Bulletin after the release of the August 2014 bulletin:

Family Immigration:
Family 2A (spouses and minor children of permanent residents): The F2A cut-off date will advance in September from May 2012 a few months to fall 2012. The number of cases in this visa category with current priority dates has declined.

Employment Immigration:
EB-3 China: This category has started to advance in August after two months of retrogression.  The prediction is that it will continue to advance. The number of "downgrade" cases has decreased and there are also spill-over visa numbers from family immigration.

EB-2 India: This category will retrogress as early as November for Fiscal Year 2015. The prediction, according to Mr. Oppenheim, is based on "a number of variables such as historical demand patterns, expected future demand patterns, expected return rates of unused numbers, information received from USCIS on expected processing, and National Visa Center (NVC) petition processing trends." 


EB-5 China:  This category will likely no longer be current in FY2015.  A cut-off date will be established as early as June 2015 but no later than August 2015 due to ever-increasing demands and faster USCIS approvals.

Wednesday, July 9, 2014

August 2014 Visa Bulletin - India EB-2 advances 4.5 months; China EB3 advances 2 years

In August, India's Employment Second (EB-2) continues its forward movement to January 22, 2009 after July's 45.5 month advancement.  However, the State Department warns that heavy visa demand and case backlog will likely result in some retrogression in this visa category within the next few months. China's Employment Third (EB-3) advances 25 months to November 1, 2008.  This category retrogresses recently due to the large number of "upgrades" from the EB-2 category.  However, the demand for visas has declined during the two months.  The State Department expects advancement in EB-3 China to continue in September.

For family immigration, F2A (spouses and children of permanent residents) remains unchanged at May 1,2 2012 for most countries. F2B advances 60 days to July 1, 2007 for China, India and Other Countries.   F1 Philippines moves forward by 17 months to June 1, 2004.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
04/22/07
04/22/07
04/22/07
04/08/94
06/01/04
F2A
05/01/12
05/01/12
05/01/12
03/15/11
05/01/12
F2B
07/01/07
07/01/07
07/01/07
04/01/94
10/08/03
F3
11/15/03
11/15/03
11/15/03
09/15/93
04/15/93
F4
01/01/02
01/01/02
01/01/02
01/01/97
01/22/91

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
C
C
C
C
C
EB2
C
10/08/09
01/22/09
C
C
EB3
04/01/11
11/01/08
11/08/03
04/01/11
06/10/10
Other Workers
04/01/11
07/22/05
11/08/03
04/01/11
06/01/10
EB4
C
C
C
C
C
EB5
C
C
C
C
C


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)

Tuesday, July 8, 2014

Foreign H-1B workers may apply for visas now

H-1B workers whose I-129 petition for nonimmigrant workeer has been approved for FY2015 may begin filing their visa applications now at overseas U.S. consulate offices, according to a State Department alert.

The H-1B visa is for foreign professional employees to engage in specialty occupations in the U.S. for a temporary period of time.  Under the current policy, applications are accepted starting April 1 and employment begins on October 1 every fiscal year.

According to the Foreign Affairs Manual, H-1B workers may apply for visas up to 90 days in advance of the beginning of the employment status.  Hence, starting July 7 (the first business date within the 90-day window), applicants with approved H-1B petitions filed by their U.S. employers may beginn submitting applications for their H-1B visas.  State Department also reminds consular officers to advise visa applicants both verbally and in writing that they are only allowed to use the visa to apply for admission to the United States starting ten (10) days prior to the beginning of the approved employment period.  In fact, similar wordings will also be included in such H-1B visas.  Based on the 2014 calendar, September 21st will be the first date for such admission.  

Monday, June 23, 2014

Documents needed for TN Visa

The U.S. Customs and Border Protection (CBP) recently released a checklist of documents used by their officers to evaluate NAFTA (TN) applications.  The TN visa category was established by the North American Free Trade Agreement (NAFTA) to allow Canadian and Mexican citizens who are coming to the U.S. to work in professional positions. However, unlike the H-1B visa program, the listing of TN visa positions are pre-defined.

Generally speaking, Mexican citizens must first apply for a visa before they are allowed to enter the U.S. Canadian citizens may directly request for admission as a TN professional at a Class A port of entry (POE), a U.S. international airport, or a designated pr-eclearance station.  The CBP officers are responsible for checking a TN applicant's documents and his or her eligibility for TN admission. Therefore, they have the authority to approve or deny a TN application at the port of entry.  Hence, it is extremely important that a TN applicant present proper and sufficient documents to prove his or her eligibility.

To ensure that the officers at different ports of entry adjudicate TN applications consistently, CBP has released a checklist of basic documents used by the agency's officers.  The basic documents include: 1) Proof of Canadian citizenship; 2) Offer of Employment Letter specifying the job title, detailed job description, salary and compensation, duration of employment; 3) Applicant's qualification documents including educational diplomas and transcripts, proof of employment experience and other qualifications; 4) Additional Mandatory Evidence such as Visa Screen for healthcare workers, state license, and waivers of inadmissibility; 5) Dependents' marriage license, birth certificate, adoption documents and TD visa for non-Canadian dependents; and 6) Other relevant documents.

The purpose of the checklist is to facilitate determination by CBP officers that applicants have all the required documentary evidence required for the TN status. A CBP officer can either deny the request for admission or request for additional evidence if here are deficiencies with the documents.  The applicant may re-apply again with additional documents later on. The checklist will be kept in file and the next officer will use it as a reference.

Some applicants, after their TN admission was denied, try to re-apply at a different port of entry, thinking some other officers or ports of entry are "easier" than the others.  Such thinking is not correct for two reasons. First, the CBP system will have records of the applicant's prior entry records which can be accessed by all CBP officers.  So going to a different port of entry should not make a difference.  Secondly, such actions of shopping for different entry points could be viewed negatively by the CBP officers, hence making it even more difficult to obtain TN status.   By being as open as possible, e.g., by going to the same port of entry regularly, and by visiting during regular office hours, a Canadian's chances of getting TN status would actually be better.



Tuesday, June 10, 2014

July 2014 Visa Bulletin: EB-2 India advances almost 4 years to 9/1/08!

In July, as predicted previously, EB-2 India finally advances after seven (7) months of absolutely no movement.  EB-2 India moves forward to 09/01/08 from 11/15/04, a 45 1/2 months jump! This is certainly good news for Indian nationals who have pending EB-2 cases.  For those Indians whose priority dates are current, they should file their green card applications as soon as possible.

EB-3 India moves forward to 11/01/03.  EB-2 China advances to 07/01/09.  Another significant move is EB3/Other Workers for Philippines, which move forward by one (1) year to 01/01/2009.

For family immigration, F2A (spouses and children of permanent residents) remains unchanged at 05/01/12 for most countries. There are some slight movements in most other family visa categories too.  F1 Philippines advances seven (7) months to 01/01/03.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
04/01/07
04/01/07
04/01/07
02/01/94
01/01/03
F2A
05/01/12
05/01/12
05/01/12
03/15/11
05/01/12
F2B
05/01/07
05/01/07
05/01/07
11/22/93
08/15/03
F3
10/15/03
10/15/03
10/15/03
08/08/93
03/22/93
F4
12/22/01
12/22/01
12/22/01
12/15/96
01/01/91

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
C
C
C
C
C
EB2
C
07/01/09
09/01/08
C
C
EB3
04/01/11
10/01/06
11/01/03
04/01/11
01/01/09
Other Workers
04/01/11
01/01/03
11/01/03
04/01/11
01/01/09
EB4
C
C
C
C
C
EB5
C
C
C
C
C


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)

PERM Labor Application Processing Times - updated 06/05/2014

PERM Labor Application Processing Times

U.S. Labor Department posted the following PERM processing times as of 06/05/2014 -

Analyst Reviews: December 2013  (About 6 months turn around)

Audit Review: January 2013 (About 15 months turn around)

Reconsideration Requests: June  2014

Gov't Error Reconsiderations: Current

(Note: the dates denote initial filing dates)

Monday, June 9, 2014

Supreme Court narrowly held that CSPA only applies when a new petition is not needed

Today, the Supreme Court issued a 5-to-4 decision in Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio).  This decision held that the Child Status Protection Act (CSPA) only applies to retain the original priority date for those aged-out children who qualified or could have qualified as principal beneficiaries of an immigrant visa petition.  If they need a new petition (e.g., one filed by their parents) to fit into a new visa category, CSPA does not apply and they must stand in line again.  This is just a quick update of our previous blogging on this important issue.  We will discuss this case further in details soon. 

Friday, May 30, 2014

New policy: Immigration Medical Examination report (I-693) will be valid for one year only

USCIS announced the following new policy on the Immigration Medical Examination today as follows:

1) Starting June 1, 2014, USCIS will limit the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS.

2) Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination.

3) According to the USCIS Policy Manual, applicants should wait for an official Request for Evidence (RFE) or interview notice before submitting an updated I-693 medical examination report.