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, March 27, 2017

The Future of H-1B Visa Program Remains Unclear

This week many foreign workers and their employers are rushing to get their H-1B applications ready for filing on April 3 - the first day that such applications are accepted by USCIS.  Applicants have questions about many things - Did they submit a complete application? Pay the correct fees? Provide all the required evidence? And most important, will their cases be selected in the "visa lottery"?  At the same time, they are also nervous about the future of the H-1B Program, given the recent hot and often negative media discussions about the visa program.    


Perhaps "uncertainty" is the word that best summarizes the future of the H-1B program.  There has been lots of discussions and debates on the subject, but so far no concrete reform plans have been proposed. The President himself appears to have changed positions on this very issue several times. Considering the age of the program, some sort of reform or makeover is due.  The current form of the H-1B Program was codified in the Immigration Reform and Control Act of 1990 and signed into law by President George H.W. Bush.  It was mostly created to bring in hi-tech workers during the dot-com era.  According to a recent study by Goldman Sachs, an estimated 900K to 1 million persons are working in the U.S. on H-1B visas.

During the Presidential campaign, President Trump had been critical of the visa program.  However, he also stated that he was okay with it as long as foreign workers come in legally. As a businessman, he also used the H-1B program to hire foreign workers.  At times he seemed to agree with the critics of the program that H-1B workers are "cheap labors" who take away jobs from American workers. Other times, he said that if certain U.S. companies need skilled workers, they should be allowed to bring them from other countries.  He also commented that it would not be wise to send foreign students who were educated in the U.S. home. 

Although so far the Trump Administration has not presented any plans to change the H-1B program, the White House Press Secretary recently stated that they were reviewing all visa programs as part of their ongoing efforts to ensure national security. In fact, USCIS recently suspended the use of premium processing services (or expedited services) for all H-1B petitions starting April 3.  Such a move suggests that the Administration needs time to evaluate the visa program, which is actually a good idea given the complexity of the current H-1B regulation.  Emotional arguments should be put aside and focus should be placed on the facts and data.

The fact is that U.S. employers must agree to pay H-1B workers the market wages according to the regulation. And they must pay a minimum of about $1700 filing fee to petition an H-1B worker ($750 additional if they have more than 25 employees), not to mention legal fees and other administrative costs.  For employers who have 50 or more employees and of which more than 50% are in H-1B or L status, they must pay an additional fee $4000 when filing for an employee for the first time. They must also agree to pay for the return transportation if an H-1B worker's employment is terminated prematurely, and to allow government officials to visit the job site at will. Would employers be willing to pay all these fees and go through all this trouble of hiring an H-1B worker if they could find a qualified, ready, able and willing U.S. worker?

It is also a fact that America as a whole is falling behind in STEM education, according to various reports and studies.  While we are trying to catch up in STEM education, our employers especially those in technology fields cannot afford to wait.  Just ask Bill Gates and Mark Zuckerburg. To them, the H-1B program is not a luxury but a necessity. It is also no secret that American companies prefer consultants over salaried employees in recent years for various reasons - costs control, flexibility, expertise, etc.  Consequently, to meet this demand many H-1B professionals play the role of consultants in U.S. companies.

Yes there are incidences where employers do abuse the visa program at the expense of American workers, but these employers are going to such things regardless of the program.  Are we going to chop down the tree just because of a few bad apples?  Any study or review of the program should be based on facts and data rather than political motivation.


Sunday, March 26, 2017

Visa Bulletin Predictions: April 2017 and Onward




Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim would provide his insights on the trends, movements, predictions, etc., regarding the usage of immigrant visa numbers.  The following are the highlights of his insights following the publication of the April 2017 Visa Bulletin:  

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1) EB-1 India and China: Per country limits of 2,800 visas has been reached for both, with EB-1 India using more than 9,000 numbers, and EB-1 China using more than 4,500 numbers. Once the spillover visa numbers from other categories have been used up, Final Action cut-off date "will likely be imposed for both countries at some point this summer."

2) EB-3 China:   EB-3 China is 17 months ahead of EB-2 China as of April.  Charlie expects "downgrading from EB-2" will bring these two categories closer in cutoff dates - which historically usually happens in May.  However, thus far, demand for EB-3 China visa numbers is light.  Still, Charlie is reluctant to advance its cutoff date aggressively because of the Downgrade Phenomenon. 

3) EB-3 Worldwide:  This category is not expected to become current in the near future, but "will likely advance about one month at a time, staying about two months away from being current."

4) EB-3 Philippines:  The Final Action Date advances six months to September 15, 2012 for April.

5) EB-5 China. EB-5 China advances to May 22, 2014 in April. Advancement will likely to continue if the Regional Center pilot program is reauthorized by Congress before the end of April.

6) EB-4 El Salvador, Guatemala, Honduras and Mexico: "Number usage in the EB-4 categories for El Salvador, Guatemala, Honduras and Mexico continues to approach the per-country annual limits. While Charlie anticipates significant demand in these categories based on information provided by USCIS, there is still a possibility that their Final Action Dates may advance at some point this summer."

7) Family-Based Preference Categories:
-  All FB-1 categories advance more than four months in April to October 15, 2010, except Mexico and Philippines.
-  FB-1, FB-2 and FB-3 are expected to continue their advancement because fewer applicants are becoming "documentarily qualified."
-   FB-4's advancement in April was "sufficient to meet Charlie's target for this category for the next two to three months." No further advancement of FB-4 Worldwide is expected until July.

8) Question: Why is the Final Action Date for EB-3 China later (August 15, 2014) than the Filing Date for EB-3 China (May 1, 2014)? 
Charlie explained that there was a retrogression of the Filing Date for EB-3 China because he was concerned that the number of eligible applicants for FY 2017 would likely exceed than that of FY 2016. Further,  In addition, the above-mentioned EB-2 to EB-3 Downgrade Phenomenon may also cause demand to increase for this category later on.  Hence, he is putting a hold on the Filing Date. 

(AILA Doc. No. 14071401, March 17, 2017)

Monday, March 13, 2017

April 2017 Visa Bulletin: Family 1st Advances 4 1/2 Months / EB-3 China Advances 5 Months




In the April 2017 Visa Bulletin, EB-3 China advances 5 months to August 15, 2014 while EB-2 China moves forward by 1 month to January 15, 2013.  EB-3 China is now 19 months ahead of EB-2 China, which means that "downgrading" continues to be a good way to shorten one's waiting time for an immigrant visa.

EB-2 India advances 3 weeks while EB-3 India only tiptoed forward by 2 days!

EB-1 continues to be current for all categories this month. 

Many family visa categories advance moderately.  Family First (F-1) advances significantly by 4 1/2 months for many countries including India, China and Other Countries.  F-1 Philippines moves forward by one month.  Most F-2 categories including China, India, Philippines and Other Countries also moves forward by 1 month to June 8, 2015.  


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

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
10/15/2010
10/15/2010
10/15/2010
05/22/1995
01/15/2006
FD
01/01/2011
01/01/2011
01/01/2011
06/01/1995
05/01/2006
F2A
AD
06/08/2015
06/08/2015
06/08/2015
05/22/2015
06/08/2015
FD
11/22/2015
11/22/2015
11/22/2015
11/22/2015
11/22/2015
F2B
AD
09/15/2010
09/15/2010
09/15/2010
12/22/1995
06/15/2006
FD
02/08/2011
02/08/2011
02/08/2011
06/01/1996
02/01/2007
F3
AD
05/15/2005
05/15/2005
05/15/2005
01/08/1995
09/15/1994
FD
08/22/2005
08/22/2005
08/22/2005
05/01/1995
01/01/1995
F4
AD
05/08/2004
05/08/2004
08/15/2003
06/15/1997
09/08/1993
FD
07/01/2004
07/01/2004
05/01/2004
12/01/1997
04/01/1994

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
El Salvador Guatemala Honduras
India
Mexico
Philippines
EB1
AD
C
C
C
C
C
C
FD
C
C
N/A
C
C
C
EB2
AD
C
12/15/2012
C
06/22/2008
C
C
FD
C
03/01/2013
N/A
04/22/2009
C
C
EB3
AD
02/15/2017
08/15/2014
02/15/2017
03/24/2005
02/15/2017
09/15/2012
FD
C
05/01/2014
N/A
07/01/2005
C
09/01/2013
Other Workers
AD
02/15/2017
03/01/2006
02/15/2017
03/24/2005
02/15/2017
12/15/2012
FD
C
08/01/2009
N/A
07/01/2005
C
09/01/2013
EB4
AD
C
C
07/15/2015
C  
07/15/2015
C
FD
C
C
N/A
C
C
C
EB5
AD
C
05/22/2014
C
C
C
C
FD
C
06/15/2014
N/A
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)

Monday, March 6, 2017

Changes to Family Immigration Form I-130

The USCIS increased the filing fees for many immigration petitions on December 26, 2016.  At the same time, the agency also published new editions of many immigration forms including some commonly used forms such as the N-400 Application for Naturalization, the I-129 Petition for Nonimmigrant Workers, and also the I-130 Petition for Alien Relative.  Regarding the I-130 Petition for Alien Relative, a new I-130A form has also been implemented.

Under the current immigration policy, a U.S. citizen or a lawful permanent resident may file petitions for their family members to immigrate to the United States.  For a U.S. citizen, he may petition for his parents, spouse, children (married or unmarried), and also his brothers and sisters for U.S. immigration.  For a lawful permanent resident, she may only petition for her spouse, minor children, and unmarried adult sons and daughters to come to the U.S.  President Trump announced his plans to change the current immigration system in his recent speech to Congress.  However, the current policy will continue to be effective unless and until his proposal is adopted by Congress and signed into law. 

The current edition of the Form I-130 is 02/27/17.  It has been revised to capture also some biographical information of the petitioner including employment history, residential addresses, etc. 

Starting 04/28/17, USCIS will only accept the 02/27/17 edition of the Form I-130. Until then, the 12/23/16 edition will still be accepted by USCIS.   The filing fee has been increased to $535 as of 12/26/17 and must be paid now in all I-130 petitions.  

Another major change with the I-130 petition is the implementation of the Form I-130A Supplemental Information for Spouse Beneficiary. For U.S. petitioners who are using the 02/27/17 edition of Form I-130 to file for their spouses, they must also submit a Form I-130A.  

The Form I-130A is a supplemental form that captures the biographical information of the spouse beneficiary such as his employment history, parents' information, residential addresses, etc.  If the spouse beneficiary resides in overseas countries, he must still complete the form but doesn't have to sign it.

For U.S. petitioners who are using the 12/23/16 edition of Form I-130 to file for their spouses, they must still submit two G-325A Biographic Information forms, one for the petitioner and one for the spouse.  The new I-130 and I-130A forms are intended to replace the current G-325A forms required for I-130 spousal petitions.  It should be noted that the new Form I-130A is only needed when one is filing for his/her spouse.  It is not required for other types of family petitions.




Friday, March 3, 2017

Premium Processing Suspended for H-1B for 6 Months

USCIS just announced today that premium processing services for all H-1B petitions will be suspected for 6 months starting April 3, 2017. This will cover all H-1B CAP cases for FY 2018.  

Monday, February 27, 2017

Immigrants Rush to Apply for Naturalization Under the New Immigration Policies

The enforcement-centric approach of the Trump Administration towards immigration has shaken the immigrant communities in recent months.

Many immigrant advocates and community-based organizations recommend that green card holders should apply for U.S. citizenship as soon as they become eligible.  Obtaining the U.S. citizenship is the best protection against any changes in immigration policy.  In fact, about one million applications for naturalization were filed during FY 2016, and the number of applications has continued to increase after the election.

To apply for U.S. citizenship through naturalization, one must submit the Form N-400 with the U.S. Citizenship and Immigration Services.  To be eligible for naturalization, an applicant must:

  • have been a lawful permanent resident for at least five years (three years for spouses of U.S. citizens, and other exceptions for U.S. military personnel);
  • have lived in the U.S. continuously for at least five years (and have not been absent for more than one year);
  • have been physically present in the U.S. for at least half of the five years at the time of filing; 
  • be at least 18 years old;
  • have "good moral character" for at least five years (sometimes longer);
  • be able to speak, read, and write in simple English (exceptions for some long-term residents over a certain age, and persons with qualified medical disabilities);
  • be able to demonstrate knowledge of U.S. history and government (exceptions for persons with qualified medical disabilities); and
  • adhere to the principles of the U.S. Constitution and be willing to take the Oath of Allegiance to the United States (with some modifications and exceptions).

Further, applicant must have lived in the district for at least three months before the naturalization application can be file within that district.

Because of the surge in the application numbers, the processing time of the N-400 applications is getting longer.  For example, in New Jersey, based on our experience, it took at least 7 to 8 months for the naturalization examination to be scheduled for cases submitted in 2016.   Processing time will likely to be longer in 2017.  Interested applicants should submit their applications as soon as possible.

One final caveat:  There are many benefits of becoming a U.S. citizen.  However, naturalization is also the final step of the immigration process, and everything in the applicant's immigration history is scrutinized carefully during the application process.  In fact, an applicant could be placed in deportation proceedings on account of a prior offense or incident. For individuals with special issues and circumstances, they should consult an experienced immigration attorney for an evaluation before submitting their naturalization applications. 

Saturday, February 25, 2017

Visa Bulletin Predictions: March 2017 and Onward

Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim would provide his insights on the trends, movements, predictions, etc., regarding the usage of immigrant visa numbers.  The following are the highlights of his insights following the publication of the March 2017 Visa Bulletin:  

1) EB-1 Categories:  EB-1 Worldwide is expected to remain current for the rest of FY2017.  For EB-1 China and India, a Final Action cutoff date is expected to imposed in August for EB-1 China and India.

2) EB-2 / EB-3 China:  Charlie is not able to advance EB-2 significantly due to visa demands.  as of March 2017, EB-3 is 15 months ahead of EB-2.  Charlie expects this gap will continue to widen unless and until demand for EB-3 increases due to downgrades from EB-2 or otherwise.  Charlie comments that demand from downgrades did not materialize until April of May in prior years.  Charlie also has kept a small reserve of visa numbers to alleviate the impact from downgrades.


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3) EB-2 India:  This category's cutoff date remains at April 15, 2008, but Charlie is confident that it will advance to June 1, 2008 later on due to lower demand from EB-3 upgrades for the past 1.5 months.  Charlie expects this category to advance "at a pace of up to one month".  However, Charlie cautions that should demand from EB-3 upgrades increases, then, movement in EB-2 India may slow down or even stop in the future.

4) EB-3 India:  Charlie expects very limited movement in the coming months for this category.

5) EB-3 Worldwide: Charlie expects EB-3 Worldwide will continue to advance for another three months later this year due to lower demand for visa numbers.

6) EB-3 Philippines: As predicted before, EB-3 Philippines advances five months to March 15, 2012 in March. Charlie expects additional future advancement of up to six months.   This category's advancement is attributable to lower demand for EB-1 and EB-2 Philippines, resulting in spit-over numbers for the EB-3 category.

7) EB-5 China: The EB-5 China categories advances 15 days to May 1, 2014 in March. This category will likely continue to advance at a rate of 1 to 2 weeks with no movement possible in intermittent months.

8) EB-4 El Salvador, Guatemala, Honduras, and Mexico:  "Number usage in the EB-4 categories for El Salvador, Guatemala, Honduras and Mexico is fast approaching the annual per-country limits. There is sufficient potential demand (i.e., pending I-485s) from applicants from these countries with priority dates earlier than the Final Action Date to deplete the pool of numbers for FY 2017. Whether the movement referenced in the March Visa Bulletin occurs will depend on when and if this demand materializes."

9) Family-Based Preference Categories: " Aggressive forward movement in some of the family-based preference categories may be observed in April, such as FB-1 where demand has been significantly lower than the level required to deplete the available numbers targeted each month. The significant movement in the March FB-1 Final Action Date is an attempt to generate more demand. Charlie underscored that his predictions for the family-based categories could be somewhat conservative. Thus, these categories can be expected to advance at the rate noted in the March Bulletin, if not faster."

(Source: AILA Doc. No. 14071401)

March 2017 Visa Bulletin: EB-3 China and Philippines Advance 5+ Months



In the March 2017 Visa Bulletin, EB-2 India advances 1.5 months while EB-3 India remains unchanged. EB-2 China moves forward by one month while EB-3 China jumps forward by 5.5 months!  


EB-3 China remains significantly ahead of EB-2 China.  Therefore, downgrading of the I-140 remains an option for Chinese-born applicants in order to expedite their green card application process.


EB-3 Philippines also leaps forward by 5 months.


Family First Preference advances 3 months for China, India and Other Countries. Other family categories have smaller advancements.   Please see the charts below for details.



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

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
06/01/2010
06/01/2010
06/01/2010
05/15/1995
12/15/2005
FD
01/01/2011
01/01/2011
01/01/2011
06/01/1995
05/01/2006
F2A
AD
05/08/2015
05/08/2015
05/08/2015
04/22/2015
05/08/2015
FD
11/22/2015
11/22/2015
11/22/2015
11/22/2015
11/22/2015
F2B
AD
08/15/2010
08/15/2010
08/15/2010
11/22/1995
05/01/2006
FD
02/08/2011
02/08/2011
02/08/2011
06/01/1996
02/01/2007
F3
AD
04/22/2005
04/22/2005
04/22/2005
12/22/1994
09/08/1994
FD
08/22/2005
08/22/2005
08/22/2005
05/01/1995
01/01/1995
F4
AD
02/22/2004
02/22/2004
07/22/2003
06/01/1997
08/01/1993
FD
07/01/2004
07/01/2004
05/01/2004
12/01/1997
04/01/1994

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
El Salvador Guatemala Honduras
India
Mexico
Philippines
EB1
AD
C
C
C
C
C
C
FD
C
C
N/A
C
C
C
EB2
AD
C
12/15/2012
C
06/01/2008
C
C
FD
C
03/01/2013
N/A
04/22/2009
C
C
EB3
AD
12/01/2016
03/15/2014
12/01/2016
03/22/2005
12/01/2016
03/15/2012
FD
C
05/01/2014
N/A
07/01/2005
C
09/01/2013
Other Workers
AD
12/01/2016
02/01/2006
12/01/2016
03/22/2005
12/01/2016
03/15/2012
FD
C
08/01/2009
N/A
07/01/2005
C
09/01/2013
EB4
AD
C
C
07/15/2015
C
07/15/2015
C
FD
C
C
N/A
C
C
C
EB5
AD
C
05/01/2014
C
C
C
C
FD
C
06/15/2014
N/A
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)