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Surprise! The July Visa Bulletin

The Department of State has released its July Visa Bulletin, with almost no surprises… almost.

What Is the Visa Bulletin?

The Visa Bulletin is released each month (usually a few weeks in advance) and establishes which foreign nationals will become eligible to apply for U.S. permanent residence (green card) during that month, depending on three key factors – 1) their priority date; 2) which of the family-based or employment-based preference categories they are eligible for; and 3) their country of birth (with nationals of China, India, Mexico and The Philippines having a much slower path than other country nationals due to their higher demand for US immigration).

To explain briefly, there are five employment-based preference categories for green cards, with 1st preference being for extraordinary ability, outstanding professors/ researchers, and multinational managers/executives; 2nd preference for “national interest waiver” and advanced degree holders (e.g. Ph.D., Masters); and 3rd preference for professionals with a Bachelor’s degree and other eligible workers.

For family-based green cards, the situation is a little more complex but essentially immediate relatives (such as spouses of U.S. citizens), always have visa numbers available.  f. Other relatives then fall into one of the family-based preference categories: 1st preference being for unmarried sons and daughters of U.S. citizens; 2nd preference being for spouses and children, and unmarried sons and daughters of U.S. permanent residents; 3rd preference being for the married sons and daughters of U.S. citizens; and 4th preference being for the brothers and sisters of adult U.S. citizens.

The priority date is the date of filing an Immigrant Visa Petition or labor certification (when employment-based) or Alien Relative Petition (when family-based)

What News Is in the July Visa Bulletin?

Following the release of each new Visa Bulletin, the American Immigration Lawyers Association discusses with the Department of State’s Chief of the Visa Control and Reporting Division, Mr. Charlie Oppenheimer, to assess movement in the preference categories, and to discuss his thoughts and future projections.

For July, there is one significant change in the employment-based preference categories. As we indicated in our May 13, 2015 blog, the 3rd employment preference category for nationals of The Philippines retrogressed significantly. As of July, green cards will become unavailable completely in that category (and for other workers). Mr. Oppenheimer confirmed that this unavailability stems from a sudden demand for 2000 visa numbers in just a 2 month period in that category.

Mr. Oppenheimer warned that they are seeing a similar trend in demand worldwide in the 2nd employment preference category, but that visa numbers are expected to remain immediately available for foreign nationals in both the 1st and 2nd employment preference categories (other than nationals of China, India, Mexico and The Philippines) for the foreseeable future. He also expects continued progress in the 2nd employment preference category for Chinese nationals.  He does not expect any progress for the 2nd employment preference category for Indians until October 2015.

The ship is a little more steady for family-based visa numbers. All preference categories are advancing steadily due to more reasonable green card demand.  Forward movement is expected to continue in priority dates across all preference categories, including in the 4th family-based preference category, although for Mexican nationals in that category, the ground lost in June is not expected to be made up until at least December.

Employment-Based Visa Modernization on the Agenda

The Department of Homeland Security has added the subject of employment-based visa modernization to its regulatory agenda, sparking renewed hope for U.S. green card applicants. While the addition of an item to the regulatory agenda does not guarantee a rule change, it clearly indicates that the issue is on the radar screen.

The specific proposal on the agenda is to modernize the immigrant visa system with respect to the adjustment of status process and employment-based immigration by allowing certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarifying the meaning of portable work authorization, and removing unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.

Currently, many beneficiaries of approved Form I-140 petitions face significant delays before they are able to apply to adjust status to U.S. permanent resident (green card holder). Primarily, the delays are experienced by nationals of China, India, Mexico, and The Philippines, who represent the highest demand for green cards. While waiting patiently to become eligible to apply for U.S. permanent residence, these workers are significantly restricted in their ability to change the circumstances of their employment, including their employer, job location, and their job itself.

This addition to the regulatory agenda follows President Obama’s release, last November, of his Memorandum for Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century. This memorandum recognized the enormous contribution of immigrants to the U.S., pointing out that immigrants represent the majority of this country’s Ph.Ds in Mathematics, Computer Science, and Engineering, and that more than a quarter of all U.S.-based Nobel Laureates in the past 50 years have been foreign-born. President Obama called for recommendations to immigrant (and non-immigrant) visa processing with a focus on reforms that, inter alia, reduce government costs, improve services for applicants, and reduce burdens on employers, and that facilitate the use all immigrant visa numbers consistent with demand.

Please contact our office directly if you would like additional information with respect to employment-based immigrant visa petitions, including how to best preserve your ability to adjust status to U.S. permanent resident when you become eligible to do so.

J-1 Visa Host Organizations: Be Prepared!

Recently, the U.S. Department of State (DOS) announced that it had begun conducting visits to the host organizations of J-1 visa interns and trainees.

The J-1 visa program is designed to provide opportunities to international candidates who are looking to travel and gain experience in the U.S. across any one of a number of fields.  The exchange of culture and learning are the cornerstones of the program.

Interns and trainees primarily come to the U.S. to receive training and insight in U.S business practices in their chosen occupational field. Host organizations are responsible for ensuring that participants adhere to their approved training/internship placement plan and that they gain the desired level of skill, knowledge and cultural exposure. Moreover, host organizations are required to have sufficient resources, supervision, and equipment to not only facilitate these goals, but to ensure the safety and well-being of participants.

Without advance notice, the government is now visiting some host organizations/companies to verify that it is adhering to the training program described in the J-1 application.  This increased government oversight underscores the importance of a well-prepared application for J-1 interns and trainees.  If you would like further information in relation to the J-1 visa or programs, or if you have any concerns about possible site visits as a host, feel free to contact our office.

Nepal Relief Efforts May Include Immigration Benefits

USCIS has announced several immigration relief measures that may be available to Nepali nationals affected by the recent devastating earthquakes.

On April 25, 2015, a magnitude 7.8 earthquake struck Nepal. This was followed by a 6.7 magnitude aftershock on April 26, 2015 and another 7.3 magnitude earthquake and series of aftershocks on May 12, 2015. More than 8,000 people have been killed and countless more remain missing, injured, and without food and shelter.

While broader relief efforts are in full swing, the U.S. Embassy in Kathmandu, Nepal resumed normal operations on May 13, 2015. Those foreign nationals who had IV/DV appointments scheduled during the week from April 27 to May 1 will be contacted with a new appointment date. Asylum and refugee family inquiries can be addressed to: consktm@state.gov. All other general inquiries can be made by phoning 1-800-0910114 (703-988-3428 if calling from the U.S.).

Stateside, USCIS has also released measures that may assist eligible Nepali nationals during these difficult times, including:
• Accepting a change or extension of nonimmigrant status for an individual currently in the U.S., even if the request is filed after the authorized period of admission has expired;
• A grant of re-parole;
• Expedited processing of advance parole requests;
• Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization applications, where appropriate;
• Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
• Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

USCIS has also issued a statement regarding the adoption of Nepali children by U.S. citizens and corresponding immigration benefits. In the event that adoption is being considered by a U.S. citizen, it is important to note that an intercountry adoption (or proposed intercountry adoption) does not, of itself, make the child a U.S. citizen or immediately eligible to immigrate to the U.S.  A child may immigrate to the United States as a result of an adoption if USCIS is satisfied that the child qualifies as an “orphan” under the immigration laws of the U.S., and that the adoptive parents are capable of providing proper care. The proper authorities in the child’s country of origin must also determine whether the child can be legally adopted under the country’s laws; therefore, the government of Nepal will need to be on board, and they will no doubt want to be completely satisfied that all efforts were made to reunite any child with their parents first. Accordingly, as is the case across the U.S. immigration spectrum, each case will be determined on its merits.

If any Nepali nationals require U.S. immigration assistance, please contact our office.

Green Card Wait Just Got a Whole Lot Longer for Philippines Nationals

As the May 2015 Visa Bulletin reveals, the 3rd employment-based preference category (EB-3) for nationals of The Philippines has just retrogressed significantly. In April 2015, Philippines nationals with priority dates of 1 October 2014 or earlier could file their green card applications. As of May 2015, the cut-off date fell way back to 1 July 2007.

Overview of Immigrant Visa Numbers

To explain briefly how this works, there are five employment-based preference categories for green cards. The 1st employment-based preference category (EB-1) is reserved for foreign nationals of extraordinary ability, outstanding professors and researchers, and multinational managers or executives. The 2nd employment-based preference category (EB-2) is for foreign nationals of exceptional ability, those who qualify under the “national interest waiver”, and those with advanced degrees (e.g. Ph.D., Masters) or its equivalent (Bachelors plus at least 5 years of progressively responsible work experience in the field). EB-3 is reserved for those foreign nationals who are skilled workers, “other” unskilled workers, or professionals (i.e. possessing a U.S. or foreign equivalent Bachelor’s degree in the field of the proposed role).

The EB-3 preference category first requires the employers of foreign nationals to test the U.S. labor market in the employee’s field and satisfy the U.S. Department of Labor (DOL) that there are no qualified U.S. workers available to fill the proposed role. The foreign national’s priority date is then determined by the date the employer filed that labor certification application with the DOL.

In addition, there is a 7% cap placed on green card allocations each year for each foreign country. The effect of this cap is that foreign nationals who are born in high U.S. immigration countries like China, India, Mexico, and The Philippines often have to wait a long time until they are allowed to file their green card applications, depending on the degree to which they have exhausted their annual green card allocations. Each month the U.S. Department of State releases a visa bulletin that reflects the current state of play.

Philippines Nationals

So, as mentioned above, in April 2015 those Philippines-born foreign nationals with a priority date of October 1, 2014 or earlier could file their green card applications. However, in May 2015, the U.S. Department of State pushed the cut-off date far back to July 1, 2007.

The practical effect of this retrogression is that those Philippines-born nationals with pending green card applications but EB-3 priority dates after 1 July 2007 will likely have another long wait before their green card applications are processed. The Nebraska Service Center, which processes the vast majority of green card applications, has stated that cases are generally processed on a first-in, first-out basis, and that it will make every effort to review all adjudication-ready employment-based green card applications each month. However, they have indicated that unless an EB-3 Philippines case is approvable based on the May cut-off date (i.e. a priority date of July 1, 2007 or earlier), the case will be placed on hold until the priority date becomes current again.

There are rumblings that the long-stalled comprehensive immigration reform legislation may include changes to the employment-preference category system and the country-specific allocation cap, but in the meantime, those affected Philippines nationals waiting anxiously for better news in future Department of State visa bulletins should contact our law firm to discuss the possibility of alternative strategies to obtaining U.S. permanent residence.