Tag Archives: employment-based

March 2016 Visa Bulletin

Posted on by

March 2016 Visa Bulletin Released

EB-5 pilot program

The Visa Bulletin for March was just released by the Department of State. EB-2 India moved forward ten weeks after taking a quantum leap in the February 2016 Bulletin. EB-2 China jumped ahead by five months in comparison to last month. EB-3 China, India, and Philippines remain far behind. Many Family Based categories remain far behind currency, but the F2A category is doing very well at June 15, 2015. F2A is for Permanent Residents who file for their spouses and unmarried children under 21 years of age.

Whereas a US Citizen can file for his spouse or unmarried child under 21 years of age and consider them to be an immediate relative (meaning that an immigrant visa is immediately available and consular processing is not required abroad), a US Permanent Resident must go through consular processing abroad and wait for currency date. An approved family-based petition in the F2A category from before June 15, 2015 means that it is available for an immigrant visa. This could be a compelling reason for a Permanent Resident who is eligible for US Citizenship to become a citizen and file for her spouse or unmarried child.

December 2015 Visa Bulletin

Posted on by

DOS Releases December 2015 Visa Bulletin

The Department of State published the December 2015 Visa Bulletin yesterday. The filing dates have been a recent addition, implemented for a more efficient visa process. However, there was no movement on the filing dates. The filing action dates remained similar for the most part. The glaring exception is that the Employment Based 2 category for India jumped ahead 10 months. The Visa Bulletin is the monthly update on immigrant visa availability and has taken on even more importance in the past six weeks since the rescission of the October Visa Bulletin.

 

National Interest Waiver

Posted on by

EB-2: National Interest Waiver

The National Interest Waiver is an important method of petitioning for a Green Card through the Employment-Based 2 category, which allows for 28.6% of employment-based green cards. For the United States as a whole, it is an acknowledgement that there are many foreign individuals in various fields who are exceptional and can benefit the United States by becoming Americans. It is an attractive option for individuals of “exceptional ability” and with advanced degrees (this is a requirement). The advanced degree can be from a non-US university.

The other attractive facet of a National Interest Waiver is that an employer is not required to be the sponsor. There is no requirement of a time-consuming labor certification and no requirement that the employer be involved. In fact, a job offer is not even mandatory, which is the way much of employment immigration operates.

This can be a difficult standard to meet, especially because of the national interest requirement. There are three criteria: substantial intrinsic merit, national in scope, and serving the national interest to a substantially greater degree than a US worker with the same minimum qualifications. That means the national interest would be adversely affected if the labor certification process were required.

A profession can be considered to have substantial intrinsic merit, but the adjudicator can have a stringent view of whether the employment is “national” in scope. This can create a problem for a school teacher whose students are located in one city or for a civil engineer whose bridges are located in one state. The professions eligible for a national interest waiver are not defined by statute, so there is opportunity to argue for a wide swath of occupations. Engineers, doctors, scientific researchers,

If eligible, an application for permanent residence can be filed concurrently with the National Interest Waiver. Other options can be petitioned for simultaneously with the National Interest Waiver or while it is pending. You should consult with an immigration attorney carefully to map out prudent options that serve your needs. These can be tricky cases, but they are among our favorites.

June Visa Bulletin

Posted on by

The June Visa Bulletin

The June Visa Bulletin has been released and is updated to reflect current priority dates for Family-Based and Employment-Based immigration categories. These categories represent the ways in which individuals can obtain permanent residence (Green Cards) in the United States. The Department of State releases a new bulletin every month as a general update. The categories also explain the number and percentages allowed by preference.

Of significance and news that we covered this week, the Chinese EB-5 category is stuck at May 1, 2013 as the priority date.

The Department notes that most Family-based and Employment-based categories advanced in priority dates. However, Family-Based 4 is notorious for lagging years and years behind for every chargeability. On the employment side, EB-3 is known to lag behind for most chargeabilities and EB-2 is usually behind for China and India.

I Squared: More H-1B Visas

Posted on by

US H-1B Visa Petitions

The Immigration Innovation (I Squared) Act of 2015 is a bipartisan proposal by the US Senate to encourage the influx and retention of “high-skilled” talent and labor in the United States. The focus of the bill is the H-1B visa, which is for foreigners with a job opportunity, in a specialty profession that requires a bachelor’s degree. The other requirements are that the employer will pay the foreign employee at the prevailing wage or actual wage and that the hiring of the employee will not adversely affect the working conditions for US workers. To obtain an H-1B visa is an entire process for the employer (labor condition agreement, attestations, expenses), and although some employers fall into H-1B dependency, some of the most powerful and wealthy companies (also, small and medium-sized businesses) have clamored for H-1B visa reform for years and years as part of necessary immigration reform to keep American globally competitive. The H-1B visa can be used for a variety of professions – medicine, accountant, engineer – but it seems that its preponderance is located in computer-based professions.

 

I Squared has specific proposals that please the advocates of H-1B reforms. They are (not exclusively):

 

  • Increasing the cap of visas from 65,000 to 115,000;
  • Eliminating the 20,000 Master’s Degree or higher exempt visas;
  • Employment Authorization for H-4 spouse visa holders (H-4 visas are for dependents and the recent executive actions intimate at work authorization for H-4 holders);
  • Exempting dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap;
  • Removing the annual per-country limits for employment-based visas;
  • Instituting a grant program to promote STEM education and US worker retraining

 

An important aspect of increasing the visa cap to 115,000 is that number represents the floor on the number of visas to be issued for the fiscal year. That number can elevate to 195,000 depending on demand for that particular year.

 

Even if this bill were to become a law in short order, its provisions would not apply to the current round of H-1B applications. H-1B applications need to be sent out by March 31 for the April 1 filing date to be considered for October 1, when the fiscal year begins. As the cap is usually reached that first week in October, timing is crucial. The consistent and excessive demand for H-1B visas proves that reform in this category is necessary. Although it seems to have the appearance of bipartisan support, the legislative and political process will still have their say. Senator Orrin Hatch proposed a similar bill in 2013 (with the possibility of a 300,000 visa cap) that did not flourish into a bill. Regardless, we remain hopeful that the H-1B visa system and employment-based immigration will be improved in short order.