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Prepare for H-1B Filing Now

The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.

Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.

With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.

For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.

It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.

RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.

Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.

H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.

In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.

If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.

EB-3 Cut-off Dates Advance in December

The December 2013 Visa Bulletin shows that the worldwide employment-based third preference (EB-3) cut-off date will advance by one year from October 1, 2010 in November to October 1, 2011. The Philippines third preference cut-off date will move by three weeks to January 8, 2007.

India’s employment-based second preference will retrogress from June 15, 2008 to November 15, 2004 while its third preference will move back from September 23, 2003 to September 1, 2003. This is the result of the dramatic increase in applicant’s demand for visa numbers in the past few months.

The employment-based second preference (EB-2) will remain current for all countries except China and India. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – November 15, 2006; F-2A – September 8, 2013; F-2B – May 1, 2006; F-3 – March 8, 2003 and F-4 – September 8, 2001.

The Philippines cut-off dates are: F-1 – July 1, 2001; F-2A – September 8, 2013; F-2B – March 22, 2003; F-3 – January 22, 1993 and F-4 – June 1, 1990.

Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The family-based 1st preference category (F-1) refers to unmarried sons and daughters of U.S. citizens, while the F-2A preference refers to spouses and children (less than 21 years old) of permanent residents.

The F-2B preference category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents. The F-3 preference refers to married sons and daughters of U.S. citizens. The F-4 preference pertains to brothers and sisters of adult U.S. citizens.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification properly filed on or before April 30, 2001. If the visa petition or labor certification was filed after January 14, 1998, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

Filing EB-2 Now Before Visa Caps Change

The Fairness for High-Skilled Immigrants Act overwhelmingly passed by the House of Representatives on November 29 has been blocked at the Senate by Sen. Chuck Grassley (R-Iowa), who has put a hold on the bill for reasons he has not so far clearly explained.

The bill seeks to alter per-country visa caps and shorten the waiting time for employment-based immigrant visas, particularly in the third-preference (EB-3) and second-preference (EB-2) categories for Indian and Chinese nationals,

But it does so at the expense of other countries such as the Philippines. In the event that the bill gets passed by the Senate and signed by Pres. Obama, it would result in longer waiting times for nationals of other countries.

One way to avoid the long wait is by immediately filing for the EB-2 category, where there is a yearly allocation of 40,000 visas.

Right now, for nationals of countries other than India and China, visa numbers are immediately available under the EB-2 category, while there is at least a six-year wait for those in the EB-3 category. If the bill becomes law, there would eventually be a visa backlog under EB-2 while that under EB-3 would worsen.

EB-2 has two subcategories: foreign nationals of “exceptional ability in the sciences, arts or business, and advanced degree professionals.

The advanced degree requirement is met if the beneficiary is a member of the professions holding an advanced degree or its equivalent, and the position requires at a minimum an advanced degree. Professionals that may apply for EB-2 include nurses, physical therapists, engineers, teachers and accountants.

The beneficiary must have a U.S. master’s degree or its foreign equivalent degree. If the beneficiary does not have a master’s degree, EB-2 is still appropriate if the beneficiary has a bachelor’s degree plus five years of “progressive experience” in the profession. In the latter case, the USCIS deems the combination as equivalent to a master’s degree.

For purposes of the equivalency, the employment experience must be one that “progresses, moves forward, and advances toward increasingly complex and responsible duties demonstrating advancing levels of responsibility and knowledge in the specialty.”

Exceptional ability workers, on the other hand, must show a degree of expertise that is “significantly above the ordinary”. This can be established through any three of the following: degree relating to an area of exceptional ability; employment letters showing at least 10 years of experience; having a professional license or certification; membership in a professional association; evidence that the alien commanded a high salary which demonstrates exceptional ability; and recognition of achievements and significant contribution to the industry or field by peers, government entities, and professional or business organizations.

A labor certification is required before applying for an EB-2 visa and this adds anywhere from several months to more than one year to the immigrant process.

Labor certification is not required, however, if the position is among those listed in Schedule A, such as nurses and physical therapists, as well as some exceptional ability aliens, including college and university teachers.

Another way to be exempt from the labor certification requirement is through the “national interest waiver”. The alien requesting the waiver must show that the employment is in an area of substantial intrinsic merit, the benefit of his employment is national in scope, and the national benefit outweighs the national interest in requiring labor certification.

Since the above-mentioned bill will likely become law, workers from countries other than India and China should consider all available options to try to avoid or mitigate the unfortunate effect of the law on them.

Bill Eases Green Card Wait for Some Countries

There is both good news and bad news in the immigration bill that was overwhelmingly passed by the House of Representatives last November 29.

Because the bill seeks to eliminate per-country quotas for the employment-based categories and increase quotas for family-based applicants, but without adding new visas, a few countries will have shorter waiting times for a green card while other countries will see an increase in visa backlogs.

The bill, called the Fairness for High-Skilled Immigrants Act, was sponsored by Republican Congressman Jason Chaffetz of Utah along with known immigration hardliner Rep. Lamar Smith of Texas. It is on its way to the U.S. Senate and, once passed, President Obama is expected to sign it into law.

Current law places an annual visa cap of 140,000 for employment-based categories and 226,000 for family-based categories, and only 7% of that total number can be allocated to nationals of each country.

The bill will benefit employment-based applicants from India and China. Under the EB-3 category, the December 2011 cut-off dates are September 8, 2004 for China (April 22, 2003 for EB-3 Other Workers) and August 1, 2002 for India (July 22, 2002 for EB-3 Other Workers). For the EB-2 category, the cut-off date is March 15, 2008 for both countries. Their cut-off dates will significantly advance if the bill becomes law.

Since the bill does not create new visas, retrogression will worsen for other countries. The Philippines and the rest of the world will experience further retrogression in the EB-3 category, where the cut-off currently is January 15, 2006 (January 1, 2006 for Other Workers).

And although visa numbers are currently available to all countries other than India and China in the EB-2 category, their nationals would have to wait longer for a green card as a result of the bill.

By 2015, there would definitely be backlogs for all countries in both employment-based categories because under the bill there will only be one waiting line, and one cut-off date, for each category for all countries.

On the other hand, Filipinos and Mexicans stand to benefit from the changes in the family-based preferences. The 7% per-country cap will be raised to 15%, which could result in further retrogression for other countries. As more visas become available, the wait for a green card becomes shorter for many Filipino and Mexican families.

The need to attract talent and maintain competitiveness is the main reason behind the bill. Businesses that hire highly educated and skilled workers, particularly in science and technology, have been asking the government to ease the wait for employment-based green cards.

A significant number of employer-sponsored immigrants come from China and India but because of the annual cap and per-country limits their visa backlogs are larger. For example, according to a study an Indian professional sponsored for an EB-3 visa today would actually have to wait 70 years to get a green card because of the sheer number of visa applicants from India.

Not surprisingly, critics of the bill say that fairness to highly-skilled workers from China and India is unfairness to highly-skilled workers from other countries. By replacing one backlog with another, the bill is perceived to be favoring Chinese and Indian nationals at the expense of nationals of other countries.

It remains to be seen if Congress will at least make more visas available instead of just reallocating them. The real solution is comprehensive immigration reform but, given the current political climate, it seems unrealistic to expect one to be passed in the near future.

Bills Introduced to Relieve Nurse Shortage

Two bills have been introduced recently in the House of Representatives aimed at relieving the nurse shortage in the United States.

HR 1929, authored by Rep. James Sensenbrenner (R-WI), would allow for 20,000 employment-based immigrant visas annually to be issued to Registered Nurses. Family members accompanying or following to join them would also get immigrant visas immediately but these would not be counted against the 20,000 quota.

The bill also provides a process for reviewing and acting upon immigrant petitions not later than 30 days after the date of the filing.

This long overdue measure would alleviate the visa retrogression affecting nurses with pending I-140 immigrant visa petitions filed under the EB-3 category. As of the present, the EB-3 category is still tremendously oversubscribed; the priority date shown in the June 2011 visa bulletin is September 15, 2005 for most countries including the Philippines. For China, India and Mexico, the priority date is much earlier.

In order to use this special visa, the petitioning employer would be required to pay an additional fee of $1,500 for each nurse, unless the petitioner’s health care facility is located in an area affected by Hurricane Katrina or in a health professional shortage area. The fees would go into an account to fund U.S. nursing programs. No additional fee shall be paid for the dependents accompanying or following to join them.

This bill known as the Emergency Nursing Supply Relief Act was introduced on May 13, 2011, by Rep. James Sensenbrenner (R-WI) who is a hardliner when it comes to legalization measures for undocumented immigrants. He has introduced similar bills in the past but they have failed to become law.

The other new bill, HR 1933, which was introduced on May 23, 2011, proposes the revival of the H-1C program which expired in December 2009. Under this program, hospitals in health professional shortage areas are allowed to file nonimmigrant H-1C petitions for Registered Nurses. There would be allowed 300 nonimmigrant visas per year, down from 500 in the last program, which are distributed among states subject to caps based on population. The authorized period of stay under an H-1C is 3 years renewable once for an additional 3 years.

Only hospitals would be allowed to sponsor H-1C nurses, and nursing homes, clinics, health care agencies and skilled nursing facilities are excluded. In the last H-1C program, 14 hospitals were approved to file under the program and most of these hospitals were located in Texas. This bill’s proponent is Texas Republican Representative Lamar Smith, another known foe of comprehensive immigration reform.

The response of immigration advocates to these legislative developments ranges from skepticism to cautious optimism. Some believe that the bills would not get enough votes and may even be killed at the subcommittee level, either by supporters of comprehensive immigration with their “all-or-nothing” approach or by immigration hardliners.

It is not easy to predict a favorable outcome for HR 1929 and HR 1933 given the lack of success of similar proposals for immigration of professionals. However, with the next elections looming in the horizon, hopefully the Congress passes either these bills addressing certain aspects of legal immigration or comprehensive immigration reform.

Changing Jobs While Adjustment Application is Pending

Concerns about backlogs in the processing of adjustment of status applications (I-485) led Congress to enact the American Competitiveness in the 21st Century Act of 2000 (AC21).

This law provides that an I-485 application based on first preference (EB-1), second preference (EB-2) or third preference (EB-3) employment-based petition (I-140) that has been filed and remain unadjudicated for 180 days or more shall remain valid even if the applicant changes jobs or employers.

The new job must be in the same or similar occupational classification as the job for which the petition was filed.

The request to change employment must be communicated by the beneficiary or his/her representative to the USCIS by submitting a letter from the new employer stating the job title and duties, the minimum requirements of the job, the date the alien began or will begin employment and the offered salary.

In determining whether the old and the new jobs are the same or similar, the USCIS will consider the description of the job duties. A difference in the wages is not a ground for denying the adjustment application as long as the discrepancy is not substantial. Geographic location of the new employment is not relevant in the determination.

The alien applicant may change or port to self employment provided the new employment is the same or similar. But the intent of the alien and the employer is a relevant factor.

The employer must have had the intent to employ the beneficiary at the time of the filing of the I-140 and I-485 and the alien must have intended to work for the employer upon his/her adjustment of status.

Multinational managers or executives may also port even to an unrelated company provided the job duties of the old and new jobs are the same or similar.

It is not required that the alien has been working for the petitioner while the I-140 and I-485 are pending. If he/she is working for the petitioner, he/she is not prohibited from leaving before the I-485 has been pending for 180 days.

Porting may be requested even if the I-140 which was concurrently filed with the I-485 is still pending. But the I-140 must have been approvable when it was filed. This means that there was a valid job offer and that the alien was eligible for the employment preference classification. The I-140 petition must be approved before portability is granted.

If the I-140 petition is withdrawn before the 180-day period, porting is not allowed. The I-140 is also not valid for porting if it is denied or revoked at any time except when the revocation is due to the withdrawal of the petitioner after the 180-day period.

But in a recent case, porting was not allowed even though the withdrawal of the I-140 petition occurred after the I-485 application was pending for more than 180 days. The applicant in this case was the beneficiary of a labor certification which became the basis for the filing and approval of the I-140 petition. Before the applicant could adjust status, the petitioner withdrew the I-140 petition and requested to substitute a new alien into the proffered position using the applicant’s original labor certification.

On the basis of the withdrawal, the USCIS automatically revoked the I-140 petition, approved the I-140 petition of the substituted alien as well as the adjustment of status. The District Director held that although the adjustment application had been pending for more than 180 days the applicant was ineligible to adjust as there was no longer a valid labor certification. This denial was affirmed by the Administrative Appeals Office.

New Report Shows A Very Long Wait for Green Card

According to a recent report released by the U.S. Department of State, the number of family-based applicants on the waiting list for immigrant visa numbers as of November 2009 was 3,369,455 while the number of employment-based applicants was 130,509.

These figures include the principal applicants or petition beneficiaries as well as their spouses and children entitled to derivative status. They do not include immediate relatives (spouse, minor unmarried children and parents of U.S. citizens) who are exempted from the numerical limitation.

Not included in the figures are applicants for adjustment of status. They also do not include those who failed to respond within a year to the visa application letter of the National Visa Center notifying them of the availability of visa numbers within a reasonable time. These cases are considered inactive.

The above figures indicate that the wait for obtaining permanent resident status is going to be long in most of the visa preferences. In some categories, the wait for applicants form the Philippines, India, China and Mexico will be decades.

U.S. immigration laws set an annual worldwide limit as well as a per county limit of immigrant visas issued. There is also a limit on each preference category. During the fiscal year 2010 which runs from October 1, 2009 through September 30, 2010, visas issued are no more than 226,000 in the family-sponsored preferences and approximately 150,000 in the employment-based preferences. The per country limit is approximately 26,260.

The top five countries with the highest number of waiting list registrants are as follows: Mexico – 1,178,761; Philippines – 482,694; China – 197,559; India – 194,954; and Vietnam – 184,692

The number of registrants under the family-based preferences (F) are broken down as follows: F-1 (unmarried sons and daughters of U.S. citizens) – 245,516; F2A (spouses and children of permanent residents) -324,864; F2B (adult sons and daughters of permanent residents) – 517,898; F3 (married sons and daughters of U.S. citizens) -553,280; and F4 (brothers and sisters of U.S. citizens) 1,727,897.

The numbers of registrants under the employment-based preferences (EB) are: EB1 (priority workers) – 3,601; EB2 (advanced degree professionals/persons of exceptional ability) – 6,296; EB3 (skilled workers) – 103, 448; EB3 (other workers) 16,311; EB4 (special immigrants) 529 and EB5 (employment creation) – 325.

Of the F1 registrants, Mexico ranks first with 63,628 followed by the Philippines with 35,789. The numbers may increase because of the automatic conversion of pending F2B into F1 upon the naturalization of the petitioner. The automatic conversion may be avoided by availing of opt-out provision under the Child Status Protection Act. Many Filipinos have taken advantage of this law by opting to remain under F-2B in order to avoid the longer wait under F1.

Mexico also ranks first in the F2A, F2B and F4 while the Philippines ranks first in the F-3 preference.

In the employment-based categories, the Philippines ranks first with 47,470 followed by India – 24,365; China – 13,649; South Korea – 7,725 and Mexico – 4,728. As mentioned above, these figures do not include the number of adjustment of status applicants. The report notes that 90% of all employment-based preference immigrants are currently being processed as adjustment of status cases at the USCIS offices.

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