When Immigration Matters

FATCA Tax Reporting for US. Residents with Foreign Bank Accounts

Posted by Karen-Lee Pollak on Thu, Apr 23, 2015 @ 5:48 PM

permanent resident, H1BToday I asked my colleague and friend International Tax Attorney Richard Rubin to explain in an article the new FATCA tax reporting rules that goes into effect on June 30, 2015.  FATCA impact US citizens, Green Card holders and other US tax resident individuals who have accounts with non-US banks or financial institutions.

"Bank accounts in countries outside the US can cause headaches when owned by US taxpayers. While owning foreign accounts has always entailed a reporting headache for US taxpayers, the problem has recently heightened as a result of the FATCA legislation that is being implemented in a number of countries outside the US.   

FATCA is a set of US tax reporting rules that impact US citizens, Green Card holders and other US tax resident individuals who have accounts with non-US banks or financial institutions.

An acronym for the Foreign Account Transactions Compliance Act, FATCA requires banks and financial institutions in countries outside the US to provide the IRS with details of accounts that are owned by US taxpayers. Although the mechanism varies slightly by country, in most countries where FATCA has been implemented banks and financial institutions are required to report these details to the Revenue Authority of that country, and the Revenue Authority is required to pass this information along to the IRS.

Foreign banks are generally required to report accounts known to be owned by US citizens and Green Card holders, as well as accounts owned by anyone who is potentially US tax resident, as indicated for example, by an associated US address, US telephone number, or US person with signing power or other authority over the account. 

For those US tax residents who have duly reported their non-US bank and other accounts on their US tax returns (and on their Foreign Bank Account Reports or “FBAR’s”), FATCA has little practical significance. Conversely, FATCA is directly relevant to US tax residents who have not reported their non-US accounts.  FATCA is also potentially relevant to individuals living outside the US if they intend immigrating to the US or otherwise becoming US tax resident.

Compared to the Revenue Authorities of most other countries, the IRS tends to take non-compliance far more seriously, as is evident from the IRS penalties that are generally imposed for non-compliance, especially non-reporting of foreign bank accounts.  As a result, individuals who are required to report their non-US bank accounts, but have not done so, typically face heavy penalties and in some cases criminal prosecution when the IRS discovers their foreign accounts through FATCA reporting.

FATCA is at varying stages of implementation in a number of countries.  Take for example South Africa:  in June 2014 South Africa signed an agreement with the US (a so-called Intergovernmental Agreement or “IGA”), in terms of which South Africa undertook to implement FATCA according to a timetable. Although the dates originally agreed have been extended, in February 2015 South Africa enacted legislation giving effect to FATCA.  As things currently stand, South African banks and institutions are obliged to commence reporting client account details with effect from June 2015. While certain implementation issues and dates remain to be clarified, one thing is clear; that in time to come South African banks and institutions will routinely be rendering details of accounts held by US taxpayers.

As with most other jurisdictions, South African institutions are required to provide details of accounts known to be owned by US citizens or Green Card holders, as well as accounts owned by anyone who is potentially US tax resident, as indicated for example, by an associated US address, US telephone number, or US person with signing power or other authority over the account.  In some cases, an “in-care-of” or “hold mail” address is sufficient to require reporting, if this is the sole address on file with the South African bank. 

Individuals who obtain Green Cards are often unaware that if they spend even a short period in the US they typically become US taxpayers; and being unaware of their US taxpayer status, they generally don’t file US tax returns or FBAR’s, with the result they also fail to report their non-US accounts. In cases such as these, FATCA reporting may cause the individual’s foreign bank to render their account details to the IRS before the individual gets to file the necessary returns and make the necessary disclosures.

In most cases the headache of unreported foreign accounts can be relieved - and generally cured - by taking appropriate corrective measures.  This often includes some form of Voluntary Disclosure to the IRS, and in certain cases may include other forms of disclosure.  There are a number of categories of Voluntary Disclosure, and the various options entail different qualifying criteria as well as different consequences. In certain cases, the risk of criminal prosecution may favor a solution that focuses on reducing the chances of criminal indictment; while in others, the risk of criminal prosecution is sufficiently low allowing focus on a solution that reduces or eliminates civil penalties.

While the remedy always depends on the specific facts, one principal is almost universally true; that doing nothing about foreign unreported accounts is not a solution". 

If you have international tax questions call Richard

RUBIN LAW ASSOC. PC

International Tax Attorneys

USA - SA Tax & FATCA Advisors

 www.rubinlaw.us

www.fatcasouthafrica.com

 

Predictions for Visas-Further visa Retrogression for India?

Posted by Karen-Lee Pollak on Fri, Mar 08, 2013 @ 10:52 AM

describe the imageAs we anxiously await the April 2013 visa bulletin, I thought it would be interesting to repost AILA predictions regarding visa availability.  Take particular note of possible further visa retrogression for EB2 from India.  Cite as “AILA InfoNet Doc. No. 12012349 (posted Feb. 22, 2013)” 

On Thursday, January 31, 2013, Roberta Freedman, AILA Students & Scholars Committee member, and Mike Nowlan, Chair of the AILA Business Committee, discussed the Visa Bulletin, visa demand in the employment and family preference categories, and predictions for the remainder of FY2013 with Charlie Oppenheim of the Department of State’s Visa Office. Below are notes from that call. These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.

  • Mr. Oppenheim’s office has spent considerable time over the past several weeks looking at various proposals for immigration reform, and how they would impact backlog numbers. The office’s predictions as to how the priority dates will move for the next several months are in the March Visa Bulletin.
  • His office was concerned that the EB5 numbers for China were moving too fast, but as of late, they appear to be “liveable,” and accordingly, at this time he does not expect a cut off for China EB5, so long as usage remains at the current levels.
  • Worldwide EB5 usage is up 75% when compared with this time last year.He does not know how the relocation of EB5 adjudication from the California Service Center to USCIS Headquarters will impact the usage.
  • The India EB2 cutoff date continues to see very little forward movement due to upgrades(EB3 to EB2 while maintaining the earlier priority date). In December 2012 alone, India EB2 had 125 cases approved that were from 2003 or earlier. Even looking at the current 2004 cutoff dates, EB2 India could easily reach the annual limit. However, the fall down from EB1 could allow for more numbers to be used for EB2 India.
  • It is still unknown how many EB5 and EB1 numbers will fall down to EB2.
  • Upgrades continue to be a tough issue to manage. USCIS does not appear to be working to develop any processes or procedures to better capture upgrade EB cases, and so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.
  • Upgrades are impacting other categories as well. Worldwide EB3 had 1,100 upgrades in December 2012 alone for cases which had priority dates of 2011 or earlier. In 2007 for example, there were only 72 upgrades for the year.
  • EB1 India and China appear to have used their numbers for this year, but the rest of open EB1 numbers can “fall across” to satisfy the need from India and China for EB1, so no retrogression is expected at this time.
  • Current numbers indicate that there are approximately 42,000 India EB2 cases in line with priority dates prior to May 2010.
  • There are 12,000 India EB3 cases with priority dates before January 2004. Mr. Oppenheim’s office has very good information regarding how many India EB3 cases are lined up for the older dates, due to the 2007 retrogression. For example, there are 63 cases with a November 18, 2002 priority date. Accounting for demand in India EB3 has been pretty precise.
  • EB-2 India demand continues to be very high, and it is possible that the cutoff date may be retrogressed during this fiscal year.
  • India EB3 has 44,000 cases with priority dates before August 2007, which have been pre-adjudicated, though final approval and visa issuance has not taken place due to priority date retrogressions over the past several years.

Additional notes:

  • We asked how unused visa numbers are put back into the system to be reused in a fiscal year: Adjustment of Status cases are given numbers for cases that are current, which are retuned by the NSC or the TSC if the case cannot/will not be approved. Cases at posts overseas are given a block of numbers every month, and if the posts cannot approve the case, are sent back to Mr. Oppenheim’s office.
  • How many derivatives use immigrant visas along with the principal applicant? For 2012, 45% of the visa numbers in the queue are for the principal applicants, and 55% are for dependents. Years ago, the usage by dependents was much smaller.
  • Worldwide EB3 has 42,000 pre-adjudicated cases with priority dates before March 2007.
  • A little known fact is that unused FB cases can be used for EB cases, but due to heavy FB usage, this usually does not occur. However, for the same country, Mr. Oppenheim’s office can move low usages of FB cases into EB cases and vice versa. However, both the EB and FB total usage for any one country is still subject to the per country limit.
  • Family-based numbers are moving faster this year than in years past (in part to ensure unused FB numbers are not lost), so the movement in the FB cases are projected to move slowly in the March Visa Bulletin.

On Thursday, August 30, 2012, Roberta Freedman, AILA Students & Scholars Committee member, and Mike Nowlan, Chair of the AILA Business Committee, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and FY2013 with Charlie Oppenheim of the Department of State’s Visa Office. These are only discussions of what could happen and are not assurances or guarantees by the Visa Office, as changes in visa usage result in changes in the Visa Bulletin.

Notes from that discussion are:

  • Employment Based (EB)-1 visa usage is extremely high. August 2012 was at a near record high. The Visa Office does not know why. Is USCIS clearing out backlogs because of the new Deferred Action for Childhood Arrivals program, or is this pent up demand from 2011, or more “upgrades”? The answer is unknown. The EB-1 visa category could close in September if usage remains this high (close the 40,000). It would then go current in October. In July 2012, EB-1 usage was almost 3,000, of which roughly 1,200 had 2011 or earlier priority dates, and the rest had 2012 priority dates. The 13,000 unused EB-1 numbers that were expected in FY2012, and which would then “drop down” to EB-2, did not happen.
  • EB-2 India priority date will probably go to 2006 when the Visa Bulletin is published next month (not 2007 as previously predicted). This is due in part to the retrogression in 2012, as well as the high level of EB-1 usage. India is expected to stay in 2006 for some time. It could fall back to 2005, but that does not appear likely right now. Slow movement in this category in FY2013 is expected.
  • EB-2 China priority date will be further ahead than India, but that assessment has not been completed yet.
  • EB-2 worldwide may go current in October, or it may go to early 2012 and then current in the November Visa Bulletin – a 2 step process. Why the delay? Employment-based numbers move in a fairly predictable usage pattern (unlike family-based cases). As a result, the Visa Office prefers to have a steady usage of EB cases per month. There are expected to be many EB-2 worldwide cases pending or filed in October, and slowing the usage could help predict usage for the rest of the year. A “correction” in EB-2 worldwide towards the latter part of FY2013 could happen (in other words, potentially visa retrogression for EB-2 worldwide and no longer current).
  • EB-3 worldwide should remain as posted for the rest of September. No prediction could be given as to where it will go in the October Visa Bulletin. Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage in FY2013, which would slow the speed of EB-3 worldwide.

Other comments:

As reported previously, another problem with trying to predict the demand is that USCIS is not providing real time data on EB-3 to EB-2 “upgrades”, and the Visa Office is also seeing a significant number of EB-2 to EB-1 “upgrades.” “Upgrades” continue to be a big “wildcard,” as no one knows how many are being used per month. Mr. Oppenheim confirmed his previous comments that USCIS cannot tell him how many upgrades are filed. He would appreciate a process where USCIS notifies his office when the I-140 for the EB-2 “upgrade” is filed, so he can understand what is in the pipeline. Since the retrogression earlier this year, the Visa Office has better data on the cases pending than they did previously because cases filed with a pending adjustment of status application are pre-adjudicated, which gives his office more detail on the person’s priority date history. Retrogression is still a problem, but understanding the data is a small benefit to it.

Upgrades were initially limited to India and China. Worldwide upgrades are now occurring, with 2,900 upgrades for EB-2 worldwide in February 2012. Over 500 of those had a priority date of 2009 or earlier. The Visa Office knows it has 3,500 EB-2 worldwide cases pre-adjudicated and ready to be approved on October 1st and expects more new filings in October.

Family Based (FB) 2A cases: Usage is dropping. Outreach programs seem to increase usage. Immigrant visa waiver delays, primarily in Mexico, also slow usage. FB-2A usage is slower than it should be so the priority dates are expected to move forward at the same pace as FY2012. However, if demand continues to be low, this group may move forward more significantly in the spring of 2013.


On Tuesday, June 19, 2012, Roberta Freedman, AILA Students & Scholars Committee member, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and beyond with Charlie Oppenheim of the Visa Office. Here are notes from that discussion:

2012 and 2013 News
  • In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates for China-Mainland born and India, which are currently “unavailable,” will move to August or September 2007 (China may be slightly better). It is unlikely that the cut-off dates will move forward at all for the first two quarters of FY2013. If they do, it will only be if the Visa Office is convinced that there is insufficient demand for the rest of the year. Mr. Oppenheim’s office already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up for adjudication in October 2012, and it will take some time to get through them.
  • EB-2 worldwide will be current in October 2012.
  • If USCIS approves many pending cases during the month of June, the worldwide EB-2 category may retrogress or become unavailable for the rest of the year.
  • Why did the priority dates move ahead so far and then retrogress so drastically? USCIS encouraged Mr. Oppenheim’s office to move the categories forward so much in January, February, and March of 2012. USCIS reported that they had a lot of approved petitions but they were not receiving enough I-485s. USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted, since there already appeared to be heavy demand. In February, the demand had already increased 50%. In addition, USCIS said that they believed that adjudication of EB-1 cases would be at the same rate as last fiscal year, and this was not the case. It could be due to the fact that many EB-1 cases had very long adjudication times with USCIS. In addition, EB-5 usage has been higher this year. Unused EB-5 cases fall into EB-1, and unused EB-1 cases fall into EB-2.
  • Applicants from China and India who filed will be waiting years for adjudication of their I-485s.
  • USCIS also advised a 4-6 month timeline in the processing of I-485s, and then they processed a lot of cases in 3 months, which increased the demand as well for visa numbers this fiscal year.
  • The group of cases that were filed in July and August of 2007, when all employment-based categories were made “current,” were all completed by November 2011, and at that point, Mr. Oppenheim’s office had to depend on USCIS estimates for adjudication of cases. Mr. Oppenheim’s office had no pre-adjudicated cases that gave him a point of reference to determine what was left or pending.
  • Mr. Oppenheim’s office has been very clear that they do not like retrogression.
Going forward:

Another problem with trying to predict the demand is that no one is keeping statistics on EB-3-EB-2 “upgrades.” Upgrades continue to be a big “wildcard,” as no one knows how many are being used per year and no one is tracking it. Mr. Oppenheim confirmed his previous comments that both cases for a person remain open (so it looks like two numbers are being used) if a person is upgrading from EB-3 to EB-2, and only when the green card is approved does the duplicate file number go away. At that time, Mr. Oppenheim’s office is told by USCIS to cancel a pending EB-3 case.

Mr. Oppenheim’s office believes that there are 10,000 to 15,000 numbers used for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to approve China and India adjustments that were EB-3-EB-2 upgrades. The actual break down was 2,800 from India and 500 from China. All of these cases had priority dates before 2007, so clearly, they were upgrades. For example, 363 of the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005 priority date. In March 2012, alone, over 1,000 numbers were used for applications from the worldwide quota that had priority dates before 2010, so these were likely upgrades as well.

USCIS previously insisted that the number of upgrade cases was insignificant.

Mr. Oppenheim’s office tries to use 13,500 visas per quarter for all EB cases. This office already has more than 17,000 in line for FY2013.


On Thursday, January 19, 2012, Business committee chair Mike Nowlan and Students & Scholars committee member, Roberta Freedman, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 with Charlie Oppenheim of the Visa Office. Notes from that discussion are:

  • EB green card usage has been very slow in FY2012, so DOS is advancing the dates to see how many cases are out there. Mr. Oppenheim is relying on USCIS and their estimate. USCIS thought more would come in, but 50% their estimate have actually filed an AOS. This movement is due in large part to the clearing out of the EB-2 2007 AOS cases. Mr. Oppenheim reminds AILA that DOS cannot “see” the I-140 cases that are approved and for which adjustment of status had been requested prior to September 2010, though he can “see” cases for which consular processing is requested.
  • Mr. Oppenheim could not speculate why usage is slow/low. Economy? Foreign nationals lost jobs?
  • Low usage of EB-1 numbers is assumed again this year. A fall-down of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.
  • Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers. We cited the impact of Kazarian on USCIS filings and demand for EB-1-1 numbers, and the fact that it is difficult for an owner-beneficiary to obtain approval of EB-1-3 petitions.
  • About 34% of the total number of permanent visas have been used this year, and 45% should be used by end of February.
  • Adjustment of status through USCIS accounts for 85% to 90% of all EB green card cases.
  • The impact on number usage of upgrades (EB-3 to EB-2) is still unknown. Upgrades were the reason the priority dates advanced so slowly in in the beginning of FY2011. For upgrades, the EB-3 case does not get cleared out of the system until the EB-2 for the same person is approved.
  • Mr. Oppenheim also wonders whether demand is weak for visas for dependent family members, and so fewer green cards are needed.
  • Mr. Oppenheim meets monthly with USCIS and the Ombudsman’s office to review the receipt of cases. There was a recent meeting to discuss December numbers. There will be another review before he decides what he will do in March.

Prediction:

  • Employment-based priority dates will advance again with the March Visa Bulletin, likely by at least a few months. An advance of six months is possible, although an advance of one year is not likely. He will know as this month moves on. With normal USCIS adjustment of status processing times of four-to-six months, March is the last time for Mr. Oppenheim to get the AOS cases filed and possibly approved in FY2012. He will then probably hold the priority date over the summer, and then retrogress or advance it if needed. Mr. Oppenheim does not have enough data to predict demand and priority date changes in the last quarter of FY2012.
  • • USCIS is agreeing to the priority date advances, though significant advances are bit of a gamble for USCIS, because if they get inundated with adjustment filings, and subsequently there is priority date retrogression, USCIS will have to process EAD and advance parole extensions without additional fees. As we all know, retrogression causes chaos.

The March 2013 Visa Bulletin is here

Posted by Karen-Lee Pollak on Tue, Feb 12, 2013 @ 12:28 PM

EB-1 Visa, EB-2 Visa, EB-2 Visa Retrogression, EB-3 Visa, Immigration Visas, Visa Bulletin, visa bulletinThe bulletin summarizes the availability of immigrant numbers in March. The employment-based second preference cut-off date for China has advanced to February 15, 2008 and the cut-off date for India remains at September 1, 2004.

   Family-based categories:

- First (F1): This preference is for unmarried sons and daughters of US citizens (21 years of age and older).

- The priority dates for China, India and "Other Countries" have progressed approximately 1 month to February 15 2006

- There is slight movement in this category for Mexico from July 15 1993 to July 22 1993.

- The priority date for Philippines has progressed from March 1998 to October 15, 1998.

- Second:

- A. (F2A) This preference is for spouses and children (under 21 years of age) of legal permanent residents.

- The priority dates for all countries have progressed approximately 1 month to November 22, 2010 except Mexico which is 15 November 2010.

- B. (F2B) This preference is for unmarried sons and daughters (21 years of age or older) of legal permanent residents.

- The priority dates for all countries have progressed approximately 2 month to March 1 2005 except Mexico is 15 January 1993 and Philippines is 8 June 2002

- Third (F3): This preference is for married sons and daughters of US citizens.

- The priority dates for China, India, and “Other Countries” have progressed approximately 1 week to July 15, 2002 and for Philippines to September 15, 1992.

- The priority date for Mexico remains the sameat March 15 1993.

- Fourth (F4): This preference is for brothers and sisters of adult US citizens.

- There is slight movement in this category for China, India, and “Other Countries” by 1 week to April 22, 2001.

- The priority date for Philippines has progressed approximately 6 weeks to July 15 1989 and for Mexico there is a 2 week movement to August 15 1996.

Employment-based categories (EB-1, EB-2, EB-3 & "Other Workers"):

- EB-1: This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.

- This category remains current for all countries.

- EB-2: This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.

- The priority date for China has progressed approximately 1 month to February 15, 2008.

- The priority date for India, established in the October 2012 bulletin remains the same at September 1, 2004.

- The priority dates for Mexico, Philippines and “Other Countries” remain current.

- EB-3: This preference is reserved for professionals, skilled workers, and other workers.

- The priority dates for Mexico, and “Other Countries”   - There is slight movement in this category to May 1, 2007 from March 1, 2007

For China there is a slight movement from 15 November 2006 to January 22, 2007

for India there movement of 1 week to November 22 from November 15 2002

For Philippines there is slight movement from August 22 2006 to September 1 2006.

- "Other workers".

- The priority date for China remains the same at July 1, 2003.

- There is slight movement in this category for the Philippines from August 22 to September 1 2006 and India from November 15, 2002 to November 22, 2002

- The priority dates for Mexico and “Other Countries” have progressed almost 2 months to May 1 2007.

This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by February 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier thanthe cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:                                                                        

FAMILY-SPONSORED PREFERENCES

First:  (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

 

Family-Sponsored
All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 15FEB06 15FEB06 15FEB06 22JUL93 15OCT98
F2A 22NOV10 22NOV10 22NOV10 15NOV10 22NOV10
F2B 01MAR05 01MAR05 01MAR05 15JAN93 08JUN02
F3 15JUL02 15JUL02 15JUL02 15MAR93 15SEP92
F4 22APR01 22APR01 22APR01 15AUG96 15JUL89

*NOTE:  For March, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15NOV10.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15NOV10 and earlier than 22NOV10.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:         

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.       

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 15FEB08 01SEP04 C C
3rd 01MAY07 22JAN07 22NOV02 01MAY07 01SEP06
Other Workers 01MAY07 01JUL03 22NOV02 01MAY07 01SEP06
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment Areas/
Regional Centers and Pilot Programs

C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

 

Analysis of February 2013 Visa Bulletin

Posted by Karen-Lee Pollak on Fri, Feb 01, 2013 @ 10:24 AM

visa retrogression; green cardAnalysis of February 2013 Visa Bulletin

The February 2013 Visa Bulletin does not provide predictions for cutoff date movement later in the year.  Let’s hope that the highly anticipated Immigration Reform which President Obama says must happen this year---will bring current the wait times for visas in both the employment and family based categories.   

 Family-based categories:

- First (F1): This preference is for unmarried sons and daughters of US citizens (21 years of age and older).

- The priority dates for China, India and "Other Countries" have progressed approximately 1 month.

- There is slight movement in this category for Mexico.

- The priority date for Philippines has progressed approximately 2 months.

- Second:

- A. (F2A) This preference is for spouses and children (under 21 years of age) of legal permanent residents.

- The priority dates for all countries have progressed approximately 1 month.

- B. (F2B) This preference is for unmarried sons and daughters (21 years of age or older) of legal permanent residents.

- The priority dates for all countries have progressed approximately 1 month.

- Third (F3): This preference is for married sons and daughters of US citizens.

- The priority dates for China, India, The Philippines and “Other Countries” have progressed approximately 2 weeks.

- The priority date for Mexico remains the same.

- Fourth (F4): This preference is for brothers and sisters of adult US citizens.

- There is slight movement in this category for China, India, Mexico and “Other Countries”.

- The priority date for Philippines has progressed approximately 2 weeks.

Employment-based categories (EB-1, EB-2, EB-3 & "Other Workers"):

- EB-1: This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.

- This category remains current for all countries.

- EB-2: This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.

- The priority date for China has progressed approximately 1 month to January 15, 2008.

- The priority date for India, established in the October 2012 bulletin remains the same.

- The priority dates for Mexico, Philippines and “Other Countries” remain current.

- EB-3: This preference is reserved for professionals, skilled workers, and other workers.

- The priority dates for China, Mexico, and “Other Countries”   - There is slight movement in this category for India and The Philippines.

- "Other workers".

- The priority date for China remains the same at July 1, 2003.

- There is slight movement in this category for India and The Philippines.

- The priority dates for Mexico and “Other Countries” have progressed 1 month.

Cut-off Dates for Employment-Based Immigrant Visas

Employment-Based All Chargeability
Areas Except
Those Listed
China-Mainland Born India Mexico Philippines
1st Current Current Current Current Current
2nd Current 01/15/08 09/01/04 Current Current
3rd 03/15/07 11/15/06 11/15/02 03/15/07 08/22/06
Other Workers 03/15/07 07/01/03 11/15/02 03/15/07 08/22/06
4th Current Current Current Current Current
Certain Religious Workers Current Current Current Current Current

5th
Targeted
Employment
Areas/
Regional Centers

Current Current Current Current Current

5th Pilot Programs

Current Current Current Current Current
Note:
"1st" refers to the First Preference in Employment-Based Immigration category (EB-1), i.e., persons of "extraordinary ability" in the sciences, arts, education, business, and athletics, outstanding professors and researchers and certain executives and managers;
"2nd" refers to the Second Preference in Employment-Based Immigration category (EB-2), i.e., professionals holding advanced degrees, or persons of exceptional ability in the arts, sciences, or business (NIW applicants);
"3rd" refers to the Third Preference in Employment-Based Immigration category (EB-3), i.e., skilled workers and professionals holding baccalaureate degrees;
"Other Workers" refers to the unskilled worker under the Third Preference in Employment-Based Immigration category;
"4th" refers to the Fourth Preference in Employment-Based Immigration category (EB-4), i.e., religious workers, certain overseas employees of the U.S. Government, former employees of the Panama Canal Company, retired employees of international organizations, certain dependents of international organization employees and certain members of the U.S. Armed Forces; and
"5th" refers to the Fifth Preference in Employment-Based Immigration category (EB-5), i.e., employment creation investors.

Cut-off Dates for Family-Based Immigrant Visas

 

Family-Based All Chargeability
Areas Except
Those Listed
China-Mainland Born India Mexico Philippines
1st 01/15/06 01/15/06 01/15/06 07/15/93 09/08/98
2A* 10/22/10 10/22/10 10/22/10 10/08/10 10/22/10
2B 01/15/05 01/15/05 01/15/05 12/15/92 05/15/02
3rd 07/08/02 07/08/02 07/08/02 03/08/93 08/22/92
4th 04/15/01 04/15/01 04/15/01 08/01/96 06/01/89

*NOTE: For February, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08OCT10.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08OCT10 and earlier than 22OCT10.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

Note:

"1st" refers to the First Preference in Family-Based Immigration category, i.e., unmarried children of U.S. citizens over age of 21;

"2A" refers to the first subcategory of the Second Preference in Family-Based Immigration category, i.e., spouses or unmarried children under age 21 of permanent residents;

"2B" refers to the second subcategory of the Second Preference in Family-Based Immigration category, i.e., unmarried children of 21 years of age or older of permanent residents;

"3rd" refers to the Third Preference in Family-Based Immigration category, i.e., married children of U.S. citizens; and

"4th" refers to the Fourth Preference in Family-Based Immigration category, i.e., brothers and sisters of U.S. citizens.

Immediate family members of U.S. citizens, i.e., spouses, parents and unmarried children under age of 21, are not subject to the numerical restriction of visa quotas

Analysis of February 2013 Visa Bulletin

Posted by Karen-Lee Pollak on Fri, Feb 01, 2013 @ 6:48 AM
visa bulletin predictions

The February 2013 Visa Bulletin does not provide predictions for cutoff date movement later in the year.  Let’s hope that the highly anticipated Immigration Reform which President Obama says must happen this year---will bring current the wait times for visas in both the employment and family based categories.   

Family-based categories:

First (F1): This preference is for unmarried sons and daughters of US citizens (21 years of age and older).

  • The priority dates for China, India and "Other Countries" have progressed approximately 1 month.
  • There is slight movement in this category for Mexico.
  • The priority date for Philippines has progressed approximately 2 months.

Second:

A. (F2A) This preference is for spouses and children (under 21 years of age) of legal permanent residents.

  • The priority dates for all countries have progressed approximately 1 month.

B. (F2B) This preference is for unmarried sons and daughters (21 years of age or older) of legal permanent residents.

  • The priority dates for all countries have progressed approximately 1 month.

Third (F3): This preference is for married sons and daughters of US citizens.

  • The priority dates for China, India, The Philippines and “Other Countries” have progressed approximately 2 weeks.
  • The priority date for Mexico remains the same.

Fourth (F4): This preference is for brothers and sisters of adult US citizens.

  • There is slight movement in this category for China, India, Mexico and “Other Countries”.
  • The priority date for Philippines has progressed approximately 2 weeks.

Employment-based categories (EB-1, EB-2, EB-3 & "Other Workers"):

EB-1: This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.

  • This category remains current for all countries.

EB-2: This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.

  • The priority date for China has progressed approximately 1 month to January 15, 2008.
  • The priority date for India, established in the October 2012 bulletin remains the same.
  • The priority dates for Mexico, Philippines and “Other Countries” remain current.

EB-3: This preference is reserved for professionals, skilled workers, and other workers.

  • The priority dates for China, Mexico, and “Other Countries”   - There is slight movement in this category for India and The Philippines.

"Other workers".

- The priority date for China remains the same at July 1, 2003.

- There is slight movement in this category for India and The Philippines.

- The priority dates for Mexico and “Other Countries” have progressed 1 month.

What is an EB-1 Visa?

Posted by Michael Pollak on Thu, Jan 17, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to bring an employee to work in the United States with an EB-1 visa.

eb-1 visaThe EB-1 is a preference category for United States employment-based permanent residency. It is intended for "priority workers". Those are foreign nationals who either have "extraordinary abilities", or are "outstanding professors or researchers", and also includes "some executives and managers of foreign companies who are transferred to the US".  It allows them to remain permanently in the US.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

USCIS Publishes New Form I-140, Immigrant Petition for Alien Worker

Posted by Karen-Lee Pollak on Fri, Nov 02, 2012 @ 4:01 PM

A new Form I-140, Immigrant Petition for Alien Worker, is now available. We changed the format to improve intake processing and added Adobe fillable format features to make it easier for you to complete the form.  We encourage you to  docs/I140.pdf from our website and complete it on a computer to take advantage of these new features.  Editions dated Jan. 06, 2010, and later will be accepted until Dec. 30, 2012.  After this date, we will only accept the Oct. 1, 2012, edition." - USCIS, Nov. 2, 2012.

VISA BULLETIN PREDICTIONS ON PRIORITY DATES 2012-2013

Posted by Karen-Lee Pollak on Thu, Sep 06, 2012 @ 12:42 PM

describe the imageOn Thursday, August 30, 2012, Roberta Freedman, AILA Students & Scholars Committee member, and Mike Nowlan, Chair of the AILA Business Committee, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and FY2013 with Charlie Oppenheim of the Department of State’s Visa Office. These are only discussions of what could happen and are not assurances or guarantees by the Visa Office, as changes in visa usage result in changes in the Visa Bulletin.

Notes from that discussion are:

  • Employment Based (EB)-1 visa usage is extremely high. August 2012 was at a near record high. The Visa Office does not know why. Is USCIS clearing out backlogs because of the new Deferred Action for Childhood Arrivals program, or is this pent up demand from 2011, or more “upgrades”? The answer is unknown. The EB-1 visa category could close in September if usage remains this high (close the 40,000). It would then go current in October. In July 2012, EB-1 usage was almost 3,000, of which roughly 1,200 had 2011 or earlier priority dates, and the rest had 2012 priority dates. The 13,000 unused EB-1 numbers that were expected in FY2012, and which would then “drop down” to EB-2, did not happen.
  • EB-2 India priority date will probably go to 2006 when the Visa Bulletin is published next month (not 2007 as previously predicted). This is due in part to the retrogression in 2012, as well as the high level of EB-1 usage. India is expected to stay in 2006 for some time. It could fall back to 2005, but that does not appear likely right now. Slow movement in this category in FY2013 is expected.
  • EB-2 China priority date will be further ahead than India, but that assessment has not been completed yet.
  • EB-2 worldwide may go current in October, or it may go to early 2012 and then current in the November Visa Bulletin – a 2 step process. Why the delay? Employment-based numbers move in a fairly predictable usage pattern (unlike family-based cases). As a result, the Visa Office prefers to have a steady usage of EB cases per month. There are expected to be many EB-2 worldwide cases pending or filed in October, and slowing the usage could help predict usage for the rest of the year. A “correction” in EB-2 worldwide towards the latter part of FY2013 could happen (in other words, potentially visa retrogression for EB-2 worldwide and no longer current).
  • EB-3 worldwide should remain as posted for the rest of September. No prediction could be given as to where it will go in the October Visa Bulletin. Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage in FY2013, which would slow the speed of EB-3 worldwide.

 Other comments:

As reported previously, another problem with trying to predict the demand is that USCIS is not providing real time data on EB-3 to EB-2 "upgrades", and the Visa Office is also seeing a significant number of EB-2 to EB-1 “upgrades.” “Upgrades” continue to be a big "wildcard," as no one knows how many are being used per month. Mr. Oppenheim confirmed his previous comments that USCIS cannot tell him how many upgrades are filed. He would appreciate a process where USCIS notifies his office when the I-140 for the EB-2 “upgrade” is filed, so he can understand what is in the pipeline. Since the retrogression earlier this year, the Visa Office has better data on the cases pending than they did previously because cases filed with a pending adjustment of status application are pre-adjudicated, which gives his office more detail on the person’s priority date history. Retrogression is still a problem, but understanding the data is a small benefit to it.

Upgrades were initially limited to India and China. Worldwide upgrades are now occurring, with 2,900 upgrades for EB-2 worldwide in February 2012. Over 500 of those had a priority date of 2009 or earlier. The Visa Office knows it has 3,500 EB-2 worldwide cases pre-adjudicated and ready to be approved on October 1st and expects more new filings in October.

Family Based (FB) 2A cases: Usage is dropping. Outreach programs seem to increase usage. Immigrant visa waiver delays, primarily in Mexico, also slow usage. FB-2A usage is slower than it should be so the priority dates are expected to move forward at the same pace as FY2012. However, if demand continues to be low, this group may move forward more significantly in the spring of 2013

PUBLISHED BY AILA Cite as "AILA InfoNet Doc. No. 12012349 (posted Sep. 5, 2012)"

Streamlining the EB-2 and EB-1 Visa Process.

Posted by Karen-Lee Pollak on Fri, Apr 13, 2012 @ 3:53 PM
 

Karen-Lee PollakUSCIS has partnered with business experts to improve the way it approaches the employment-based and high-skilled visa categories used by immigrant entrepreneurs. USCIS Director Alejandro Mayorkas kicked-off this innovative program, called the Entrepreneurs in Residence (EIR) initiative in February. The EIR initiative consists of a tactical team comprised of outside experts working alongside USCIS employees. For 90 days this collaborative team, comprised of both USCIS employees and entrepreneurs from the private sector, will identify opportunities where USCIS can streamline pathways for foreign entrepreneurs.  We welcome this significant effort to streamline visas for employment-based and high-skilled visa categories.   You can read more on this initiative at http://blog.uscis.gov/

Visa Bulletin for March 2012 is Out.

Posted by Karen-Lee Pollak on Mon, Feb 13, 2012 @ 11:42 AM

Dallas Immigration lawyerVisa Bulletin Dates – Employment – March 2012

Great News.  EB2 for India and China moves ahead to May 2010. 

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01MAY10 01MAY10 C C
3rd 15MAR06 01JAN05 22AUG02 15MAR06 15MAR06
Other Workers 15MAR06 22APR03 22AUG02 15MAR06 15MAR06
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs
C C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

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