When Immigration Matters

What is the EB-3 Visa? 

Posted by Karen-Lee Pollak on Wed, Jul 12, 2017 @ 11:00 AM

Diverse group of workers standing against white background-245700-edited.jpegEB3 VisaThe EB3 visa is a preference category for individuals who are designated by USCIS as a Skilled Worker, Professional, or “Other Worker” (i.e. unskilled labor). Each of these sub-categories is outlined below.

EB3 Visa Eligibility Requirements for Skilled Workers 

Individuals who wish to apply for an EB3 visa under the Skilled Workers sub-category must:

  • have at least (and be able to prove) at least two years of job experience or training;
  • not be performing a job that is of a seasonal, temporary or part-time nature;
  • not be performing work for which qualified workers in the U.S. are unavailable.

In conjunction with their prospective employer, petitioners must first obtain certification from the Department of Labor verifying all of the above.

EB3 Visa Eligibility Requirements for Professionals

Individuals who wish to apply for an EB3 visa under the Professionals sub-category must:

  • have a B.A. degree from an accredited U.S. college or university, or an approved foreign degree equivalent (note: education combined with experience is not viewed by USCIS as an equivalent);
  • demonstrate that a B.A. degree is the normal requirement for the U.S.-based position they wish to attain (note: USCIS deems it irrelevant if a B.A. degree is required for a similar job in the petitioner’s native country);
  • establish a clear connection between the B.A. degree that the petitioner has achieved and the type of B.A. degree that is required for entry to the position they wish to obtain (i.e. if the petitioner’s B.A. degree is in nursing, and position requires a B.A. degree in engineering, USCIS will deem that this eligibility criteria has not been met and will reject the petition);
  • not be performing work for which qualified workers in the U.S. are unavailable.

As with the skilled workers category, petitioners who wish to obtain an EB3 visa as a professional must obtain certification from the Department of Labor verifying all of the above.     

EB3 Visa Eligibility Requirements for “Other Workers”

The “Other Workers” sub-category is for unskilled workers who wish to live and work in the U.S. Petitioner must:

  • be capable at the time of filing their petition of performing unskilled labor (USCIS defines this as labor requiring less than two years of training or experience);
  • not be performing a job that is of a seasonal, temporary or part-time nature;
  • not be performing work for which qualified workers in the U.S. are unavailable.

Again, petitioners who wish to obtain an EB3 visa as unskilled workers must obtain certification from the Department of Labor verifying all of the above. In addition, there is currently lengthy backlog for this sub-category. USCIS periodically updates this via monthly bulletins on their website at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. 

Family Members

Petitioners who successfully obtain an EB3 visa may request that their spouse and minor children (under the age of 21) join them in the U.S. If granted, spouses of EB3 visa holders are eligible to file for an Employment Authorization Document to legally earn income while they are applying for permanent resident status (i.e. green card).

Learn More 

The process of applying for an EB3 process is very complex and extremely detailed. Significant effort and coordination is required on the part of employers, and petitioners must ensure that their application is complete, compliant and 100% error-free.

To learn more, contact the Pollak Immigration team today. We will clearly and thoroughly answer your questions, help you fully understand the rules and requirements of all visa preference categories to which you may be eligible, and completely support you step-by-step if you and your employer wish to move ahead with a petition.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

 

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

 

Immigration Reform: What it means for Highly Skilled Foreign Workers

Posted by Karen-Lee Pollak on Mon, Dec 01, 2014 @ 9:00 AM

immigration reform, executive actionAs part of President Obama’s executive action, he has ordered new policies and regulations to be implemented which will benefit highly-skilled foreign workers by enabling businesses to more easily hire and retain these workers and allow them to make natural career progressions with their employers or seek similar opportunities within the United States thereby creating increased career stability for those foreign workers waiting for green cards. 

The November 20, 2014 memorandum from DHS Secretary Jeh Charles Johnson to USCIS Director Leon Rodriguez (the Memorandum) outlines these new policies and regulations and includes the following: Modernizing the Employment-Based Immigrant Visa System and increasing Worker Portability. 

One of the biggest gripes with the current visa system is the long waits for Immigrant visas or green cards due to outdated numerical limits established almost a quarter of a century ago.  These numerical limits do not cater for the visa demands of today.  For example, a foreign worker with an advanced degree who is a citizen of India is currently waiting almost 10 years for an Immigrant visa to be available according to the November 2014 visa bulletin.  This numerical limit is juxtaposed against an immigration system which also has failed to issue all available immigrant visas for a fiscal year.

The resulting backlogs prevent US. employers from attracting and retaining some of the best and brightest highly-skilled workers who are often educated in the United States.  Often a highly-skilled foreign worker’s time in temporary non-immigrant status runs out before the backlog becomes current.  For example, a L1b intracompany employee with specialized knowledge only has 5 years in L1b status but it is currently taking at least a minimum of 11 years, according to November 2014 visa bulletin, to obtain a green card assuming that person is an citizen of india, has a Bachelor Degree and has four years of experience. 

This makes little sense especially where as part of the Green Card process, the employer has to test the labor market and show the unavailability of US. workers.  That process in itself is disingenuous as it requires the employer to spend substantial time and money advertising and recruiting for a job and making applicants waste time on interviewing for a job which has already been filled.  Only after that charade can an employer file a labor certification with the Department of Labor which is currently taking in the best case scenario 8 months to be adjudicated. 

The permanent labor certification process delays the filing of the Green Card application with USCIS.  This delay is further exacerbated by the unavailability of immigrant visas for workers from certain countries.  Not only are wait times an inconvenience for these workers but these wait times are an impediment to their natural career progression.  Workers can only change jobs if the job “is in the same or similar occupation”.  The uncertainty of what this phrase really means often prevents workers from accepting promotions or accepting better job opportunities.  

Secretary Jeh Jonson proposes the following solutions in his Memorandum:

 USCIS should continue to work with the Department of State to ensure that all immigrant visas authorized by Congress are issued when there is a sufficient demand.

  • Improve the current system to determine when visas are available to applicants during a current fiscal year. 
  • USCIS must issue policy and regulatory changes to provide stability to beneficiaries of employment-based immigrant petitions.
  • Specifically, USCIS must clarify and amend its regulations to ensure that approved long-standing visa petitions remain valid in certain circumstances where the employee has changed jobs or has obtained a promotion to a supervisory position.

 In addition to these proposals, it is expected that regulations will be enacted that will allow workers with approved immigrant petitions who are unable to file adjustment of status applications due to visa quota backlogs to obtain the benefits of adjustment of status applications such as employment authorization and advanced parole.  This will help foreign workers evade the capricious adjudication of renewal of non-immigrant when they travel abroad and allow employees to switch employers.

Reforming Optical training for Foreign Students and Graduates of US. Universities.

Under current regulations, foreign students on F-1 visas may request 12 months of additional F-1 visa status for optional practical training (OPT).  OPT allows a student to obtain temporary work in their field of study to gain practical experience.  It must be approved by the educational institution and may occur before or after graduation. Students in the science, technology, education or mathematical (STEM) fields can obtain an additional 17 months of OPT for a total of 29 months. This extension has helped the United States in retaining some of its most talented STEM graduates from departing the United States and taking their skills overseas.  

The November 20, 2014 Memorandum recommends that USCIS develop regulations for notice and comment that expands the degree programs eligible for OPT and extends the time period and use of OPT for foreign STEM students and graduates including extending post-Masters OPT where only the first degree is in a STEM field.

Promoting Start-Ups, Research and Development in the US.

President Obama has underscored the importance of enhancing employment opportunities for foreign inventors, researchers and founders of start-ups wishing to create jobs and conduct research and development in the United States.  The November 20, 2014 Memorandum recommends two administrative improvements to our employment-based immigrant system for this purpose:

The National Interest Waiver which provides aliens with advanced degrees or exceptional ability to apply for green cards without employer sponsorship if their job is in the national interest, is one of the most underutilized visas.  USCIS is directed to issue guidance or regulations to clarify the standard by which a National Interest Waiver can be granted for the purpose of promoting its greater use in benefitting the US. Economy.

  1. USCIS is directed under its “significant public benefit” parole authority to propose a program that will permit DHS to grant parole status on a case-by-case basis to researchers, inventors and founders of start-up businesses who have obtained significant US. funding or otherwise hold the promise of job creation and innovation through the development of new technologies or cutting-edge research. Parole in these instances would help entrepreneurs start businesses in the United States instead of abroad. 

Bringing Greater Consistency to the L1B Program. Many multinational companies bring employees to the United States who have specialized knowledge in the company’s products or processes.  This visa is known as the L1B visa.  Inconsistent adjudications of these visas has created uncertainty for many companies relying on bringing foreign employees with specialized knowledge to the United States.  USCIS is directed to issue a policy memorandum that clarifies exactly what is meant by “specialized knowledge” to provide greater consistency in the adjudication of L1B petitions and to enhance companies’ confidence in the program.

These provisions, once implemented, will help alleviate some of the problems produced by our broken immigration system but it is really the duty of Congress to finish the job.  The only provision that has a projected timeline is the plan to give employment authorization to certain spouses of long time H-1B visa holders who have been approved for permanent residency (issued in May of this year). We anticipate the final rule to be published this month or in early January 2015. Regulations which have a limited impact can be issued as interim rules and take effect immediately. However, most regulations require the publication of a proposed rule with a 30 to 60-day comment period. Afterwards, the government agency must cull though public comments and decide if revisions to the proposed regulation are in order.

Of particular note is the Department of Labor’s (DOL) announcement, separate and apart from the November 20 Memorandum, that it will modernize the PERM regulations.  DOL has announced it will initiate a review of the decade old PERM program and relevant regulations. As part of this review, the Department will seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce.

Specifically, the Department will seek input on the following:

Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

  • Methods and practices designed to modernize U.S. worker recruitment requirements;   
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

While we are excited about these proposed changes, we can only be cautiously optimistic.  Historically, promised policy guidelines often take years to be issued or have never materialized. USCIS specifically states on its website that “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible.  Some of these initiatives will be implemented over the next several months and some will take longer.”  The challenge for the business community, foreign workers and all stakeholders is to make sure that these measures are initiated, drafted, and implemented in a timely fashion.

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.

How to Qualify for an EB-2 or EB-3 Visa?

Posted by Michael Pollak on Tue, Jan 15, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to legally bring an employee to the United States. 

eb2 visaEB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States"

The EB-2 or EB-3 Employment-Based Visas allows an individual to enter and work inside of the United States based on an investment he or she will be controlling, while inside the United States. This visa must be renewed every two years, but there is no limit to how many times one can renew. The investment must be "substantial". Investor visas are available only to treaty countries, which include countries like Albania and Senegal, but do not include Brazil, Russia, India and China.

The EB-3 is an immigrant visa preference category for United States employment-based permanent residency. It is intended for "skilled workers", "professionals", and "other workers". Those are prospective immigrants who don't qualify for the EB-1 or EB-2 preferences. The EB-3 requirements are less stringent, but the backlog is much longer: typically 6 to 9 years, except for residents of India and China, for whom the backlog is even longer, sometimes more than 12 years.

 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)"

January 2012 Visa Bulletin-Good News for EB2 from China and India

Posted by Karen-Lee Pollak on Sat, Dec 10, 2011 @ 12:12 PM

 visa bulletin, India, China EB-2In the January visa bulletin, wait times for EB-2 (employment based) visas for India and China  move forward by (by nine and a half months) and there is a continued forward movement in the FB1 (family based) categories.

Summary of the January 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the January 2012 Visa Bulletin with respect to employment-based petitions:

  • remains current across the board.
  • EB-2 remains current for EB-2 ROW, Mexico and Philippines. EB-2 India and EB-2 China both move forward by nine and a half (9.5) months to January 1, 2009.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only two (2) weeks to February 1, 2006, EB-3 China moves forward by five (5) weeks to October 15, 2004, while EB-3 India moves forward by only one (1) week to August 8, 2002.
  • The “other worker” category remains unchanged (again) at April 22, 2003 for China. It moves forward by one and (1) month for ROW, Mexico and Philippines to February 1, 2006. It also moves forward by three (3) weeks for India to August 1, 2002.

Summary of the January 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the January 2012 Visa Bulletin with respect to family-based petitions:

  • FB1 moves forward (again, for fourth consecutive month). FB1 ROW, China and India all move forward by six (6) weeks to October 15, 2004. FB1 Mexico moves forward by one (1) week to April 15, 1993 and FB1 Philippines moves forward by six (6) weeks to April 15, 1997.
  • FB2A moves forward by one (1) month to April 22, 2009 for ROW, China, India, and Philippines. FB2A Mexico moves forward by six (6) weeks to March 22, 2009.
  • FB2B ROW, China and India move forward by three (3) weeks to September 8, 2003. FB2B Mexico moves forward by only one (1) week to December 1, 1992. FB2B Philippines moves forward by two (2) weeks to September 1, 2001.

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during January. Allocations were made, to the extent possible under the numerical limitations, for the demand received by December 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, 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 than the cut-off date may be allotted a number. 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 All Chargeability Areas Except Those Listed CHINA-mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st 01JAN05 01JAN05 01JAN05 01JAN05 08JAN93 01JUN94
2A 01JAN08 01JAN08 01JAN08 01JAN08 01APR05 01JAN08
2B 15APR03 15APR03 01MAR02 15APR03 22JUN92 15MAY99
3rd 01JAN01 01JAN01 01JAN01 01JAN01 22OCT92 22OCT91
4th 01JAN02 01JAN02 01JAN02 01JAN02 22DEC95 01JAN88

*NOTE: For January, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01APR05. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01APR05 and earlier than 01JAN08. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 22JUN06 C 08MAY06 C C
3rd 22MAR05 15DEC03 22MAR05 01FEB02 15APR03 22MAR05
Other Workers 22APR03 22APR03 22APR03 01FEB02 15APR03 22APR03
4th C C C C C C
Certain Religious Workers C C C C C C
5th C C C C C C
Targeted Employment Areas/ Regional Centers C C C C C C
5th Pilot Programs C C C C C C

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