Important Immigration Updates and Reminders (PART II)
EB-1. Demand in this category remains strong and a cut-off date for EB-1 India and EB-1 China will need to be imposed later this fiscal year. When it does, the date may not to retrogress quite as far back as last fiscal year when the date rolled back to 2010. Charlie continues to expect that the imposition of a Final Action cut-off date in these categories will be relatively short-lived and that EB-1 China and India will return to "Current" in October when the FY 2018 numbers become available.
EB-2. Tremendous demand resulting from EB-3 upgrades means EB-2 India will not advance in February and will likely hold at the current Final Action cut-off date of April 15, 2008 in March. If demand for EB-2 Worldwide remains strong, it is unlikely that EB-2 India will be able to benefit from any unused numbers and may be restricted to its 2,800 per country limit. If the trend in demand continues, EB-2 India is unlikely to recover to last year's date. It is not likely that we will see any significant movement in this category until at least July or August. If the current surge in demand is not sustained, and worldwide demand, or India demand with early priority dates subsides, more forward movement than what is currently projected may be possible.
Eligibility to File Adjustment of Status
For eligible applicants, the Visa Bulletin is relevant in determining when to file the Adjustment of Status application. USCIS has announced that for the month of February 2017, Family Preference applicants may use the “Filing Dates” (Chart B) while Employment-Based Preference applicants must use the “Final Action Dates” (Chart A). The relevant link to the USCIS website is: https://www.uscis.gov/visabulletininfo
FY2018 H-1B Cap Season
The H-1B cap season is right around the corner. The maximum number of H-1B petitions accepted by the Government each fiscal year is 65,000 with an additional 20,000 for beneficiaries who possess a U.S. Master’s degree or higher from qualifying educational institutions.
The petitions can be filed beginning in April, six months before the Oct. 1, 2017 start date of the 2018 fiscal year. Since April 1, 2017 falls on a Saturday this year, Monday, April 3, 2017 marks the opening of the filing period for FY2018 H-1B petitions. If USCIS receives more petitions, than the annual limit in the first week, it will conduct a computer-generated random “lottery” in order to select 85,000 petitions for processing. USCIS will reject the rest of the petitions it receives. Given the trends of recent years, practitioners fully expect there will be a lottery again this year.
To file an application in April, employers should start identifying potential H-1B candidates now. The process of putting together the necessary documents can take weeks depending on the applicant. In addition, the H-1B requires the certification of a Labor Condition Application (LCA), which is submitted to the U.S. Department of Labor (DOL), and DOL can take up to 10 days to certify the LCA. Employers should avoid waiting until the last minute to start preparing. Further, starting the process as soon as possible means identifying any H-1B eligibility issues early, potentially with enough time to remedy them. Given the high demand for H-1B visas, it’s best to get the process underway now so that the H-1B petition is ready for arrival at USCIS on April 3, 2017.
New Form I-9
As a reminder, effective Jan. 22, 2017, employers were required to use the latest version of USCIS’s Employment Eligibility Verification Form I-9. USCIS recently updated the form to the edition dated Nov. 14, 2016 (found in the lower left hand corner). All prior versions of the form are now invalid.
In addition to some substantive changes to the form, the electronic version functions as a “smart” document programmed to help the user complete the form accurately.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email firstname.lastname@example.org