Ashwin Sharma quoted in the Times of India’s Article on S.386 & the New Grassley Amendment, Implications on the Fairness For High Skilled Immigrants Act
“Over the last decade, various bills to remove this per country cap, have failed to become law. S. 386 has been rescued from the fate of its predecessors through appeasement, specifically, by agreeing to amendments that would allow further restrictions on merit-based non-immigrant visas, particularly with regards to the H-1B programme. However, it is interesting to note that many of these so-called ‘new’ restrictions already exist in one form or another,” Florida based immigration attorney, Ashwin Sharma, told TOI.
For instance, even currently, H-1B sponsoring employers have to certify + that they are not favouring immigrant workers over American workers. They have to indicate how they calculated the prevailing wages they are offering to H-1B workers (but these records are to be made available only on specific request of the concerned authorities), explained Sharma.”
EB-1. For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017.
EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year.
EB-2 China and EB-3 China. While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015. It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand. If there are not as many downgrades, EB-3 China could advance more rapidly than expected.
EB-2 India and EB-3 India. EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009. Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.
EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Only minimal movements expected during the first quarter of the fiscal year.
EB-4. EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October. There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1.
EB-4 India. It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.
EB-5 Non-Regional Center for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.
EB-5 China. Demand remains high, not much movement in this category throughout the fiscal year. EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.
American Immigration Lawyers Association asks Secretary of State John Kerry and other Officials to restore the dates in the September 9, 2015 Visa Bulletin
Earlier today, the American Immigration Lawyers Association indicated that it had sent a letter to Secretary of State John Kerry, Department of Homeland Security Secretary Jeh Johnson, and Director of the Domestic Policy Council Cecilia Muñoz expressing great disappointment in the September 25, 2015, changes to the October 2015 Visa Bulletin, and asking that the dates published in the September 9, 2015, Visa Bulletin be restored. The revised October 2015 Visa Bulletin rolls back the “Dates for Filing” for several visa categories, and will force many individuals and families to continue to face lengthy wait times before they can submit their applications for permanent residence.
Sudden EB-2 Priority Date Retrogression: Did Donald Trump just get installed as Director of U.S. Citizenship and Immigration Services?
Many Employment Based 2nd Preference (EB-2) Indian applicants were expecting to file their Adjustment of Status (Green Card) applications in five (5) short days. These applicants include Doctors, Veterinarians, Scientists, Information Systems Managers, Senior Software Developers, Lawyers and many other advanced degree professionals, all readying their application in October of 2015 based on next month’s visa bulletin (issued September 9th 2015) which declared that EB-2 India dates were current as of July 2011. While the actual issuance of a green card would still have taken several more years, these applicants would have attained significant benefits while continuing their patient multi-year wait in line. This news was greatly welcomed by EB applicants who felt that this was our Administration’s first real “immigration reform” initiative intended specifically to benefit America’s highly educated immigrants.
However USCIS has taken an about-turn on this point by announcing, in a highly confusing manner, the retrogression of those July 2011 dates, back to July 2009. By way of background, a second visa bulletin announcement in one month is highly unusual, as is for the second announcement to be issued on a Friday, on the 25th of a month, at 4 pm, less than a week from the date the immigrant filings were set to begin. As a direct result, thousands advanced degree professionals, mostly born in India, who have been waiting to file their green cards for 4+ years, will have to keep waiting. This despite the applicants’ reasonable reliance on the Department of State’s Visa Bulletin of September 9th, or the thousands of dollars they each have likely spent in preparing their green card application(s) based on the same.
In this case, USCIS broke a promise to advanced degree immigrants who comprise a large percentage of our best and brightest. USCIS’ actions in this regard are simply unintelligible and amount to exactly what Mahatma Gandhi spoke of when he noted that “a breach of promise is a base surrender of truth“. USCIS’ action also moves us backward to the quota systems which the current immigration law, the Immigration and Nationality Act of 1965, was created to counter.
This is a highly suspect and unwelcome development which brings to mind July 2007, when USCIS attempted something similar. At that time, a lawsuit stopped USCIS from closing the filing window and in fact kept said window remained open for about two months (longer than if USCIS didn’t attempt to shut down filings).
I’m hopeful that history will repeat itself.
Significant Change to Employment Based Green Card Cases – As of today, two separate categories for EB Visa Bulletins, for the filing (Acceptance) of Adjustment of Status cases and one for final Approval of cases
The Obama Administration’s attempts to “streamline” the U.S. employment based green card process appeared to have paid off when the U.S. Department of State recently acknowledged that it was reworking its visa availability system. Today, however, we received a wonderful surprise: as per the U.S. Dept. of State’s Visa Bulletin for October 2015, a significant change in the EB process is apparent: the Visa Bulletin includes two separate employment based categories, each with a different cut off date (see below).
The first category represents the “Approval” category which notes the priority date as to when an Applicant’s Adjustment of Status or IV case would be ultimately approved. The second category represents the “Acceptance” category which control when an Applicant could file for Adjustment of Status, assuming an Applicant’s Priority Date is current at that time.
This is a remarkable and welcome update that conveys significant benefits to EB preference applicants, particularly for Indian and Chinese nationals who were most prejudiced by the long delays arising from retrogressed priority dates.
USCIS should prepare for an avalanche of AOS applications.
A. APPLICATION FINAL ACTION DATES FOR
EMPLOYMENT-BASED PREFERENCE CASES
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 authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date isearlier than the cut-off date listed below.)
|Employment- Based||All Chargeability Areas Except Those Listed||CHINA – mainland born||INDIA||MEXICO||PHILIPPINES|
|Certain Religious Workers||U||U||U||U||U|
*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.
B. DATES FOR FILING OF EMPLOYMENT-BASED
The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.
The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which isearlier than the listed date may file their application.
USCIS has determined that this chart may be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. Applicants for adjustment of status may visitwww.USCIS.gov/visabulletininfo for additional information.
and Pilot Programs
6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
Per the AILA DOS Liaison Committee’s followup with Mr. Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, “retrogression of EB-2 India appears to be imminent, and could happen as early as November. The October 2014 priority date for EB-2 India is May 1, 2009. Given current demand, the priority date will retrogress, possibly to a date in early 2005.”