Another H-1B cap season has come and gone. Between April 1 and April 7, USCIS received a record 233,000 cap-subject H-1B petitions which were subjected to a computerized lottery to select the lucky petitions towards the 65,000 regular and 20,000 Master's degree cap H-1Bs available for Fiscal Year 2016.

USCIS completed the lottery process on April 13 and finished issuing receipts for all accepted cases on May 4. It began adjudicating cases filed via premium processing on April 27, and is now also adjudicating cases filed via regular processing, and returning rejected petitions.

As a reminder, now that the FY2016 cap has been reached, no new cap-subject H-1B petitions can be filed until April 1, 2016, for an October 1, 2016 start date. However, USCIS will continue to accept and process petitions that are otherwise exempt from the cap, and some individuals may have alternative visa options available. Please contact an attorney at Ross Silverman for more information.

Recent Court Decision Regarding Change of Worksite for H-1B Workers

For many years, there has been conflicting guidance regarding whether an H-1B petitioner must file an amended petition with USCIS to reflect a change in the H-1B worker's job location. In a precedent decision issued on April 9, the Administrative Appeals Office (AAO) clarified this issue. Specifically, the AAO held that, if the change in worksite requires a new Labor Condition Application (LCA) - i.e. the new worksite is in a different statistical area for prevailing wage purposes, then an H-1B amendment must be filed with USCIS to reflect the change of worksite.

Please note that this decision does not have an immediate impact on any of our clients, since Ross Silverman has historically advised clients to file amended H-1B petitions in these circumstances.

Immigration Relief for Nepali Nationals

Following the devastating earthquake in Nepal on April 25, USCIS announced several immigration relief measures available to impacted Nepali nationals. However, at this time, DHS has not granted Temporary Protected Status (TPS) for Nepali nationals in the U.S.

Ross Silverman would like to express our condolences to everyone impacted by the earthquake.

Checking in on Executive Action

As we previously reported, on November 21, 2014, President Obama announced that he would be taking Executive Action to address immigration practices related to border security, highly skilled workers and entrepreneurs, and certain classes of undocumented workers who have been in the Unites States for at least five years, as well as meet other requirements. Click here to read our summary of the Immigration Accountability Executive Action. Most of the Actions involved instructing the various agencies associated with Immigration processing and enforcement to implement new regulations, policies or procedures, and to issue guidance.

On the employment-based side, USCIS will begin accepting applications for employment authorization on behalf of spouses of certain H-1B workers on May 26 (more about this below). Additionally, on March 24, USCIS issued long-awaited guidance regarding L-1B adjudications policies. The guidance was made available for public feedback, and will be finalized effective August 31, 2015 as part of the USCIS Adjudicator's Field Manual.

Implementation of two of the more controversial initiatives - expanding Deferred Action for Childhood Arrivals (DACA, a program implemented in 2012) and introducing Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) - has been delayed due to an injunction issued by a Texas District Court, where a number of states filed a lawsuit protesting the deferred action policies.

Work Authorization for Certain H-4 Visa Holders

As noted above, beginning May 26, 2015, USCIS will accept applications for employment authorization from H-4 spouses of certain H-1B workers who are seeking employment-based permanent residence. Eligible individuals include H-4 dependent spouses of principal H-1B workers who either have an approved Form I-140, Immigrant Petition for Alien Worker or have been granted H-1B status in the United States beyond the initial six-year limit based on sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. Generally speaking, the second group of individuals must have a pending or approved PERM labor certification application which was filed at least 365 days before the end of their initial six years in H-1B status.

Eligible H-4 spouses must first file Form I-765, Application for Employment Authorization (with the associated $380 filing fee) with USCIS. Once the application is adjudicated and the applicant receives his/her new EAD card, s/he may begin working. USCIS has indicated that it will allow H-4 spouse EAD applications to be filed concurrently with the I-129 H-1B petition and I-539 H-4 application, up to 6 months in advance of the requested start date / previous expiration date. However, USCIS will not adjudicate the EAD application until a decision is made on the underlying H-1B / H-4 cases. The validity period of the EAD card will generally match the H-4 validity period (which cannot exceed the H-1B status expiration date).

June 2015 Visa Bulletin

The Department of State Visa Bulletin reflects continued forward movement in the EB-2 India and China categories, as well as some movement in the EB-3 worldwide, China and India categories. In the May Visa Bulletin, the EB-3 Philippines category retrogressed to 2007, and in June it is retrogressing further to January 2005 due to significant increased demand. Also in May, the EB-5 category for China retrogressed to May 1, 2013 and remains at this date for June.

Please Note: There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website.

Employment-Based Preferences

First: Priority Workers. Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability. Also includes National Interest Waiver (NIW) applicants.
Third: Skilled Workers, Professionals, and Other Workers.

Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.

Employment-Based	All Chargeability Areas Except Those Listed	China - mainland born	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	C	01JUN13	01OCT08	C	C
3rd	15FEB15	01SEP11	22JAN04	15FEB15	01JAN05
Other Workers	15FEB15	01JAN06	22JAN04	15FEB15	01JAN05

Family-Based Preferences

Second (A): Spouses and Children of Permanent Residents.

Family-Sponsored	All Chargeability Areas Except Those Listed	China - mainland born	India	Mexico	Philippines
F2A	01OCT13	01OCT13	01OCT13	08AUG13	01OCT13

PERM Processing Times

As of the date of this newsletter, DOL indicates that it is processing PERM labor certification cases which were filed in October 2014. This means that if a PERM case was filed today, it would take DOL approximately seven months to adjudicate.

DOL also indicates that it is adjudicating PERM cases selected for audit which were originally filed in September 2013. This means that if a PERM case was filed today and subsequently selected for audit, it would take DOL approximately one year and eight months to adjudicate.

Please note that PERM processing times are subject to change at the discretion of DOL.

In Case You're Wondering...

Have you noticed that many USCIS forms have been getting significantly longer in the past several years and wondered why? For the most part, USCIS is not adding new questions to the forms. Rather, it is changing the format to make the forms machine-readable. Eventually, USCIS plans to allow for electronic filing of more forms, and is implementing the new forms in preparation. It is also adding a translator's certification to many forms, and changing some attestation language.

With regard to the new Form G-28 issued this spring, USCIS has added a section regarding original notices for the case - petitioners and applicants are now asked to elect where they want original notices and documents sent. By default, our office will be completing Forms G-28 to indicate that all original notices for a case should be sent to the attorney of record at Ross Silverman LLP, but original documents (e.g. Green Cards, EAD cards) should be sent directly to the applicant - as has historically been the case.

In the News: What's Happening at RS

We are happy to announce that all four of the Firm's partners, Sharryn Ross, Howard Silverman, Heidi Snyder, and Rhonda Tietjen, have been listed in the 2015 edition of New England's Best Lawyers in the area of Immigration Law.
June 9, 2015: Sara Fleming will be speaking to an immigration law class about employment-based immigration at Northeastern University's School of Law.

This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney. Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.