We hope this newsletter finds you well. Here are the latest updates in the world of immigration and visa processing for the week of September 22nd, 2023.
H-1B Visa Program Reforms
U.S. Citizenship and Immigration Services (USCIS) proposed rule that would amend several aspects of the H-1B program is under federal review and scheduled for publication in December. Here are the key changes to expect:
Redefining the Employer-Employee Relationship: The rule will provide a more detailed definition of the relationship between H-1B visa holders and their employers. Guidelines for Employer Site Visits: USCIS is looking to set clearer guidelines regarding site visits for employers hiring H-1B workers.
Clarifications for F-1 Students: USCIS will elucidate the rules for F-1 students who are in the process of changing their status to H-1B.
Amendments on Visa Petitions: The agency will further clarify the conditions under which an amended or new H-1B visa petition needs to be filed, especially in the case of significant changes to employment, such as a change in the worksite location.
Wage Increase for H-1B Workers: The Department of Labor (DOL) is set to introduce a new prevailing wage regulation soon.
Visa Bulletin Updates - October 2023
The U.S. Department of State (DOS) has released the Visa Bulletin for October 2023, marking the beginning of fiscal year 2024. Notable changes in various visa categories include:
Employment-Based, First Preference (EB1) Category:
- China's cutoff date advances to February 15, 2022.
- India's cutoff date moves forward to January 1, 2017.
- The EB1 category remains current for all other countries of chargeability.
Employment-Based, Second Preference (EB2) Category:
- EB2 China's cutoff date progresses to October 1, 2019.
- India sees its EB2 cutoff date advance to January 1, 2012.
- The EB2 cutoff date for all other countries moves to July 8, 2022.
Employment-Based, Third Preference (EB3) Category:
- China's cutoff date is set at January 1, 2020.
- EB3 India's cutoff date moves up to May 1, 2012.
- The EB3 category for all other countries of chargeability advances to December 1, 2021.
EB3 Other Workers:
- For China, the cutoff date is set at January 1, 2016.
- India sees its cutoff date move to May 1, 2012.
- The Philippines cutoff date advances to May 1, 2020.
- For all other countries of chargeability, the EB3 other workers cutoff date moves ahead to August 1, 2020.
Employment-Based, Fourth Preference (EB4) Category:
- The cutoff date for all countries is set to January 1, 2019.
- Please note that the EB4 program for certain religious workers is scheduled to expire as of October 1, 2023. If Congress does not extend the program by that date, the EB4 category for certain religious workers will be unavailable.
Employment-Based, Fifth Preference (EB5) Category:
- China's EB5 unreserved cutoff date moves up to October 1, 2015.
- India experiences a significant advancement, with the cutoff date moving to December 15, 2018.
- EB5 remains current for all other EB5 categories and countries of chargeability.
For those eligible, USCIS will accept employment-based adjustment of status applications if the priority date is earlier than the Dates for Filing listed in the State Department's October 2023 Visa Bulletin.
Understanding the Visa Bulletin and Employment-Based Green Card Backlog
In this edition of our newsletter, we delve into a crucial aspect of the immigration process, the Visa Bulletin, and address the substantial backlog in employment-based green card applications for Indian and Chinese nationals. Let's explore the factors contributing to this situation.
What is a Visa Bulletin?
The Visa Bulletin, published monthly by the U.S. Department of State, serves as a guide for immigrants and their sponsors by providing information on the availability of immigrant visa numbers. It separates eligible green card applicants into two main categories: family-sponsored and employment-based preferences. The Bulletin assigns cutoff dates for each preference and for specific countries, reflecting the demand for visas in each category.
The Backlog Mystery: Per-Country Ceilings
One question often asked is, “Why is there such a significant backlog for Indian and Chinese nationals seeking employment-based green cards?” The answer lies in the concept of “per-country ceilings.
In addition to the numerical limits set for each preference category, the Immigration and Nationality Act (INA) imposes a cap on the number of immigrants from any one country. Currently, no single country can account for more than seven percent of the total employment-based green cards issued in a fiscal year.
This per-country limit is not designed to ensure that certain nationalities make up exactly seven percent of immigrants but rather to prevent any one nationality from dominating the immigration flow to the United States. This results in a queue-like system where applicants from countries with high demand often experience longer waiting times.
Understanding the Employment-Based Preference System
The employment-based preference system is divided into five categories, each with its yearly numerical limit. Here's a brief overview:
- EB-1: Persons of extraordinary ability, outstanding professors, researchers, and multinational executives and managers.
- EB-2: Members of professions holding advanced degrees or persons of exceptional ability.
- EB-3: Skilled workers, professionals, and other workers for unskilled labor that is not temporary or seasonal.
- EB-4: Special immigrants, including religious workers and former U.S. government employees.
- EB-5: Investors who will create jobs in the U.S. through a substantial investment.
Each category has its own allocation of green cards, but the per-country ceiling still applies, leading to variations in waiting times for applicants from different countries.
The employment-based green card backlog is primarily a result of the per-country ceilings, which aim to maintain diversity in the immigrant population. While this system has its merits, it can lead to extended waiting periods, particularly for Indian and Chinese nationals who have high demand for employment-based visas.
We hope this information proves helpful for your immigration and visa-related matters. If you have any questions or require assistance, please do not hesitate to reach out to us.
Keshab Raj Seadie
Law Offices of Keshab Raj Seadie, P.C.
Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.