As mentioned in last month’s News Blast, consulates across the world become inundated with visa applications during the summer months. We have seen wait times mushroom in the last few weeks alone. U.S. consular posts in India, in particular, are experiencing extraordinary wait times for nonimmigrant visa (e.g., H-1B, L-1, etc.) interview appointments. The current published wait times across India range from 75 days to 100 days and the Department of State has confirmed the accuracy of these timeframes – the Department of State is actively working with the Government of India to add consular positions to help alleviate the backlog. We anticipate these wait times will likely continue, if not worsen, during the summer months. To ensure you are able to get a visa appointment during the timeframe you require, we recommend booking your appointment early. In addition, you should expect the consulate will take 10-14 business days to return your passport following your interview and should plan your travel accordingly. Given these unusual delays we do remind clients that in a situation where a visa application is not strictly required, that individuals consider postponing unnecessary visa requests.
Our office has recently observed an uptick in visa applications being stalled at U.S. consulates for administrative processing. The Department of State reports that most applications that require administrative processing will be resolved within 60 days of the visa interview, but timing will vary depending on the individual circumstances of each case and we’ve recently had several cases that have taken more than two months to be resolved. Applicants particularly at risk for additional processing are those who were born in, are citizens of or have traveled to Iraq, Syria, or other countries designated by the Secretary of State as having supported acts of international terrorism. Unfortunately, it is not possible to know whether you will be subject to administrative processing before your visa interview. As such, you should prepare a flexible travel schedule and prepare to extend your stay abroad if you fall within the realm of those at risk for additional processing. If you have questions or concerns regarding this trend in administrative processing, please contact your attorney.
Friendly reminder to notify our office at least two (2) weeks before there is a change in job location, your office is moving, or there is a significant change in your job duties. In many instances, additional steps must be taken to remain compliant with Department of Labor and USCIS regulations. Failure to take steps before implementing a change could have negative consequences for both the employer and employee. If in doubt, let us know and we can provide guidance.
When USCIS published the final guidelines for the new 24-month STEM extension rule, it clarified that a student may file a STEM extension EAD application during the “cap gap” period because the student is considered to be in a valid period of post-completion OPT during this period. This provides additional flexibility to students who are eligible for STEM extension EADs and whose H-1B petitions have been selected in the lottery because it provides an extended period of time during which students may file applications – previously, it was understood that USCIS had to receive the STEM extension EAD application prior to the expiration date noted on the post-completion OPT EAD card itself.
It is important to note that while this new clarification provides flexibility to students, there are circumstances under which “cap gap” work authorization may terminate unexpectedly. Because a STEM extension EAD application must be received by USCIS while the student is in a valid period of post-completion OPT, the timing is critical. If the application is received even one day after the expiration of the post-completion OPT work authorization, the student becomes ineligible for the STEM extension EAD. Additional steps may also need to be taken in certain circumstances to ensure ongoing work authorization based on the STEM extension filing after October 1st. As such, we recommend discussing your STEM extension application filing with your attorney well in advance of the expiration date noted on your post-completion OPT EAD card to ensure you understand your options and remain eligible for the STEM extension benefit.
In a recent (tele)conference, USCIS’ Director addressed the long wait times in adjudicating applications and said that the agency is shifting resources in an effort to help alleviate processing delays, but significant changes will not take place until after the proposed filing fee increase has taken effect. Reading between the lines, this is the government claiming they don’t have the funds yet to hire additional staff until they are in a position to charge all users more.
USCIS’ proposed fee schedule increase is currently undergoing the required public comment period, which will end July 5th. A complete list of the proposed fee schedule is available here. A few of the proposed fees are as follows:
|Fee Type||Current Fee||Proposed Fee|
|I-90, Application to Replace Permanent Resident Card||$365||$455|
|I-129, Petition for a Nonimmigrant Worker||$325||$460|
|I-130, Petition for Alien Relative||$420||$535|
|I-131, Application for Travel Document||$360||$575|
|I-140, Immigrant Petition for Alien Worker||$580||$700|
|I-485, Application to Register Permanent Residence or Adjust Status||$985||$1,140|
|I-539, Application to Extend/Change Nonimmigrant Status||$290||$370|
|I-751, Petition to Remove the Conditions of Residence||$505||$595|
|I-765, Application for Employment Authorization||$380||$410|
|N-400, Application for Naturalization||$595||$640|
|N-600, Application for Certificate of Citizenship||$600||$1,170|
|Biometrics Fee||$85||***no proposed changes***|
|Premium Processing||$1225||***no proposed changes***|
Because of the increased processing times, USCIS has also implemented a rule requiring employers to wait until a petition has been pending for 210 days prior to making an inquiry. Employers may submit online inquiries for H-1B Extension of Status and Change of Employer Petitions that have been pending for 210 days or more by visiting https://egov.uscis.gov/e-request/Intro.do and selecting “Case outside normal processing time.”
Beginning July 1st, the Nebraska Service Center will begin accepting certain H-1B extension petitions in order to balance workloads at the California and Vermont Service Centers. This transition will allow Brown Immigration Law to same-day file H-1B extensions petitions where there is no change in the previously approved employment from its Lincoln office. We will also be able to concurrently file H-4 extensions and H-4 EAD applications with the H-1B extension petitions.
On June 8, 2016, the Department of State released the July 2016 Visa Bulletin. This bulletin reflected slight progression of one month for EB-2 and EB-3 India final action dates, while EB-2 and EB-3 China did not move at all. While EB-2 India is expected to advance slowly during the last two months of the fiscal year, EB-2 and EB-3 China are not expected to advance prior to the end of the fiscal year. EB-3 Philippines progressed a few months and is expected to reach late 2009, and possibly early 2010, priority dates by the end of the fiscal year. As with months past, USCIS has indicated it will only allow applications to be filed based on the first chart.
The DOL announced it will be proposing new PERM rules in the near future. USCIS also announced it would be issuing new guidelines related to AC21 portability before the end of the summer. Once we have the proposed PERM rules and the new AC21 portability guidelines in front of us, we will analyze them and advise clients accordingly.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **