Immigration Law Advisory - Recent Developments On Visa Availability, Premium Processing Of I-140 Petitions And Visa Waiver Program Travel Document Requirements

Department of State Visa Office Announces Further Retrogression and Backlogs for Certain Immigrant Visa Categories

The U.S. Department of State (DOS) recently released the July 2009 Visa Bulletin which indicates a five-year retrogression for the Employment Based, Second Preference (EB-2) category for persons born in China.  The cut-off date for EB-2 India remains the same as that in the June 2009 Visa Bulletin (01 JAN 00).  The Employment Based, First Preference (EB-1) and EB-2 cut-off dates for all other countries remain current.  The Employment Based, Third Preference (EB-3) cut-off date for all countries remains unavailable for the rest of the fiscal year.  The July 2009 Visa Bulletin is available online by clicking here.

The Visa Bulletin is the DOS’ forecast of immigrant visa availability for each month.  Each bulletin indicates the “cut-off date” for each immigrant visa category.  A foreign national whose priority date (or “place in the visa line”) is earlier than the cut-off date for a particular category is eligible to apply for a green card in that particular month.  If the DOS indicates that a visa category is current (or “C”), any foreign national who is eligible with an approved petition in that category may apply for a green card through adjustment of status or via a U.S. consular post.  If DOS indicates that a visa category is unavailable (or “U”), this means that the annual quota of immigrant visas in that category has been met and visas in that category are likely no longer available for the remainder of the fiscal year which is September 30.  Please note that it is possible for the DOS to announce the unavailability of visas in certain categories after issuing the Visa Bulletin for the coming month. 

The DOS has predicted the following for the first, second and third employment-based categories:

Employment First Preference (EB-1)

EB-1 will remain current, but demand in this category is high.  The DOS anticipates the possibility of establishing a cut-off date in August or September in the EB-1 category for India and China, because of excessive demand for EB-1 numbers from persons from all other countries. 

Employment Second Preference (EB-2)

Future EB-2 availability for China and India does not look good.  The DOS anticipates unavailability for EB-2 China and India in August or September 2009.  The DOS indicated that a significant number of approved EB-2 petitions for persons from China and India are currently awaiting visa numbers and as a result, retrogression is necessary and wait-times for visas in this category will be lengthy. 

Employment Third Preference (EB-3)

EB-3 will remain unavailable for all countries until the end of this fiscal year.  The DOS estimates that EB-3 worldwide will start the new fiscal year with a 01 MAR 03 cut-off date.  Estimated cut-off dates will be 01 MAR 03 for EB-3 China and Mexico, and 01 NOV 01 for EB-3 India.  The DOS indicated that these predictions are based on current demand and changes are possible after reassessing demand closer to the beginning of the next fiscal year, which begins on October 1, 2009. 

Updated Cap Count of H-1B Visa Numbers for Fiscal Year 2010

USCIS has indicated that as of June 26, 2009, approximately 44,800 H-1B cap-subject petitions have been received and counted towards the FY 2010 H-1B cap.  Approximately 20,000 petitions qualifying for the advanced degree cap exemption have also already been filed.  USCIS further indicated that it will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits. 

The current annual cap for H-1B nonimmigrant worker visa petitions is 65,000.  Up to 6,800 of this number may be set aside each year for nationals of Chile and Singapore under the H-1B1 program based on U.S.-Chile and U.S.-Singapore free-trade agreements.  Unused numbers in the H-1B1 program are made available for H-1B use for the next fiscal year.

An additional 20,000 H-1B visa numbers are made available each year pursuant to the H-1B Visa Reform Act of 2004.  These H-1B numbers are specifically for foreign nationals with Master’s or higher-level degrees earned at U.S. academic institutions.  Each fiscal year, these 20,000 H-1B visa numbers are available to qualifying beneficiaries in addition to the cap of 65,000.

Please note that individuals currently holding valid H-1B status, or who have received an offer of employment from an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization are exempt from the annual H-1B numerical cap.

Beginning June 29, 2009, USCIS will Resume Premium Processing of Form I-140, Immigrant Petition for Alien Worker, in Certain Categories

U.S. Citizenship and Immigration Services (USCIS) has announced that beginning June 29, 2009, it will resume the Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 C.F.R. §103.2(f)(2).

USCIS will accept premium processing requests for Form I-140, Immigrant Petition for Alien Worker, seeking the following immigrant classifications:

• EB-1, Alien of Extraordinary Ability;
• EB-1, Outstanding Professors and Researchers;
• EB-2, Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver;
• EB-3, Professionals;
• EB-3, Skilled Workers; and,
• EB-3, Workers other than Skilled Workers and Professionals.

Premium processing still remains unavailable for Form I-140, Immigrant Petition for Alien Worker, seeking classification as EB-1, Multinational Manager and EB-2, Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver. 

Under the Premium Processing Service, for an additional $1000 processing fee, USCIS will adjudicate the petition within 15 calendar days of receipt.  Adjudication entails issuance of an approval notice, or where appropriate, a request for additional evidence, a notice of intent to deny or the opening of an investigation for fraud or misrepresentation.  If one of these actions does not occur with 15 days, USCIS should refund the $1000 and continue processing the petition as part of the Premium Processing Service.  The Premium Processing Service continues to be available for all previously designated classifications with Form I-140 and Form I-129, Petition for Non-Immigrant Worker. 

Beginning July 1, 2009, Visa Waiver Program Applicants with Emergency or Temporary Passports Must Have E-Passports

Beginning July 1, 2009, all persons eligible for the Visa Waiver Program (VWP)* applying for admission into the United States under the VWP, who currently hold emergency or temporary passports, must now have an E-Passport.  Previously, this requirement did not apply to certain VWP applicants holding emergency or temporary passports.

An E-Passport has an integrated computer chip that holds the same information that is printed on the passport’s data page, including the holder’s name, date of birth, and other biographic information.  An E-passport will have this international symbol on the cover:

U.S. Customs and Border Protection (CBP) indicates that it may exercise discretion at U.S. ports of entry for cases in which VWP applicants are traveling to the United States for medical or other emergency reasons.  CBP further indicates that a VWP national arriving in the United States with a non-compliant passport, for other than emergency travel reasons, may be detained for further processing and/or may be denied admission.

Please note that all VWP applicants must first register online with the Electronic System of Travel Authorization (ESTA) prior to arrival in the United States.  Additional information about ESTA, its requirements and procedures for registration can be found in our February 23, 2009 Immigration Law Advisory by clicking here.  The Department of Homeland Security’s ESTA registration portal can be found online by clicking here.

Alternatively, instead of participating in the VWP, persons may apply for a visitor’s visa at a U.S. consular post outside the United States.  Please contact us for additional information on eligibility for this process.

*Countries currently participating in the Visa Waiver Program (VWP) include: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.

If you have any questions or would like additional information about immigrant visa or H-1B visa availability, premium processing of employment-based immigrant petitions, the Visa Waiver Program, compliant travel documentation, or require assistance with any other immigration matter, please contact Lynda Zengerle at (202) 429-8170 or lzengerle@steptoe.com; or Joan Claxton at (202) 862-5733 or jclaxton@steptoe.com.