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H-1B extension applications are taking longer than normal for U.S. Citizenship and Immigration Services to process.
Companies with H-1B employees who plan to extend their status should anticipate the longer processing times. According to BAL’s internal case tracking, applications for H-1B extensions of status are taking approximately seven months to process.
A USCIS spokesperson said the agency “is aware of the increase in H-1B processing times and is working closely with the service centers to achieve processing goals for the H-1B classification.”
Given the delays, employers and H-1B employees are encouraged to file extension of status petitions as soon as allowable – 180 days before a worker’s authorized stay expires. Early filing will increase the chances of receiving an extension of status before the H-1B worker’s authorized stay expires. The period of authorized stay appears on the I-94 that is issued when the individual last entered the U.S., which is available for download on CBP’s website, or on the I-94 attached to the last I-797 Approval Notice if there has been no international travel.
H-1B workers should be aware that while regulations allow them to continue working while awaiting an extension, they may face other restrictions if their current I-94 authorized stay expires. Under immigration regulations, an H-1B worker who has filed a timely application to extend status may continue to work for the same employer for up to 240 days past the expiration of their I-94. However, they should avoid international travel if their I-94 expires because they will not be able to return until their extension petition is approved. Another complication is that many states link the expiration of a driver’s license to the expiration date on the I-94, and some DMV offices do not observe the 240-day rule. Therefore, some H-1B workers whose I-94 expires while awaiting their extension of status are unable to renew their driver’s licenses.
BAL Analysis: Employers and H-1B employees should factor in additional processing time and prepare to file extension of status petitions six months before the expiration of the worker’s authorized stay. Premium processing is an option, but USCIS charges an additional $1,225 filing fee for this expedited service. BAL is tracking processing times and will update clients on further developments.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
U.S. Citizenship and Immigration Services has confirmed that in March 2016 it will only accept employment-based adjustment of status applications according to the Application Final Action Dates chart rather than the Dates for Filing chart, published in the State Department’s March Visa Bulletin Monday.
Employment-based immigrants must follow the Application Final Action Dates chart below to determine if they are eligible to file their adjustment of status petitions with USCIS. Only applicants with priority dates earlier than the date listed in the chart will be permitted to file their adjustment of status applications in March. Family-based immigrants, however, may use the Dates for Filing Visa Applications chart applicable to family-sponsored applicants, contained in the March Visa Bulletin.
The Department of Homeland Security has submitted its final rule on the Optional Practical Training (OPT) extension for science, technology, engineering, and mathematics (STEM) students for review by the Office of Management and Budget.
This step means that the rule is in the final stages of approval. The Office of Information and Regulatory Affairs (OIRA) within OMB will now review the rule prior to its final publication in the Federal Register. OIRA is responsible for coordinating interagency executive branch review of significant regulations before publication.
DHS proposed the new regulation, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” on Oct. 19 after a federal judge concluded that the previous rule authorizing the extension must be invalidated for procedural deficiencies. When DHS received more than 50,000 comments from the public on its proposal, the judge allowed the agency until May 10 to finalize the new regulation.
BAL Analysis: Current rules on the STEM OPT program remain in place at this time. DHS is expected to issue the final regulation with a 60-day delayed effective date, meaning the rule will become operative 60 days after it is published in the Federal Register. The agency’s submission of the final rule to OMB indicates that it is on track to meet the court’s deadline. BAL continues to monitor the regulatory process, as well as the lawsuit challenging OPT that continues in the appellate court.
Application Final Action Dates for Chinese nationals in the EB-3 category will advance eight months to Jun. 1, 2013, according to the State Department’s March Visa Bulletin. The priority date for the EB-3 China category remains ahead of the date for EB-2 China, continuing a trend that was also observed at this point last year.
The EB-2 China category will advance five months to Aug. 1, 2012. EB-2 India will advance 2 1/2 months to Oct. 15, 2008. All other EB-2 categories will remain current.
Final action dates for most EB-3 categories will make modest advancements. EB-3 India will advance one month to Jul. 15, 2004. EB-3 Philippines will advance by just over two months to Mar. 15, 2008. EB-3 Mexico and all other countries will advance three months to Jan. 1, 2016.
All EB-1 categories will remain current.
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for March. Those with priority dates earlier than the date listed for their category may be eligible to file for adjustment of status in March. Applicants seeking to file for adjustment of status are reminded that Dates for Filing do not control the process unless U.S. Citizenship and Immigration Services confirms they do via a web posting in the coming week.
Dates for Filing of Employment-Based Visa Applications:
The Centers for Disease Control has updated its travel advisories regarding the Zika virus in light of recent outbreaks in the Americas.
The alerts recommend that travelers take enhanced precautions when traveling to numerous countries in South America, Central America, the Caribbean, the Pacific Islands, and Cape Verde. The list of countries where the virus has been reported can be found in the CDC notices.
On Monday, the World Health Organization declared the Zika virus an international public health emergency, but did not recommend travel restrictions.
The Zika virus is transmitted to humans through infected mosquitos, and a recent Texas case confirmed that it can spread through sexual contact. The virus can be transmitted from a pregnant woman to her unborn child, and health authorities are investigating a connection between the virus and microcephaly in newborns, a condition that stunts brain development.
At this time, there is no vaccine or cure for Zika. The CDC recommends that all travelers to regions where Zika has been reported protect themselves against mosquito bites, and encourages pregnant women to consider postponing travel to any area where the Zika virus is ongoing. Pregnant women who must travel and women trying to become pregnant should consult their doctor before travel and strictly follow steps to prevent mosquito bites.
BAL Analysis: At this time, the CDC has not raised its travel alerts to its highest level (avoid nonessential travel), but recommends that travelers take enhanced precautions when traveling to regions that have reported the virus. The CDC has posted additional information on its website.
A technical systems issue is impacting the Labor Department’s iCERT portal system, causing delays that affect the processing of H-1B, H-2B and H-2A visa applications, according to the department’s Office of Foreign Labor Certifications.
Employers should anticipate delays as the agency works to fix the systems glitch. According to the statement, the iCERT system’s application and database are working properly, but the network infrastructure that supports the iCERT system is “exhibiting performance issues that are significantly impacting our staff’s ability to process case actions for our employer customers.”
The iCERT system is used to process wage and labor requests by employers who are sponsoring foreign workers, including labor condition applications for H-1B petitions and prevailing wage determination for permanent labor certification (PERM) applications.
While the government’s announcement did not address PERM prevailing wage determinations, BAL has seen longer processing times for these requests in recent months.
BAL Analysis: As the agency works to fix the technical issues, employers should plan for longer timelines and factor in several additional weeks when planning to file petitions that require action from the Labor Department.
Under security enhancements to the Visa Waiver Program announced by the White House in November, the Department of Homeland Security is expected to review the participation of the 38 countries in the program and make a full report to the president shortly.
The report is due at the end of January, as the White House announcement set the deadline for 60 days after Nov. 30.
The report is expected to identify countries in the program that are deficient in key areas of cooperation and recommend compliance measures for them, including possible suspension from the program or requiring certain nationals to renew their Electronic System for Travel Authorization more frequently.
DHS spokesman S.Y. Lee said that the agency routinely reviews Visa Waiver Program countries to assess the impact of their participation on U.S. security, immigration enforcement, and law enforcement. “At this time, no determination has been made on changing the status of any current VWP country,” he added.
DHS is also expected to report on pilot programs to better collect biometrics in the program. Earlier this month, U.S. Customs and Border Protection introduced facial recognition technology at JFK Airport in New York for first-time Visa Waiver Program users and for U.S. citizens who hold e-passports.
The Visa Waiver Program allows nationals from 38 countries – mostly in Europe – to travel to the U.S. without a visa, and has come under scrutiny for potential security gaps in the wake of mass attacks in Paris. DHS and the State Department recently implemented new legal provisions that restrict certain dual nationals and those who have traveled to Iran, Iraq, Sudan or Syria from using the program.
BAL Analysis: BAL is following changes to the Visa Waiver Program and will continue to report if additional restrictions are imposed on travelers.
The State Department is urging American citizens with expiring passports to renew them as soon as possible as it prepares for a surge in applications in the next three years.
The agency issued roughly 14 million U.S. passports in 2014, and suspects that number is on the rise, in part because of the 10-year anniversary in 2017 of the Western Hemisphere Travel Initiative, which requires that U.S. citizens show a valid passport or other approved document when returning to the U.S. by land, air or sea from Canada, Mexico, the Caribbean or Central or South America. Officials saw a wave of applications when the initiative took effect in 2007, and expect an influx of renewal applications as those passports begin to expire.
U.S. officials have also noted that an increasing number of foreign countries require at least six months of passport validity before letting U.S.-passport holders enter.
“The Department … encourages travelers to submit passport applications well ahead of their planned travel dates in order to avoid delays receiving their travel documents,” the State Department said, in announcing an “Apply Early” campaign on Aug. 31.
Most adults can renew passports via mail, but children and first-time adult applicants must appear in person at a passport acceptance facility such as select post offices, courthouses or public libraries. For more information, visit this State Department web page.
BAL Analysis: U.S. citizens with passports that will expire this year should renew them as soon as possible, particularly in light of the spike in passport applications the State Department is expecting. Normal passport processing times range from four to six weeks, with three-week expedited services available for an additional government fee of $60 on top of the standard $110 passport renewal fee. Travelers requiring urgent renewals may contact their BAL attorney for additional expedited processing options of 1-2 days and, in some circumstances, same-day processing.
Prevailing wage determinations are taking longer than normal to process, and employers should anticipate that the longer processing will affect overall time frames for permanent labor certification (PERM) applications.
According to BAL’s internal case tracking, the Labor Department is currently taking at least 10 weeks to process prevailing wage determinations, instead of the normal six to eight weeks. In the past month, the time frame has lengthened from approximately eight weeks to more than 10 weeks.
Before filing a PERM application, an employer must prove that the foreign worker is being offered the prevailing wage for the job. The prevailing wage is defined as the average wage paid to a similarly employed worker in the specific occupation.
Employers are reminded that additional delays in the process of obtaining a prevailing wage determination can occur if there are any changes to the employee’s position.
BAL Analysis: Employers should factor in the additional time when planning business schedules and work with their BAL team to keep PERM cases on track and avoid any unnecessary delays.
Following a record-breaking winter storm, many U.S. government agencies, foreign embassies, consulates and other offices remain closed in the Washington, D.C. area, and services have been impacted in states from New York to North Carolina.
All applicants should anticipate delays in immigration, visa and other services, as the aftermath of the storm is also disrupting mail delivery and transportation. FedEx and UPS are both reporting significant delays in package and mail services.
In addition, as the area digs out of the snow in the coming days, government and consular offices that reopen may be operating with reduced staff due to road conditions and transportation affecting personnel who commute to those offices.
Winter Storm Jonas began Friday and dumped more than two feet of snow on the East Coast over the weekend with some areas reporting more than 40 inches. Federal and local government offices in the D.C. area remained closed Monday as did public schools in several states. Local transportation is also running on restricted schedules. Airlines canceled approximately 12,000 flights since Friday.