Workers seeking employment green cards have two time challenges. The first challenge is that the priority date of their application must be before the cutoff date set forth in the US Visa Bulletin. The second challenge is that the eligibility of the applicant for a visa or green card depends on the country of the applicant. Some countries (China, India, Mexico, and the Philippines, and possibly others) have limits on the percentage of available visas and green cards.

The US House of Representatives previously passed legislation that would remove these “country” caps for many countries. Now, according to The Register, the US Senate has passed draft legislation that would remove the per-county cap on vias – for “skilled” workers. This would mean that large countries like India would no longer have the same number of visas as smaller countries. For some countries, the demand for green cards can mean wait times of decades.

The S.386 – Fairness for High-Skilled Immigrants Act of 2019 was passed by the Senate on Wednesday, December 2. The House of Representatives previously passed a different version. The sponsor of the bill, Republican Senator Mike Lee from Utah, “has argued that capping the number of visas that can be issued to a country is “de facto country-of-origin discrimination.”

Senator Lee’s “amendments to the bill do away with per-country caps, but also limit a single nation to 85 percent of all visas awarded in a single year.” The Trump administration sill plans for the visas to be granted only to “to very highly-paid workers first as a means to avoid imported workers undercutting the salaries expected by American residents.”

The Trump administration has not indicated whether it will sign S.386 which has to be coordinated with the House version of the bill. The Senate bill excludes Chinese nationals or aliens associated with the Chinese Communist Party or the People’s Republic of China.

The bill is supported by the tech industry which wants more talented people – but is opposed by the US Tech Workers lobby group.

According to MoneyControl.com, the S.386 would remove the seven (7) percent country cap. If signed into law, “the oldest applicants by priority date would get the green card first, as it would follow a first-come-first-served basis. For newer applicants, it would still take a proportionate amount of time before their turn comes.”

MoneyControl also states that S.386 could “impact Indians [and presumably other aliens] by allocating 70 percent of the green card to H-1B holders and their dependents for one to nine years. This would become 50 percent in consecutive years.”

On December 2, the Register also reported that “a California judge smacked down the administration’s new H-1B plan on grounds that it was implemented without sufficient notice or consultation, and in any event would not bring about the policy objective of a boost to the US economy. That ruling preceded the Senate vote by just a few hours.

To stay informed about this possible new law changing cap country limits, call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us.

IIn the green card process of getting a permanent residence, the prospective immigrants should stay well-informed and track changes in immigrant numbers stated in the monthly U.S. Visa Bulletin, published by the U.S. Department of State (DOS). This document contains the priority dates for every preference category determined by the date when the petition is filled.

The availability of immigrant visa numbers can be limited in specific categories and per-country. If the number of demands exceeds the numerical limits, this category is considered oversubscribed, and cut-off dates are set.

If the individual`s priority date is earlier than the cut-off date in the applicable chart, or if the preference category shows as “C” (current), it means that an immigrant visa is available for this applicant.

When it comes to November 2020 Visa Bulletin U.S. Citizenship and Immigration Services (USCIS) has stated that all employment-based and family-sponsored visa applicants that already live in the United States should use “Dates for filling applications,” except F2A category (spouses and children of permanent residents) which is pleading as “current,” and may use “Final Action Dates” chart.

Applicants that file visa demands outside of the United States should use the “Final Action Dates” chart.

Similar to the trend which has started with October`s Visa Bulletin, there is a final action cut-off dates advancement for India and China in the employment-based categories:

• EB-1: Both India and China forwarded from June 18, 2018, to December 1, 2018. Those six months were the giant leap. All other countries remain the same.
• EB-2: India forwards from September 1, 2009, to September 22, 2009, China forwards from March 1, 2016, to April 22, 2016. All other countries remain the same.
• EB-3: India forwards from January 15, 2010, to March 1, 2010, China forwards from July 1, 2017, to October 1, 2017
• EB-5: India shows as C (current), China is still at August 15, 2015

This is significant progress in dates for applicants from these two countries, given that the backlogs were from 5 to 10 years long.

Dates for filling employed-based green cards has not changed compared to October Visa Bulleting:

• EB-1: cut-off date for both India and China is on September 1, 2020
• EB-2: cut-off date for India is on May 15, 2011, China was on October 1, 2016
• EB-3: cut-off date for India is January 1, 2015, while China was on June 1, 2018
• EB-5: India shows as “C” (current), while China was on December 15, 2015

There were no advancements in priority dates for family-sponsored green card categories.

Final action date chart:

• F1: cut-off date for both India and China is on September 15, 2014
• F2A: both India and China are stated as current
• F2B: cut-off date for both India and China is on July 8, 2015
• F3: cut-off date for both India and China is on June 15, 2008
• F4: cut-off date for India is March 8, 2005, and for China is September 22, 2006

Dates for filling family-sponsored adjustment of status application are:

• F1: cut-off date for both India and China is on July 22, 2015
• F2B: cut-off for both India and China is on May 1, 2016
• F3: cut-off date for both India and Chiana is on June 1, 2009
• F4: India is on November 22, 2005, while China was on September 15, 2007

Due to cut-off dates changes in November, it is expected that there will be more movements in the Visa priority date system in the next months.

Client: Student
Client’s Country of Origin: Venezuela

Chief Paralegal Connie Cook of Herman Legal Group assisted our client with obtaining lawful status. Our client is a citizen of Venezuela and originally came to the US to visit family. Later, our client began her schooling and adjusted to student status. From then, she remained in the US for more than ten consecutive years, and finally, in 2016, her US citizen relative filed an I-130 petition on her behalf in order to commence the adjustment of status process for lawful permanent residence.

Due to our client being over 21 years of age, she was anticipated to bear a long waiting period prior to being issued a visa. The USCIS sets a quota each year for family-based visas—once the quota is met, the USCIS stops issuing visas until the next fiscal year, which creates a backlog of visa applicants. It is not uncommon for applicants over 21 to anticipate waiting years before approval to submit just the green card application. Depending on various factors, the average wait time for immigrants of this category can last from ten to 24 years.

However, with the assistance of Herman Legal Group counsel, our client’s case was successful in the sense that the longer duration of a waiting period was eliminated, and our client was able to file for her visa afterward. Expand??

According to the Foreign Affairs Manual provided by the US State Department, “Visitor visas are nonimmigrant visas for persons who want to enter the United States temporarily for business (B-1), or for pleasure (B-2), or a combination of both purposes (B-1/B-2).”

Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor. The B-1 visa is not intended to be used to help foreigners obtain or engage in employment.

The line between business and skilled or unskilled labor can be a fine one. In a Board of Immigration Appeals case – In the Matter of Hira, the court essentially ruled that it was acceptable business conduct for a tailor to enter the US to measure people for suits – when the suits were being made and shipped from abroad. Here, the labor was incidental to foreign work.

Applicants can and should submit questionable cases to the Advisory Opinions Division of the Visa Office.

The Foreign Affairs Manual addresses whether B1 visas are available for:

• Aliens Traveling to the United States to Engage in Commercial Transactions, Negotiations, Consultations, Conferences, etc.

Generally, B1 visas are available to “engage in commercial transactions, which do not involve gainful employment in the United States” – including to

• • Negotiate contracts
  • Consult with business associates
  • Litigate
  • Participate in scientific, educational, professional, or business conventions, conferences, or seminars or
  • Undertake independent research
• Travel to give birth in the United States

“Any B nonimmigrant visa applicant who you have reason to believe will give birth during their stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child. The applicant can overcome this presumption if you find that the primary purpose of travel is not obtaining U.S. citizenship for the child.”

• Aliens Coming to the United States to Pursue Employment Incidental To their Professional Business Activities

“Aliens coming to the United States for the purpose of pursuing employment which does not qualify them for A, C, D, E, G, H, I, J, L, O, P, Q, R or NATO status, are not classifiable as B-1 and must be classified as immigrants. However, an alien may be eligible for B-1 business visas provided he or she meets the criteria of one of the approved categories.

• Ministers of religion and members of religious denominations meeting the approved criteria may be issued B-1 visas.
• Participants in Voluntary Service Programs

“Aliens participating in a voluntary service program benefiting U.S. local communities, who establish that they are members of, and have a commitment to, a particular recognized religious or nonprofit charitable organization. No salary or remuneration should be paid from a U.S. source, other than an allowance or other reimbursement for expenses incidental to the volunteers’ stay in the United States.” An experienced immigration lawyer will explain the voluntary service program standards and requirements.

• Members of Board of Directors of U.S. Corporation
• Professional Athletes

There are specific eligibility requirements for individual professional athletes, team members, sports, leagues, amateur hockey players, and yacht crewmen.

• Coasting Officers
• Investors Seeking Investment in the United States
• Equestrian Sports

Call Herman Legal Group at +1-216-696-6170 or complete our contact form to learn more about B-1 and B-2 extensions and change requests.

According to the US Department of Homeland Security (DHS), the Visa Wavier Program (VWP) permits people from 38 countries the right to travel to America for business or tourism of up to 90 days – without a visa. Those 38 countries, in return, permit US citizens and nationals the right to enter their countries for similar lengths of time for the same business and tourism purposes. The Visa Waiver Program (VWP) began in 1986. It is now recognized as a “comprehensive security partnership “with the participating countries.

The Participating Countries Are:

• Andorra
• Australia
• Austria
• Belgium
• Brunei
• Chile
• Czech Republic
• Denmark
• Estonia
• Finland
• France
• Germany
• Greece

• Hungary
• Iceland
• Ireland
• Italy
• Japan
• Latvia
• Liechtenstein
• Lithuania
• Luxembourg
• Malta
• Monaco
• Netherlands
• New Zealand

• Norway
• Poland
• Portugal
• San Marino
• Singapore
• Slovakia
• Slovenia
• South Korea
• Spain
• Sweden
• Switzerland
• Taiwan
• United Kingdom

In Fiscal Year 2014, VWP travelers helped the US economy by spending nearly $84 billion on goods and services.

B1 Visa Standards

All VWP travelers must conduct activities that would be permitted on a B1 visa.

Acceptable business and tourist activities include:

• Business. Acceptable activities include consulting with associates, attending conferences (business, scientific, educational, or professional), attending short-term training, and contract negotiation.
• Tourism. Acceptable activities include vacationing, getting medical treatment, spending time with relatives and friends, participating in social events (“hosted by fraternal, social, or service organizations”), and enrolling in short recreational (non-credit) courses of study.

The Vetting Process

According to the US State Department, a VWP traveler without a visa, “must have authorization through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound air or sea carrier.

ESTA is a web-based system operated by U.S. Customs and Border Protection (CBP) to determine eligibility to travel under the VWP to the United States for tourism or business. Visit the ESTA webpage on the CBP website for more information.”

“The VWP utilizes a risk-based, multi-layered approach to detect and prevent terrorists, serious criminals, and other mala fide actors from traveling to the United States.” Travelers to the US using the VWP should expect to be vetted prior to their US departure, on arrival, and during any future air trail within the US.

The US Department of Homeland Security “coordinates with the National Counterterrorism Center (NCTC) to vet ESTA applications to ensure that travel authorizations are not issued to individuals who pose a threat to national security.

In November 2014, DHS began requiring ESTA applicants to provide additional information to further enhance its ability to identify applicants on the U.S. terrorist watchlist.” “DHS automatically screens all ESTA information against numerous U.S. law enforcement and counterterrorism databases, as well as INTERPOL databases, while upholding strict privacy standards. “

E-Passports

As of April 1, 2016, all travelers must have an e-passport to use the VWP. An e-Passport is an enhanced secure passport with an embedded electronic chip.

Contact an experienced immigration attorney for any questions about the Visa Waiver Program.