September 30, 2016

October 1 Immigration Reminders

October 1, 2016, marks the effective date of several important immigration events, including cap-subject H-1B change of status petitions and employment-based priority dates.

Cap-Subject Change of Status H-1B Petitions

Beneficiaries of cap-subject H-1B petitions that were filed in April of this year and that were filed as change of status petitions have several points to note as of October 1, 2016. October 1 is the date that such beneficiaries currently in a different nonimmigrant visa status in the U.S., such as F-1, H-4, TN, etc., and whose H-1B petitions were filed and approved by USCIS as a change of status will automatically change status to H-1B on October 1. The H-1B employee can review the H-1B approval notice issued by U.S. Citizenship and Immigration Services (USCIS) to ensure that the petition was approved as a change of status and that the status becomes effective automatically on October 1, 2016. Those H1-B beneficiaries who were not approved as a change of status must travel outside the U.S., obtain an H-1B visa stamp in their passport and re-enter the U.S. to trigger H-1B status.

Employees whose status changes to H-1B automatically on October 1 should keep several things in mind. First, payroll withholdings may need to be updated. Keep in mind that F-1 students working pursuant to Optional Practical Training (OPT) or Curricular Practical Training (CPT) have likely not had FICA (Federal Insurance Contributions Act) taxes withheld from their pay. As of October 1, 2016, and the change to H-1B status, the H-1B employer will be required to withhold these FICA taxes (which include Medicare and Social Security).

Second, the H-1B employee’s Form I-9 needs to be updated with the company’s Human Resources department with the worker’s new duration of work authorization and I-94 number.

Third, if the H-1B employee plans to travel outside the U.S., the employee needs to make an appointment at a U.S. embassy or consulate to obtain an H-1B visa stamp in his or her passport. Be sure to check with the latest guidelines provided by the specific embassy regarding what documents to bring, what forms to complete and what fees to pay. It is also important to review processing times for scheduling visa appointments. For some consulates, specifically those in India at the current time, it is taking three months or more to schedule visa appointments. If the H-1B employee wants to travel home for the upcoming holidays, he or she needs to look into scheduling the visa appointment as soon as possible.

Finally, if there are any changes to the H-1B employee’s employment — including work location, title, duties or pay — these changes should be communicated as soon as possible before the change so that the employer and immigration counsel can determine what impact such a change has on the individual’s immigration status, including whether a new labor condition application or amended H-1B petition must be filed with USCIS to notify USCIS of the change. Keep in mind that a new LCA and an amended H-1B petition MUST be filed with USCIS if there is a job location change that is outside of the current area of intended employment covered by the prior H-1B paperwork. An amended petition for such a job location change must be filed with USCIS prior to the change in location.

October Visa Bulletin — Movement for Employment-Based Categories

The State Department issued the October Visa Bulletin on September 8, 2016. It was not until September 21, 2016, when USCIS issued its statement that it would allow the “Dates for Filing” chart to be used by employment-based permanent residence applicants for the filing of I-485 adjustment of status applications on October 1 and throughout the month of October. Until the November Visa Bulletin and follow-up statement from USCIS is released, it is not known whether USCIS will continue to allow the “Dates for Filing” chart to be used or whether it will only allow the “Final Action Dates” chart to be used. Since the “Dates for Filing” chart can be followed, the following categories and priority dates can be used for the filing of an I-485 application with USCIS for the month of October starting on October 1:

  • EB-1 China and India: Although backlogged in August and September, these categories will again be current on October 1.
  • EB-2 All Chargeability Areas Except Those Listed: Although backlogged in August and September, these categories are also again current on October 1.
  • EB-3 All Chargeability Areas Except Those Listed: This category is also current for filing I-485 applications in October.
  • EB-2 China: Individuals from China in this category can file an I-485 adjustment of status application if they have a priority date of March 1, 2013, or earlier.
  • EB-2 India: Individuals from India in this category can file an I-485 adjustment of status application if they have a priority date of April 22, 2009, or earlier.
  • EB-3 China: Individuals from China in this category can file an I-485 adjustment of status application if they have a priority date of May 1, 2014, or earlier.
  • EB-3 India: Individuals from India in this category can file an I-485 adjustment of status application if they have a priority date of July 1, 2005, or earlier.
  • EB-3 Philippines: Individuals from the Philippines in this category can file an I-485 adjustment of status application if they have a priority date of September 1, 2013, or earlier.

To determine whether a case that was already filed is “current” to be adjudicated by USCIS, the “Final Action Dates” chart must be reviewed. For example, for an I-485 application currently on file with USCIS in the EB-2 India category, the priority date must be January 15, 2007, or earlier to obtain final approval and the issuance of a permanent residence card. 

No Government Shutdown

The new fiscal year for the federal government starts on October 1. This is also the date that the federal budget needs to be in place for the government to remain running. A few years back, neither a temporary nor final budget bill was passed by October 1. Therefore, the government was “shut down” for several weeks back in 2013. This affected several immigration processes, including E-Verify and all applications filed or pending with the Department of Labor. Late in the night on September 28, 2016, Congress passed a stopgap budget bill to roll things over until December 9, 2016. Hopefully, final budget legislation will be passed and signed prior to December 9, 2016, to avoid any further issues that can impact employment-based immigration as a result of a government shutdown.

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