Tag: EB3 Visa

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New Guidance on Employer Ability to Pay in Certain Green Card Cases 

US Immigration Advisor

On January 5, 2024, the USCIS (US Citizenship and Immigration Services) issued a Policy Guidance regarding analysis of an employer’s ability to pay the proffered wage in certain I-140 cases involving change of employers.

US employers seeking to sponsor workers under the EB-1, EB-2 and EB-3 employment-based immigrant classifications that require a job offer are required to demonstrate their continuing ability to pay the proffered wage to the worker from the priority date of the immigrant petition until the time that the worker acquires permanent resident status. The employer/petitioner’s ability to pay the wage as stated on Form I-140 is one of the essential elements that USCIS weighs in evaluating whether the job offer is realistic. 

To demonstrate ability to pay, regulations require an employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. An employer can alternatively submit a financial officer’s statement attesting to the employer’s ability to pay the proffered wage if they have 100 or more workers. Additional evidence such as profit and loss statements, bank account records, or personnel records may also be submitted. Many employers satisfy the ability to pay requirement by also submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage indicated on the I-140. 

USCIS’ updated guidance explains that when the beneficiary of an I-140 immigrant petition moves (or “ports”) to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while their I-140 is in process, USCIS determines the ability to pay requirements only by reviewing the facts in existence from the priority date until the filing of the I-140.   

The AC21 provisions allow a beneficiary of a pending I-140 to port to a new employer provided their adjustment of status application (I-485) is pending for at least 180 days and the new job offer is in the same or similar occupational classification as the earlier one.  USCIS clarifies that an unadjudicated or pending petition is not valid merely because it was filed with USCIS or through the passage of 180 days, rather, the beneficiary must have been entitled to the employment-based classification at the time of such filing, and therefore must be approved prior to a favorable determination on a portability request.  

The guidance, which is effective immediately, is controlling and supersedes any related prior guidance.  It builds on the prior guidance from March 15, 2023, on how USCIS analyzes employers’ ability to pay the proffered wage, covered in D&A’s blog: New Policy Guidance on Employer’s Ability to Pay in I-140 Filings (usimmigrationadvisor.com) 

USCIS is also making other minor technical revisions to improve clarity and streamline existing guidance. 

Source: USCIS Issues Policy Guidance on “Ability to Pay” Requirement When Adjustment of Status Applicants Change Employers | USCIS

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

E-2 Visa approved for a Singaporean national during COVID-19

New Policy Guidance on Employer’s Ability to Pay in I-140 Filings

US Immigration Advisor

On March 15, the US Citizenship and Immigration Services issued a policy guidance addressing the analysis of an employer’s ability to pay the proffered wage for certain employment-based immigrant petitions. This guidance, contained in Volume 6 of the Policy Manual, is effective immediately and applies to I-140 petitions filed on or after March 15, 2023. The updated guidance discusses in more detail various types of evidence and explains how USCIS reviews all evidence relevant to the employer’s financial strength and the significance of its business activities.

US employers seeking to sponsor employees under EB-1, EB-2 and EB-3 employment-based immigrant classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the employee as of the priority date of the immigrant petition. The employer’s/petitioner’s ability to pay the proffered wage stated on Form I-140 is one of the essential elements that USCIS considers in evaluating whether the job offer is realistic.

Regulations require an employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. An employer can alternatively submit a financial officer statement attesting to its ability to pay the proffered wage if it has 100 or more workers. Additional evidence such as profit and loss statements, bank account records, or personnel records may also be submitted. Many employers satisfy the ability to pay requirement by also submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage indicated on the Immigrant Petition for Alien Workers (Form I-140).

Here’s what the updated USCIS guidance provides:

  • USCIS reviews all evidence relevant to the employer’s financial strength and the significance of its business activities.
  • Employer must submit one of the three forms of initial required evidence listed in the regulation but may also include other types of relevant evidence.
  • Discussion of each form of initial required evidence listed in the regulation and several other forms of additional evidence employers might submit to establish their ability to pay the proffered wage.
  • Explains how USCIS analyzes evidence and issues relevant to an employer’s ability to pay the proffered wage, such as the petitioner’s current employment of the beneficiary, prorating the proffered wage for the priority date year, multiple beneficiaries, successors-in-interest, and non-profit organizations.
  • Addition of information about types of business structures to help officers better understand the types of petitioning employers and the evidence they may submit to establish their ability to pay the proffered wage

Reference Links

Chapter 4 – Ability to Pay | USCIS

20230315-AbilityToPay.pdf (uscis.gov)

EB1c Visa | EB1c US Lawyer | Davies & Associates (usimmigrationadvisor.com)

Merit Based EB-1A Visa | National Interest Waiver (usimmigrationadvisor.com)

EB3 Visa | Permanent Residency for Skilled Workers | Davies & Associates LLC (usimmigrationadvisor.com)

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

March Visa Bulletin Analysis: EB-5 Visa Wait Times Explained

February Visa Bulletin Analysis: EB-5 Visa Wait Times Explained

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The Department of State has issued its February Visa bulletin detailing the latest shifts in the Final Action Dates for the EB-5 Immigrant Investor Visa Program among other employment and family-based visas.

For EB-5, the February Visa Bulletin looks much the same as the January Visa Bulletin. As in January, the only change over the previous month is a two week progression in the Final Action Dates of Vietnamese applicants from September 15, 2017 to October 1, 2017. The Final Action Date for Chinese applicants has, once again, remained static on August 15, 2015.

All other countries are listed as “C” or current. This continues to include India, which had been subjected to an EB-5 visa waiting list known as “visa retrogression” as recently as July 2020.

What this means is that there is expected to be an EB-5 visa available in the current annual quota for anyone born outside China and Vietnam. This means an applicant can progress immediately with their EB-5 application.

The reason for the waiting list is that the number of EB-5 Investor Visas available is limited to just over 700 visas per country per year. Your EB-5 quota is determined by your country of birth. So if your country of citizenship has changed since birth, your eligibility is still determined by where you were born and not where you currently live.

Priority Dates

EB-5 applicants are issued with a priority date, which is the date at which their application was received by the US Citizenship and Immigration Services (USCIS).

For Chinese and Vietnamese applicants, if your priority date is after the date listed under your country in the visa bulletin, you must continue to wait. Eventually the date listed in the visa bulletin will move to a point at which you can proceed with your application. For example, the latest movements of two weeks in Vietnam would affect a small number of applicants who have their priority dates in a two-week window between September 15, 2017 and October 1, 2017.

The dates listed in the visa bulletin can move backwards as well as forwards. The dates are calculated upon assumptions and an averaging of current demand, success rates, and the numbers of visas per application.

For example, one application can include multiple family members each requiring their own visa. In an extreme scenario, an applicant might have a spouse and ten children. That would mean one application would take up 12 of the visas available in the annual quota.

The new administration of President Biden is looking at whether it is feasible to separate dependent family members out of the annual quotas. This would quickly make a dent in the waiting lists.

Date for Filing

The visa bulletin also contains a second set of dates called “Dates for Filing”. This is when you could submit a visa application to the National Visa Center even though there is not yet expected to be a visa available. This is partly to provide some preparation time, but is especially aimed at applicants already living in the U.S. on other visas filing an Adjustment of Status (AOS). Under such circumstances this may have an impact on the applicants ability to continue working legally in the United States.

There was not change to the Date for Filing from the previous month. People from Vietnam can progress ahead, but the date for filing for China-born applicants remains static at December 15, 2015.

Final Action Dates February Visa Bulletin

EB-3 Visa for Highly Skilled Workers

Indians are the main group affected by a waiting list for the EB-3 visa category for highly-skilled workers. The EB-3 is the immigrant (permanent residency) counterpart to the H-1B Visa. Progress remains glacial with little more than a one-week forward movement for Indians from March 22, 2010 to April 1, 2010. The only other country facing visa retrogression is China which moved from December 15, 2017 to January 1, 2018.

The long delay to Indian EB-3 is one of the reasons behind proposals by the Biden administration to remove country caps for employment-based visas. This will significantly assist Indians in the EB-3 Visa category and Chinese in the EB-5 Visa category. This would be great news for applicants who have been queuing for years, but could subject new applicants to long delays.

The annual quota system does not take account of population size. So China and India, with the world’s first and second largest populations, have the same quota as Liechtenstein and San Marino, with fewer than 40,000 inhabitants each. This, combined with a long history of emigration to America, explains why China, India and Vietnam feature so heavily in the Visa Bulletin.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

November Visa Bulletin Analysis for EB 5 Investor Visa

January Visa Bulletin Analysis for EB-5 and Employment-Based Visas

usimmigrationadvisor

The U.S. Department of State’s January Visa bulletin shows very little change since our previous analysis. In the EB-5 immigrant investor visa category, only China and Vietnam continue to face delays. There has been no movement in the priority dates for EB-5 applicants born in China and only very slight progress for Vietnam with a revised Final Action Date of September 15, 2017.

India continues to remain “current”, meaning Indian EB-5 applicants are still no longer subject to retrogression delays. Yet, this could change. Our firm is seeing a recovery in demand following the initial “sticker shock” of the increased EB-5 investment amounts in November 2019.

Understanding Priority Dates

The date referred to in the visa bulletin is a “priority date”. This is the date that the US Citizenship and Immigration Services receives your initial EB-5 petition (form I-526).

If your country of birth is not listed in the visa bulletin or it is listed with a “C” next to it (meaning current), this means there is no waiting list for people born in your country and your application can proceed immediately.

If there is a date next to the country in which you were born, you will need to wait until your priority date becomes current. That means waiting until your priority date is before the date listed in the visa bulletin.

So this month, for EB-5 we only saw very slight movement in the Final Action Date associated with Vietnam. It moved from September 1, 2017 in the December 2020 visa bulletin to September 15, 2017 in the most recent one. This means there is expected to be a visa available to any EB-5 investor from Vietnam with a priority date in this two week window.

Final Action Date vs Dates for Filing

The visa bulletin has two tables associated with EB-5 and other employment-based visa categories. This is because they are signalling two different things to applicants.

One relates to “Final Action Dates”, which is when there is expected to be a visa available to people born in that particular country. The other table is the “Date for Filing”, which is when you can submit a visa application to the National Visa Center, even though there might not yet be a visa available. For applicants already inside the US making an “Adjustment of Status” (AOS), this may have implications for your rights to work.

The Date for Filing remains current for all countries except China. The Date for Filing for China-born applicants has not moved this month.

Final Action Dates Table

Note: EB-5 is – as the name suggests – the fifth of five employment-based immigrant visa category

Date for Filing Table
Understanding Waiting Lists

The reason some countries are subject to a waiting list is because these employment-based immigrant visa categories are subject to an annual per-country quota. In terms of EB-5 this is just over 700 visas per country per year, determined by a person’s citizenship at birth rather than any subsequent changes to citizenship.

When demand exceeds supply, countries are subject to a waiting list. Priority dates can sometimes cause confusion, especially as they can move backwards as well as forwards. This happens partly because it can be difficult to predict the exact number of people in the queue and much relies on a series of assumptions based upon past averages.

The number of applications is not equal to the number of visas / Green Cards. A single EB-5 visa application can cover not just the applicant, but a spouse, and children under the age of 21 – which means multiple visas are required for the one application.

Furthermore, it is difficult to know exactly how many people ahead of you in the queue would be denied or required to provide further evidence (RfE).

One of the main reason for a denial or demands for more evidence is poorly documented Source of Funds. To avoid this happening, it is vital to select a reputable law firm who has a strong track record in this area. Here at Davies & Associates we have never had a client rejected because of a Source of Funds issue.

Other Employment-Based Categories

For the EB-3 visa category for highly-skilled workers, every country is current except for India and China. The EB-3, which is essentially the long-term immigrant counterpart to the H-1B visa, is inevitably very popular in India. The waiting list for Indian applicants is very long and only moved forward one week from March 15, 2010 to March 22, 2010. China moved forward six weeks from November 1, 2017 to December 15, 2020.

For the EB-1 visa category for extraordinary talent, researchers, and managers & executives, again India and China are the only country in retrogression. One of the reasons these two countries appears so often in this analysis is that the annual quotas do not take account of population size and are not determined on a per capita basis. China and India have the world’s largest populations as well as a long tradition of immigration to the United States.

The Final Action Dates are the same for both countries at September 1, 2019, having both moved forward by the same five month period since the last visa bulletin.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

E-2 Visa approved for a Singaporean national during COVID-19

EB-5 Visa Quotas Almost Double in 2021, Potentially Benefiting India, China, Vietnam

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The number of EB-5 visas available to investors is set to almost double in the coming year – a peculiar side-effect of the Covid-19 pandemic.

EB-5 is an employment-based US immigrant visa. The number of employment-based immigrant visas available each year is limited to 140,000. However, this is topped up if there are any unused family-based visas from the previous year.

The Covid-19 pandemic has led to an unprecedented number of unused family-based visas. The closure of US embassies and the temporary suspension of various visa categories have had a significant impact.

This means there is a large number of visas that can be carried over from the family-based allocation to the employment-based one. The October Visa Bulletin puts this at 121,500 visas.

When added to the 140,000 visas, this means that 261,500 employment-based visas are available for the fiscal year 2021, which runs from October 2020 to September 2021.

What does this mean for EB-5?

As the acronym suggests, EB-5 is the fifth employment-based visa category. It targets foreign investors with an offer of permanent residency (Green Card) for a $900,000 investment that creates ten American jobs in a Targeted Employment Area. Learn more.

EB-5 is limited to 7.1% of the total employment-based visas available in any given year. Normally this is almost 10,000 visas, but in the bumper FY2021 this will jump to 18,566 visas.

18,566 EB-5 Visas Available in FY2021

Each country is subject to an annual cap. No country can exceed more than 7% of the total EB-5 visas available. This is determined by country of birth (unlike the E-2 Treaty Investor Visa, which takes account of country of current citizenship see: E-2 plus Citizenship by Investment)

Normally, that means each country is subject to an annual quota of around 700 visas. Note: that the number of visas does not equate to the number of applications. A single application and investment can cover the applicant, a spouse, and dependant children under 21. Each individual would be counted separately in terms of visas but together as one in terms of applications.

The 2021 rollover means 1299 visas available to each country in this fiscal year. While most countries don’t come close to this annual limit, three countries are or have been severely impacted by this: India, China and Vietnam.

EB-5 Country Quota of 1300 in FY2021

Demand for EB-5 visa from these three countries is especially high and has often exceeded supply. This is a result of their large populations and historically high levels of interest in emigrating to the United States.

When demand exceeds supply, the countries enter what is called visa retrogression and applicants face a waiting list. How this work in practice is detailed on our visa bulletin blog.

With more visas available, there is opportunity for China and Vietnam to make greater inroads into the current backlogs. This would significantly reduce waiting times. India has not faced retrogression since July, but it had been teetering close to a return to waiting list. The risk of retrogression would recede.

India and China also face visa retrogressing in other employment-based visa categories, including EB-1 for people with extraordinary ability and EB-3 for highly skilled workers. The waiting times in both these visa categories may also fall.

Ongoing Covid-19 Pandemic

Caveats remain. An increase in visa availability would need to be matched by an administrative capacity to cope. With the Covid-19 pandemic continuing, it is unlikely that business-as-usual will resume anytime soon.

This may mean that India, Vietnam and China are unable to make full use of the extra visa availability in 2021. Any unused visas would not be rolled over again.

Yet, the ongoing pandemic may also mean that family-based visas will not use up their full allocation in 2021 either. This portends further rollovers into the employment-based visa categories in 2022.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

November Visa Bulletin Analysis for EB 5 Investor Visa

November Visa Bulletin Analysis

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The Department of State has issued the November visa bulletin showing little movement for Chinese- and Vietnamese- born EB-5 investor visa applicants continuing to face delays. All other countries remain “current” for EB-5, meaning there is no waiting list for a Green Card.

India has been “current” since July, but retrogression delays may return because demand for EB-5 has been consistently high in recent years. Indians planning an EB-5 petition should consider acting while the country is current. The US Citizenship and Immigration Services (USCIS) has changed the way it sequences EB-5 applications to benefit countries that are current over countries facing retrogression delays.

The Final Action Date for Vietnam crept forward two weeks to August 15, 2017, while China remained unchanged at August, 15 2015. The Final Action Date refers to whether there is expected to be a visa available within a quota system (or visas – plural – depending upon how many family members are included in the application).

The date in question here is the priority date. This is the date that the US Citizenship and Immigration Services received your initial EB-5 petition (I-526).

Visa availability is determined by a country quota. As with all the employment-based immigrant visa categories, no country is permitted more than 7 percent of the total visas available in any given year (approximately 10,000 for EB-5).

In the case of EB-5 that is just over 700 visas, determined by the primary applicant’s country of birth.

Visa Bulletin Final Action Dates for Employment-Based Categories

The visa bulletin also includes a Date for Filing. This refers to when you can submit your visa application to the National Visa Center, even though there might not yet be a visa available. For applicants outside the US, this additional date provides some extra notice to prepare the application documentation. For applicants inside the US adjusting their status, they may be able to apply for a work permit based on the Date for Filing.

Most countries have current filing dates, with the sole exception of China, which has a Date for Filing four months sooner than its Final Action Date.

Visa Bulletin Date for Filing for Employment-Based Categories

The EB-5 program provides the opportunity to obtain Green Cards for a $900,000 investment in a Targeted Employment Area (TEA) in the United States. The investment must sustain ten American jobs. Outside of these TEAs, the required investment is $1.8 million. A single application can cover the primary applicant, a spouse, and any children under the age of 21.

EB-3 Visas – Permanent Residency for Skilled Workers

China and India remain in visa retrogression in the EB-3 visa category for highly-skilled workers. The EB-3 visa is similar to the H-1B visa which is especially popular in India. However, as an immigrant visa, the EB-3 offers permanent residency whereas the H-1B visa does not. H-1B is renewable up to a limit of six years, after which the holder needs to explore alternatives like EB-3 and EB-5, or leave the country.

The Date for Filing is significantly more recent than the Final Action Date for Indians in particular. This time gap has implications for certain applicants’ ability to work in the United States. This relates to people already in the US seeking adjustment of status. If you are in this position, we advise you to speak with one of our attorneys.

EB-1 Visas

Similarly, people born in India and China are the only two groups facing delays in the EB-1 visa category. The EB1-A visa targets individuals with extraordinary abilities in their field, the EB1-B visa targets academics, and the EB-1C visa is for multinational managers and executives.

People faced with retrogression in these categories should contact us. There are non-immigrant counterparts that are not subject to quotas and could provide a pathway to these immigrant (permanent residency) categories at a later stage. The EB1-C, for example is similar to the non-immigrant L-1 visa, and the EB1-A is similar to the non-immigrant O-1 visa.

Non-immigrant status has advantages to people who do not wish to obtain permanent residency. For example, US permanent residents are liable for tax on income earned outside the US. This does not apply to non-immigrant visas. People seeking permanent residency are encouraged to arrange a consultation with our tax attorney as early in the process as possible.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

Client Q & A on Eb-2 Visa

Merit-Based Visa Categories: A Strong Constant in Uncertain Times

usimmigrationadvisor

By David Cantor

Throughout the span of four-years, the United States immigration framework has faced unprecedented times. The main governing entities – the United States Citizenship and Immigration Services (USCIS) and Department of State (DoS) – have made distinctive regulatory changes in order to carry out various, larger policy-oriented goals, namely rooted in national security and economic concerns.

Overall, it has been challenging times for many US visa holders and prospective applicants across visa categories to plan, as well as determine the path of least resistance based on your priorities and goals.

Despite the seemingly endless challenges and uncertainties we have faced, there seems to be one US immigration pathway that has proven both reliable and promising for qualified applicants – merit-based visa categories.

In essence, applicants that qualify will be receiving a US visa based on their own qualifications and achievements. While it helps, you do not need to have won the Nobel Peace prize – rather, you should consider this if you have specific professional experiences that seem novel and unique.

There is also no limit on the “type of profession” – and at Davies & Associates we have represented a diverse range of clients, including but not limited to: Foreign Medical Professionals (i.e. doctors, nurses, researchers), Academics and Professors, Business Executives and Entrepreneurs, Artists, Engineers, and much more.

Generally, you should be considering a merit-based visa category if you are able to provide some of the following:

  • Publications & citations of your work;
  • Proof that you have been recognized for your work (i.e. awards);
  • Evidence that you have achieved a higher-level degree and that you are established in your respective profession;
  • Notable letters of recommendation from others in your industry attesting for your qualifications;
  • Membership of relevant associations, boards and professional organizations related to your work;
  • And other core documentary proof demonstrating that you’ve risen to a certain level of expertise in your field.

Now, these are really general terms for what you should be considering for merit-based visa categories, and obviously there is a lot more due-diligence and work that goes into a prospective application. If you believe you may qualify, we would be glad to provide a more detailed consultation, and request that you complete one of our merit-based questionnaires.

For those that do qualify – merit-based visa categories present numerous advantages. To begin with, you are essentially being granted a visa based on your own achievements and expertise.

Some visa categories do not even require you to have a job-offer or an employer sponsor in the United States, so you are actually petitioning yourself (read more about the National Interest Waiver program). Moreover, with a sound immigration strategy many of merit-based visa categories will lead to permanent residence and a Green Card.

How do I know if I qualify for a Merit-Based Visa?

At Davies & Associates our expert team of legal specialists will provide a thorough review to determine your initial eligibility. We would first review your professional portfolio (i.e. CV/resume) and request that you complete our detailed merit-based questionnaire (please send an email to [email protected])

What are the Merit-Based Visa Categories?

Merit-based visas can be broken down into two main categories: non-immigrant and immigrant. Generally speaking, Non-Immigrant visas are temporary and permit a candidate to live and work in the United States, while Immigrant-based visas lead to permanent residency (Green Card). Oftentimes, depending on the objectives and specific criteria of our clients we will combine visas and present an overall immigration strategy. Some of the most common visa categories include and is not limited to: L-1 / P-1 / O-1 / J-1 / H-1B / EB-1 / EB-2 / NIW.

How long does it take to get a Green Card?

The processing times for building a merit-based visa application will depend on several factors: visa category, specifics of the client’s case, current processing times, and more. Generally speaking, the merit-based visa categories have received favorable and current processing times when compared to other visa categories as a result of the current administration policies. While processing times are subject to change, many of our clients were able to obtain their visas within 9-12 months from respective US consulates.

What type of professionals will qualify for merit-based visas?

As mentioned above, there is no limitation to the “type of professional” that may qualify. You can be a successful businessman, inventor, entrepreneur, medical professional, actuary, physical therapist, TV or Social Media personality, acclaimed artist, software or aeronautical engineer.


The important question is whether you have the credentials to qualify, regardless of the type of professional you are. In general, the more you can demonstrate that you are established and recognized in your respective career the stronger viability you may have for filing. The criteria for qualifying is very specific – so our team of experts will evaluate specific requirements (i.e. # of publications/citations, awards, membership on professional organizations and boards, etc.).

What is the visa process for merit-based visa applications?

Please read our previous article about this HERE.

I believe I qualify for a Merit-Based Visa – what are the next steps?

Contact us today and we will be glad to provide a tailored-consultation: [email protected]

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

EB-1, E-2 Visa for NIEs during Covid

October Visa Bulletin Analysis

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By Maxine Philavong

In the first Visa Bulletin of the fiscal year, October’s Visa Bulletin showed little to no movement in the family visa category, while showing movement in the employment-based category. Although this may be disappointment for affected people looking to obtain a family-based visa, this is good news for those looking to obtain an employment-based visa.

The October Visa Bulletin is perhaps the most important visa bulletin of the year. This is the first visa bulletin of the fiscal year, meaning that the State Department released its calculations for the total number of employment-based visas available for fiscal year 2021. The anticipated number of employment-based visas is 261,500, an all-time high. Current demand for visa numbers is well below the estimated annual limit of 261,500, according to the State Department, due in large part the COVID-19 pandemic.

Just as demand for visas are down due to the current pandemic, this month’s bulletin came much later than expected due to COVID-19. Moreover, the pandemic has caused many issues moving forward in all visa categories. For example, the ongoing visa and travel bans have made interviewing and acceptance much more difficult for family-based visa seekers. Similarly, the pandemic is cause for almost 100k individuals seeking family-based visas unable to reserve interviews due to embassy closures.

However, because family-based visa seekers have been paused, employment-based visas have moved forward exponentially. The following is a quick look at movement seen in the October Visa Bulletin:

FAMILY-BASED VISAS:

There was no movement for family-based visas. However, the bulletin provided some anticipated movement in the upcoming bulletins. Potential movement includes:

F-1: Potential forward movement for up to 3 weeks

F-2A: Current

F-2B: Potential forward movement for up to 3 weeks

EMPLOYMENT-BASED VISAS:

Employment-based visa applicants saw incredible movement due to family-based visas being paused.

EB-1: All countries expect for China and India remained current. China and India advanced three months to June 1, 2018.

EB-2: All countries expect for China and India remained current. China advanced six weeks to March 1, 2016, while India advanced two months to September 1, 2009.

EB-3: All countries except India and China were current in October. Cutoff dates for China advanced four and a half months to July 1, 2017, and for India advanced three and a half months to January 15, 2010.

EB-5: For the Non-Regional Center Program, India remained current, along with all other countries except for China and Vietnam. China’s cutoff date remained on August 15, 2015, and Vietnam’s cutoff date remained at August 1, 2017. The Regional Center program was extended from September 30 to December 11, 2020.

There has never been a better time to apply for an employment-based visa, especially the EB-5 visa. Davies & Associates is one of the longest-established EB-5 law firms in the industry and our team regularly contribute to the global media on the subject. We have helped hundreds of families, business owners and entrepreneurs relocate to America and have never had a case rejected on Source of Funds, which is one of the most challenging aspects of an EB-5 application. Our success comes from blending our highly qualified lawyers with an understanding of the culture, law, business practices and banking regulations in each jurisdiction we operate.

Contact D&A for a free consultation to learn more about the EB-5 Visa Program today.

September Visa Bulletin Analysis

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By Maxine Philavong

In its last visa bulletin of the fiscal year, USCIS announced little movement amongst immigration work and family visas from its previous August bulletin.

As fiscal year 2020 comes to an end on September 30, it was expected that the September Visa Bulletin would show not much movement form the previous August bulletin. While this prediction was true, this was to be expected at the end of any fiscal year. At the end of each fiscal year, there are usually not as many visas available as there would be at the beginning of the fiscal year. This year, the agency reports that the fiscal year 2020 Worldwide Employment-based preference limit is 156,253 immigrant visas. This number has nearly been reached.

Although there was not much movement in the most recent bulletin, applications should not be discouraged. More movement is expected to come from the October Visa Bulletin, as it will be the first Visa Bulletin of the 2021 fiscal year. Applicants should keep an eye out for the October Visa Bulletin, which has not been released at the time of writing this article.

The dates listed for employment-based visas are as follows:

For EB-1, all countries expect China and India remained current in September. China and India advanced three weeks to March 1, 2018.

For EB-2and EB-3, just as they did for EB-1, all countries remained current with exception to China and India. China remained at Jan. 15, 2016, while Indian remained July 8, 2009 for EB-2 visas. For EB-3, China stayed at Feb. 15, 2017 and India remained at Oct. 1, 2009.

For EB-5, India and all other countries remained current, with exception to China and Vietnam.  China’s cutoff date will advance by one week to August 15, 2015, while Vietnam’s cutoff date will advance by more than one week to August 1, 2017.

The USCIS only indicated movement forward for employment-based visas in China, where EB-1 dates moved up three weeks and EB-5 dates moved up one week.

In the most recent Visa Bulletin and previous years, EB-5 has steadily had the most countries current in respect to other visa types.

At Davies and Associates, we’ve helped hundreds of families gain entry to the United States through the EB-5 program. The EB-5 Immigrant Investor Visa Program offers a direct route to a US Green Card. The minimum investment requirement is $900,000 and other conditions, such as job creation, apply. The EB-5 Visa is exempted from President Trump’s current “immigration ban”.

Dates for family-sponsored visas are as follows:

For F-1, all countries including China and India have moved up one month to Sep. 15, 2014, except for Mexico and the Philippines. Mexico advanced two weeks to Jan. 8, 1998, and the Philippines advanced three months to Dec. 15, 2011.

For F-2A, all countries are current.

For F-3, all countries expect for Mexico and the Philippines moved up two weeks to June 15, 2008. Mexico moved one week to Aug. 01, 1996 and the Philippines moved three months to Feb. 15, 2002.

For F-4, all countries expect for India, Mexico and the Philippines moved two weeks to Sep. 22, 2006. India moved two weeks to March 8, 2005, Mexico one week to June 22, 1998 and the Philippines moved four months to Jan. 1, 2002.

USCIS Approval Slowdown

At the end of July, USCIS announced that they would furlough 13,000 of their employees at the end of August if Congress did not allot $1.5 billion of funding. If they had gone through with the furlough, applicants would have expected longer wait times than originally anticipated. Meaning, applicants would have been more movement backwards than their original date. After discussion, Congress has allotted the needed funding and USCIS has cancelled their plans to furlough their employees. Applicants should not expect the longer than usual wait periods, however, Davies and Associates will continue to update as USCIS announces next steps.

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