Tag: Immigration

On February 24, 2014, voters in Switzerland passed a popular referendum to amend Switzerland’s constitution and restrict immigration, reflecting a departure from the freedom of movement allowed European Union (EU) nationals under existing agreements.  The Swiss Federal Council interpreted the referendum as a response to population growth, increased immigration, and an attempt to protect the local labor force.

The new provisions will impose restrictions on residence permits for foreign nationals by implementing a quota system.  These quotas will impact cross-border commuters and asylum seekers. The new constitutional provisions require legislative action and further negotiation with the European Union before measures can be fully implemented.

Currently, Switzerland has a dual system for the admission of foreign workers:  one system for EU nationals and one system for other workers. Gainfully employed nationals from EU or European Free Trade Agreement (EFTA) states can benefit from agreements on the free movement of persons.  Only a limited number of management level employees, specialists and other qualified employees are admitted from all other countries.  The referendum reintroduces strict quotas for immigration from EU countries, contrary to the current Swiss-EU agreement on freedom of movement.

The provisions do not specify precise quota numbers nor do they clearly define procedures for the allocation of work permits. The Swiss Federal Council and Parliament have three years to implement the new system. The Agreement on Free Movement of Persons and other bilateral agreements will remain in force until new provisions are implemented.

The Swiss Federal Council intends to start negotiations with the European Union and put an implementation plan in place by the end of 2014.  Gibney will provide updates regarding the implementation of these changes as they become available.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

The U.S. Department of State (DOS) has published the January 2014 Visa Bulletin.  The December 2013 Visa Bulletin showed significant retrogression in the EB-2 category for India, true to predictions made by the DOS Visa Office in November. The January 2014 Visa Bulletin further confirms that in addition to the ongoing retrogression in the EB-2 category, there is no movement in any of the other employment-based categories for India. For China, the priority date in the EB-2 category has advanced by one month, whereas in the EB-3 category the priority date has advanced by six months. The priority date in the EB-3 category for the Worldwide and Mexico quotas has also advanced by six months. Priority cut-off dates for the most common employment-based categories are provided below. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications for permanent residence.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

• Worldwide: Current
• China: December 8, 2008
• India: November 15, 2004
• Mexico: Current
• Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

• Worldwide: April 1, 2012
• China: April 1, 2012
• India: September 1, 2003
• Mexico: April 1, 2012
• Philippines: February 15, 2007

Employment-based, third preference (EB-3) “other” workers:

• Worldwide: April 1, 2012
• China: April 1, 2012
• India: September 1, 2003
• Mexico: April 1, 2012
• Philippines: February 15, 2007

For specific questions or legal advice, please contact your immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

On April 1, 2014, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to cap limits for the fiscal year (FY) 2015.  Although April may seem far off, several factors including increasing demands for H-1B workers, an anticipated high volume of Labor Condition Application (LCA) filings, and the possibility of another federal government shutdown signal that it is not too early for employers to being preparing for the H-1B cap season now.

The H-1B cap for FY 2014 was reached within the first week of filing and a lottery to select H-1B petitions for adjudication was conducted for the first time since 2008. With employers filing H-1B petitions for those who missed the most recent year’s cap, as well as new petitions being filed on behalf of graduates and new employees, we anticipate that a large number of H-1B cap FY 2015 filings will result in the H-1B quota being quickly reached.  An increase in H-1B cap petitions will lead to a high volume of Labor Condition Application (LCA) filings, a required component of all H-1B petitions. Consequently, we could see significantly slower processing times and backlogs within the Department of Labor (DOL).  Furthermore, should another federal government shutdown occur in January, it is likely that the processing of LCAs would be halted, possibly impacting a company’s ability to file H-1B cap petitions on April 1st.

We urge employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

The Department of State Visa Office recently announced its predictions regarding the future movement of priority dates. Priority dates determine the order of immigrant visa availability and essentially establish an individual’s place in line to apply for U.S. Lawful Permanent Resident status (also known as an immigrant visa or “green card”).

As of December 2013, the Employment-Based Second Preference (“EB-2”) category for Indian nationals is expected to retrogress from the present priority date of June 15, 2008 to a date in either 2004 or 2005. The Visa Office attributes this retrogression to the “upgrading” of preference category, from the Employment-Based Third Preference (“EB-3”) category to the EB-2 category, which occurs when an employer files an EB-2 case on behalf of a foreign national previously sponsored in the EB-3 category. Presently, the EB-3 category for Indian nationals has a priority date of September 22, 2003, meaning that only those Indian nationals with a priority date before September 22, 2003 are eligible for green card issuance.  Priority dates for this category are expected to continue to move slowly.

In addition, the priority date for the EB-3 category is expected to move ahead of the EB-2 category for Chinese nationals beginning in December 2013. This means that for Chinese nationals, the wait for an EB-3 priority date to become current is expected to be less than the wait for an EB-2 priority date to become current.

The Visa Office predicts that priority dates for the worldwide EB-3 category (i.e, for nationals of countries other than China, India, Mexico and the Philippines) will advance to 2011 in December 2013, from the current priority date of October 1, 2010.

The Department of State Visa Office predictions for the advancement and retrogression of priority dates are not assurances or guarantees, as visa availability from month to month is determined by usage across the various categories throughout the year, and are adjusted by the Department of State accordingly.

For additional information, please contact your designated Gibney representative or email immigrationalerts@gibney.com.