Labor Immigration Law

We wrote last week about the “grim” predictions by Charles Oppenheim (who is with the Department of State) about the future of the visa numbers for green card employment-based preference categories.  We have received many comments and reactions from readers and clients and we share many of the concerns raised following Mr. Oppenheim’s comments.

We read a recent piece written by AILA President Bernard Wolfsdorf commenting on the visa number predictions.  We thought that it may be an interesting read and follow-up on the conversation started in the immigration community regarding the visa numbers scheme.

“Does it make sense to educate international students at our top universities and medical centers and then, when at the point where they are ready to contribute to our economy, say it’s time to go home? It has been 20 years since President Bush Senior increased the quota for employment immigrant visas. While scientific advances have occurred at lightning speed in these past two decades, employment visa quotas have been hopelessly encased in amber.”

Bernard P. Wolfsdorf, Immigrant Visa Numbers Hopelessly Encased In Amber, June 12, 2009.

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, June 12, USCIS has received approximately 44,400 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

The numbers, as of June 12th, indicate that there was a decrease of about 1,300 H-1B regular cap applications counted under the cap for the period between May 26th and June 12th (the number, as of May 26th, was reported to be 45,700.   This decrease most likely reflects petitions which were initially counted under the cap but have been subsequently denied or otherwise removed from the count due to incorrect or duplicate petitions.  As we have indicated in our past H-1B count updates, the rate of new H-1B filings has slowed down substantially over the past several weeks and if the current rate holds steady,  we expect the H-1B cap to remain open for at least few more months.

During the annual AILA conference, Mr. Charles Oppenheim of the Department of State Visa Office (he is the person who is largely involved in the movement of visa numbers) provided some thoughts and predictions on the movement of visa numbers for the remainder of the fiscal year 2009 (FY2009 the end of which is September 30, 2009) and beyond.

Lower Unused Visa Numbers in EB-4 and EB-5.  According to Mr. Oppenheim, EB-4 and EB-5 have seen increased demand which may result in retrogression.  However, what is more important, the high demand of EB-4 and EB-5 has resulted in a fewer visa numbers being made available to other categories, such as EB-2 and EB-3.  This has resulted in an increased pressure on the visa numbers for EB-3, EB-2 and possibly EB-1 for China and India.

EB-1 Demand Increased; EB-1 China or India May See Retrogression.  Mr. Oppenheim noted that demand for EB-1 Rest of World (ROW) has increased but it expected to remain current until the end of FY2009.  However, EB-1 for China and India, while current for July 2009, may require the establishment of a cut-off date if EB-1 demand remains heavy.  This is important because EB-1 for China and India may no longer be the “instant concurrent-filing” category.  We urge our readers and clients from China or India who are considering EB-1 to consider filing as early as possible.

EB-2 China and India – “Grim” Prognosis; Long Delays Are Likely.  Mr. Oppenheim did not deliver good news for EB-2 China and India applicants.  The July 2009 cut-off date is January 1, 2009, and may become unavailable in August or September 2009.  There are reported 25,000 EB-2 India cases which have been reviewed by USCIS and are waiting at the Department of State for a visa number. By law, all countries have a limit of 2,800 EB-2 numbers per year plus any “fall across” and “fall down” numbers from EB-1, EB-4 or EB-5 categories or from the EB-2 category from other countries.  Therefore, and unfortunately, without legislative relief, the waiting time for Indian or Chinese EB-2 applicants may be measured in years, even decades.

EB-3 ROW.  The EB-3 will remain unavailable the remainder of this fiscal year. As the Department of Labor worked its way through the long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. The Department of State currently estimates that, as of October 1, 2009, the EB3 worldwide cut-off date will be March 1, 2003. There will be extended delays in this category.

EB-3 China, India and Mexico.  According to Mr. Oppenheim, EB-3 numbers for China, India and Mexico applicants will be unavailable for the remainder of the fiscal year.  Furthermore, it is estimated that, based on current demand for visa numbers that as of October 1, 2009, the following cut-off dates could be established: China will be March 1, 2003; India will be November 1, 2001; and Mexico will be March 1, 2003. These estimates are based on “current demand” in the first 7 ½ months of FY2009, and a lot could change between now and early September when October dates are established (meaning that these predicted cut-off dates may retrogress even more).

General Numbers Update.  Finally, Mr. Oppenheim provided some numbers on the cases pending at various stages of immigrant processing.  There are approximately 25,000 EB-2 and 25,000 EB-3 applications queued at the State Department awaiting visa numbers.  There are ~2.7 million family-based applicants on the waiting list for consular processing.  There also could be ~50,000 employment-based applicants on waiting lists for consular processing.

Conclusion.  The news from Mr. Oppenheim is not good.  Long delays and limits on some categories are to be expected.  Indian and Chinese applicants for EB-2 and EB-3 face years, even decades-long, wait period for a visa number.  EB-1 is also under pressure for Chinese and Indians.   We will continue monitoring the visa numbers and provide updates and reliable predictions as we counsel our clients on the best ways to avoid lengthy green card delays.

The July 2009 Visa Bulletin was released today.  Unfortunately, as expected, the only change is the EB-2 China category which changed from February 15, 2005 to January 1, 2000.  All other categories remain unchanged.  Here is a summary of the July 2009 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are January 1, 2000.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

In one of the comments to the July 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year.   As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

We have been informed by USCIS that some legal permanent residency (“green card”) applicants may experience an eight-week delay in receiving their green card.    The stated reason is that USCIS is upgrading its card production equipment.

For applicants who need to obtain evidence of their permanent residency, the local USCIS offices can issue temporary Form I-551 stamps at an Infopass interview.

The U.S. Citizenship and Immigration Service (USCIS) has proposed a change to the way it monitors how employers use E-Verify, the government’s employment verification system.

The proposed rule, published in the Federal Register on May 22, 2009, exempts portions of the Department of Homeland Security’s Compliance Tracking and Management System from the Privacy Act of 1974 and would allow investigators to track E-Verify transactions better and be able to identify behavior which may run against E-Verify policies and procedures. For example, the proposed rule would allow tracking of attempts to use a single Social Security number for different employees, thereby giving the ability to flag fraudulent employment verification attempts.

The proposed rule could require investigators to contact or even visit employers to look into the issue and to determine if there are systemic problems, which the Verification Division of the USCIS needs to correct.  In addition, the research by the USCIS officials could be used to determine if additional training or outreach for employer compliance is needed or if fraudulent or illegal activities exist.

Last week we provide a number of updates from the Nebraska Service Center.  This week we provided some updates from the Texas Service Center (“TSC”).  The TSC updates come from the senior management and are as of May 19, 2009.

Processing Numbers.   TSC has shown improvement in the processing numbers.  Previously, TSC was processing between 3,000-4,000 I-140s and concurrent I-140/I-485sper month.  Recently, TSC has improved to 3,500-4,500 such cases per month.  TSC’s goal is to improve the processing of I-140s down to 4 months by June 2009 (this month!).

Pre-processing.  Similarly to the Nebraska Service Center, TSC is pre-processing (or “pre-adjudicating”) I-485s.  TSC reported that they have pre-processed 85,000 I-485s which are in queue for processing and are waiting for a visa number to be available.

July 2007 “tsunami”.  TSC reported that they have “almost completed”  adjudication of I-140s filed during the “visa tsunami” of July and August 2007.