Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for September, 2009

Form I-485 AOS Inventory Analysis

USCIS has released a schedule of the inventory of pending Form I-485, Application to Adjust Status.   The statistics are fairly recent – as of August 25, 2009 – and are very helpful to understanding the relative queue positions for adjustment of status applicants.

How Can I Determine My Place in the AOS Queue?

An AOS application’s preference category, priority date, and country of origin determine its place in line for a visa.  The earlier your priority date is, the closer you are to the front of the line.     ThePending Employment-Based Form I-485 Report” displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

 Ensure That You Use The Report Relevant to Your AOS

All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa.  Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand.  In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand.  Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.

Conclusion

We are pleased with USCIS’ efforts to provide more transparency by compiling and releasing the I-485 inventory data.  While we realize that for some of our clients and readers the inventory information will show that there is still a significant wait, the fact that AOS applicants can obtain some empirical estimate of their relative place in the processing queue is important.

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FY2010 H-1B Numbers Update (September 18, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, September 18, USCIS has received approximately 46,000 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 September 18th, indicate that there was a notable increase (of about 900 H-1B new petitions) in the number of H-1B petitions, compared to August 28, 2009 (or for the past three weeks).    Despite this increase, 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 some months ahead.

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AAO Processing Times Report (September 1, 2009)

Our firm handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

As a short preliminary background matter, the AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of September 1, 2009  Overall, we notice delays across all categories.

Among the most notable AAO processing times:

  • H-1B appeal takes 16 months (no change from when last reported as of July 28, 2009);
  • I-140 EB1 Extraordinary Ability takes 8 months (compared with 9 months as of July 28, 2009), Multinational Manager or Executive takes 10 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
  • I-140 EB2 (Advanced Degree) takes 26 months (compared to 25 months as of July 28, 2009) while EB2 (NIW) is current (meaning less than 6 months); and
  • I-140 EB3 Skilled Worker takes 22 months (no change) while EB3 Other Worker takes 20 months on appeal (compared to 19 months as of July 28) on appeal.

Read the full AAO Processing Times report.

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USCIS Launches Redesigned Website

Many of our clients and readers have already noticed that the USCIS online case status check system looks differently and seems to provide more options.  This is part of the just launched redesigned USCIS website.  The main goal is to improve the kind of customer service USCIS provides along with more transparency and accountability.

Better Case Status Check

One of the most immediately noticeable changes is the new functionality of the online case status system. Not only does the site look differently but it seems to provide more information with respect to a particular USCIS case.  The new processing levels are displayed in a progress light style and the descriptions of each step have been enhanced.

In addition, USCIS now has the capability of providing updates of case status changes via text messaging, in addition to email.  We have not yet tested this capability and for folks who have constant Blackberry/iPhone email access this may not be so useful; however, it shows that USCIS is adopting new technologies for the benefit of all stakeholders.

Better Processing Times Report

Another interesting change is the processing times report.  The new report is much more user-friendly and in addition to displaying the processing times for a particular service center and petition, it also shows USCIS’ national goal and national average for the same type petition.

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IRS To Increase Audits of H-1B Employers

Under a new directive marked as “Tier 1″ (high strategic importance and significant impact on one or more industries), the Internal Revenue Service (“IRS”) has indicated that it will be focusing increased resources on H-1B sponsor companies’ tax withholding and reporting.

As our clients and readers know, the H-1B nonimmmigrant work visa is one of the most commonly used work visas for sponsoring foreign workers.   The H-1B visa requires that the H-1B beneficiary be employed as an “employee” (as opposed to a “consultant”) with all the benefits and rights afforded to the company’s other employees.   All wages earned by H-1B employees must be reported on Form W-2 and subject to withholding of income tax (and often employment tax) in the same way as U.S. citizens and residents.  Additionally, the IRS can examine expenses paid for or reimbursed to the employee which payments could represent compensation or a taxable employee benefit. 

Our firm often receives inquiries from corporate and individual clients as to whether there is a specific requirement that the H-1B employee be considered a “W-2 employee” versus a “1099 contractor.”  The IRS statement and the upcoming audits of H-1B employers make it very important that any H-1B employee be considered as an “empoyee” and a Form W-2 prepared along with the proper withholdings.

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2007 USCIS Fee Increase Seems…Insufficient

Most of our clients and readers remember the summer of 2007 when USCIS raised the filing fees for certain services by a substantial amount (in all fairness, USCIS decreased the fees for certain services) (see the archived May 29, 2007 USCIS press release).  One of the motivating forces behind this fee increase was the collection of an additional funds which would lead to a 20 percent reduction in average application processing times for I-90, I-140, I-485 and N-400 petitions.

The jury is still out on whether there is a notable and sustainable decrease in processing times for petitions filed with USCIS.  However, in an article from today Business Week reports that the government has collected much less (hundreds of millions of dollars) than originally anticipated when the new USCIS fees went into effect.

The 2007 USCIS fee increase had a collection target of an additional $1 billion.  However, the agency is now expecting that it would collect about $282 million short of the $2.33 billion target for the fiscal year ending on September 30, 2009.

According to Director Majorkas, “[g]iven the current economic climate, we anticipate that the current filing trend will continue. We will therefore continue to make the necessary adjustments while remaining dedicated to delivering on our public service mission.”  As a result, the agency costs are expected to far exceed its revenue and will have to seek ways to bridge its budget shortfall.  There are requests for money from Congress and it is possible that there may be some fee adjustments, although no official information has been made available.

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Current PERM Processing Dates/Times (July 31, 2009)

The Department of Labor has provided an update on the current PERM processing dates as of July 31, 2009.  They are as follows:

  • Regular processing: November 2008.  Unfortunately, there is no movement in comparison to the April 30, 2009 report which also reported November 2008, resulting a net additional delay of three (3) months for regular PERM applications.
  • Audited applications: October 2007.  This is movement forward of only one (1) month in comparison to April 30, 2009, resulting a net additional delay of two (2) months for audited PERM applications.
  • Appealed applications: July 2007.  This is movement forward of only one (1) month in comparison to April 30, 2009, resulting a net additional delay of two (2) months for audited PERM applications.

Based on these numbers, we can conclude that unfortunately the May-July 2009 period does not bring any improvement in the PERM processing times.   In fact, based on the July 31, 2009 numbers, regular PERM applications are expected to take approximately 9 months.

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Starting School When Change of Status Application Is Pending

The increasing unemployment rate inevitably affects foreign nationals living and working in the U.S. on a work visa.  We have been happy to help many clients over the past months who have either been laid off or have decided to seek a better opportunity to attend school by changing their status to F, J or M while they are in the U.S.

In light of the Form I-539, Application to Change of Status, processing timelines (~2-3 months),  a very frequent question which arises in such situations is “Can I start school while my I-539 application to change status is pending?”  The answer is that it depends on the status from which the applicant is changing.  Generally, if the person’s current status allows study then the person is allowed to start study while the change of status is pending.  Some of the most frequent cases are discussed below.

Changing From H-1B/H-4 (Or Another Status Which Allows Study) To F-1/M-1 Status

The regulations provide that  H-1B and H-4 holders are allowed to study while they maintain valid H-1B/H-4 status.  As a result an H-1B/H-4 holder who files timely I-539 Change of Status application to F-1 or M-1 is allowed to start school while the application is pending.  It is important to note that the regulations provide that starting school before filing an application to change status to F-1 or M-1 does not, by itself, make the applicant ineligible for the requested F-1 or M-1 status (this is not the case for B-1 or B-2 holders).

Changing From B-1/B-2 (Or Another Status Which Does Not Allow Study) to F-1/M-1 Status

Due to the fact that B-1/B-2 holders are not allowed to study, even if the file a timely application to change status to F-1 or M-1, such B-1/B-2 holders cannot start studying until the F-1 or M-1 application to change status is approved by USCIS.  Also, it is important to note that B status holders who do not have the “prospective student” notation on their I-94 card may be ineligible to apply to change status to F-1 or M-1 from within the U.S.

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Guidelines for Maintaining F, M and J Status

Holders of F (student), J (exchange visitor) or M (student) status in the U.S. are subject to certain requirements in order to maintain a valid status and be entitled to the benefits of their status (e.g. OPT, visa revalidation, etc.).  With the beginning of a new academic year, we have been advising a number of school officials and students with duties and responsibilities related to certain student or exchange visitor status.

F-1 Students

Students present in the U.S. on F-1 status (and their F-2 dependents) must:

  • Maintain the requisite F-1 documentation: valid I-20, valid passport, and valid I-94 card marked “Duration of Status” or “D/S”;
  • Pursue a full course of study (with limited exceptions) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the U.S. and make normal progress towards completing the course of study;
  • Update by providing information to the designated school official (DSO) current address, legal name, or major field of study within 10 days of a change;
  • Remain in the U.S. for no longer than 60 days after completing the full course of study (the so-called “60-day grace period”), unless prior to that time the student has followed procedures for applying for optional practical training (OPT), changing educational levels, transferring to another approved school, or changing status;
  • Refrain from engaging in unauthorized employment (please see a related article on what constitutes “work”).

As a side note, F-2 dependents are prohibited from engaging in employment or a course of study, except that F-2 children may enroll in elementary or secondary school (K-12).

M-1 Students

Students present in the U.S. on M-1 (and their M-2 dependents) status must:

  • Maintain required documentation: valid I-20, valid passport, and valid I-94 card. M-1 students are admitted for one year or for the period necessary to complete their course of study, whichever is less, plus 30 days thereafter to depart (the so called “30-day grace period.”);
  • Pursue a full course of study (with certain exceptions) at an established vocational institution or other recognized nonacademic institution and make normal progress towards completing the course of study (full-time study may differ from school to school);
  • Update by providing information to the designated school official (DSO) current address, legal name, or major field of study within 10 days of a change;
  • Refrain from engaging in unauthorized employment.

Similarly to F-1, as a side note, M-2 dependents are prohibited from engaging in employment or a course of study, except that M-2 children may enroll in elementary or secondary school (K-12).

J-1 Exchange Visitors

Exchange visitors present in the U.S. on J-1 (and their dependents on J-2) status must:

  • Maintain required documentation: valid DS-2019, valid passport, and valid I-94 card marked “Duration of Status” or “D/S”;
  • Engage only in approved activities at the authorized location for which the DS-2019 was issued;
  • Update by providing information to the responsible office (RO) current address, legal name, or major field of study within 10 days of a change;
  • Maintain medical insurance required for J-1 visa holders;
  • Remain in the United States for no longer than 30 days (the so called “30-day grace period”) after completing J-1 program; and
  • Refrain from engaging in unauthorized employment.

Note that J-2 spouses and children are eligible to apply for an employment authorization document (EAD), but there is no regulation restricting J-2s from enrolling in a course of study.

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October 2009 Visa Bulletin – EB-2 Minor Forward Movement, EB-3 Available, EB-5 Unavailable

The October 2009 Visa Bulletin which is the first visa bulletin for the new FY2010 fiscal year was released earlier today by the State Department.   This October 2009 Visa Bulletin has been widely expected not only to see the EB-3 category go back to some availability of visas but also to use the movement in this month’s Visa Bulletin to gauge the level of visa numbers movements for this upcoming fiscal year.

EB-2 Numbers Indicate Minor Movement

The October 2009 Visa Bulletin dates suggest a minor forward movement as follows:

  • EB-2 China moves forward by a little over two (2) months from January 8, 2005 to March 22, 2005;
  • EB-2 India moves forward  by two (2) weeks from January 8, 2005 to January 22, 2005; and
  • EB-2 Rest of World (“ROW”) remains current.

EB-3 Visas Are Available Although Forward Movement May Be Slow

As expected, the October 2009 Visa Bulletin brings a number of changes.  Most notably, the EB-3 category is no longer unavailable and the visa cut-off dates are as listed below.  We also provide the visa cut-off dates from the April 2009 Visa Bulletin which was the last time EB-3 visas were available.

  • EB-3 China has a cut-off date of February 22, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin);
  • EB-3 India has a cut-off date of April 15, 2001 (compared to November 1, 2001 in the April 2009 Visa Bulletin);
  • EB-3 ROW has a cut-off date of June 1, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin).

We have included a comparison with the April 2009 EB-3 visa numbers to illustrate that even though the State Department has made EB-3 visas available, the fact that the government chose to set cut-off dates in October 2009 which are earlier than the April 2009 cut-off dates indicates that a slow movement in EB-3 over the 2009 fiscal year is to be expected.

EB-5 Is Unavailable

The EB-5 category is now unavailable.  This is due to the expiration of the EB-5 Pilot program on September 30, 2009, which means that no visas can be issued after September 30 under the EB-5 category until Congress extends it.  Once this happens, the visa availability is expected to become current.

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