Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for September, 2012

Issues with USCIS Case Update Emails Persist

Many of our clients and readers may be aware that USCIS has an online status check system which allows applicants (and their attorneys and employers) to track the progress of a case and obtain case updates.   In addition to allowing a single status case lookup, the system has an extremely helpful function which allows users to create an account, add one or more case receipt numbers and be notified via email or text message if there is a case update.     While it has been very helpful, this system has not been very reliable.   Unfortunately, over the past several weeks, at least, the system has become even less reliable.

USCIS Confirms Unreliable Case Status Email Delivery

USCIS has acknowledged that the case status email alert portion of the system has been unreliable and many case status updates did not generate an email (as they should).     For example, in our office, we often receive premium processing case email updates (or a paper notice of approval), while we do not receive an email case status alert generated from the case status system.     Additionally, even after a major milestone event, such as after an approval of a case, the online status check system does not seem to have correct information and would not reflect the updated case status.

Many of our clients and readers rely on this system to obtain updates on their case and its reliability issues are causing frustration among many of our clients.   We have relayed our concerns and reliability issue reports to USCIS and they have acknowledged that we are not alone.     USCIS has assured us that they are working on a solution; unfortunately, we do not have an estimated timeline of correcting these issues.

Premium Processing Cases Less Affected

The lack of email updates is worrying because these case status alerts provide a nice warning of a case development.  For example, if the case status indicated that a Request for Evidence (RFE) has been issued, then the applicant/petitioner and/or their attorneys can anticipate the mailing within a few days and, if they do not receive it, they can take an action.   By not having this advance warning, inevitably, there will be some applicants or petitioners who may not receive an important document and may not realize this until it may be too late.

For cases filed under premium processing, where it is available, USCIS normally sends additional email notifications (which have some reliability issues, but on a much smaller scale) and correspondence via fax, so the danger of non-receipt of documents is much smaller.

Conclusion

We hope that USCIS would be able to correct the issues causing non-delivery of case status email and updates.    We will continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

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Current PERM Processing Times (September 4, 2012)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of September 4, 2012.

Current PERM Processing Times

Most notable is the slight delay in the processing time for regular PERM applications — to approximately four months.  The processing times, as reported by DOL, are as follows:

  • Regular processing: June 2012.  DOL is processing PERM applications with priority dates in June of 2012.   Accordingly, regular PERM processing times should be around three to four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: January 2012.  DOL is processing PERM audits which have a priority date of January 2012.  This processing time has remained steady over the past few months.   Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): October 2011\.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of October 2011.  There is continued notable improvement in this category in comparison to prior months.    Accordingly, PERM requests for reconsideration are processed approximately 12  months after the initial PERM was filed and its priority date established.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

The September 2012 PERM processing times report shows steady trend in the regular and appealed PERM processing times, and a notable (and welcome) improvement in the PERM appeal processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the improvements in PERM audit and appeal processing times would continue in the fall and spring.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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DV-2014 Diversity Visa (Green Card) Lottery Opens October 2, 2012

The Department of State will open the DV-2014 Diversity Visa (a.k.a. “green card”) lottery on Tuesday, October 2, 2012.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 2, 2012, and noon, Eastern Standard Time (EST) (GMT-5), Saturday, November 3, 2012.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EDT on November 3, 2012.

About the DV Lottery

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 and provides for a class of immigrants known as “diversity immigrants.” Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year.

Countries Ineligible

For DV-2014, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.   Also, nationals of Guatemala are eligible under DV-2014.

Eligibility Requirements

There are two main requirements.  First, the applicant must be a national of a country which is eligible (see above for ineligible countries).  Nationality is generally defined by birth, although there are certain exceptions,  most notably if the applicant’s spouse is a national of a different country.  Second, the applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

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AAO Processing Times (September 1, 2012)

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional processing 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, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal takes 15 months (decrease, or improvement, of two month compared to our last report as of July 1, 2012);
  • L-1 appeal takes 17 months (improvement of five months);
  • I-140 EB-1 Extraordinary Ability is current (less than six months, an improvement of four months), Multinational Manager or Executive takes 16 months (improvement of two months) while EB-1 Outstanding Professor or Researcher category is current;
  • I-140 EB-2 (Advanced Degree) takes 8 months (a significant improvement of four months) while EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker takes 31 months (improvement of four months) while EB-3 Other Worker is current (6 months or less) on appeal (no change).
Conclusion
The AAO processing times for at least some of the categories (EB-2, for example) have been improving notably over the past few months.   We are very pleased to see that the AAO is now processing I-140 EB-2 cases in less than a year (in comparison to close to three years recently).   We notice that AAO processing times remain steady across many of the other types of cases.     We hope that the notable trend of improvement in the processing times in EB-2 appeals would continue and spread to other types of cases as well, specifically EB-3, where the current wait is around 3 years.

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

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Changes Affecting the U.S. Visa Application Process in India

The United States Embassy in India announced modifications to the U.S. visa application procedures effective September 26, 2012.    The U.S. Embassy is introducing a new process to be followed by all U.S. visa applicants; these include H-1B and L-1 visa applicants as well as individuals applying for other type of visa for entry to the United States.

The New Visa Processing System

The new visa processing system will utilize a new website at www.ustraveldocs.com/in to further standardize procedures and to simplify fee payment and appointment scheduling.  Through the new website, all visa applicants will be able to fill out the necessary application forms, find out what documents are required, pay visa application fees, schedule an appointment for biometrics collection, and schedule an interview at the appropriate U.S. Embassy or Consulate.

For the first time, the new system will also allow the applicants to schedule their appointments online or by phone.  Visa applicants will be able to have their questions answered via telephone, email, or online chat.  See the phone numbers and hours of operations.  In addition, visa applicants will be able to pay application fees via Electronic Fund Transfer (EFT) or via mobile phone.   Applicants will also be able to pay in cash at more than 1,800 Axis bank branches.

Two Appointments Necessary

One important change is that under the new system, applicants will have to make two appointments.  Prior to their visa interviews, applicants will have to visit an Offsite Facilitation Center (OFC) to submit their fingerprints and a photo.   Located at different locations from the Embassy and Consulates in Delhi, Chennai, Hyderabad, Kolkata, and Mumbai, the OFCs will reduce overcrowding at U.S. consular facilities and speed applicant processing.   Most applicants will need to visit an OFC only once.

Visa applicants who plan to apply for a U.S. visa before September 26, 2012, should follow the established process.

Conclusion

We welcome the changes the U.S. Embassy in India is implementing in hope that it would provide clearer process, faster turnaround time and fair adjudication.   Our office supports a number of clients in their visa stamp applications and we are hopeful that the changes are positive.

As always, prior to submitting a visa application, please remember to check with the U.S. consulate regarding documentation requirements for the specific visa type.  As the U.S. consulates in India are implementing the new application processes, we recommends that you stay flexible, and build in extra lead time to accommodate travel itineraries.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

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October 2012 Visa Bulletin – First Visa Bulletin for Fiscal Year: EB-2 India and China Available; EB-2 India Retrogresses to September 2004; EB-2 ROW Remains With a Cutoff Date

The U.S. State Department has just released the October 2012 Visa Bulletin which is the first Visa Bulletin for the FY2013 fiscal year.    The major headline in the upcoming month’s bulletin is the availability of a number of categories, including EB-2 India and China, in addition to the significant retrogression in the EB-2 India category to September 2004.

Summary of the October 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the October 2012 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines will have a cutoff date this month as well — but they all move forward by three (3) years to January 1, 2012.    EB-2 India is now available but with a severely retrogressed cutoff date of September 1, 2004 (expectations were to have a cutoff date of somewhere in 2006 or 2007).   EB-2 China is also available but with a cutoff date of July 15, 2007.
  • EB-3 ROW and EB-3 Mexico move forward by three (3) weeks to October 22, 2006.  EB-3 Philippines remains unchanged at August 1, 2006, EB-3 China  moves forward by seven (7) weeks to February 8, 2006, while EB-3 India  moves forward by only one (1) week to October 15, 2002.
  • The “other worker” category moves forward by three (3) weeks for ROW and Mexico to October 22, 2006.  It remains unchanged for Philippines at August 1, 2006, at June 22, 2003 for China.  It moves forward by one (1) week for India to October 15, 2002.

Summary of the October 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the October 2012 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward.  FB-1 ROW, China and India all move forward by only one (1) week  to October 8, 2005.   FB-1 Mexico moves forward by only one (1) week as well to June 15, 1993 and FB-1 Philippines moves forward by eighteen (18) months to April 1, 1996.
  • FB-2A moves forward by three (3) weeks to June 1, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by one (1) month to May 15, 2010.
  • FB-2B ROW, China and India remain unchanged at September 15, 2004.  FB-2B Mexico moves forward by five (5) weeks to October 1, 1992 while FB-2B Philippines moves forward by three (3) weeks to January 22, 2002.

EB-2 India Available but Severely Retrogressed Due to High Number of Filings

In the last few weeks, there has been much anticipation in the release of the October 2012 Visa Bulletin and specifically with respect to the EB-2 India and China dates.     Until a couple of weeks ago, indications were that the EB-2 India cutoff date would be set to somewhere in 2007.   However, over the past two weeks, the Department of State has decided to retrogress significantly EB-2 India to September 1, 2004 in an effort to “control” the demand of visas in this category (number of new I-485 filings) and to allow USCIS to work through the number of filed and pending I-485 applications in this category.

Based on the EB-2 India cutoff date, we expect that there will be slow and gradual forward movement in this category over the next few months.

EB-2 ROW Continues to Have a Cutoff Date;  May Become Current Over the Next Couple of Months

Additionally, the EB-2 ROW category continues to have a cutoff date.   It was advanced from January 1, 2009 to January 1, 2012, but it is still not “Current” as it was for many months until recently.   However, the Department of State has indicated that they expect EB-2 ROW to be “Current” over the next few months and to remain current until later in the fiscal year, depending on the level of demand in this category.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the October 2012 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Anticipating the October 2012 Visa Bulletin

Our office has been handling an extraordinary amount of inquiries by clients and readers with respect to the upcoming October 2012 Visa Bulletin.    We wanted to share some information with our clients and readers as we wait the release of this highly-anticipated Visa Bulletin.

Why is the October 2012 Visa Bulletin So Highly Anticipated

The October 2012 Visa Bulletin is very highly anticipated – by far more than any other month’s Visa Bulletin – because it is the first Visa Bulletin for the government’s fiscal year.   Because the cutoff dates in each Visa Bulletin are determined by demand of visa numbers for green cards, and because the government has a quota on the number of green cards which can be approved each fiscal year, the first Visa Bulletin for the fiscal year is the October Visa Bulletin.

Based on the October Visa Bulletin, we are often be able to get a good sense on the demand of green cards for the fiscal year and the possible cutoff date movements for the months further in the year.  Also, many applicants who have been affected by a cutoff date or retrogression in the last months of the prior fiscal year are eager to see if their priority date will be current.

Expected Release of the October 2012 Visa Bulletin

Normally,  the Department of State releases each month’s Visa Bulletin around 8-12 days into the prior month.   This means that we expect to see the October 2012 Visa Bulletin around September 8-12th.   The Visa Bulletin is published online at the Department of State website.  Publication during the weekend is unlikely.

Our office makes it a priority to get an immediate notification of the publication of the Visa Bulletin and to provide and distribute an announcement and analysis of the cutoff dates for all categories immediately after publication.   Often we are able to analyze the newly-released Visa Bulletin and distribute an alert to our clients within an  hour or two after publication.     Please check our website, twitter, facebook or subscribe to our newsletter to get this kind of alerts.

Expectations and Predictions for the October 2012 Visa Bulletin

While we cannot provide a reliable prediction or inside information, we think (based on educated estimates and and by monitoring the Visa Bulletin movements over a longer term), that the EB-2 India and China cutoff dates will become available again and will have a cutoff date of mid- to late 2007.   The Department of State, in an explicit note in the June 2012 Visa Bulletin, has warned that although they will make every attempt to move the cutoff dates back to May 1, 2010 where they were a few months ago, it may take until Spring of 2013 to do so.

We also expect EB-2 Rest of World (ROW) to become available and current again.   We saw EB-2 ROW retrogress in the July 2012 Visa Bulletin in order to control the number of EB-2 ROW cases for the remainder of the fiscal year (which is to end on September 30th).   With the beginning of a new fiscal year on October 1st, we expect that EB-2 ROW will be “Current” again.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the upcoming Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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